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In February 2001, the Supreme Court decided Board of Trustees of the University of Alabama v. Garrett, [FOOTNOTE 1] which held that the 11th Amendment of the Constitution [FOOTNOTE 2] bars private lawsuits seeking damages from states under Title I of the Americans with Disabilities Act. [FOOTNOTE 3] Garrett is the latest in a line of cases dating to 1996 [FOOTNOTE 4] that have revitalized that amendment and radically altered the federal-state balance of power, and it was decided by the same 5-4 lineup found in the other cases. [FOOTNOTE 5] Chief Justice Rehnquist wrote the majority opinion, Justice Breyer the dissent. [FOOTNOTE 6] In an article in the Spring 2000 edition of the CCH Journal of Employment Discrimination Law [FOOTNOTE 7] I discussed these cases; I also analyzed two federal appeals court decisions on the ADA then pending before the Court [FOOTNOTE 8] and predicted — accurately, as it happens — how the 11th Amendment issue would be resolved. [FOOTNOTE 9] For a discussion of the arguments and mode of analysis used to decide these cases, I refer readers to that article. The present article picks up where that one left off and focuses on how the ADA fared in the Supreme Court in Garrett. As it has evolved since 1996, the Court’s 11th Amendment analysis involves the following basic tenets, a review of which comprises the first part of Garrett: 1. Although the amendment literally applies only to suits against a state by citizens of another state, it has been construed as barring damages suits by citizens against their own state. [FOOTNOTE 10] Damages actions brought by the federal government are permissible, as are private actions for injunctive relief. [FOOTNOTE 11] 2. Congress may abrogate 11th Amendment immunity if it unequivocally expresses its intent to do so and acts pursuant to a valid grant of constitutional authority. [FOOTNOTE 12] 3. Congress’ power to regulate interstate commerce [FOOTNOTE 13] is not such a grant of authority. Only Section 5 of the 14th Amendment qualifies; it allows Congress to enforce the guarantees of the Equal Protection Clause of Section 1 of the amendment by enacting “appropriate legislation.” [FOOTNOTE 14] 4. Congress’ power to enforce Section 1 allows it to prohibit a “somewhat broader swath of conduct, including that which is not itself forbidden by the amendment’s text,” but legislation reaching beyond the scope of the actual guarantees of Section 1 is valid only if it exhibits “congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.” [FOOTNOTE 15] Because Congress clearly meant for the ADA to abrogate the states’ 11th Amendment immunity, [FOOTNOTE 16] the question in Garrett boiled down to whether the “congruence and proportionality” test was met. Part one of this test asks what limits the Equal Protection Clause places on the states’ treatment of the disabled, and given its precedents, the Court handled this issue predictably. The 1985 case of Cleburne v. Cleburne Living Center, Inc. held that laws affecting the mentally retarded must be judged under the rational-basis test, [FOOTNOTE 17] and last year the Court affirmed that under this standard, equal protection violations will seldom be found in the context of age. [FOOTNOTE 18] If the application of this test led to the conclusion that the aged have limited substantive guarantees under the Equal Protection Clause, it follows that the same result would prevail for the disabled in Garrett, and it did. Under this test, Garrett held, if a group has “distinguishing characteristics relevant to interests the State has the authority to implement,” a state’s decision to act based on those differences does not violate the Equal Protection Clause. [FOOTNOTE 19] All that is needed is a rational relationship between the disparity of treatment and a legitimate governmental purpose. The state, moreover, need not articulate its reasoning when a decision is made, and the burden is on the challenging party to negate any reasonably conceivable set of facts that could provide a rational basis for the state’s classification. [FOOTNOTE 20] The dissent asserted that state decisionmaking reflecting negative attitudes or fear, as that involving the disabled has sometimes done, violates section 1, but Rehnquist replied that although such biases may accompany irrational discrimination, “their presence alone does not a constitutional violation make.” [FOOTNOTE 21] He went on to observe that under Cleburne, the states need not specially accommodate the disabled as long as their actions towards such individuals are rational. In fact, states may even “hard headedly — and perhaps hardheartedly — hold to job-qualification requirements which do not make allowance for the disabled. If special accommodations for the disabled are to be required, they have to come from the positive law and not through the Equal Protection Clause.” [FOOTNOTE 22] In sum, the Equal Protection Clause only protects the disabled against irrational state action, the states need not specially accommodate them, and state action based on negative attitudes or fear is not necessarily irrational. Having found that the parameters of the Section 1 rights of the disabled are very narrow, the Court next considered whether in enacting the ADA Congress identified a pattern of unconstitutional employment discrimination by the states. Because Section 1 reaches only state discrimination, legislation can be appropriate under Section 5 only if it targets such conduct, as opposed to discrimination by private parties. [FOOTNOTE 23] The Court answered in the negative. Rehnquist first noted that because the 11th Amendment protects states, not cities or counties, discrimination by the latter cannot be considered in deciding if Congress identified the necessary pattern of discrimination. [FOOTNOTE 24] Next he concluded that no matter how many examples of general discrimination were identified by Congress, “the great majority of these incidents do not deal with the activities of States.” [FOOTNOTE 25] Although the dissent included an Appendix C detailing some 300 examples of state discrimination, Rehnquist dismissed it by asserting that it “consists not of legislative findings, but of unexamined, anecdotal accounts” of adverse treatment by states; that these incidents “fall far short of even suggesting the pattern of unconstitutional discrimination on which � 5 legislation must be based”; and that at most, “somewhere around 50 of these allegations describe conduct that could conceivably amount to constitutional violations by the States, and most of them are so general and brief that no firm conclusion can be drawn.” [FOOTNOTE 26] In sum, this evidence did not add up to a pattern of state discrimination sufficient to make the ADA appropriate remedial legislation within section 5. ANALYSIS When one carefully considers the Court’s reasoning, it is difficult not to conclude that it is a classic example of result-oriented jurisprudence that borders on being intellectually dishonest. Indeed, it is disingenuous, even devious, in many ways. First is the Court’s assertion that because the 11th Amendment does not apply to local governments, it would “make no sense” to consider their constitutional violations in deciding if there is a pattern of state discrimination sufficient to trigger Congress’ section 5 enforcement power. Local governments are part of the states to which Section 1 applies, [FOOTNOTE 27] and there is neither precedent for, nor inherent logic in, the conclusion that because only the states can benefit from the 11th Amendment, only their conduct is relevant in a “pattern” analysis. Even if this conclusion is accepted, there is the more serious issue of the Court’s characterization of Appendix C as having been submitted “not directly to Congress, but to the Task Force on the Rights and Empowerment of Americans with Disabilities, which made no findings on the subject of state discrimination in employment,” and as suffering from the defects noted above. [FOOTNOTE 28] As the dissent observed, this task force was created by Congress to assess the need for comprehensive legislation for the disabled, and it held hearings in every state that were attended by more than 30,000 people. Based on these hearings, its own hearings, and an analysis of numerous studies, Congress concluded that the disabled occupy an inferior status in our society and are severely disadvantaged in many ways. As for employment, it found that two-thirds of disabled people between the ages of 16 and 64 were not working at all, although a large majority wanted to and could do so. This discrimination flowed largely from “stereotypic assumptions” as well as “purposeful unequal treatment.” [FOOTNOTE 29] Why should it matter that this data was submitted to a congressional task force and not to Congress itself? And why is it unreasonable to assume that if discrimination against the disabled was as pervasive in society as the task force and Congress found, it did not infect state governments? State officers and employees are part of the larger society, and there is no logical basis for assuming that the stereotypic assumptions that have played a part in societal discrimination against the disabled would not affect them as well. And is it reasonable to say that this inference cannot be drawn absent an express finding by Congress, especially when one recalls that when Congress made its findings, cases like Kimel, Florida Prepaid, and Garrett were not on the books and it had no reason to assume that it had to pinpoint discrimination as state-based? Notwithstanding all of this, what about the fact that Appendix C lists some 300 examples of discrimination in state facilities? Can the Court seriously be implying that because only Title I, which involves employment discrimination, was before it, the examples of discrimination in state transportation, schools, colleges, social services, etc., are irrelevant? Then there is the Court’s cavalier dismissal of these examples as “unexamined,” “anecdotal,” and “so general and brief that no firm conclusion can be drawn.” [FOOTNOTE 30] From even a cursory glance at Appendix C one can see that these are not fair characterizations of the examples. Perhaps the most devious aspect of the Court’s analysis is its faulting of Congress for not showing that the instances of discrimination lacked justification from a judicial standpoint — that is, were irrational and thus violative of section 1. [FOOTNOTE 31] As the dissent noted, Congress is not a court. It routinely draws general conclusions from anecdotal and opinion-based evidence, and in reviewing section 5 legislation, the Court has never required Congress to investigate each piece of evidence, categorize it as private or state-based, and then prove that the latter is unconstitutional. [FOOTNOTE 32] To do this is to hold Congress to judicially-created evidentiary standards — a burden of proof requiring it to negate the presumption that state action is rationally related to a legitimate objective — when these standards have historically been used only by judges in reviewing state action. [FOOTNOTE 33] In the dissent’s words, “[t]o apply a rule designed to restrict courts as if it restricted Congress’ legislative power is to stand the underlying principle — a principle of judicial restraint — on its head.” [FOOTNOTE 34] Equally troublesome is the Court’s refusal to accord Congress its usual deference. Previously the Court had said that its duty is not to review the congressional resolution of “the risk or pervasiveness of the discrimination in governmental services … the adequacy or availability of alternative remedies, and the nature and significance of the state interests that would be affected;” on the contrary, it is “enough that we be able to perceive a basis upon which Congress might resolve the conflict as it did. [FOOTNOTE 35] Other cases stress that the traditional inquiry is whether Congress’ conclusions are reasonable, not whether there is adequate evidentiary support for them. [FOOTNOTE 36] And, in a statement that the Garrett majority mentioned in passing, even Kimel said that “Congress’ � 5 power is not confined to the enactment of legislation that merely parrots the precise wording of the 14th Amendment;” on the contrary, Congress can prohibit a “broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.” [FOOTNOTE 37] When it came to the matter of application in February, the majority obviously forgot what it had said as little as just one year earlier. The fact is that Appendix C is replete with evidence of discrimination in all segments of society, and if the Court had adhered to its precedents and accorded Congress its usual deference, it could not have reached the conclusion it did. The Court’s finding in Kimel that the evidence of state discrimination based on age was so sparse as to justify striking down the Age Discrimination in Employment Act is one thing, but there is such a glaring difference between the ADA and ADEA records that the Court’s equating of them is simply indefensible. It is almost as if, knowing that the ADA record was strong enough to satisfy its existing criteria, the Court realized that it could void the act only if it erected brand new standards that it knew could not be met. In the end, the Court did intellectual cartwheels in order to conclude that state discrimination against the disabled either was not proven or was not sufficient to support the ADA, but it is submitted that on completing these gymnastics the Court did not land on its feet. Phase three of the “congruence and proportionality” analysis was anticlimactic. Rehnquist said that “even if it were possible to squeeze out of these examples a pattern of unconstitutional behavior by the States,” the question remained whether the ADA remedies are excessive. [FOOTNOTE 38] He answered in the affirmative. Although “it would be entirely rational (and therefore constitutional) for a state employer to conserve scarce financial resources by hiring employees who are able to use existing facilities,” he said, the ADA requires employers to make existing facilities accessible to the disabled. [FOOTNOTE 39] Even considering the “reasonable accommodation” standard that allows employers to demonstrate that an accommodation would impose an “undue hardship” on the business, the accommodation duty “far exceeds what is constitutionally required in that it makes unlawful a range of alternate responses that would be reasonable but would fall short of imposing an ‘undue burden’ on the employer.” [FOOTNOTE 40] In addition, the ADA requires employers to prove that they would suffer an undue burden, instead of requiring, as the Court claimed the Constitution does, that the complaining party negate reasonable bases for the employer’s decision. [FOOTNOTE 41] Rehnquist identified other problems, but one that must be mentioned because of what it portends involves the ADA ban on criteria that disparately impact the disabled, without regard to whether they have a rational basis. [FOOTNOTE 42] According to Rehnquist, while disparate impact may be relevant evidence of racial discrimination, “such evidence alone is insufficient even where the 14th Amendment subjects state action to strict scrutiny.” [FOOTNOTE 43] One can only speculate as to what this might mean if the “disparate impact” theory of discrimination under Title VII of the 1964 Civil Rights Act is challenged under the 11th Amendment as, in light of this invitation, it surely will be. CONCLUSION On the surface, Garrett is but another in a series of states’ rights victories. On closer inspection, however, it is clear that more so than any precedent on which it was built, the decision shows that the Court’s real concern with how power is allocated in the American political system has more to do with the balance between it and Congress than with federal-state relations. In cases such as Kimel, the Congressional record was just sloppy or bare enough to allow the Court to say with some measure of believability that the statutory remedies at issue were not proportional to the problem being addressed. The ADA, however, was the highly visible product of a bipartisan legislative process, and before passing it, Congress spent years compiling a record of discrimination against the disabled, both in society and specifically because of government policies that created and perpetuated patterns of segregation, exclusion, and lack of access to public services. For the Court to say that this evidence was “minimal,” “anecdotal,” and insufficiently tailored to the issue of whether state governments had unconstitutionally discriminated as employers simply denies the obvious, and it prompts the conclusion that the Court’s real goal was to put Congress in its place and to establish the supremacy of the Court’s own role. The drastic curbing of Congress’ power under Section 5 of the 14th Amendment, under which Congress has historically been allowed to prohibit actions that were not necessarily unconstitutional, is convincing evidence that this was indeed the Court’s motive. The legitimacy and reputation of the Court, and the extent to which its decisions are respected, are functions not only of its results but, maybe more importantly, how it reaches them. In the eyes of many observers, the Court suffered a serious self-inflicted wound in the recent presidential election dispute, not so much because it intervened or even decided the issues as it did, but because its reasoning was so transparently concocted and even shoddy. That the same 5-4 majority decided Garrett just weeks later, and in a manner so palpably geared to reach a desired result and so devoid of intellectual respectability, will not enhance the Court’s reputation in the forseeable future. Jon Bible is a Professor of Business Law at Southwest Texas State University. A graduate of the University of Texas at Austin School of Law, Professor Bible has published widely in the area of employment law and conducted numerous workshops and seminars. He is formerly the Director of Legal Services for the Texas Association of School Boards and was a Texas Assistant Attorney General from 1980 to 1988.


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