by Charles S.P. Hodge
On Wednesday, February 21, the United States Supreme Court announced its long-awaited opinion in the case of the Board of Trustees of the University of Alabama et al v. Garrett et al. Based upon the high court’s recent immunity precedents, by an all too predictable five to four vote, the justices ruled that the provisions of Title I of the ADA addressing employment discrimination against the disabled by entities of state government, which authorize private party lawsuits against such state agency wrongdoers, for money damages in the federal courts go beyond Congress’ competence to enact, and thus violate the several states’ immunity from lawsuits for money damages in the federal courts, which is guaranteed by the Eleventh Amendment to the U.S. Constitution.
Chief Justice William H. Rehnquist announced the opinion of the court with whom Justices Antonin Scalia and Clarence Thomas joined. Justice Anthony M. Kennedy filed a separate concurring opinion in which Justice Sandra Day O’Connor joined. Justice Steven G. Breyer filed a dissenting opinion in which Justices John Paul Stevens, David Souter and Ruth Bader Ginsberg joined. Chief Justice Rehnquist’s stern, hard-bitten opinion sets forth in iron and unbending form the court’s recently developed hornbook law on Eleventh Amendment immunity. The opinion states that even hard-headed or hard-hearted adverse distinctions made by state governments against the disabled are to be judged under a low rational basis standard, and if the state government entities involved can come forward even after the fact with a reason to support the distinction, the court will not find a violation of the Fourteenth Amendment against those entities of state government.
The opinion notes that the disparate impact and reasonable accommodation provisions of Title I of the ADA go far beyond the simple non-discrimination required of the states under the Fourteenth Amendment, and thus are not congruent or appropriate remedies which Congress may constitutionally enact against state governments under Section 5 of the Fourteenth Amendment. The majority opinion also notes that Justice Breyer in dissent attached an appendix to his opinion which details hundreds of incidents of discrimination against people with disabilities reported to Congress as having been committed by entities of state government. Yet the majority discounts most of the incidents referred to in the dissenting appendix as being unexamined and anecdotal versions of incidents of discrimination against people with disabilities in public accommodations and the provisions of public services by both state and local governments, and finds that these incidents fall far short of establishing a pattern of unconstitutional discrimination by the states against people with disabilities in terms of employment, which would be required to justify the remedial provisions enacted by Congress against the states in Title I of the ADA.
The final footnote in the majority opinion does seem to hold out some hope that Congress might be able to revise Title I of the ADA to pass Constitutional muster by making the appropriate findings both as to unconstitutional violations by the states and as to the congruence and necessity for the remedies which Congress might enact to redress the pattern of unconstitutional conduct found by Congress against the states.
The footnote also points out that even in light of the court’s holding, all is not lost for people with disabilities, because states must still comply with the substantive requirements of Title I albeit without the threat of private party enforcement litigation for money damages in federal court. The Department of Justice can still sue state government wrongdoers for money damages under Title I of the ADA in federal court, the footnote points out, and private individuals can also still sue such wrongdoers for injunctive relief in the federal courts. Furthermore, disabled individuals still have the rights and remedies granted to them under state law to redress unlawful discrimination in employment by entities of state government.
In his separate concurring opinion, Justice Kennedy attempted to soften the harsh tenor of the majority opinion by pointing out that even after the court’s holding in the Garrett case, Congress may well be able to revise Title I of the ADA in a Constitutional manner by making the record and findings required by the court’s recent immunity precedents both as to a pattern of unconstitutional disability discrimination by state governments and to the congruence and necessity of the private party lawsuit for money damages selected by Congress to counteract unlawful disability discrimination in employment by state government employers.
In his dissenting opinion, Justice Breyer stated forcefully that the court’s majority has gone too far. In fact, Breyer stated that the majority opinion holds, in effect, that the only forms of discrimination by entities of state government which Congress may find unconstitutional under Section 1 of the Fourteenth Amendment are those differences or distinctions which are based on factors such as race, ethnicity and gender which have been accorded strict or heightened scrutiny evaluation under the Constitution. In effect, because the court continues to hold that disability discrimination is to be assessed under the lower rational basis test, Congress may never find such adverse and discriminatory distinctions made by state governments to rise to a pattern of unconstitutional Fourteenth Amendment violations which could then be outlawed and remedied under Section 5 of the Fourteenth Amendment. In effect, by its interpretation, the majority opinion broadens the states’ Eleventh Amendment immunity while at the same time redefining and restricting Congress’ powers under Section 5 of the Fourteenth Amendment.
In conclusion, Justice Breyer pointed out that Congress is not a court, but is the national legislative body, and that Section 5 of the Fourteenth Amendment grants to Congress wide latitude and discretion to determine what forms and types of legislation may be warranted to carry out the objectives of the Fourteenth Amendment. His opinion stated that the Supreme Court has traditionally granted Congress much deference in making the determination as to what kind of legislation is proper and necessary under its powers to enact laws to enforce the substantive provisions of the Fourteenth Amendment under Section 5 of that amendment. Here, however, contrary to the court’s prior precedents, Congress’ many findings are discounted and not accepted by the court, and the court is requiring Congress to break out its findings by specific subject matter and to specifically justify each remedial provision. Such an intense, high-handed review of Congress’ Section 5 determinations has never before been required by the Supreme Court.
The Garrett decision is a major blow to adequate enforcement, especially of Title I of the ADA. Yet, as pointed out in the final footnote of the majority’s opinion, all is not lost. We in ACB must now consult with our friends and allies in the disabled community to determine whether it is worth the political risks to go back to Congress to seek a legislative fix to the Garrett decision. Many in our community will be very reluctant to open the ADA to amendment in the current political atmosphere in Congress, where damaging rather than constructive amendments might result.
Another possible long-term strategy is to build our alliances with an eye toward going to Congress to initiate the passage of a Constitutional amendment to protect people with disabilities from unlawful discrimination practiced by the several states. In addition, ACB and its allies might develop a model state law which would protect the disabled from employment discrimination by entities of state government with adequate remedies for violation, which we could then attempt to get enacted state by state.
In the short term, however, we surely must urge Congress to provide additional manpower and financial resources to the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC) which now are the exclusive parties who can bring lawsuits under Title I of the ADA in federal courts for full relief including money damages against state government employer wrongdoers. However, because of the dismal record of the Justice Department and EEOC in enforcing the ADA, we also must responsibly ask Congress to aggressively monitor DOJ and EEOC to guarantee that additional resources, if provided by Congress, are in fact utilized aggressively to enforce Title I of the ADA against wrongdoing state government employers. In any event, we must continue the good fight for strong enforcement of civil rights protections for people with disabilities at both the federal and state levels of government.