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U.S. District Judge Dominic J. Squatrito has denied a motion to dismiss an age discrimination suit against the New Britain Board of Education in Connecticut on immunity grounds, providing a small reversal of fortune for plaintiffs seeking to sue local school boards in federal court. A line of recent U.S. Supreme Court cases that limit the reach of federal power and reserve more power to the states threatens discrimination suits against states and state entities, which are protected by 11th Amendment immunity. But Squatrito was persuaded by arguments that 11th Amendment immunity is much narrower than the concept of sovereign immunity and should not apply to political subdivisions — such as school boards — that are financially separate from the state. His March 19 ruling came in a case brought in 1998 against the New Britain Board of Education by Richard Barry, a board administrative employee who was required to take a $10,000 pay cut after a demotion at age 62. Barry is suing under the federal Age Discrimination in Employment Act, which allows attorneys’ fees and damages for emotional distress. The Supreme Court has ruled, in Kimel v. Board of Regents, that an action against the state cannot proceed under the ADEA. Squatrito was thus faced with an immediate question: Could a Connecticut school board contend that, as an “arm of the state,” it cannot be sued under the 11th Amendment ban? The board’s lawyer, Floyd J. Dugas, of Milford, Conn.’s Berchem, Moses & Devlin, argued that New Britain’s school board was so extensively funded and controlled by the state that it should be entitled to claim state immunity. Barry’s West Hartford, Conn., lawyer, Leon M. Rosenblatt, contended that although “there has been a sea of change in the interpretation of the 11th Amendment, there has been no change at all in ‘arm of the state’ analysis,” for state subdivisions, and New Britain’s school board was not the state. Rosenblatt conceded the issue is a close one, and that even school boards of different states may not be treated alike. California, for example, has a centralized education system with budgets controlled and funded by state governments. But in New Britain, the state contribution is fixed according to a formula. “[A]ny additional funding needed to pay a judgment in this case would come from New Britain taxpayers.” Rosenblatt acknowledged that New Britain is a poor city that received substantial state aid, but argued that state payments to the school board “are not based upon the city’s indebtedness.” Thus, there isn’t the direct impact justifying “arm of the state” immunity status. According to Rosenblatt, Justice Sandra Day O’Connor has developed a “control test” for municipal sovereign immunity that goes beyond the simple question of whether state money could be lost. Such a test, Rosenblatt contended, would take the New Britain school board even further from being considered equivalent to the state, because “it is politically accountable only to New Britain’s voters.” The fact that the legislature could put the board out of existence, as it did in Hartford in 1997, “is just the kind of abstraction that Justice O’Connor said does not trigger 11th Amendment protection.” Barry is suing under federal statute because, as a basic economic matter, if Barry couldn’t sue in federal court, he might not have a case worth a lawyer’s time. Rosenblatt noted that in state court a plaintiff is limited to economic damages. In cases of a demotion, the dollar losses may be too small to make the case economically worthwhile. “If you can’t go into federal court on federal law, then you’re left with very little in the way of remedy, ” Rosenblatt said. As a practical matter, these cases “ become impossible to litigate unless there are attorneys’ fees” provided by the terms of the statute, which the ADEA does. The act also allows damages for emotional distress.

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