ADA Suits v. States Deemed Unconstitutional

Nathan Newman nathan.newman at
Wed Aug 9 07:54:44 PDT 2000

See attached 3d Circuit decision. There goes ADA claims against state government employers. Some other Circuits have upheld ADA suits, so the Supreme Court will make the final decision, but given its KIMEL decision, it does not look good.

-- Nathan Newman

Following 'Kimel,' 3rd Circuit Rules States Can't be Sued Under ADA 3rd Circuit Rules States Cannot be Sued Under ADA

Shannon P. Duffy The Legal Intelligencer August 9, 2000

States and their agencies cannot be sued under Title I of the Americans with Disabilities Act because Congress, in passing the law, never properly abrogated the states' 11th Amendment immunity from suit, a federal appeals court has ruled.

The decision by a unanimous three-judge panel of the 3rd U.S. Circuit Court of Appeals relies heavily on the U.S. Supreme Court's decision this year in Kimel v. Florida Board of Regents that employed similar logic in concluding that the states cannot be sued under the Age Discrimination in Employment Act.

"In light of Kimel, and based on the terms of the statute and its legislative history, we hold that the ADA is not a valid exercise of Congress' Section 5 power and accordingly does not abrogate the States' 11th Amendment immunity from suit," Senior U.S. Circuit Judge Leonard I. Garth wrote in Lavia v. Commonwealth.

Garth, who was joined by U.S. Circuit Judges Morton I. Greenberg and Theodore A. McKee, found that Congress may abrogate the states' 11th Amendment immunity only by making findings of conduct by the states that violates the 14th Amendment's substantive provisions.

In the case of the ADA, Garth said, Congress focused almost entirely on discussing the widespread discrimination that the disabled suffer in the private sector.

Garth emphasized that the history of the ADA shows an "absence of any evidence in the legislative history or in Congress' findings of pervasive violations of the 14th Amendment by the states with respect to the disabled, to justify a prophylactic remedial enforcement measure that would abrogate the states' 11th Amendment immunity."

Underscoring the lack of evidence of unconstitutional state discrimination against the disabled, Garth said, was the fact that "virtually every state in the country has enacted its own legislation prohibiting discrimination against the disabled in employment, and some have even enacted statutes advancing the explicit policy of encouraging employment of the disabled in state government positions."

Garth found that while states may at times falter in their efforts to eliminate discrimination against the disabled in employment, "the broad sweep of the ADA is out of proportion to the discrimination to be remedied."

Without more detailed findings of a "nationwide pattern of arbitrary and illegitimate discrimination against the disabled by the states," Garth said, "the ADA cannot be viewed as a proportional and congruous response to the problem of state-perpetrated discrimination against the disabled."

While the ADA's goal of eliminating discrimination "may be a laudable aim for federal legislation," Garth said, "it is not one which serves the purpose of enforcing the protections provided by the 14th Amendment."

The power accorded to Congress in Section 5 of the 14th Amendment, Garth said, is limited to remedying constitutional violations committed by the states themselves, and not private members of society.

"Because there is no evidence of state violations, we hold that Congress did not validly abrogate the states' 11th Amendment immunity in enacting the ADA," Garth wrote.

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