February 26, 2003
Table of Contents
In 2001, the Supreme Court ruled in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), that Congress did not validly abrogate states' Eleventh Amendment immunity against damages for violating Title I of the Americans with Disabilities Act. In effect, this meant that plaintiffs who had been subject to discrimination in employment by state governments could no longer bring suits seeking money damages against the states.
The case has several important implications. First, the rights of many people with disabilities have been severely cut back. If states cannot be found liable for money damages, they cannot be held accountable for employment discrimination on the basis of disability. Second, the Court took more power for itself and at the same time, reduced the power of Congress in the area of civil rights law. And lastly, the Court discounted the long history of discrimination against people with disabilities.
Unfortunately, the Court made it very difficult for Congress to go back and pass legislation that would hold states accountable in employment discrimination. The Court said that it would not accept evidence of discrimination by local or county governments, only states. It indicated that historical information was not valid. And it disparaged the information gathered by a Task Force specifically set up by Congress because of its ability to gather information on discrimination. Congress could still pass some kind of legislation at least indicating its understanding and displeasure with the Court's usurping its authority. But the Court has made it very difficult for Congress to actually get back its power to pass civil rights legislation that holds states accountable.
Background and Overview
In February 2001, the Supreme Court decided the case of Board of Trustees of the University of Alabama v. Garrett, holding that Congress did not properly exercise its power under Section 5 of the Fourteenth Amendment to pass legislation holding states accountable for damages if they discriminated in employment against people with disabilities. This decision was important for two reasons: 1) it continued the Supreme Court's agenda of curtailing Congressional power to enact civil rights legislation and 2) the Court's reasoning called into question the factual underpinnings of the Americans with Disabilities Act (ADA) and the history of discrimination against individuals with disabilities.
Some may argue that the immediate practical effect of the decision is minimal. Among other reasons, the Court was only ruling on Title I of the ADA, which covers employment. Moreover, the Court took pains to note in a footnote that individuals could still use a very technical legal doctrine to bring an employment discrimination case which would stop the state from continuing to discriminate, but not allow the person with a disability to get damages. This doctrine is called Ex Parte Young, and it means that an individual with a disability can bring the action against a state official in his or her official capacity. Because the suit is brought against the individual and not the state, the rule of sovereign immunity does not apply. That rule says that you cannot sue a state for damages in federal court. The rule can only be overcome by Congress if it is acting under one of its specific powers. Garrett looked at whether Congress could overcome the rule of sovereign immunity using Section 5 of the Fourteenth Amendment, which gives Congress the power to enforce equal protection of the laws or prevent discrimination.1
It may also be possible to bring suit under the ADA in state court under the theory that the state has waived its immunity by consenting to suit under similar state anti-discrimination laws. Finally, Section 504 of the Rehabilitation Act is still available as a cause of action for employment discrimination claims against states and provides for some damages. Congress passed Section 504 pursuant to its authority under the Spending Clause, which gives Congress the right to set conditions for spending federal money.2
On the other hand, the Garrett decision has ongoing repercussion. The Supreme Court recently granted certiorari to decide whether Congress had the authority to abrogate immunity under Title II of the ADA . Some defendants have challenged use of the Ex Parte Young doctrine in ADA cases. They have raised claims under Idaho v. Coeur d'Alene Tribe of Idaho.3 In that case, the Court refused to permit an Indian Tribe's claims against state officials for ownership of state-held lands and waters. Part of the opinion, which did not have a majority, suggested that Ex Parte Young doctrine was not applicable because of the special state interests at issue. This argument has been raised in cases involving disability based discrimination.4 Thus far, the courts have rejected the argument, but there may be more cases in the future as this legal doctrine of state sovereignty continues to develop. Defendants have also raised challenges to using Ex Parte Young on the grounds that Congress did not intend to authorize Ex Parte Young actions against state officials because the duties under the act are not the sort performed by individual state officials, thus, precluding use of the doctrine.5 In addition, defendants have argued that the ADA's language focusing on "public entities" precludes suits against public officials because an official is not an entity. These claims have also generally been rejected.6 There also have been several appellate cases challenging Congressional Spending Clause authority under Section 504 and this issue also may reach the Supreme Court.7 The Spending Clause of the Constitution is another specific delegation of Congressional power and gives Congress the ability to pass some statutes. Should the Court continue on its current course of changing the balance of power between Congress and the Courts and strike down Section 504 and Congress's spending authority, there would be a significant curtailment of civil rights claims on behalf of individuals with disabilities.
The Garrett decision also has enormous significance because the Court failed to recognize and minimized the historical and current experience of discrimination against individuals with disabilities that is the cornerstone of all federal policy efforts in the disability field. Such a blatant disregard for history and social context and for the unique role of Congress must be addressed.
I. Prior Supreme Court Precedent:
The Garrett decision and the legislative history of the Americans with Disabilities Act is best understood in the context of Supreme Court precedent at the time the Act was passed. At the time, the Court had held that Congress had the power to pass legislation like the ADA and hold states accountable for damages under its Commerce Clause powers.8 Under the Commerce Clause, Congress can pass legislation regarding interstate commerce and since employment affects commerce, Title I was seen as valid legislation and not much thought was put into establishing an alternative theory of Congressional power, like Section 5 of the Fourteenth Amendment.
Then the Court changed course and decided that the Commerce Clause could not be the basis of Congressional action which would affect states by making them liable for damages.9 As a result plaintiffs under several statutes now had to argue that Congress had the power to pass legislation under Section 5 of the Fourteenth Amendment. In several cases prior to Garrett, the Supreme Court struck down laws as not meeting its stringent tests under the Fourteenth Amendment. These tests required that Congress establish a record of discrimination by states and that the resulting legislation was "congruent and proportional" to the discrimination that Congress found. This means that the scope of the remedy Congress imposed had to correspond to the record that it compiled. So if the record was thin, then the remedy could not be very much. The Court then made it very difficult to establish a record by stating that most information did not count. Accordingly, the remedy is similarly narrowed, so much so as to strike down most statutes.
For example, in Kimel v. Florida Board of Regents, et al.,10 the Court addressed whether Congress had the authority to hold states accountable for damages for age discrimination under its power pursuant to Section 5 of the Fourteenth Amendment. The Court found that Congress lacked such authority because "the substantive requirements the ADEA [Age Discrimination in Employment Act] imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act."11 The Court noted that age discrimination does not receive heightened scrutiny under the Section 5 or the Equal Protection Clause because "[O]lder persons, again, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a 'history of purposeful unequal treatment.'"12
The Court characterized the record compiled by Congress as "isolated sentences clipped from floor debates and legislative reports."13 It then dismissed a 1966 report on age discrimination in California state employment, stating that the report did not establish unconstitutional conduct and could not support legislation affecting all of the states. Id. Finally, the Court rejected the United States' argument relying on findings of unconstitutional age discrimination by the private sector. The Court expressed doubts about whether Congress could extrapolate findings from the private sector to the states, but in this case it was sufficient to note that Congress failed to identify a pattern of age discrimination by the states. Id.
Shortly after Kimel was decided, the Supreme Court turned to the Americans With Disabilities Act. On April 17, 2000, four months after the Court decided Kimel, it granted certiorari in Garrett. While some were very pessimistic after the Kimeldecision, others pointed to the extensive legislative record before Congress of discrimination based on disability.14
II. The Garrett Decision:
Ms. Garrett and Mr. Ash filed separate lawsuits against the State of Alabama in federal district court alleging violations of the Americans with Disabilities Act. The District Court ruled on both cases in a single opinion holding that Congress did not have the power or authority to hold states accountable for damages under the ADA (also known as abrogating state sovereign immunity). The cases were consolidated on appeal to the Eleventh Circuit, which ruled in favor of Garrett and Ash. The State of Alabama sought review in the Supreme Court and it was granted.
A. The Majority Opinion
1. The facts
The majority opinion, written by Justice Rehnquist (joined by Justices O'Connor, Scalia, Kennedy, and Thomas), begins with a very brief overview of the ADA, the facts, and the procedural history of the case15. The Court described Patricia Garrett's facts as follows: Ms. Garrett is a registered nurse, who was employed as Director of Nursing, OB/Gyn/Neonatal Services, for the University of Alabama Birmingham Hospital. Ms. Garrett was diagnosed with breast cancer and took a leave of absence for treatment. Upon returning to work, her supervisor informed her that she would have to relinquish her director position. Ms. Garrett applied for and received a transfer to a lower paying position as a nurse manager.
It similarly provided a brief factual summation for Milton Ash: Mr. Ash was employed as a security officer for the Alabama Department of Youth Services. Mr. Ash informed the Department that he had asthma and based on his doctor's recommendation, he asked for a modification of duties to minimize exposure. He later was diagnosed with sleep apnea and asked for assignment to a daytime shift. All of his requests were denied and after filing a charge, his performance evaluations were lower than those he had received previously.
The brief filed on behalf of Ms. Garrett and Mr. Ash included much more evidence of the prejudice and discrimination that they experienced because of their disabilities. For example, Ms. Garrett's leave of absence was caused by constant harassment from her supervisor to take leave or transfer to another job. Her supervisor went so far as to post Ms. Garrett's job as "being recruited" and solicited one of her subordinates to assume her duties while she was transferred to a temporary position in a satellite hospital. A fellow employee told Garrett that her supervisor did not like "sick people" and had a history of getting rid of them. The stress of the adverse actions by her supervisors caused Ms. Garrett to take leave. Ms. Garrett returned from leave and performed her duties. But two weeks after her return, her supervisor told her that her options were to quit, accept a demotion to the nursing pool, or be discharged. Ms. Garrett found another position in a convalescent home and transferred to that job, at a pay loss of $13,000.
Mr. Ash has severe asthma and is vulnerable to attacks that require hospitalization. Mr. Ash sought two accommodations. He requested that: 1) the agency enforce its no smoking rule in the Gatehouse, where he was confined with other employees who smoked in violation of the rule; and 2) the agency repair the vehicles that he was required to drive so they did not emit carbon monoxide into the passenger compartment. His requests were denied and his health deteriorated. His supervisor suggested that he quit and just draw disability. Mr. Ash was then diagnosed with sleep apnea and requested a transfer to the day shift. The agency agreed that it would do so when a vacancy became available on that shift. After Mr. Ash filed his EEOC charge, two openings occurred on the day shift and the agency transferred two officers junior to Ash who had not requested medical transfers.
The Court's clipped rendition of the facts and omission of key allegations indicating prejudice and ill will toward Garrett and Ash on the basis of their disabilities portends the Court's later dismissal of disability based discrimination in general.
2. The Supreme Court's Reasoning
The Court began with a review of its recent caselaw in this area of the law. Two critical principles were reiterated: 1) "it is the responsibility of this Court, not Congress, to define the substance of constitutional guarantees," and 2) "§ 5 legislation reaching beyond the scope of § 1's actual guarantees must exhibit 'congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.'"16
Accordingly, the Court began by defining the constitutional right at issue. It extensively discussed City of Cleburne v. Cleburne Living Center, Inc.,17 one of the most important prior decisions addressing a claim for disability discrimination under the Fourteenth Amendment.
Under the Fourteenth Amendment, citizens are entitled to equal protection under the laws. Although it is not written in the Amendment, the Supreme Court has stated that certain groups of individuals get more protection because they have been subjected to a history of discrimination. So when a case involving race comes before the Supreme Court, the Court will look at the policy or statute in question with "strict scrutiny" because race is generally not relevant. This means that any distinction based on race is suspect and the defendant has a heavy burden. Gender receives intermediate scrutiny or an intermediate level of review because there is a history of discrimination against women and gender is generally not relevant, but the Court recognizes that there are some situations where gender may be relevant. In Cleburne, plaintiffs were arguing that they should get a heightened standard of review too because of the history of discrimination against people with disabilities, instead of rational review which is accorded the lowest level of scrutiny because distinctions are seen as generally relevant. With rational review, defendants have a very low burden and only have to demonstrate a reason for the policy.
In Cleburne, the Supreme Court said that disability should be given only rational review, but the standard of review actually used in the case is often characterized as rational-plus or rational with teeth, recognizing that the Court closely scrutinized each rationale advanced by the defendants in that case and did not merely accept any reasons at face value. It was clear that the Cleburne Court w