Legal E-Bulletin - March 2001

SUPREME COURT RULES THAT THE AMERICANS WITH DISABILITIES ACT IS UNCONSTITUTIONAL IN GARRETT v. STATE OF ALABAMA.

A. Supreme Court Finds ADA Unconstitutional in a Predictable 5 to 4 Split Decision.

In the latest of a series of ADA cases decided by the United States Supreme Court, the majority ruled that States are immune to private civil actions seeking damages for employment discrimination. The Supreme Court was divided in a predictable 5-4 split, with the majority voting to find the ADA unconstitutional as applied to state employment. Justice William Rehnquist wrote the opinion with Justices Scalia, Thomas and O'Connor and with Justice Anthony Kennedy writing a separate concurrence. Justice Stephen Breyer dissented, joined by Justices Stevens, Souter and Ginsberg. The October 2000 edition of this list service featured an explanation of the issues presented in Garrett v. University of Alabama. The case was then being argued before the United States Supreme Court.

B. Three Major Areas of Impact under the Garrett Decision.

The Garrett decision is significant in at least three general ways. First, it is significant for its limitation on the rights of people with disabilities seeking redress from State governments. Second, Garrett is important for its effect on the broader issue of State and federal power, and the respective constitutional allocation of powers to the legislative and judicial branches of government. Finally, the case is important for what it portends for the future of civil rights enforcement.

1. Limitation on Disability Rights under the ADA.

(a) Background in Garrett.

Garrett is actually a consolidation of two separate cases: Garrett v. Alabama and Ash v. Alabama. Both cases were brought by Alabama State employees against the State of Alabama for money damages for disability based discrimination. The claimants contended that the States were subject to suit under Title II and the specific prohibitions against employment discrimination set out in Title I of the ADA were binding on the States and enforceable by private individuals. Ms. Garrett is a nurse who was demoted when she returned to work after treatment for breast cancer. In Ash, the State refused to adjust working conditions to accommodate a security guard's severe asthma and other medical conditions. In Garrett v. Alabama and Ash v. Alabama, neither the plaintiff's disability nor the conduct of the State was the central issue. Rather than focusing on the merits of the plaintiffs' claims and the defendant's conduct, the Supreme Court directed its focus on the threshold issue of whether a State could be held liable to a private person for money damages.

(b) Garrett Narrows Scope of Defendants as Sutton Narrowed Scope of Plaintiffs.

The issue in Garrett seems to be a logical progression from the Supreme Court's 1999 trilogy of ADA cases: Sutton v.United Air Lines, 119 S.Ct. 2139 (1999), Murphy v.United Parcel Service, 119 S.Ct. 2133 (1999) and Kirkingburg v. Albertsons, 119 S.Ct. 2162 (1999). In this trilogy, the Supreme Court radically contracted the definition of "disability" by narrowing the scope of individuals who can be proper plaintiffs under the ADA. In Garrett, the Court focused its attention on the corollary question of who can be a proper defendant under the ADA. The same majority of the Supreme Court that narrowed the scope of individuals who could bring claims under the ADA in Sutton also narrowed the scope of potential defendants in Garrett. States are no longer liable for damages under the ADA for intentional disability discrimination.

(c) Garrett Also Important for What it Does Not Do.

(i) Garrett Does Not Preclude Actions Against States for Equitable or Injunctive Relief.

The immediate effect of Garrett is to remove States as potential defendants for disability based employment discrimination. The consequence is that a person is no longer able to sue a state seeking money damages for disability based discrimination. It is important to look also at what the Court did not do in Garrett. The ruling does not prevent individuals from suing States in federal court to obtain injunctive or equitable relief. The ruling in Garrett does not preclude employees from suing private employers for disability discrimination under the ADA. Also, the Supreme Court's decision apparently applies only to States, and does not apply to county, municipal and other forms of local government. However, counties and municipalities will surely assert the same immunity argument claiming to be political sub-divisions of the State and enjoying the same or similar immunity from suit.

(ii) Garrett Does Not Find Title II Unconstitutional with Regard to State Programs and Activities.

Perhaps most important, is that the Supreme Court expressly declined to rule on the constitutionality of the Title II requirement that States provide equal access to their programs and activities. The significance of this point is that the Court preserved its decision in L.C. & E. W. v. Olmstead, 119 S. Ct. 2176 (1999), in which the Court found that a state rule that required medical treatment in an institutional setting amounted to discriminatory segregation and exclusion based on disability status. Similarly, Garrett preserves the Supreme Court's decision in Yesky v. Pennsylvania Dept. of Corrections, 524 U.S. 206 (1998) which held that state prison facilities and correctional activities are state programs and activities under the ADA.

(iii) Federal Government May Still Sue a State and Individuals May Still Sue under State Law.

Also, the Court's opinion is limited to civil actions initiated by private individuals. Garrett does not preclude the federal government from initiating an enforcement action against a State in federal court. Finally, the Garrett decision does not affect state statutes that prohibit disability discrimination in employment that authorize claims against the state government as a matter of state law.

2. Fundamental Issues of the Constitutional Allocation of Power.

(a) Tension Between State Sovereign Immunity and the Power of Congress under the Fourteenth Amendment.

Garrett obviously was argued in the context of a civil rights enforcement action. Yet the rationale applied by the court more directly addresses more fundamental issues of state sovereign immunity under the Eleventh Amendment to the Constitution and the scope of Congress's power to enact "appropriate legislation" under the Fourteenth Amendment.

Although the Eleventh Amendment generally makes states immune to claims in federal court, the Fourteenth Amendment confers on Congress the power to enact "appropriate legislation" to guarantee "equal protection under law." The Congress and the Supreme Court had previously acted under the presumption that the Fourteenth Amendment confers on Congress the power to abrogate Eleventh Amendment sovereign immunity when legislation is appropriate to redress violations of the Fourteenth Amendment by the States.

According to the Supreme Court, "appropriate legislation" requires "proportionality" between the injury to be prevented and the measures adopted to prevent that injury. The majority conceded that discrimination against persons with disabilities by the state may violate the Fourteenth Amendment equal protection clause where there is no rational relationship between the disparate treatment and some legitimate governmental purpose. Yet, the majority objected to the ADA because (according to the majority) it was inappropriate for the Congress to subject States to liability in federal court in the absence of sufficient findings that there exists a pervasive failure of the States to equally protect persons with disabilities. The Supreme Court concluded that because there was insufficient evidence of such a failure by the States, the legislation was not appropriate within the meaning of the Fourteenth Amendment.

The majority concluded that because Congress acted without sufficient legislative history to identify the harm that the statute is intended to prevent, Congress's action was beyond the bounds permitted by the Fourteenth Amendment and therefore unconstitutional.

(b) Balance of Power Between the Congress and the Supreme Court.

The Court's analysis claims to protect the balance of State and federal powers. However, in doing so the Supreme Court appears to have upset the traditional balance of powers between the Congress and the Court. The Supreme Court asserts that it is the final authority regarding whether legislation under the Fourteenth Amendment is appropriate. The significance of the Court interpretation of its own authority is that the Supreme Court claims a role in making policy decisions regarding the "appropriateness" of civil rights legislation. Congress was previously understood to have very broad discretion in enacting legislation protecting the privileges and immunities of citizens and assuring equal protection of the law. It was previously presumed that Congress was granted broad powers by the fourteenth Amendment to guarantee equal protection, including legislation binding on the states. Although the power of Congress under the Fourteenth Amendment was not limitless, the Courts had traditionally deferred to the Congress's judgment as to when and under what circumstances legislation was appropriate.

In Garrett, the Court sets up new standards that effectively limit the Congress's power to legislate exercising its Fourteenth Amendment powers. The majority in Garrett requires that Congress make specific and "sufficient findings" before it may exercise its Fourteenth Amendment powers. Moreover, the Court claims for itself the final word on whether the legislative history is sufficient to warrant Congressional action.

(c) Focus on Legislative History and Points of Concern.

(i) Weight Given to Legislative History at Odds with Sutton.

The majority's focus on the legislative history is cause for concern for a number of reasons. First, the Supreme Court attaches great significance to legislative history and the findings of Congress, and is willing to conclude that an act of Congress is unconstitutional in the absence of such sufficient findings in the legislative history. Yet, neither Article I nor the Fourteenth Amendment require Congress to make any particular findings or compile legislative history before exercising its power to enact legislation. The majority's emphasis on the importance of legislative history in Garrett is difficult to reconcile with the same majority's opinion in Sutton (another ADA case) where the majority characterized legislative history as irrelevant. See, Sutton v.United Air Lines, 119 S.Ct. 2139 (1999). In Sutton, the Court went on to hold that "disability" under the ADA is assessed with regard to mitigating measures, despite direct statements in the legislative history that disability status was to be assessed without regard to mitigating measure.

The majority's opinion also seems at odds with the "textual" and "strict construction" approach which Rehnquist, Scalia, Thomas and others have previously endorsed and applied. In Garrett, the majority looked beyond the text of the statute and examined the legislative history.

(ii) How Much Legislative History Is Enough?

The majority's opinion is also cause for concern for its dismissive attitude towards the legislative history and findings compiled by Congress in adopting the ADA. The majority conceded that Congress had compiled evidence to support a finding that persons with disabilities were subject to serious and pervasive discrimination. However, Chief Justice Rehnquist found that Congress cited too few of the instances of discrimination by States. The Congress had indeed made findings of the type the Court believes are necessary. The Court, however, considered them to be insufficient, and did not defer to the judgment of Congress that found the evidence sufficient to warrant legislative action.

The majority characterizes the legislative history as insufficient, yet the record suggests otherwise. The Congressional Task Force that held preliminary hearings received 30,000 accounts of disability based discrimination, thousands of first hand experiences with disability discrimination and roughly 300 examples of discrimination based on disability by the States themselves. It is this record that the majority concluded "fell short of even suggesting the pattern of unconstitutional discrimination on which section 5 (of the Fourteenth Amendment) legislation must be based." The majority does not define the number or nature of instances of State discrimination based on disability that would be sufficient.

(iii) Supreme Court Claims a Role in Making Policy Determinations.

The result of Garrett is that the Supreme Court has claimed for itself a final and unreviewable role in making legislative policy determinations. Policy decisions are generally considered to be within Congress's legislative prerogative. Traditionally, the federal courts observed judicial restraint and deferred to Congress on matters of public policy choices. Deference and restraint are judicially created rules applied to the courts themselves to prevent interference with Congress's public policy choices.

Deference and restraint are especially important regarding policy choices because Congress is a popularly elected representative body that is accountable to the electorate. The federal judiciary is unelected and, by constitutional design, removed from political accountability. Accordingly, Congress ought to be afforded considerable deference in making policy choices - especially in the protection of the equal rights of citizens. If Congress concludes that 300 instances of intentional disability based discrimination by States is sufficient to motivate legislation prohibiting such conduct, then Congress should be permitted to legislate even if the Supreme Court Justices would have concluded differently had they been elected to Congress.

C. The Future of Civil Rights Protection.

(1) Other Civil Rights Acts Struck down by Supreme Court.

Garrett is not the first case to apply the principle of sovereign immunity to defeat an act of Congress, nor is the ADA the first federal civil rights statute to be found unconstitutional by the Supreme Court. Garrett is only the latest in a series of cases in which the Supreme Court has sought to expand the sphere of state immunity. It will not likely be the last. Garrett, however, does expand the scope of state immunity to a degree not known in modern times and perhaps to a degree not experienced since before Civil War Amendments to the Constitution.

The reasoning applied in Garrett appeared last year in Kimel v. Florida Board of Regents, 120 S.Ct. 631 (2000). In Kimel, the Supreme Court held that the Age Discrimination Act was unconstitutional as applied to States because it too (according to the same majority that decided Garrett) lacked sufficient legislative history to support federal legislation. The Court found the Age Discrimination in Employment Act to be unconstitutional even though the Act had been applied to states since it was enacted in 1967. In the same term, the Supreme Court held the Violence Against Women Act to be unconstitutional. See, United States v. Morrison, U.S. (2000) This Act had created a federal civil right to protect women from gender based violence.

(2) History of Race Discrimination Sufficient to Support Legislation.

The lingering question after Garrett is which other federal civil rights protections enacted by Congress are at risk of being taken away by the Court. Efforts are already underway to apply the reasoning in Garrett to aspects of the Civil Rights Act of 1964. In Garrett, the Court deliberately sought to make assurance that the history of race based discrimination by states was more than sufficient to support action by Congress under the Fourteenth Amendment. This assurance is not entirely satisfying. Of course it is reassuring to know that a history of State action that permitted the lawful enslavement of a race and after emancipation permitted the lawful segregation of the races is sufficient to support Acts of Congress to protect against State infringement on basic human and Civil rights. Yet, this assurance is unsettling to discrete classes of people who do not have a history of enslavement or legal segregation, but nonetheless have been subjected to intentional and irrational invidious discrimination by the States.

(3) Might Sex Discrimination Be the Next Civil Right to Be Affected?

Also, the legislative history of the Civil Rights Act of 1964 has no noteworthy reference to sex or gender based discrimination. Indeed, sex as a protected class did not appear in the Civil Rights Bill until the floor debate when it was added by a floor amendment in a tactical effort to dissuade mildly supportive members of Congress from voting for the Act. In the absence of legislative history of the kind the Court required in Garrett and Kimel, can legislation supporting gender based discrimination be considered "appropriate" by the Supreme Court?

Similarly, is there sufficient legislative history in the Civil Rights Act of 1964 regarding states discriminating on the basis of national origin or religion? Emboldened by their newly found or newly restored sovereign immunity, states are already mounting efforts to answer these questions.

D. Conclusion

In the near future, the Court will determine whether the States are bound by the equal access provisions set out in Title II of the ADA, as well as whether the States are immune to actions claiming gender or religious discrimination.

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This material is provided by the DBTAC National Network of ADA Centers. The DBTAC’s are funded by the National Institute on Disability Rehabilitation and Research (NIDRR), the US Department of Education (Grant # H133A060085), to provide technical assistance, training, and materials on the Americans with Disabilities Act (ADA). The information, materials, and technical assistance provided are intended solely as information guidance and are neither a determination of your legal rights or responsibilities under the Act, nor binding on any agency with enforcement responsibility under the ADA.