I have bad news for Marta and the disabled, but it takes some explaining.
In a message dated Thu, 20 Jan 2000 3:52:16 PM Eastern Standard Time, Marta Russell <ap888 at lafn.org> writes:
>
> Justin,
>
> I am not a lawyer, got this from a lawyer but am not sure if
> this analysis is correct:
>
> Being unconstitutional under the 11th Amendment (which is
> what the
> Court found to be wrong with the ADEA and what the 8th
> Circuit found to be wrong
> with the ADA in Alsbrook) only means you can't get money
> damages. I think there
> would still be a good argument -- even now in the Eighth
> Circuit -- that
> you could get an injunction, that is, an order forcing the
> state to comply.
> What that means is that our brothers and sisters in Minn,
> Iowa, Mo., Ark, Neb
> and N&S Dak should still be able to sue to get an order
> forcing the
> installation of ramps, provision of services, etc. Just not
> money damages.
>
> Could you illuminate me (and others on the list)?
> --
> Marta
You have walked right into one of the most difficult areas of federal jurisdiction. This is _really_ hard stuff, so bear with me.
First, I haven't looked ath the 8th Cir.'s opinions, so the points I am making are quite general.
Second, although it is centrally the 11th amend. that now bars ADEA (age discrimination) lawsuits against the states, Justice O'C's opinion in Kimel turns on clause 5 of the 14th amend. So the ADEA is unconstitutional under the 11th and 14th amendments.
To see how this works: the 11th amend., as now interpreted, says a citizen cannot sue a state without that state's consent, but Congress can abrograte the state's immunity pursuant to the 14th amendment. The 14th amendment was intended to limit the powers of the states, and it requires that states give everyone equal protection of the law, among other things. So Congress can abrogate the 11A to enforce the 14A equal protection clause. That is why you will be able to sue a state for race discrimination (forbidden by the 14A) under Title VII (enacted to enforce the 14A, in part).
Clause 5 of the 14A gives Congress the power to enforce the substantive provisions of the 14A by appropriate legislation. Lately the S.Ct has been quite picky about that "enforce" language, saying that "enforce" does not mean "expand." It means that Congress can only enforce roughly where the S.Ct itself has found that some state practice is a violation of equal protection and Congress has provided pretty explicit evidence that satisfies the S.Ct that the states in particular have been violating 14A right as the S.Ct has defined them. This is City of Boerne v. Flores.
In Kimel, the S.Ct. said that Congress did not have the power to abrogate the 11A under Clause 5 of the 14A for two reasons. First, age classifications by the states get very low scrutiny, as I explained in my last post on this. Disability is the same. Unlike race classifications, which the S.Ct. will almost never allow under the 14A, it will allow under the 14A almost any age or disability classification that might have some plausible basis. So part of the problem is that the ADEA banned age classifications, like mandatory retirement ages, that would be permitted under the 14A as now interpreted. This does not mean that Congress cannot go beyond what the Constitution allows, but how far beyond it can go is not clearly established.
Second, the S.Ct said that Congress had not provided sufficient proof to satisfy the court that the states in particular had engaged in systematic age discrimination requiring such a broad remedy going way beyond what the 14A allowed. Congress had made general findings about extensive age discrimination in _society_, but had not made particular findings about extensive age discrimination by _state governments_. Of course back in 1967 it didn't have to do that.
OK, this relates to the ADA because the ADA is presumably on the same footing. Disability gets low scrutiny under the 14A and I bet my bonnet that Congress made no special findingds that the states engaged in disability discrimination. Apparently the 8th Cir. has said something like this, but I haven't read it.
Now, there was a question about whether it would be possible to get injunctive relief, although not monetary damages, despite the 11th Amendment bar to suing a state. There is a doctrine, to which your lawyer friend referred you, based on the case of Ex parte Young, which allows a federal court to enjoin a state officer from violating federal law. This is the basis of all subsequent constitutional civil rights litigation. Brown v. Board of Education, the desegregation decision, was based on Ex parte Young.
The legal fiction of Ex Parte Young is that a suit against a state officer is not a suit against the state because state officers has no right to do things that the federal government has the power to prevent. (As an explanation of why this is not a suit against the state, this makes no sense, so don't worry about it.)
Recent case law restricts the kind of relief you can get in an Ex Parte Young suit to forward looking relief of an injunctive sort (stop that! do that!) and says you cannot get backward looking relief if that requires the state to pay for it. For example, you cannot sue for unpaid welfare benefits to which you were in fact entitled and which were illegally withheld.
Sorry about the complexity of this, but I told you it was horribly complex.
OK, what does this have to do with your prospects for injunctive relief enforcing the ADA in the 8th Cir. or the ADEA anywhere? Bad news, I would surmise. A state official has no right to do what federal law forbids, and you can sue to make him stop. But for federal law to forbid it, Congress must have the power to enact that law. And that is exactly what the S.Ct said that Congress did not have with respect to the ADEA. So, no, I don't think you will be able to sue the states to enforce the ADEA injunctively. And if the ADA goes the same way as the ADEA, same deal.
Disability activists should note that there might be a way to forstall thsi result. If Congress makes the appropriate findings that state government has engaged in widespread discrimination against the disabled, the the Kimel argument won't work and Congress will have the power. So, get lots of people on line to their Congresspeople and Senators. Have them make those findings!
--jks