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The Unchartable Course of the Law

ISSUE:  Spring 2002

On Feb. 21, 2001, the country was consumed with the usual pulp non-fiction: whether a rap star distinguished by the obscenity of his lyrics would win a Grammy Award, whether an FBI agent just arrested as a spy was motivated by money, and whether ex-President Clinton and his wife, the Senator, knew that her brother had received a fortune for helping clients obtain presidential pardons. Little attention was given to the decision handed down that day by the United States Supreme Court. None of the three network news programs spent time on it. But it was, without doubt, the most important piece of news on that day. Framed in the lofty terms of federalism and states’ rights, it was the most recent in a series of decisions by the Rehnquist Court that have fundamentally changed the balance of power in our government— the balance between Congress and the Court; the balance between the federal government and the states—without most Americans even noticing. As the editorial headline in The New York Times said bluntly the next morning, “The Court Usurps Congressional Power.” Beyond that historic importance of the case, the decision also had a byproduct. It deprived millions of Americans of a remedy for civil rights violations that the rest of us continue to enjoy.

The issue that was decided by the Supreme Court that day, one that had bitterly divided judges in every section of the country, was not a matter of life or death, not even a matter of corporate profit, but an arcane matter of law. Though few Americans would think so, it is the integrity and philosophical underpinnings of the law itself that is primary in our system, more important than justice for individuals and businesses that look to the courts to adjudicate their claims.

Take the case of Georgeen Stevens, for example. She worked as a highway maintainer for the Illinois Department of Transportation until a pump she was operating broke and struck her in the chest. As a result, she began to suffer from a neurological condition known as reflex sympathetic dystrophy which resulted in extreme pain. She was then fired because her employer concluded she could no longer perform the functions of her job. Believing that she was discriminated against by her employer on the basis of her disability, she brought a lawsuit in federal court under a civil rights law called the Americans With Disabilities Act. A jury heard her case, and agreed with her. The judge did not. When the case was appealed, the court of appeals (the 7th Circuit Court of Appeals, whose territory includes Illinois, Indiana, and Wisconsin) dismissed her case. The court did not say the jury was wrong; nor did the court say the employer did not discriminate. The court said, in effect, that Georgeen Stevens was simply unlucky. She lost her case that she had won before a jury because the judges of the 7th Circuit decided that an obscure point of law having nothing to do with employment discrimination had changed. Now one group of Americans, those who work for state governments, unlike all the rest of us, no longer had a right to bring a case of that kind in federal court. In point of fact, though, no law had been rewritten. No words on paper had changed. Nothing had changed except that these judges of the Seventh Circuit (some of them, not all of them) changed their minds about what the law meant. If Georgeen Stevens had brought her case two years earlier before those same judges, her suit would have been permitted. If she had brought her suit in Kansas or New York instead of Illinois her suit would have been permitted, because in Kansas and New York the law—federal law, which we expect to apply equally to all of us throughout the country—still meant what it meant two years earlier. But she was unlucky enough to have her case decided in the year 2000 instead of the year 1998, in Illinois instead of Kansas. For the court of appeals judges who decided her case, the unfairness to Georgeen Stevens was not primary; the law was.

We like to think of the law as providing the comfort of fairness and certainty. This is a story about the uncomfortable way law is made in America and the resulting elusiveness of certainty and fairness in our law. The course this particular issue has taken through the legal system is, in microcosm, the story of the way our law works: haphazard, hesitant, meandering, often unfair, and out of the control of any individual or government body—from the Congress of the United States to the Supreme Court of the United States—fully to direct. The series of events leading to the Supreme Court decision was set in motion, unintentionally, by a prisoner, a store manager, a police officer, a corrections officer, a paraplegic seeking a driver’s licence, a nurse, a security guard, and half a dozen other individuals, all unknown to each other and living in different parts of the country. Once launched, the legal controversy followed its own winding course of unexpected turns and twists. The Supreme Court tried to settle the matter twice before, only to be thwarted in its endeavor by the policeman and the corrections officer: a couple of average citizens following their own interests rather than the grand design of the law.

The Issue

Two professors (or nurses or mechanics) live in the same town. One is employed by the private university in town; the other works for the state university in town. Both of them come down with multiple sclerosis (or AIDS or cancer) and both are fired (or demoted) by their employers in blatant violation of federal civil rights law. Until February 2001, in about half the country, one of them could go to federal court and get justice; the other could not—even though Congress passed a law saying they both could. In that half of the country, courts said an obscure constitutional amendment—the Eleventh—required that the individual who worked for the state be denied justice, however wrongly he or she had been treated, however unfair that result might be, whatever Congress may have said to the contrary. It would be left to the United States Supreme Court to decide whether the particular unfairness at issue should be removed from the law in the half of the country in which it was the rule, or whether the unfairness should be extended to the entire country. When the Supreme Court ruled, the hypothetical professor or nurse or mechanic who was fired by the university now had no legal protection simply because he or she had chosen to work for one university in town instead of the other.

When the two actual individuals—a nurse and security guard— whose cases were decided by the Supreme Court that February day first brought lawsuits against their employers, it is unlikely that they had such societal consequences on their minds. It is also safe to say that the Eleventh Amendment to the U.S. Constitution was not at the forefront of their concerns. They were simply suing their employers for injuring them, for violating a law Congress passed in 1990 prohibiting discrimination on the basis of disability. But it is the nature of our legal system that such momentous consequences could flow, unplanned, almost casually, from individuals’ law suits.

So, quick, what does the Eleventh Amendment say? If you don’t know, you are not alone. But then, even if you read the words of the Amendment, you would not know what it means, because, as is often the case in the law, it does not mean what the words say.

The Eleventh Amendment says in very plain words that a state cannot be sued by citizens in federal court without the state’s consent; the states have what is called sovereign immunity. That is true even if a state is guilty of injuring someone.

But the Supreme Court long ago said that the amendment does not really mean this anymore, even though the words still say the same thing. The Eleventh Amendment was passed shortly after the Constitution itself. But then, later, after the Civil War, the Fourteenth Amendment became law. Among other things, the Fourteenth Amendment says that the states can not deprive citizens of the equal protection of the law. But if the states cannot be sued when they deprive citizens of the equal protection of the law, then the Fourteenth Amendment is meaningless: it cannot be enforced. So the Supreme Court has said that the Eleventh Amendment must have been changed by the passage of the Fourteenth Amendment, even though no words say so. The result is that states can be sued without their consent, but only for violations of the Fourteenth Amendment.

In our system of justice, courts—even the Supreme Court—may not act on their own initiative. Laws are not interpreted by the courts until someone brings a lawsuit, which makes it all but impossible to keep the law neat and tidy in the short term. This particular story begins obscurely, quietly, with the filing of unexceptional law suits by a number of individuals in federal district court. Jock Orville Autio was one of those who filed a law suit. He worked as a store clerk in the Minnesota State Department of Administration’s Central Store for Materials Management. When he asked his employer to provide him with assistance because of his disabilities, the employer refused. Autio brought a lawsuit under the Americans With Disabilities Act (ADA). In response, the state asked the court to throw out his lawsuit. The state said it was immune to suit under the Eleventh Amendment to the United States Constitution. Another of those who brought a suit was Patricia Garrett, a nurse who was employed by the University of Alabama at Birmingham. When she developed breast cancer and required surgery and extended treatment, the University of Alabama Hospital demoted her. She sued under the ADA. The state of Alabama asked that the suit be dismissed for the same reason as that given by the state of Minnesota in Jock Orville Autio’s case. The judges in the two cases reached opposite conclusions.

The Courts of Appeals Interpret a New Law

Our federal court system divides the country geographically into 12 judicial circuits. Each circuit is divided into districts. A person wishing to bring a lawsuit in federal court brings suit in the appropriate district court, where a trial is held. Jock Orville Autio brought his suit in the United States District Court for the District of Minnesota. Patricia Garrett brought her suit in United States District Court in Alabama. After a decision is made by the district court—by the judge, or jury in a jury trial—either side then has a right to appeal that decision to the court of appeals for that particular circuit. An appeal in the Autio case would go to the 8th Circuit Court of Appeals. An appeal in the Garrett case would go to the 11th Circuit Court of Appeals. Although about a dozen judges sit in each circuit, appeals are generally heard by three-judge panels. More often than not, all three judges agree on a decision and one of them writes the opinion announcing the decision in the case and setting forth the legal reasoning for the decision. That opinion then has the authority of law. It becomes part of the body of precedent that makes up the law of that circuit. It must be followed by all the district courts within that circuit when they decide future cases. And it must be followed by other three-judge panels of the court of appeals when those future cases are appealed. However, the decision does not bind district courts or courts of appeals in other circuits. This means that the same law, interpreted differently by different circuits, can have entirely different meanings for individuals living in different areas of the country.

The 7th Circuit was the first to confront the issue of the immunity of the states to an ADA suit under the Eleventh Amendment. It ruled that the states could be sued. By early 1999, the 2nd, 5th, 9th, and 10th Circuits had joined the 7th Circuit in holding that the states are not immune to suit under the ADA. The 1st Circuit had mentioned in passing that if it were called upon to decide the issue, it would rule that the states can be sued. But the court’s statement carried no legal weight. The 3rd, 6th, and D.C. Circuits were not yet able to have an opinion because no lawsuit on the subject had reached them.

In the united front presented by that majority of the circuits, only the fact that the 5th Circuit vote was 2 to 1 hinted at controversy on this issue. But controversy there was. The 8th Circuit was so divided it was unable to reach a decision and the 4th Circuit was so divided it reached two incompatible decisions. In the 11th Circuit, the three judges who heard the case were so divided among themselves that each wrote a separate opinion.

Stalemate in the 4th Circuit

It was not a surprise when in early 1999 the ideologically conservative 4th Circuit Court of Appeals, which hears appeals in Virginia, Maryland, North Carolina and neighboring states, became the first to say that the states are immune to ADA suit, or at least, to suits brought under regulations adopted under the ADA. The case, Brown v. North Carolina Division of Motor Vehicles, was brought by purchasers of handicapped parking placards. They sued under a regulation enacted by the attorney-general to enforce the ADA. The regulation prohibited fees to cover the cost of accessibility programs designed to assist the disabled. The suit challenged the fee the state charged for the parking placards. By a 2 to 1 margin, the 4th Circuit panel threw the suit out, holding that the states are immune to suit under the Eleventh Amendment.

It was much more of a surprise when, just several months later, a different three-judge panel of the 4th Circuit held, in Amos v. Maryland Department of Public Safety, also by a 2 to 1 vote, that the states are not immune to suit under the ADA. Three-judge panels are bound by prior circuit decisions on the same subject. In this suit by state prisoners, the majority justified its dissent from the prior circuit decision by distinguishing the earlier case, which, it said, dealt with a regulation enacted under the ADA, not with the ADA itself. Nonetheless it was clear to observers that the reasoning behind the two decisions was simply incompatible.

It was a foregone conclusion that Amos would be reheard “en bane,” by all the judges of the 4th Circuit sitting together. In early 2000, rehearing before the full 4th Circuit court was duly scheduled. But then, to the undoubted frustration of the judges, the parties settled the suit among themselves, leaving the Court without a case on which to rule. At the time the United States Supreme Court handed down its decision on the Eleventh Amendment issue, the 4th Circuit had two opposite, incompatible holdings on the subject.

Confusion in the 8th Circuit

On July 7, 1998, the United States Court of Appeals for the 8th Circuit, which hears appeals of federal lawsuits brought in Minnesota, Missouri, Arkansas and four neighboring states, issued the following terse order in the case of Autio v. AFSCME, Local 3139: “ORDER: Appellant State of Minnesota’s Suggestion for Rehearing En Bane is granted. The court’s opinion and judgment of April 9, 1998 are hereby vacated. The clerk is directed to set this case for oral argument before the court en bane on Wednesday, Sept.23, 1998 in St. Louis, Missouri. . . .”

What that brief and mundane procedural order did not say, but what was implicit in it, was that the issue in this case was so important that the unanimous decision reached by the three court of appeals judges who decided the case must be reviewed by all the judges of the 8th Circuit Court of Appeals together. But when that full court gathered and heard the arguments, something unusual happened: the eight judges who met found their votes divided right down the middle. Split 4 to 4, they could not reach a decision in the case.

When Jock Autio’s case was originally decided by the district court in Minnesota on July 2, 1997, the Americans With Disabilities Act had been law for just seven years. Signed by the first President Bush, the Act noted that the disabled are “a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society.” As such, they came within the umbrella of the Equal Protection Clause of the Fourteenth Amendment; they needed special protection in the workplace and public accommodations. In preparing the legislation, Congress compiled voluminous data on past discrimination against the disabled. Congress also said very clearly, when it enacted the ADA, that the law protects not only the employees of private companies but also people like Jock Autio who work for the vast array of entities— colleges and hospitals and warehouses and bus lines and offices and stores—that are part of state governments. Congress specifically said it was acting under the authority of the Equal Protection Clause of the Fourteenth Amendment. So when the state of Minnesota told the district court judge that Autio could not sue it because the Eleventh Amendment said so, the judge disagreed. He ruled that Autio’s case could proceed.

The Autio district court was not the first to be confronted with a state asking that a case against it under the Americans With Disabilities Act be thrown out. Since 1990, several other individuals had tried to sue states under the ADA, and by 1996 and 1997 some of their suits were finally being decided. The judge in Autio’s case was able to read what those other judges had said.

One of those few decided cases was that of Butch Mayer, who worked for the University of Minnesota as an electrical construction superintendent. After being injured on the job, he wore a leg brace and walked with a cane. When he was terminated, he claimed that he was fired because of his disability, and he brought suit in federal court. The state of Minnesota, as it would do in Autio’s case, asked that the suit be thrown out because it was immune to suit under the Eleventh Amendment. The judge refused to throw the suit out.

Shortly after Mayer’s case was decided, another district court was confronted with the issue, this one in the southern district of Ohio where a man named Michael Nihiser sued his employer, the Ohio Environmental Protection Agency, claiming that it failed to accommodate his back injury and thus violated the ADA. This time the district court judge, reading the same law that the judge in Mayer’s case read, ruled that the Eleventh Amendment did protect the state of Ohio from suit under the ADA.

Mayer and Nihiser came to completely different results. Michael Nihiser could not get relief for the discrimination against him, while Butch Mayer was able to have his case go forward. Such an important decision, one might think, should be reviewed by a higher level court. But part of the reason our law is so elusive is that no one can fully control events. Neither side appealed the decision in Mayer’s case, so the case ended right there. The 8th Circuit Court of Appeals did not get to consider the issue. As it happens, an appeal of the Nihiser case was not heard for four years, until well after the Supreme Court decided the issue. The judge in the Autio case could read these two decisions that reached opposite conclusions before he made his own decision. But he had no higher authority directly on point to guide him.

Whether or not to appeal is a decision each litigant makes for a variety of reasons, reasons that often have to do with money or an unwillingness to drag out a legal battle, but almost never have to do with helping to clarify the law. The result of that decision made by an individual litigant is that the ruling made by the district court is not questioned, not reviewed by a higher court, and conflicting decisions are not reconciled, until someone is willing to spend the time and money to appeal to a higher court. That someone would be the state of Minnesota appealing the decision in favor of Jock Autio.

The case came before a three-judge panel of the United States Court of Appeals for the 8th Circuit. The court of appeals examined the issue and ruled that the district court had been right. More often than not, that would have been the end of the issue. But not in this case. The court of appeals granted a rehearing by the full court. But as we have seen, they were unable to reach any decision at all. The prior decision of the three-judge panel no longer existed; it had been vacated when the 8th Circuit agreed to rehear the case en bane. With no decision by the enbanc court, and with the three-judge panel’s decision vacated, all that was left was the decision of the district court. The district court’s decision that the state was not immune to suit under the ADA stood as the final decision in the case. No guidance was provided to district court judges who would decide future cases.

Christopher Alsbrook worked for the city of Maumelle, Arkansas as a police officer, but because he suffered from a vision impairment called amblyopia, his vision could not be corrected to 20/20 as required by the state’s rules. The city admitted that Alsbrook could perform all essential functions of a police officer. Nevertheless the city refused to certify him as a police officer. He brought suit in the United States District Court for the Eastern District of Arkansas on the grounds that the city discriminated against him based on his disability. When the judge refused to rule in favor of the city, the city appealed to the United States Court of Appeals for the 8th Circuit, the same court that had heard Jock Autio’s case. A different panel of judges in the 8th Circuit handed down an opinion in September 1998. Once again the three-judge panel held that the states are not immune to suit. This time the vote was 2 to 1. Once again a rehearing en bane was granted. This time the 10 judges who met to consider the case reached a result, by the barest majority. By a vote of 6 to 4, they became the first circuit court of appeals to hold unequivocally that the states are immune to suit under the ADA.(For accuracy, it should be noted that some of the court decisions discussed here were limited either to the employment Title of the ADA or the public entity Title.) Now the law was different in Illinois, Indiana and Wisconsin from what it was in Minnesota, Missouri, Arkansas and four neighboring states.

A Divided 11th Circuit

Within the territory of the 11th Circuit, three cases on the subject of the Eleventh Amendment were decided in 1998. Surprisingly, all three of them would reach the Supreme Court. The 11th Circuit itself heard two cases together, one concerning a federal statute called the Age Discrimination in Employment Act brought by Daniel Kimel, a professor. The other, under both the age discrimination law and the ADA, was brought by Wellington Dickson, a prison guard. In both cases under the two statutes, the claim on appeal was the same: that the statutes were not enforceable against the states because of the Eleventh Amendment. The three judges who heard the two cases were so divided among themselves that they each wrote separate opinions. The result was that in Daniel Kimel’s and Wellington Dickson’s age discrimination cases the states were held to be immune to suit, but in Wellington Dickson’s disability case, the state was held not to be immune. The dissenting judge said, “altruistic and economic concerns motivated this [Americans With Disabilities] Act— not defense of the Constitution,” and he cautioned that “the laudability of Congress’ goals provides no exception to the limits on Congress’ Fourteenth Amendment power.” Kimel, the age discrimination case, would go on to the Supreme Court and be decided in January 2000. The Supreme Court would then try, without success, to decide Wellington Dickson’s disability case.

Meanwhile, in Alabama, within the 11th Circuit’s territory, the case that would become the most important of all the ADA cases on the subject was still in the district court as the 11th Circuit Court pondered Daniel Kimel’s and Wellington Dickson’s cases. After the parties in Kimel and Dickson had made their arguments to the judges of the court of appeals, but before the 11th Circuit Court made its decision some months later, District Court Judge Acker in Alabama had to make a decision on the same question. The case before him was brought by Patricia Garrett, the nurse who was demoted because she had cancer. In rendering a decision in her case, Judge Acker was in a difficult position. He had to make a decision while the 11th Circuit, the circuit whose rules he must follow, was poised to determine the Eleventh Amendment issue, and with other courts divided. He said, I am “aware that other judges of this court are presently dealing with the same issue here being addressed. This court is also aware that neither the 11th Circuit nor the Supreme Court has ruled on the present question and that other courts are split on the subject, with the majority seeming to favor the position being taken by plaintiffs in the case at bar and. . .in Dickson. This court respectfully disagrees with plaintiffs. . . . Instead, this court thoroughly agrees with the opinion of Judge Graham of the Southern District of Ohio in Nihiser v. Ohio Environmental Protection Agency.” Against the weight of the cases so far decided, the judge ruled that the states are immune to suit.

The district court’s Garrett decision would not stand, because when the 11th Circuit reached its decision in Dickson soon thereafter, it decided by a 2 to 1 vote that the states are not immune to suit. Naturally, Patricia Garrett appealed the district judge’s contrary decision to the 11th Circuit. In October 1999, Garrett came before the 11th Circuit and Judge Acker’s decision was reversed in accordance with the decision in Dickson. The Court said Garrett could sue the University. The University of Alabama now did what the losing side in most of these Eleventh Amendment cases did. It asked the Supreme Court of the United States to hear the case, and the Supreme Court did what it rarely does. It said yes. So, the Supreme Court itself would make the final determination in University of Alabama v. Garrett. When, on February 21, the Supreme Court ended the debate on the issue of the Eleventh Amendment and the Americans With Disabilities Act, it did so by rendering a decision in Garrett.

The Supreme Court’s Agenda

“We’re going to take this case all the way to the Supreme Court.” How many times have we heard lawyers stand in front of a bank of microphones and intone those impressive words? In reality, though, those lawyers know very well that they are not going to take their cases to the Supreme Court—for the simple reason that they cannot. In all but a very few kinds of cases, litigants do not have a right to appeal to the Supreme Court of the United States no matter how wrongfully they have been treated. The Supreme Court hears only the cases it wants to hear. In most instances, the final stop for a case that is brought in federal court is the United States Court of Appeals. Moreover, it is rare that the Supreme Court hears a case simply because it does not like the way an individual was treated by the courts below. That individual has had his or her shot at justice. He or she has had a trial and the result has been reviewed by at least three other judges. That is all the justice to which the litigant is entitled. Only when the Supreme Court wants to hear a case for reasons of its own does the case reach the High Court. In that instance, the Court issues what is called a writ of certiorari to the lower court telling the court it wishes to hear the case. Litigants often request writs of certiorari, but when they do, the most common words in the case citations are “cert. denied.”

By far, the most common reason the Supreme Court hears a case is to preserve the coherence of the law throughout the country: When it sees disagreement among the courts of appeals, it issues a writ of certiorari in one or more of those cases and decides the issue, thus settling the question for the whole country.

The Supreme Court wanted to settle this issue. Not only was there a difference of opinion among the circuit courts, but this was a subject on which the Supreme Court had had much to say in recent years. Twice the Supreme Court issued writs of certiorari and scheduled arguments. Twice it was frustrated. The Court first granted certiorari in Wellington Dickson’s case, and judges throughout the country were relieved to know that a definitive answer would be forthcoming on this subject that had so divided the courts. But even the Supreme Court does not fully control its docket. Wellington Dickson and the state settled their suit, and the Supreme Court was unable to rule. Several months later, the Court again granted certiorari, this time in Christopher Alsbrook’s case. But once again the Court was denied its chance to rule, as Alsbrook and the city of Maumelle settled their suit.

The law is a vast, interconnected web of tangled strands. When in 1996 and 1997 the Supreme Court added to the web cases on Indian casinos and the restoration of churches, those unlikely strands shaped the debate on the issue of the Eleventh Amendment and the Americans With Disabilities Act. When Congress passed the ADA just over a decade ago, it had little reason to worry that the applicability of the law to the states would be questioned. While Congress can make laws only when the U.S. Constitution gives it the authority to do so, Congress had claimed as its main authority for passing the law its Constitutional authority to regulate interstate commerce. The Supreme Court had long before confirmed that if Congress passed a law under the authority of the Commerce Clause the law would apply to the states. Congress could not have imagined in 1990 that the Supreme Court under Chief Justice Rehnquist would take the drastic step of overruling its own case law. But that is what the Court did in a case on the subject of Indian casinos called Seminole Tribe of Florida v. Florida, the first of its 5 to 4 decisions cutting back Congressional power. The Court said that the Commerce Clause can not be used as authority for suits against the states. The only authority Congress has to sanction suits against the states is Section 5 of the Fourteenth Amendment. Section 5 gives Congress the authority to make laws to enforce the Fourteenth Amendment, including the Equal Protection Clause. “Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

As we have already seen, the language of the Eleventh Amendment seems to be very definite that the states cannot be sued unless they say they can, but the passage of the Fourteenth Amendment, which was directed against the states, must have altered the balance between the federal and state governments. So, the Supreme Court said in Seminole Tribe, Congress may—when and only when it passes a law that is enforcing rights granted by the Fourteenth Amendment—override, or abrogate, the state’s sovereign immunity. When Congress does so, the Court said, it must follow strict guidelines. Congress must do two things. First, Congress must say clearly and unequivocally that it intends to abrogate state immunity. Second, Congress must act pursuant to a proper grant of authority. And we now know that there is only one proper grant of authority: Section 5 of the Fourteenth Amendment. The Court also made clear that a law cannot come properly within the Fourteenth Amendment if its provisions set rules that require more than the Fourteenth Amendment itself requires.

All courts to consider the issue have agreed that Congress very clearly and explicitly said it intended to abrogate state immunity. It intended that individuals could sue states under the ADA. The great disagreement has been whether Congress abrogated immunity properly under the Fourteenth Amendment. To a large extent, which conclusion a judge reaches has much to do with ideology. For at the heart of the issue is the question of federalism; states’ rights. Where should one strike the balance between giving the federal government room to legislate for the country on national issues and preserving the rights of the states that the founding fathers were so careful to protect? This theme has dominated the Supreme Court under Chief Justice Rehnquist, as the Court has quietly, in a series of cases all decided by 5 to 4 votes, moved the balance further and further in favor of the states, limiting, and some would say, threatening the ability of Congress to legislate on subjects that require national solutions.

One of the most controversial of those decisions struck down a law Congress had passed called the Religious Freedom Restoration Act (RFRA). What does a case about the freedom of religion have to do with a decision on the Americans With Disabilities Act? As it happens, a lot. The 1997 case concerning RFRA arose out of the City of Boerne, Texas’ rejection of the Archbishop of San Antonio’s permit application to enlarge a historically significant church. The Archbishop sued, saying that rejection of the permit violated the Religious Freedom Restoration Act. In City of Boerne v. Flores, the Supreme Court held that RFRA legislation passed—and here is the connection—pursuant to Congress’ enforcement power under Section 5 of the Fourteenth Amendment, was unconstitutional because it was not really just enforcing the Fourteenth Amendment. It was doing more.

The Court identified two circumstances that showed that the RFRA was not enforcing Fourteenth Amendment guarantees. First, Congress enacted RFRA without finding widespread violations of any constitutional right. Second, rather than simply remedying constitutional violations, RFRA created rights that far exceeded any protected by the Constitution. Congress could not use its Section 5 authority to create new rights. All the Fourteenth Amendment allowed it to do was remedy wrongs.

Nonetheless, the Court did say that Congress may enact remedies that are broader than the Fourteenth Amendment would literally allow if necessary for the purpose of the remedy. But Congress’s remedies, the Supreme Court said, must be at least—and these would be the key words—”congruent and proportional” to the wrong sought to be remedied. Exactly what does that mean? It was up to lower court judges to give meaning to those words and wait for the Supreme Court to confirm or correct their surmises the next time the subject came before it.

While people like us may want clarity, may want to know what the law means exactly and precisely, the Supreme Court would rather not explain too precisely. It would rather wait and watch the courts of appeals and district courts grapple with the concepts it has tossed to them, let the ideas be fit to various sets of facts, before it again weighs in. In that way, it may discover where confusion or unexpected complications lurk, and correct or refocus the concept based on the experience of the lower courts. Of course, that is no consolation to individuals who brought cases to court while judges were grappling with the new concept and some were getting it wrong. But our judicial system is more concerned with getting the law right than getting the decisions right for individual litigants.

What the Supreme Court had done in City of Boerne was set out the terms for discussion. It was now clear to every judge who would consider a case involving the Americans With Disabilities Act and the Eleventh Amendment that they must compare the way Congress acted when it passed the ADA to the way it acted when it passed RFRA to determine whether Congress had legislated properly within the Fourteenth Amendment:

  • While Congress did not make extensive findings of fact when it passed RFRA, it did have extensive hearings on the existence of discrimination against the disabled when it passed the ADA.
  • But did the hearings demonstrate state discrimination against the disabled?
  • Did Congress create rights that went beyond those provided by the Fourteenth Amendment when it passed the ADA, as the Supreme Court said it did with RFRA?
  • And if it did, was its legislation “congruent and proportional” to the discrimination it sought to correct?

After City of Boerne, the Rehnquist Court moved relentlessly forward, reining in Congress and expanding Eleventh Amendment protection of the states in an ever-widening range of subject matter areas, beginning with patent law. Eventually the High Court reached civil rights law. The Court heard Daniel Kimel’s case, the piece of the 11th Circuit opinion dealing with age discrimination. The decision in Kimel v. Florida Board of Regents, handed down on Jan.11, 2000, was another 5 to 4 decision. Once again the Court limited Congress’ right to impinge on the states. The Court said that the age-discrimination statute failed the congruence-and-proportionality test. It prohibited more state actions than would be held unconstitutional under the Equal Protection Clause. It was out of proportion to any discrimination against the elderly by the states. The sweeping nature of its prohibitions was not congruent to any evidence Congress had presented in the legislative history that the state governments were unconstitutionally discriminating against their employees on the basis of age. Congress therefore had no reason to believe that broad prophylactic legislation was necessary.

What did that case say about the disability law and the Eleventh Amendment? Nobody knew for sure, and guessing was made more difficult by the fact that the Supreme Court then proceeded to grant certiorari in Wellington Dickson’s part of that 11th Circuit decision. Did that mean that the High Court intended to make its decision in favor of state immunity even more emphatic? Or was the Court signaling that it had at least some question whether the Americans With Disabilities Act was different from the age-discrimination law and warranted a different result? The courts of appeals were hesitant to rule on the issue with the Supreme Court about to make a decision. But then the Supreme Court was twice thwarted in its attempt to decide the question, first by Wellington Dickson and then by Christopher Alsbrook.

The courts of appeals, as they were asked to decide cases in the meantime, had to make decisions. They had to read Kimel and guess. The 2nd, 4th, 5th, 7th, 9th, 10th, and 11th Circuits had all held that the ADA was properly enacted pursuant to the Fourteenth Amendment and that Congress intended to abrogate state immunity. They had all held that the states are not immune to suit. Only the 8th Circuit had held, narrowly, and by a narrow majority, that the states are immune.

The retreat began with the 7th Circuit, which had been the first to hold that the states are not immune to suit under the ADA. The 7th Circuit now reexamined the subject. Judge Easterbrook wrote the decision for a 2 to 1 majority. “Twenty-three days before the Supreme Court decided Boerne,” he said, “we held . . .that Section 5 [of the Fourteenth Amendment] supports . . .the ADA.” He noted the concurring decisions by other courts that followed City of Boerne, and then said, “the Supreme Court’s opinion in Kimel calls all of these decisions into question.” Noting that the 7th Circuit, like courts throughout the country, had been awaiting an imminent decision from the Supreme Court deciding the matter, he lamented the fact that no decision would now be forthcoming, since “settlements have dashed that hope.” Given that state of affairs, he believed the 7th Circuit must reevaluate the subject and make its own decision in light of the Supreme Court’s ruling in the closely analogous age-discrimination case. Reading the Supreme Court’s decision in Kimel, he concluded that the 7th Circuit had been wrong. The states are immune to suit under the ADA.

Judge Wood, who had sat on the earlier panel, disagreed. She wrote an influential dissent, saying that the ADA was different from the age discrimination law. If analysts thought that Judge Woods’ powerful dissent meant that the 7th Circuit as a whole might overrule Judge Easterbrook, they would soon get their answer. Just days after the decision, a panel of three different 7th Circuit judges unanimously lent its three voices to the decision with a ruling in another case, that brought by Georgeen Stevens, the highway maintainer who had won a jury verdict in her disability lawsuit. With five judges now committed, it was clear that the 7th Circuit was reversing course.

In the next several months the 8th Circuit reaffirmed its decision that the states are immune to suit. And the 3rd Circuit decided its first case on the subject, agreeing with the 7th Circuit’s reasoning. As the year wound down, the 6th Circuit, one of the three remaining circuits not to have rendered a decision on the issue, followed the new trend and held that the states are immune to suit.

And so on Feb. 21, 2001, the courts of appeals stood divided almost evenly. Disabled state employees and other disabled individuals who were discriminated against by the states and who lived within the 2nd, 5th, 9th, 10th, 11th, and perhaps the 4th, Circuits were able to sue their states in federal court for damages. Individuals who lived within the 3rd, 6th, 7th, and 8th Circuits could not.

The Supreme Court handed down its decision in University of Alabama v. Garrett by a 5 to 4 vote, the same margin by which it decided Seminole Tribe and City of Bourne and Kimel. Chief Justice Rehnquist himself wrote the opinion. The majority held that the states are immune to suit following the logic articulated in Kimel. Congress did not properly abrogate the states’ immunity. One focus of the Court’s decision was that the rights and remedies created by the ADA against the states “would raise . . .concerns as to congruence and proportionality. . .” The ADA requires employers to provide accommodation to disabled employees to help them perform their jobs. But the accommodation duty, the Court said, “far exceeds what is constitutionally required. . . .” For example, a state would have a rational basis for its decision—and therefore not violate the Equal Protection Clause—if it decided to conserve scarce state resources by hiring employees who could use existing facilities, but the ADA requires it to make its facilities accessible to disabled employees.

A second focus of the Chief Justice’s argument was that Congress had failed to provide detailed and specific enough evidence of a pattern of state discrimination against the disabled. Congress did document discrimination against the disabled at great length. But in 1990, Congress had no way of knowing that it must specifically concentrate on documenting discrimination by the states as if it were offering testimony in a court of law. When Congress enacted the ADA, it had every reason to believe that its well-supported, entrenched authority under the Commerce Clause was sufficient to support the new law’s strictures against the states. After Seminole Tribe had stripped away that authority, Congress was being criticized for not sufficiently supporting its case for alternate authority under the Fourteenth Amendment by the very Court that had changed the rules after the fact. A bitter dissent accused the majority of “improperly invad[ing] a power that the Constitution assigns to Congress.”

Now the issue is decided, but not quite. In Garrett, the Supreme Court decided only the issue of employment under Title I of the ADA. It declined the parties’ invitation to decide whether the states are also immune to suit under Title II of the statute. Title II, which deals with ramps and other accessibility issues, has significantly broader applicability to the states and affects many more millions of individuals; there will be a sequel. Beyond disability lie other questions, such as whether the Eleventh Amendment protects the states from suit under federal environmental laws. And of course, with a 5 to 4 decision at a time when retirements are rumored, one never knows even about Title I of the Americans With Disabilities Act. In law, there is only uncertainty.


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