Kimel v. State of FL Bd. of Regents

subdistricts, majority-minority see id. at 144. FAY, Circuit Judge, concurring Senior fact, Teme testified that would have specially: been for him difficult to have drawn subdis- I, IIA, tricts for the Second I throiigh Circuit Leon Coun- concur in sections ty without creating Courts least two ma- opinion for court. It seems me jority-minority districts. See id. at 146. simply unnecessary Section IIB is belying Absent some evidence Terrie’s char- disagree with therefore dicta which I but find process, of his design acterization Chiles no need to discuss. do concur footnote rely solely cannot criticism Terrie’s proposed motivations block Davis’s reme- dy. testimony, togethér Given Terrie’s unchallenged pro- adherence Davis’s

posed plan to traditional redistricting crite-

ria, we conclude the district court com- finding error

mitted clear that Davis’s

proposed remedy gerry- constitutes a racial Thus,

mander. we hold both that the dis- misinterpreted

trict court the law regarding assessing permissible role race in KIMEL, Jr., Ralph Dougherty, J. Daniel C. remedies for violations of Two Section Altman, Beard, Burton H. Robert W. incorrectly the district court assessed Brock, al., Plaintiffs-Ap Valdall K. et played the role that race drawing pellees, proposed Davis’s subdistricts. Baker, al., Plaintiffs, et Doris C.

III. CONCLUSION case, presented persua- Davis has racially sive polarized voting evidence STATE FLORIDA OF BOARD OF judgeships

elections for on the Second Cir- REGENTS, cuit County Nonetheless, and Leon Courts. Defendant- Davis propose permissible Appellant. has failed to cross-examination, example, 24. On Terrie ond Judicial Circuit and within also Leon discussed the issue: County itself. Terrie, Q: you please, briefly, Dr. would de- Q: you possible Did conclude that it was you scribe what were asked to do in this case? draw such districts with traditional redistrict- A: Yes. was asked to see whether it was ing criteria? possible, utilizing redistricting traditional crite- Yes, A: I did. ria, plan to draw would include at least R16 at 104. majority-minority one district within the Sec- DICKSON, Wellington a.k.a. N. Plaintiff-Appellee,

Duke, OF COR-

FLORIDA DEPARTMENT County,

RECTIONS, Jackson

Defendant-Appellant, Institution, Fol- Jim

Jackson Correctional Childs, som, a.k.a. Edward and James Major, Childs, Defendants.

J.E. MACPHERSON, Marvin

Roderick Plaintiffs-Appellants,

Narz, MONTEVALLO,

UNIVERSITY OF

Defendant-Appellee, Lawyers Employment

National Amicus,

Association, America,

United States

Intervenor-Appellant.

Nos. 96-6947. Appeals, States Court

United

Eleventh Circuit.

April Fleitman, Affairs, S. Dept, Legal

Peter Morris, Wendy S. Regents, Florida Bd. of Resources, FL, Tallahassee, Office Human Regents. for Florida ofBd. Chanin, Collins, Robert H. Jeremiah A. Hacker, Kaiser, Jonathan Bredhoff & Wash- DC, ington, Plaintiffs-Appellees for in 96- 2788." Galanter, Div., M. Rights

Seth Civ. Justice, DC, Dept, of Washington, for United States. Butterworth, Gen., Atty. Lynn

Robert G. Beisner, Franklin and Attys. Amelia L. Asst. Gen., Tallahassee, FL, Dept, for Florida Corrections. Houlihan, Partners,

Gerald J. Houlihan & P.A., Miami, FL, for Dickson. Arendall, Birmingham, AL, David R. for Plaintiffs-Appellants in 96-6947. Hedin, Douglas Glidden, A. Elizabeth A. MN, Minneapolis, for amicus curiae National Employment Lawyers Ass’n. Gardner, Cabaniss,

William F. Johnston & Gardner, AL, Birmingham for University of Montevallo. HATCHETT, Judge,

Before Chief COX, EDMONDSON and Circuit Judges. EDMONDSON, Judge:1 Circuit presenting Three cases the same or similar issues of Eleventh Amendment immunity were consolidated and are addressed in this cases, appeal. In all States,' three agencies, their submitted motions to dismiss based Eleventh Amendment appeal The issues in this are whether Con- Judge judgment Edmondson announces the Hatchett concurs in the Judge result Part II of Judge the Court in this case. result in Part I of Cox concurs opinion Edmondson's but also writes separately Judge opinion Edmondson's Judge issue. on the Cox dissents Part II of the but decides the issue on a Chief different basis. opinion. Judge Hatchett dissents in Part I. Chief Cir.1994), aff’d, 517 U.S. Amend- abrogated Eleventh gress States’ Dis- Age L.Ed.2d 252 for suits under ment (“ADEA”) Employment Act crimination Disabilities the Americans with states: and under Eleventh Amendment (“ADA”).2 Act The Judicial United States courts, District Two the Northern district suit shall not be construed extend Division, Florida, Tallahassee in State equity prosecuted commenced or law or (“Ki Florida, Regents v. Kimel Board of against one United Citi- States ”) Florida, District of mel and the Northern State, zens of another Citizens or Division, City Depart in Florida Panama Subjects any Foreign State. (“Dickson ”), v. Dickson Corrections Const, provision XI. This amend. effectively abrogated held that only prohibits against States in federal suits sovereign immunity with its enact States’ States, by court of other but also citizens (and ment the ADEA for Dickson the brought prohibits against a State in suits ADA) and denied the motions to dismiss. Hans by court its own citizens. v. federal But, Northern District of Alabama Louisiana, 504, 33 134 U.S. S.Ct. L.Ed. MacPherson, University v. Montev Narz (1890).4 (“MacPherson ”) granted mo the State’s allo Amendment tion dismiss on Eleventh to Florida, In v. Seminole Tribe Florida Northern grounds. agree We with the Dis 44, 1114, 134 L.Ed.2d 252 116 S.Ct. private parties by suits trict of Alabama that (1996), Supreme recently Court consid- ADEA in federal court for States Congress proper- the issue when can ered prohibited by are the Eleventh violations ly im- abrogate Eleventh States’ Amendment Amendment.' munity. in Seminole The Court’s decision Co., appealed Pennsylvania for us to v. Union Gas The cases were overruled 2273, 1, Congress abrogated sover 105 L.Ed.2d 1 decide whether U.S. S.Ct. immunity (1989), by it relevant eign when enacted the that acts taken Con- which held presents only appeal this gress pursuant statutes.3 Because to the Commerce Clause law, dependent upon clear, factual could, abrogate questions sufficiently Eleventh if determinations, Seminole, facts of each Plaintiff’s immunity. Amendment be claim will not discussed. had no specifically held that sovereign immu- authority

Discussion when nity the Eleventh Amendment under pursuant to the Commerce acted denying or A court’s order district Clause; power abrogate only exists complaint granting a motion dismiss 5 of Fourteenth Amend- under Section the Eleventh against a State based on addition, pre- out ment.5 In the Court set grant sovereign immunity Amendment’s cisely Congress must do to what by court de See Semi reviewed this novo. Florida, the States’ v. nole Tribe Florida 96-3773, only prohibits Dep’t suits 4. Amendment Only The Eleventh

2. number Florida case Dickson, unconsenting presents parties against v. the Eleventh private Corrections States Thiboutot, 1, Amendment issue for ADA. U.S. court. See Maine federal 7, n. 65 L.Ed.2d 555 9 n. Wellington claims we lacked appeal 3. Plaintiff Dickson (Eleventh principles are Amendment jurisdiction to hear the of Florida’s Stale court.). applicable state to suits in This of the denial of its motion appeal dismiss. properly Court under the before this provision of the Fourteenth 5. The enforcement qualified immu- order doctrine. Like collateral provides: Amendment nity, this after trial would a decision on issue right to the State’s be immune from trial. defeat shall have Section provides the States Amendment Eleventh enforce, provi- by appropriate legislation, the suit, immunity just immunity from sions of this article. Aqueduct damages. See and Sewer Puerto Rico Const, XIV, § 5. U.S. amend. Inc., Eddy, Auth. v. & Metcalf Dellmuth, requirements must be satisfied ute itself. Two' (“[E]vidence immunity congressional at 2401 before Eleventh successfully abrogated by Congress. unequivocal intent must be both and textual be Seminole, [legislative generally history ... will be ir- First, must have to abro intended if relevant” because the intent is clear immunity by “a providing statute, clear gate language legisla- “recourse to “making of its legislative history unnecessary.”) (emphasis will statement” tive be intent — added). unmistakably the lan its clear in guess intention A about court’s (citing Blatch guage political subjective past, of the statute.”6 Id. will and intentions — Village Noatak Circle present, consequence; Native or future —is without ford [1991], Village, and Dell language statute are to and its be Muth, muth v. As directed considered. Con-, [1989]). Second, Court, go beyond I do not text of gress attempted must have deciding whether contains the proper constitutional author requisite, unmistakably clear statement of words, ity. must abrogate. have intent Id. using enacted the statute issue Four requirement This intent abro- —that Amendment,

teenth Section enforcement gate unmistakably found in clear state- Seminole, powers. language of the statute —necessi- 116 at 1127-28.7 clarity high by Congress. a tates level of But, observed, Supreme as the Court has Age I. in Employment Discrimination Act requirement Congress such a of is not too of high important considering when the inter- Although good believe reason exists by protected ests Eleventh the .Amendment. (or to doubt that the ADEA was could have recognizes The Eleventh Amendment that properly) pursuant been the enacted to Four States, law, as a matter of constitutional are Amendment, teenth I will not decide that special possessing entities —still attributes of question today;8 questions of constitutional sovereignty. The strikes a Amendment bal- only should be decided as a last resort. government ance between the federal Instead, I focus on the ADEA’s words and balance, Congress the States. To alter that my unmistakably rest on lack decision the of unmistakably must be clear its intent. See legislative clear intent. Muth, v. Dellmuth searching an the ADEA for un equivocal abrogate, unequivocal expression of intent No of statement to an intent to only courts to the language abrogate immunity unmistakably look of the stat- is clear in me, "unmistakably" strongly added); 6. For powers.”) (emphasis intensifies Commerce Clause "clear;” implications (2) message together and take that where two statutes are enacted bill, to heart. the same like the and the Fair Labor (“FLSA”), Standards Act it seems reasonable Congress abrogat- portions 7. The Eleventh Amendment can be enacted bill.—all also by pursuant ed authority. a waiver—actual State’s consent—but no to the same See 120 it— (1974) (FLSA Cong. one a waiver pur- claims that occurred in these cases. Rec. 7337 enacted Congress's power, to suant Commerce Clause especially suggested by considering variety This doubt is that the FLSA [like a consid- few; erations, (1) briefly initially only private applied employ- ADEA] where to to state ers, Supreme subjects Congress proper held that enacted a who are not the of Four- has enforcement); (3) pursuant powers, statute to its Commerce Clause teenth Amendment when ad- characteristic, deciding dressing we age, must be cautious about that Con- as is not gress race, pursuant could have acted a to different the kind of immutable characteristic as power. zens, League gender, origin, questionable United Latin Amer. Citi- or national it is Clements, lawfully acting Council No. 4434 v. could to be enforce the (5th Cir.1993) ("Although there was Fourteenth Amendment. See Massachusetts Bd. 307, 310, argument some pursuant Murgia, acted to Retirement v. 2562, 2566, powers (Age enforcement under the Fourteenth L.Ed.2d ADEA, passing [Supreme] suspect Amendment in quasi- does not rise to the level of Gregoryf ultimately suspect stage through Court in conclud- class: it is a of life Ashcroft] which only pursuant persons go.). ed that had acted to its all language sufficient to the Eleventh reference the Eleventh ADEA. No Seminole, sovereign Amendment.” See or to States’ Amendment there, (citing place, 116 S.Ct. at 1123 Atascadero State one Nor is included. Scanlon, 234, 244, 105 Hosp. v. declaratory statement that States plain, To by “[T]hat in federal court. individuals be sued me, Congress grants jurisdiction to hear a claim part intent an right not suffice to show has abro abrogate the does States’ constitutional sufficiently gated be all to that claim.” Blatch immunity is clear to effec- defenses ford, n. jurispru- n. tive under Eleventh dence.9 Still, argue, all section, 29 the ADEA Plaintiffs three district

In one U.S.C. agree, employers to In a courts seemed to include States. defines 626(b), section, adding ADEA in amendments which different 1974— States,, agencies, political employers less men- their subdivi- never mentions much defendants, “employer” (along sepa- the ADEA sions the definition tions States pro- original the ADEA rately portions means of with provides for enforcement viding may be equitable relief in that the statute enforced legal or courts suits for statutory competent jurisdiction) represents competent jurisdiction. This struc- courts of unmistakably clarity legislative clear statement provide ture does needed right required to sover- Eleventh Amend- States’ constitutional (which opposed view abrogation For to be unmis- ment. This eign Dickson) clear, necessary clash with first seems to takably it should not precedents. together fit of the statute Court’s various sections expression from which one to create Employees Dep’t Health Public of Missouri, abrogate. Although might infer an intent to Welfare it, the we make no definite rule about need (1973), the Su another, by very construe one section with Fair Stan preme held that the Labor Court nature, or hints that no unmistakable un- (“FLSA”) provide did a suffi Act dards present. im- equivocal declaration is More ciently of intent to clear statement the portant, when we do construe various initially As en the Eleventh Amendment. together, abrogation ADEA sections never (like ADEA) acted, FLSA the did not the becomes “as clear is the summer’s sun.”10 at the apply all States. FLSA agen in to include “A was amended certain State general authorization suit federal in This unequivocal statutory employer. of definition of court is not the kind cies the imposed by presents be a of the Act is a civil fine that can 9. The ADEA different situation Thus, Seminole, by the created the Act. the the one in where Court held that the Commission expressed Congress clearly only entity its intent to to an other than the suits available said, among when are Indian tribes. And Commission available to things, jurisdiction only “[t]he was vested in Unit- the under the entities that tribes sue of ed district courts ... over cause States of Act are States: no other means enforcement arising a ... from the failure of State to action are established. negotiations conduct enter into ... single-mindedness the Act adds much The negotiations Gaming good ADEA, faith....” Indian clarity the other to its words. Act, (em- 2710(d)(7)(A)(I) Regulatory 25 U.S.C. hand, general propo- complicated. a is more As section, added). along phasis re- This sition, against doubtlessly permits suits wide scheme available to a tribe that files suit medial private) range employers (public and for "as under section leaves no doubt equitable) (legal remedies various identity in an under [this defendant action courts). (state But different forums and federal Seminole, at section].” light question fact little on the narrow sheds against by States in federal of suits individuals ADEA, court. Gaming Regula- Unlike the Indian tory Act at issue in Seminole creates scheme , Shakespeare, background, see gambling. For William regulation Indian-tribe federal (speech King Henry the act sc. 2 against Fifth States for Other than suits authorized outlining Henry’s Canterbury good negotiations claim their faith for Tribal- lack throne). provision compacts, only enforcement French held, amendment, provide the Court did not employers To include the States as statement of intent ADEA, the clear FLSA, under the as in the does not intent, .despite- provisions allowing immunity, show an that the States be sued “competent jurisdiction” in courts suits private citizens federal court —the kind of who violated the against employers FLSA. prohibited suit under the Eleventh Amendm history 1617. “The Id. at ent.12 is enforceable the Eleventh and tradition of Amendment States, despite sovereign immunity, by reason of that indicate that barrier a through forms of relief other than direct competent federal court is not to render suits citizens federal court.13 Congress judgment against noneonsenting State.” may have had these other forms of enforce ADEA, Id. dispute Like the there was no ment in mind when it amended the statute to applied agencies the FLSA to the State employers. Thus, include gen States as FLSA; dispute set out in the was application eral of the law to the does States about what kinds of enforcement were avail- requisite not make the clear statement dealing able when with States as defendant- Congress also intended the ADEA to abro employers.11 gate the specifically. Eleventh Amendment decision, Muth, In a later Dellmuth v. dispute provisions do not that some Supreme Court held that the Education of the ADEA make' possible States look like (EHA) Handicapped Act did not abro- alleging defendants suits violations of the gate immunity despite Eleventh Amendment accept ADEA. I provisions that these could provisions allowing suit federal district support an “inference States were many provisions court and referring to the subject intended to damages actions for parties States as in suits of enforcement. Dellmuth, violations of the Dellmuth, [ADEA].” But, U.S. at 109 S.Ct. at 2402. (like as the pertinent 2400-02. That the statute ADEA) Dellmuth, per stressed in never mentioned either “the missible Eleventh inference is not “the unequivocal the States’ sover- eign immunity” given declaration” weight. required was that is Id. at to show Con abrogation. Abrogation gress’s S.Ct. at 2402. was not intent to powers exercise its sufficiently clear. Id. Id. 626(b) 11. The ADEA's 29 U.S.C. tutionality refers to jeopardy. sec- appeal only is not in This Act, FLSA, tions of a particularly different addresses whether the ADEA and ADA can be provisions some of the FLSA enforcement through by private parties enforced suits in fed- Employees. statutory, issue in This structure against is offending eral court States. hardly straightforward. Employ- In after ees, examples Congress 13. For of other ensuring amended the FLSA. methods of Those amend- law, changed compliance the States’ inole, provi- ments with federal FLSA’s enforcement see Sem- provide sion 517 U.S. at 71 brought that suits n. could be 1131 n. against "employers 14. (including public agency)” "any in competent Federal or State court of 14. Some circuits have held that did jurisdiction.” (The § 29 U.S.C. FLSA as clearly express abrogate its intent to States’ im § amended is similar to 29 U.S.C. 626[c][l] See, munity e.g., Pittsburg ADEA. Hurd v. itself.) Still, the ADEA a federal court lacks Univ., (10th Cir.1997); State 109 F.3d 1540 "competent jurisdiction” if the Eleventh Amend- Allegheny Blanciak v. Corp., Ludlum 77 F.3d 690 prohibits against the suits the State. Em- (3d Cir.1996); Davidson v. Board Governors ployees, So, 411 U.S. at 93 S.Ct. at 1617. Univs., Colleges (7th State and 920 F.2d 441 making specific it brought that suits can be Cir.1990); Serv., v. Puerto Rico Fire Ramirez federal court does make it more clear that (1st Cir.1983). respect F.2d 694 I their views. against by private parties suits States in federal These courts determined that the Other, amendments private court are in employers order. adding "employer,” States to the definition of could be the intended defendants in such suits. provisions read in connection with enforcement equitable might And against relief be available permitting ADEA, suits violators of the state officials in federal courts. See Edelman v. sufficiently made it Jordan, clear that intended 651, 663-64, immunity: Eleventh Amendment Compare § (describing 29 U.S.C. 623 what con argument ( appeal mistakenly unlawful) c) Plaintiffs’ 626(b), in this duct is with (permitting frames this issue constitutionality as one of the competent jurisdic civil suits "in court of the relevant statutes. The legal statutes’ basic equitable consti- tion” for relief as by ADA addressed ADEA indi- sis of situation nothing in the I conclude agree the courts that have ad- with truly clear intent cates properly the ADA was the issue: dressed immunity Eleventh Amendment Fourteenth enacted thus, immunity and, are entitled States See, powers. e.g., Amendment enforcement in federal court by private citizens from suits Dep’t Safety Pub. Maryland Amos v. under the ADEA. Servs., 126 F.3d Correctional Cir.1997).17 Act Disabilities II. Americans With ADEA, the sharp In contrast Conclusion of intent include a clear statement ADA does important is an The Eleventh Amendment immunity: Amendment Eleventh for the part of the It stands Constitution. not be immune under “A State shall sovereign principle that ...” amendment eleventh jurisdic- immunity limits the federal courts’ § 12202.15 such, Congress III. under Article As tion Thus, only argument that Eleventh unmistakably clear statement must make an immunity is exists still Amendment accept its intent a federal court before Four- pursuant enacted ADA was not their con- stripped have been that States persuaded are not Amendment. We teenth immunity. stitutionally granted sovereign argument. this me, unequivocally the ADEA contains no For ADEA, plain ADA Unlike the clear statement of intent. The en- Amendment And the ADA enacted under invoking was Fourteenth does. was authority of the Amendment. enacted the ADA. Fourteenth powers when it forcement 12101(b) (“It purpose is the See U.S.C. our For the reasons stated in combined sweep ... invoke the chapter opinions, we hold that the ADEA does authority, including congressional im- Eleventh Amendment abrogate States’ amendment-”). the fourteenth to enforce the ADA does so. munity but do Congress specifically found “individuals Therefore, Kimel, we REVERSE and insular Dickson, disabilities are discrete and we REMAND for dismissal. minority have faced with restric- part who been part and REVERSE in AFFIRM limitations, history subjected to proceedings. tions REMAND for further MacPherson, the district unequal 42 U.S.C. we AFFIRM purposeful treatment.” 12101(a)(7).16 analy- decision. accept Congress’s court’s We abrogates purposes Eleventh appropriate that Title VII to effectuate the considering abrogation Act) immunity). But when (including in the definition States me, ADA, help cannot but "employer”). Although, courts the ADEA and these both clarity addressed permissible with which drawing a inference from see sovereign are statute, immunity Comparing language agree the ADA. that the ADEA's cannot spotlights unequivocal abroga language further of these two statutes declaration of includes an ambiguous treatment of required by Con of the ADEA’s nature tion of States’ just It Eleventh Amendment stitution and the Court. generally "unmistakably Hu to me. See clear” menansky Regents the Univ. By way, express v. Board Four- the invocation of 16. of of of (also Minnesota, (D.Minn.1997) F.Supp. powers present 439 the 958 in Amendment teenth necessary findings “un concluding ADEA lacks the the the in Nor did make ADEA. abrogate). equivocal particular age to declaration” of intent persons of a constitute ADEA minority. and insular a discrete magic say must be do that certain words 15.I Kimel, presents issue: accept one further 17. the abrogate I that Con- used to ADEAsuit cannot abrogation should we determine the gress unmistakably signal of That could State, re- against we should immunity variety ways, write no be maintained and we in to district court § with instructions to the general 5(f)(1) (where today. 42 2000e- mand U.S.C. rules supplemental claim under by ag- state speaks dismiss Title VII of suits proper Rights is the govern- Act. That persons against government, Florida Human decision, grieved "a to the dis- that claim is remanded political while and agency, or subdivision” mental courts) it be dismissed. instructions that and trict court with discussing in district suits federal 1157, Gerwen, Bitter, 445, 452, v. 40 F.3d S.Ct. See Eubanks Fitzpatrick U.S. 96 v. 427 Cir.1994). (11th 2666, 2670, (1976) (concluding 614 1434 Muth,

HATCHETT, 223, 228, 2397, Judge, concurring in 109 Chief S.Ct. dissenting part: in 181 If judgment part, in L.Ed.2d the court clearly expressed that Congress finds its in Congress effectively I would hold that ab- to abrogate immunity, tent the states’ rogated sovereign immunity the states’ under inquiry next is whether enacted the Amendment the United Eleventh legislation “pursuant question to a consti Age in both the Constitution Discrimi- States provision power tutional granting [it] the to (ADEA), Act Employment nation in Tribe, abrogate[.]” Seminole §§ and the Americans with U.S.C. 116 S.Ct. at 134 L.Ed.2d at 268.3 A (ADA), §§ Act 12101- Disabilities legislation” “appropriate statute is to enforce respectfully 12213. I dissent therefore from Equal Clause of the Protection Four Judge Part Discussion in “may regarded teenth if it Amendment opinion, holding that Edmondson’s because an enactment to enforce Protec sovereign immunity states to are entitled Clause, ‘plainly tion adapted it is [if] Amendment, private under the Eleventh citi- prohibited by end’ and it is but is [if] precluded bringing zens from are lawsuits spirit consistent with letter and ‘the federal court entities ” California, constitution.’ Clark concur, however, ADEA.1 the result Cir.) (quoting Katzenbach v. Discussion, of Part II Judge Edmondson’s 641, 651, Morgan, concluding that are not the states entitled to (alterations (1966)) original), L.Ed.2d 828 immunity Eleventh federal petition filed, cert. 66 U.S.L.W. 3308 disagree lawsuits under ADA. I (U.S. (No. 97-686). 20,1997) Oct. Judge entirety in its analysis Cox’s feel and address, compelled particular, his asser- Abrogate I. Intent tion that and the ADA the ADEA are not Immunity the States’ legislation pursuant “valid enforcement” Congress’s power under Section 5 of the A. The ADEA Fourteenth Amendment.2 The ADEA it unlawful makes for an “em- its ployer” exercise abro “to fail or refuse to hire or to dis- gate the charge any states’ Eleventh Amendment immu or individual otherwise discrimi- (1) nity ‘unequivocally expresse[d] if against any “has nate with respect individual terms, conditions, immunity’”; intent to his compensation, [or her] (2) it ‘pursuant privileges “has to a valid employment, acted exercise because of such ” power.’ 623(a)(1) Tribe age[.]” Seminole Florida v. individual’s 29 U.S.C. Florida, 44, 54, 116 1114, 1122, 1974, Congress amended the defi- (quoting L.Ed.2d nition “employer” Green v. to include “a State or Mansour, 423, 425, political of a State agen- subdivision (alteration (1985)) cy L.Ed.2d 371 in origi instrumentality of a political State or a nal). Congress State,” must make its intent subdivision of a “unmis deleted text ex- takably language plicitly clear excluding statute.” such entities from that defi- Tribe, 630(b)(2) (1994).4 Seminole U.S. at nition. 29 U.S.C. & note at 266 explicitly provides Dellmuth The employ- brevity, Tribe, 1. For the sake I will' use the term In Seminole Court over- Co., agencies Pennsylvania "states" to refer to states their ruled v. Union Gas (1989), instrumentalities. and held authority has no sovereign acting pursuant states' when provides determining Because Cox Clause, to the Commerce hut can their vote sovereign are states entitled immuni- immunity under Section 5 of the Fourteenth ty under the ADEA—albeit for reason different 58, 63, Amendment. 517 U.S. at my Judge opinion from that of Edmondson — 1125, 268, at L.Ed.2d 273. respect analysis with to the court's ADEA is a ADA, however, regard dissent. With to the I merely result, separately uphold applicabili- write to “employee” the 4. As a under the ADEA in- states, ty Judge persons of that the statute to as did cludes those who work for states and 630(0 agencies. Edmondson. § their 29 U.S.C. See

1435 out, sively pointed simply subject are to statute [t]he the statute 'violate ers who dispute 29 no room to whether states and equitable relief. See leaves liability legal for (1994) (“In 626(b) among agencies are included the class action state chapter potential court when sued under the the of defendants brought to enforce this jurisdiction legal ‘employers.’” or ADEA for their actions as grant to have shall Blanciak, 695; may to 77 F.3d at see also appropriate be Seminole equitable relief Tribe, 57, 1124, chapter....”); 517 116 134 purposes of this S.Ct. the effectuate (1994). 626(c)(1) the (relying on references 29 U.S.C. in the the in to the “State” text of statute parties in Kimel—includ agree I with the to question conclude that such references Regents Board of with ing the Florida —and Congress it that intend- indubitable “[made] that has ad virtually every other court through abrogate Act to ed the the States’ including all dis question, three dressed suit”).5 sovereign immunity cases, underlying that courts in the trict my colleague’s I issue with “unmistakably an clear” take reliance made facts to the abrogate intent the states’ that reference Eleventh “[n]o of its statement sovereign immunity immunity in ADEA. Hurd Amendment or to States’ sovereign See ADEA,]” there, Univ., 1540, is in Pittsburg F.3d 1544 included [in “[n]or 109 v. State (10th Cir.1997); Allegheny place, plain, declaratory Lud statement that Blanciak v. one (3d Cir.1996); can sued 77 F.3d 695 individuals federal Corp., lum States 690, Edmondson, J., Athough v. Board court.” Davidson Governors of of Univ., 920 F.2d Edmondson states that we do Colleges & W. Ill. Univs. for (7th Cir.1990). 441, require Congress any “magic words” “Unless use 443 effectively sovereign many abrogate abro the states’ said so words that was had immunity, sovereign immunity age and that “unmistak- gating the states’ immunity degree ably signal abrogation of ex of in a vari- cases—and that discrimination ety ways,” opinion, have of I that his required is not could not believe plicitness —it essence, exactly requiring sover that. made its desire to override states’ Davidson, J., Edmondson, If Congress at 1420 n. eign immunity clearer.” 920 F.2d (internal omitted); sufficiently expressed also has not intent citations see (“I Edmondson, J., immunity through in- say abrogate 21 n. do not that the states’ cluding “employ- in the of magic be used to abro “States” definition certain words must in,the ADEA, decision, Congress could after this I cannot accept that er” gate “variety .ways” immunity imagine in what other Con- unmistakably signal abrogation variety ways, gress signal abrogation can the states’ general we write no immunity, through today.”). persua- other than the use rules As Third Circuit Hurd, 3; (with ty”); exceptions, ‘employee’ F.3d at n. Reich v. New term "[t]he some York, (2d Cir.1993) (stating employed any employ- 3 F.3d means individual er...."). “Congress [the FLSA] that amended with political that subdivisions intent states their Employees Dep't subject suit disagree Public would thereafter be in federal that FLSA[,]” finding Department & v. Health court violations Health Public Welfare abrogate Welfare, "Congress has made its intent to & (1973), sovereign immunity abundantly concluding clear the states’ L.Ed.2d 251 FLSA, language clearly express abrogate as amended in 1974 did not its intent denied, 1985"), immunity enacting the 1966 amend- cert. states' (1994), (FLSA), other overruled on ments to the Fair Labor Standards Act York, (2d grounds, question v. New 125 F.3d into intent to Close calls Cir.1997) (“[W]e longer justify congres no the states’ ADEA. . abrogation Congress specifically to ad- under the Interstate Commerce amended FLSA sional Clause, permits such Employees and to and to the extent that Reich dress the concerns of good abrogation, law.’’); longer we hold Reich is no authorize the states in federal lawsuits (1st Arizona, Maine, Hale court. Cir.1997) Mills Cir.) (era ) clearly (stating (stating agree banc “we sovereign appeals intended the states' immu courts of that have examined the FLSA’s FLSA), nity cert. provisions con- in the 1974 amendments and have concluded the Act denied, necessary congres- tains the clear statement of sovereign sional state immuni- intent equity) words.” Seminole are available for such a “magic violation to any require Congress that use Tribe did not the same extent as such remedies are express its intent to language talismanic available for a violation in an action easily have done so. As abrogate, against any public private and could entity requires that Seminole Tribe not believe do than a State. any particular to ex- to use words Congress (1994). Accordingly, U.S.C. effectively abrogate its intent press Congress “unequivocally expressed” find that immunity, and because I believe that states’ abrogate sovereign its intent the states’ language is clear Congress’s intent immunity in section 12202 of the ADA See ADEA, I conclude the first criterion AFSCME, 3139, v. Autio Local No. 97-3145 Tribe is satisfied. See EEOC v. Seminole (8th 9, 1998); Apr. Coolbaugh Cir. v. Louisi 226, 18, Wyoming, 243 n. 460 U.S. ana, Cir.1998) (finding (1983) 75 . 1064 n. L.Ed.2d 18 Congress’s abrogate intent to im states’ (“[T]here what is no doubt intent clear”); munity “patently the ADA Congress application was: to extend of Clark, 123 F.3d at 1269-70.6 States.”); Gregory ADEA v. Ash- Congress’s II. Abrogate Power to 452, 467, 2395, 2404, croft, 501 U.S. Immunity the States’ (1991) (“[The] plainly 115 L.Ed.2d 410 employees except covers all intent, state those ex- In clearly expressing addition to its exceptions.”); cluded Fitz- Congress one pursuant also must have acted Bitzer, patrick authority its under Section 5 of the Four- (concluding 49 L.Ed.2d 614 abrogate successfully teenth Amendment to Congress’s designation par- of states as immunity. the states’ Eleventh Amendment Tribe, ties Title VII was sufficient to See Seminole 517 U.S. at 116 S.Ct. immunity). the states’ 134 L.Ed.2d at 268. Cox that, regardless Congress asserts of whether B. ADA clearly expressed its intent to states’ from presents The ADA lawsuits in federal easier case under ADA, court under both the ADEA Seminole Tribe’s “clear statement” stan- and the dard, Judges authority both lacks the Edmondson and Cox Edmondson, J., 15; statutes, agree. See do so under relying at 1420 n. these on the Cox, J., text, Supreme City Within the statute’s Court’s recent decision Flores, Congress explicitly provided: -, Boerne v. 2157,138 Boerne, L.Ed.2d 624 In

A shall not be immune under the Court held that eleventh amendment to the exceeded Constitution authority its Section 5 in enacting the United States from an the Reli action [a] gious (RFRA), competent juris- Federal or Freedom Restoration Act State court of 2000bb-4, §§ diction for a chapter. through violation of this 2000bb to action sought previ State for violation of which to reinstate a ous, requirements chapter, stringent remedies more standard of review for (including remedies both at religion law and free exercise of claims.7 The Court however, - emphasize, 6. compelling governmental I must that I do not con- interest.” clude, at -, imply, required to use 138 L.Ed.2d at RFRA, any “magic express effectively seeking words” its in- then enacted the compelling tent to "to states' I con- restore the interest test as set [,] guarantee ap- clude forth in Sherbert ... intent under the and to ADA plication in all is clear. cases where free exercise of reli- burdened_" gion substantially 42 U.S.C. Division, Employment Dep’t Human Re 2000bb(b)(1) (1994). Thus, pro RFRA "[the] Smith, 872, 883-87, sources ‘government’ ‘substantially hibit[ed] dening]’ bur 1595, 1602-04, (1990), the Su person’s religion exercise of even if preme apply balancing Court declined to test general resulted] the burden applicability from a rule of analyzing free exercise claims set forth in government unless dem [could] Verner, Sherbert v. ‘(1) onstrate the burden [was] in furtherance of a (1963), "neutral, interest; (2)[was] and held that compelling governmental generally applicable applied laws to reli furthering the least restrictive means ” gious practices Boerne,- supported by governmental even when compelling interest.’ problem arbitrary Congress enforcing rights pervasive was discrimination not found that Amendment, it protection which under the Fourteenth older workers. Such is at do, power but was undeniably has the the core of the Fourteenth Amendment’s rights the attempting to Constitu create protection guarantee equal the law. under guarantee. See U.S. tion not did Congress arguably gone though Even has at -, 138 L.Ed.2d in proscribing government employ- further words, imper- had 646. In other practices that discriminate on the basis legislation. missibly “substantive” enacted age in adjudicating than have the courts Vot Judge states that ‘Boerne the Cox Amendment, the Fourteenth claims under [o]nly ing Rights [that] Act eases teach us merely differing reflects the roles of interpretations of respecting Supreme Court the courts. Amendment can the Fourteenth interpreting the Amend impermissibly avoid enacted the ADEA to “en- Cox, J., interpret at 1445.1 his ment itself.” rights Equal under the Protec- force” manner, limit, analysis unallowable tion the Clause Fourteenth Amend- thus, disagree. power the ment. Boerne, Congress legislated a constitu A. ADEA judiciary. tional standard of review for the ADEA was not Judge Cox asserts the Contrary assertions, I do Cox’s not Section 5 proper exercise find this to be the case under the ADEA. In analysis for two under the Boerne Equal pro general, the Protection Clause First, alleges he main reasons. similarly treating scribes states from situated rights indi statute confers more extensive jurisdictions persons differently within their Equal than does the Protection viduals governments and assures that will differenti Amendment. Clause of Fourteenth only upon ate between their reason citizens essence, Judge alleges that the ADEA Cox grounds relationship able that have a “mandatory ages” “man puts retirement See, Evans, goals. e.g., Romer v. desired datory rigorous more age limits” to much 620, 630-32, 1620, 1627-28, 134 U.S. Equal test than the Clause re Protection (1996); Nordlinger 865-67 v. Cox, J., addition, Judge quires. at 1447. In Hahn, 1, 10, 2326, 2331, “Congress Cox did enact asserts (1992); City Cleburne v. response proportional ADEA as a Inc., Ctr., Living elderly’s Cleburne U.S. constitu widespread violation because, rights[,]” among tional rea (“The sons, rely legislative history accompanying on a classification relationship goal 1974 amendment did whose to an asserted so or vi mention Constitution constitutional as to arbi attenuated render distinction Cox, 1444,1447. irrational.”). J., at trary Although olations. age is not a “suspect” quasi-suspect classification de contrary, many To like other circuit serving judicial scrutiny close courts, ADEA falls I conclude Clause, Equal Fourteenth Protection squarely power that within the enforcement equal protection guarantees Amendment’s con- Section 5 of Fourteenth Amendment solely are not limited to members of few Hurd, Congress. 109 F.3d at fers on Cleburne, See, e.g., protected groups.8 Serv., 1545-46; Ramirez v. Puerto Rico Fire (“[T]he [dis at 3258 (1st Cir.1983); EEOC 699-700 abled], others, (7th Cir.1982); have and retain their like Elrod, 608-09 674 F.2d rights Grisell, in addition substantive Arritt Cir.1977). right equally to be treated the ADEA to Congress enacted law.”).. Every person prevent right what found to be a has free remedy and at-, passes age if S.Ct. at 138 L.Ed.2d at viduals on the basis of the action 2000bb-l). test, i.e., rationally it is related the rational basis legitimate Gregory, government to a interest. See Clause, arbitrary 8. Under the Protection 2405-06. rights state of older indi action burden empowers Congress ap on ar government classifications based amendment to enact criteria, propriate legislation establishing bitrary irrational more exact protection ing requirements than those minimum limited to “the safe power is not amendment[,]” guards provided in the the Court to as found deserve those classes ” long carry does so “to out the under the Constitution.’ ‘special protection’ ].”), purpose of Clark, [the] cert. de at 1270-71. But 123 F.3d Wil amendment cf. nied, 917, 1850, Caviness, 64 99 F.3d 210 son-Jones (1980). Cir.1996) L.Ed.2d Courts must accord Con (stating that the court will not “re gress in determining “wide latitude” where gard” legislation not affect a does pre draw line between measures that “specially protected” judicially-recognized remedy vent or unconstitutional actions and class, “to Equal as an enactment enforce the changes those that make substantive Congress explicitly Protection Clause” unless — Boerne, -, governing law. at U.S. clause), enforcing that stated that it 117 S.Ct. at L.Ed.2d at 638. grounds, 107 amended on other Thus, it is clear that does not merely stamp” have to the constitu “rubber Additionally, Congress has exceeded tional Supreme violations that the Court has authority Equal its to enforce the Protection exist; already found to nor does it have to simply Clause because the ADEA im legislate remedy only that conduct that liability involving pose distinctions on based unconstitutional, the Court would find even age that a court would not find to be “irra though yet the Court has so ruled. See undisputed tional” under that clause. It is Murgia, Massachusetts Bd. Retirement v. Congress’s power rights to enforce the 307, 314, 2562, 2567, equal protection of the law under Section 5 (1976) (stating L.Ed.2d 520 dicta is not unlimited. cannot “decree inquiry rational-basis the Court’s “reflect[s] the substance of the Fourteenth Amend drawing awareness that of lines that States[,]” ment’s restrictions on the or alter peculiarly create distinctions is a legislative — Boerne, right[s][are].” “what the U.S. at one”).9 task an unavoidable Such -, 117 S.Ct. at interpretation essentially would render established, however, long It has been meaningless Congress’s power to enforce the “[l]egislation which deters and remedies con Amendment, Fourteenth separate which is sweep stitutional violations can fall within the power judiciary and distinct from the of the Congress’ power enforcement even inif interpret the Constitution. See Katzen process prohibits conduct which bach, 384 U.S. at 86 S.Ct. at 1721-22. unconstitutional ‘leg and intrudes into itself islative spheres autonomy previously re Morgan, Katzenbach v. ” — served the States.’ at rejected argument Court the state’s that sec- —, 4(e) 138 L.Ed.2d at 637 Voting Rights tion of the Act could not (quoting Fitzpatrick, 427 U.S. at appropriate legislation sustained as to en- 2670) added). (emphasis S.Ct. at The Boerne Equal force the Protection Clause unless the cited, example, upholding Court as an courts decided that the clause forbade that suspension voting requirements, of various English literacy requirement. section’s tests, literacy such as Congress’s par at 86 S.Ct. at 1721-22. The allel to enforce the Fifteenth Amend stated: ment to racial combat discrimination in vot A construction of 5 that require would

ing “despite constitutionality the facial judicial determination that the enforce- tests under Northampton County Lassiter v. precluded by ment of the state law Con- Elections, Bd. gress violated the [Fourteenth] Amend- (1959).” Boerne, ment, L.Ed.2d 1072 as a sustaining condition of —, 637; enactment, 138 L.Ed.2d at congressional depreciate would Anniston, City see also Scott v. congressional both resourcefulness (5th Cir.1979) (“The congressional fourteenth responsibility imple- Murgia constitutionality 9. At issue in was the lice officers. See 427 U.S. at S.Ct under the Protection Clause of a state mandating age po- statute a retirement for state ming, It con- 460 U.S. at meriting Amendment. would 2596-99, 9911-13, (citing Cong. Rec. power in this context legislative fine abrogating thus directed role of insignificant Secretary (Secretary) judicial of Labor con laws that the branch those state unconstitutional, complete” study age a “full adjudge duct prepared was employment. judgment Wyoming, of discrimination in merely informing by particularizing “ma- 460 U.S. at 1057. The judiciary Secretary report year about a jestic generalities” §of 1 of Amend- issued (1) later, finding, among things, other that ment. employment age generally discrimination was 648-49, Katzenbach, 86 at 384 U.S. at S.Ct. unsupported stereotypes on based and was (footnote omitted). I decline to read 1721-22 pretextual grounds; often on defended and power into Congress’s a limitation of empirical the evidence showed that arbi decision, any find the Boerne and assertion age overall, trary limits were as unfounded practices the ADEA reach that workers, average, performed older on as well simply to are not themselves unconstitutional Wyoming) younger workers. 460 at wrong. 230-31, Thereafter, 103 at 1057-58. appropriate, propor- 2. The ADEA is an committees in the Senate and the House to tional remedial measure address Representatives extensive conducted hear age discrimination. ings, proposed legislation on prohibiting such discrimination, Secretary’s legisla- findings In order for the courts to consider and the “remedial,” substantive, throughout tion to be and not “were confirmed extensive nature, factfinding proportionality “a be- undertaken Executive congruence and Congress.” Wyoming, Branch and injury prevented to be or remed- tween 230-31, 103 at adopted must at 1057-58. and means to end” ied at -, exist. In March around same time that reviewing After passed considered and amend- history legislative the text of the ADEA and extending under ments Title VII's Section amendments, its I conclude that Con and application government and state local em- addressing arbitrary age gress, discrimi ployees, Bentsen first Senator introduced in employment, require satisfied this nation govern- the ADEA to legislation extend Wyoming, generally ment. See Elrod, employees. F.2d ment at 604 229-33, (discussing (1972), (citing Cong. Rec. and Elrod, history); F.2d legislative ADEA’s Employment Opportunity ofAct Pub.L. (same). at 604-07 103). 92-261, After No. 86 Stat. Senator again presented proposed Bentsen preamble provides to the Con- The ADEA May arguing that Title amendment gress’s findings regarding, among principles “directly ap- underlying were VII’s things, “arbitrary age regardless limits ADEA, plicable” the Senate voted job performance has be- potential for [that] unanimously in favor of the amend- “arbitrary practice,” come common and Elrod, (citing ment. at 604-05 employment because discrimination Cong. Rec. pur- age,” and states one of Act’s however,, amendment, initially pass failed to poses prohibit such discrimination. committees. El- House-Senate conference (1994). 1950s, Congress In the rod, Although legisla- little 674 F.2d at 605. arbitrary age began prohibit its endeavors history concerning the 1974 tive exists Wyoming, discrimination. See ADEA, amendment During floor debates specific no mention of made Title concerning the enactment of VII of and the provision, both the House Senate Rights Act of amendments Civil Nixon’s 1972 to cited President remarks age along protected with Title VU’s include congressional purpose indicate rejected part “in on classes were the basis amendment: yet enough did not have infor- judgment age based on some mation to make a considered about Discrimination —what great call be as age Wyo- people “age-ism” the nature of discrimination^]” —can society as discrimination power. in our based sion evil Section religion history other character- text on race or of the ADEA demonstrate a focus, person’s unique congressional status ignores including extensive fact- istic which discrimination, finding arbitrary and treats him or her as a on age as an individual arbitrarily-defined harm, group. resulting employment prac- of some member field, employment private dis- .Especially public employers tices of —dis- age is cruel and self- crimination based crimination that had become a “common destroys spirit of those defeating; practice” legiti- and was often unrelated to and it want to work denies Na- employment who mate goals. See 29 U.S.C. they if the contribution could make purpose tion[ ] is clear that the “[I]t working. they were amendment [1974 ADEA] was nation] private sector.” tions Elrod, ployees (quoting 2849).10 mented amendment] reprinted H.R.Rep. No. against based will be 93d. that In addition, Cong. arbitrary Cong., 2d Sess. 55 insures “[t]he ^[1974] subject age at 605 Elrod, Rec. 8768 passage as are that Senator Bentsen employment 93d U.S.C.C.A.N. the same Government employees Cong., (1974)).11 F.2d [the (1974), S.Rep. [discrimi- 2d at 605 protec- ADEA Sess., com- em- No. itself, ployment ty tion. The 1974 the invidious effects of about coverage F.2d at the Fourteenth Amendment.” guarantee which prohibit arbitrary, (stating conduct ‘is aimed at 604; classify “to relationship decisions based that ‘equal protection see also shield amendment, older workers as irrational, unjustified is the public discriminatory govern- between Ramirez, age-based very upon assumptions extended employees like the essence of the of the laws’ of age 715 F.2d at Elrod, discrimina- incapable and abili- ADEA ADEA from em- above, ”) I light job of the conclude that performance.’ of effective (quoting El- 605).12 rod, qualifies provi- as valid enforcement 11. 10. Hurd, ming, of the 1978 ADEA amendments is a statement its Section 5 ers under the Fourteenth Amendment the Fourteenth need not decide whether it could also be F.2d at 700 adopted applied the ADEA to the plied in this local gress’ powers under the Commerce Clause. We as an exercise of power ment ("The extension of the ADEA to cover state and mination that ing its local to extend FLSA ment-overshadowed the ADEA.The House and at 605 state and local which Senate considered the ADEA amendment to be "a light power logical Wyoming, that governments, addition, government employees.” that 109 F.3d at 1546 things, under Section 5 (internal Congress passed of this and the amendments the 1974 ADEAamendment Congress passed enacting under the Commerce extension "Congress (holding postWyoming power). case, 460 U.S. at extended that statute to government employees Amendment.”) included in the quotation coverage Congress' powers was a valid exercise of Con- the ADEA both on acted of the Fourteenth Amend- the 1974 ADEA amend- (concluding, the FLSA also was states”); the ADEA marks Committee’s decision pursuant Federal, State, (emphasis is not legislative history 103 S.Ct. at 1064 Clause, face Court’s conclud- Elrod, omitted). Ramirez, exercising under that, among pursuant pursuant and as to its —and precluded. after my 674 F.2d when added); federal, upheld deter- pow- Even Wyo- 5 of ap- its it 12.The employment goals Co. v. son v. tional or related to only targets arbitrary age Even disparate impact than normal based classifications on the are "based on reasonable factors other than age,” supports Rep. minorities.” more sense than classifications are related to a "bona fide capable porting Sess., reprinted Findley ADEA was H.R.Rep. equal employment opportunities. Representative ADEAif the distinctions serve the (11th Cir.1991) (quoting every employment (BNA) Atonio, age-based employment Representative qualification reasonably necessary University fact that the view that operation blacks, women, Americans stated that No. part age. Elrod, employers 103). of its claims discriminating of the ^[1978] 29 U.S.C. proposition Montevallo, Congress’s legislation 674 F.2d at 606 "depriving Paul jobs general policy decision that is based on Part generally particular employer.” discrimination, 753 Gov’t can defend their Findley [does Wards Cove religious grounds I, distinctions under 623(f)(1) (1994). 95th that the ADEA 109 S.Ct. older and still not] 922 F.2d do not violate business” or further employment "legitimate Empl. Cong., MacPher make that such or ethnic Packing occupa ensure rather to the in the age- sup- Rel. any 1st “section 5” or “Fourteenth Amendment” or ADA B. The see, “equal protection,” e.g., Fullilove ADA, Judge respect Cox With Klutznick, is not valid enforce- that the statute states 2758, 2773-74, 65 L.Ed.2d 902 reasons that he legislation for the same C.J.), (Burger, for ... constitutional- “[t]he First, asserts that the ADEA. he rejected ity by Congress taken action does suspect are not a disabled because depend it on recitals of the which class, special no enjoy and thus quasi-suspect Cloyd undertakes to exercise.” Woods v. Clause, Equal under the Protection rights Co, Miller W protec- provides greater them with ADA 421, 424, 92 L.Ed. 596 does the Protection Clause. tion than n. n. 460 U.S. at 243 ADA “was His second reason therefore, question, is not whether Con- any unaccompanied by finding wide- gress explicitly on the Fourteenth relied of the disabled’s constitu- spread violation (cid:127) ADA, Amendment when enacted the but prophy- rights the creation of required tional Congress’s au- whether the statute is within remedies].,]” that “[a]ltruistic lactic and states n thority Ra- amendment. See [the motivated economic concerns mirez, (“The omission of of the Constitution.” defense ADA] —not powers by ritualistic incantation of the Con- Cox, J., my For reasons similar determinative, gress is no there is ADEA, disagree. analysis of requirement incorporate statute that, matter, acknowledge an initial As ”); Elrod, words ... 674 F.2d at 608 buzz ADEA, Congress explicitly in- unlike (“[T]he legislation test whether is enacted power under the its enforcement voked pursuant § 5 of Fourteenth Amend- to the ADA. See 42 the Fourteenth requires intoning ment no talismanic of the 12101(b)(4) (1994) (“It pur- the is Rather, inquiry amendment. is whether sweep pose ... to invoke the [the ADA] objectives legislation of the are within authority, power congressional including amendment.”) power under Congress’. amendment and to to enforce fourteenth (internal omitted). citation fpotnote and commerce, in regulate order to address the said, That I turn to the being now substan- day-to- major areas faced of discrimination analysis of the ADA. tive disabilities.”). empha- I day by people with First, agree I not with Cox’s do however, that, size, similar ex- to argument equal protection concerning the intent, Congress is not pression of its re- I ADA the same reasons declined for invoke any magic to use words to its quired respect accept argument with authority to the Fourteenth enforce Amend- individuals, Although, ADEA. like older abrogating 5 before ment under Section 1445; quasi-suspect not a or disabled are supra p. suspect See see states’ Clark, not (“Although class—and therefore are entitled ‘the also judicial higher scrutiny constitutionality action level of under taken depend power Equal which it Protection Clause that courts accord on recitals of does exercise,’ give great affecting we classes—the dis defer- state action undertakes statements.”) congressional equal protection ence to abled are still entitled to the Co., discrimination, Cloyd arbitrary Miller against W. Woods law Cleburne, L.Ed. 596 every person. as is (“Our Wyoming, In EEOC refusal rejected very suggestion, that and stated: recognize quasi-suspect as a [disabled] entirely unprotect congres- of our class does not leave them

It is nature review discrimination.”). legislation ed from Like defended on the basis of invidious sional Circuit, authority I find for the idea powers under of the Four- Ninth no Congress’ scrutiny that of a level of that we be able dis- “the Court’s choice teenth Amendment judicial purpose purposes review should be legislative cern some .factual legislative power boundary predicate supports the exercise Clark, however, F.3d mean, power. Amendment[.]” That does Fourteenth anywhere especially 1271. I recite the therefore need words conclude— history the ADA with disabilities continue to be a serious congressional light of the Congress did not below—that pervasive problem; as discussed social authority enacting that statute exceed (3) discrimination individuals with may impose liability the ADA simply because persists disabilities in such areas as critical find to that the courts would not in situations employment, public housing, accommoda- Equal under the judicial standards violate education, tions, transportation, communi- the ADA to be Protection Clause. consider recreation, institutionalization, cation, sweep that falls within the of Con- legislation services, public voting, health and access to “prohibit[ con- gress’ ] enforcement services; which is not itself unconstitutional.” duct (4) experi- unlike individuals who have at -, S.Ct. at race, enced discrimination on the basis of 138 L.Ed.2d at 637. color, sex, origin, religion, age, national Additionally, disagree with the assertion experienced individuals who have discrimi- was not concerned with consti disability nation on the basis of have often ADA, tutional violations when it enacted the legal no had recourse to redress such dis- and thus that the statute is not valid enforce crimination; legislation power. under its Section continual- individuals disabilities “appropriate legislation” The ADA is to en ly encounter various forms of discrimi- Clause, Equal force the Protection as it nation, including outright intentional ex- regarded as an enactment to enforce that clusion, discriminatory effects clause, plainly to that and “is adapted end architectural, transportation, com- prohibited by but consistent with the barriers, overprotective munication rules spirit letter of the [Constitution.” policies, failure to make modifica- (internal Clark, quotation existing practices, tions facilities and AFSCME, omitted); marks see also Autio v. (8th Cir.1998) (con exclusionary qualification standards and Local 140 F.3d 802 criteria, cluding Congress validly segregation, relegation enacted the services, activities, ADA to enforce the programs, Protection Clause lesser through power); benefits, the exercise of its Section 5 jobs, opportunities; or other (“[T]he Coolbaugh, 136 F.3d at 438 ADA [and] represents Congress’ considered efforts to (6) data, polls, census national and other remedy prevent perceived and what people studies have documented with serious, widespread against discrimination disabilities, group, occupy as a an inferior disabled.”). society, severely in our status and are dis- Congress considered an abundance of evi- socially, advantaged vocationally, economi- findings dence and made extensive in the cally, edueationally[.] and concerning ADA the extent of the discrimina- 12101(a) (1994); Coolbaugh, U.S.C. to, against, resulting tion and harm the dis- F.3d at 435. also observed that: support abled to the statute’s enactment. (7) a individuals disabilities are dis- Coolbaugh, (stating at F.3d minority and insular crete who have been that both the House and the Senate cited limitations, faced with restrictions and sub- reports seven substantive studies and “a jected history purposeful to a unequal wealth of testimonial and anecdotal evidence treatment, relegated position and to a spectrum parties a support from political powerlessness society, in our finding pervasive of serious and discrimina- beyond based on characteristics that are tion”). particular, it found that: such control of individuals and result- (1) 43,000,000 some Americans have one or ing stereotypic assumptions truly disabilities, physical more or mental and ability indicative of the individual of such increasing population this number is as the in, participate individuals to and contribute older; as a growing whole is to, society; (2) historically, society has tended to iso- (8) proper goals regarding the Nation’s in- segregate

late and individuals with disabili- ties, and, despite improvements, dividuals with disabilities are to assure some forms of equality opportunity, participation, discrimination individuals full independent living, and economic self-suffi- enforcement under Section of the individuals; ciency Additionally, and Fourteenth for such Amendment. be dangers cause the that the Court in found unfair continuing existence of and present herent in the RFRA are not prejudice unnecessary discrimination and distinguishable. ADA, ADEA and the find Boerne opportu- people with disabilities denies — ne, -, U.S. at nity compete equal on an basis and to Boer pursue opportunities (stating for which our S.Ct. at 138 L.Ed.2d at 647 those famous, society justifiably costs scope free and reach RFRA “[t]he [the] billions of dollars distinguish passed the United States it from other measures unnecessary resulting from de- .expenses Congress’ power_”). enforcement th,e pendency nonproductivity. First, pose and the ADA did separa the same threat as the RFRA to the 12101(a) (1994); Coolbaugh, powers principles, “Congress tion of because Supreme at 435 n. 3.13As the Court has F.3d language attempting upset no included stated, Congress in- “It is for the first powers usurp balance of the Court’s leg- what stance to whether and ‘determin[e] establishing function of standard review guarantees islation is to secure the needed by establishing a standard different Amendment,’ from the the Fourteenth and its conclu- previously one established to much sions are entitled deference.” — Boerne, at -, Coolbaugh, Court.” at 438.14 Sec U.S. ond, Katzenbach, ADA, unlike the ADEA and the 138 L.Ed.2d at 649 1723) (alteration “prohibited] RFRA official actions of almost U.S. at 86 S.Ct. at (“Def- every description regardless subject original); Coolbaugh, 136 F.3d at 436 — Boerne, at -, judgment Congress partic- matter.” erence to the case, ularly appropriate in this because in 646. Neither the Cleburne, proportion the Court identified as ADEA nor ADA “is so out of governmental supposed preventive the ideal branch to make find- object remedial or ings legal to, regarding and decisions treat- responsive that it cannot be understood as disabled.”) (citing ment of the designed prevent, unconstitutional behavior.” 3255-56); Cleburne, at -, (“How U.S. at 105 S.Ct. at 3255-56 646; 138 L.Ed.2d at see also Cool large group and diversified is to be baugh, (“Congress’ F.3d at 437 scheme treated under the law is difficult and often provide remedy the ADA to to the disabled matter, very much a technical a task for prevent who suffer discrimination and to legislators guided by qualified professionals such discrimination is not so draconian or perhaps opinions ill-informed overly sweeping dispropor to be considered judiciary.”). light explicit of these tionate to the serious threat discrimination congressional findings, abundantly find Clark, Congress perceived.”); 123 F.3d at clear was concerned about the Finally, 1270. the standard of review set in enacting “defense of the Constitution” demanding forth in the RFRA was “the most ADA. law[,]” im test known to constitutional Overall, posed an ac requirement in additional on state viewing the remedial measures previous judicial presented, tion that the standard that light of the evils both the ADEA reinstate, ie., Congress attempted the ADA valid enactments of were Con- pursuant gress to redress discrimination the state action be the least restrictive means findings legislative Congress compiles detailed in the ADA are record but 'on due regard body ground distinguish underly for the constitution one on which to decision ” Boerne, - U.S. Boerne, ally appointed ing to decide.' Dickson case from in which the Court -, S.Ct. at at 646 L.Ed.2d findings noted that made no concern Mitchell, 112, 207, (quoting Oregon v. ing widespread discrimination unconstitutional 260, 306, (1970) (Har 91 S.Ct. persons against religious support the RFRA. lan, J.)). Boerne, U.S. at ---, See - 645-46; 138 L.Ed.2d at see also Cool Court, however, baugh, Coolbaugh specifically Although 438. The court was deference, ADA, referring went to state that I find the same to be true of ''[iludida! cases, most is based not on the slate ol the the ÁDEA. interest, case, im In fulfilling the state’s had not each state raised a defense of -, posed. U.S. at immunity Eleventh Amendment to suit on L.Ed.2d at 648. The same such claims. University MacPherson v. analysis simply cannot be said for of claims Montevallo, granted the district court the ADEA and ADA. University’s dismiss, concluding motion to not, by has enacting the general, ADEA, abrogated the states’ Eleventh extension of the ADEA [t]he [and the Amendment uniformity The district court ADA]-to the states insures greater compliance hearing [those Kimel v. Florida Regents, statutes]. Board of anomaly govern- hand, It also eliminates the on the denied a similar motion by public policy. ment is not bound As the Florida Regents. Board of And the Brennan remarked Justice related Department Florida of Corrections likewise ‘uniquely “How amiss’ it context: would unsuccessfully sought dismissal of ADA and be, therefore, government if the itself— ADEA claims it in Dickson v. Flori- organ society social to which all in our ‘the Department da Corrections. promotion liberty, justice, look McPherson and the state entities in Dick treatment, equal setting fair and and the son and appealed respective Kimel have worthy goals norms and for social con- rulings. appeals present two related permitted liability duct’ —were to disavow issues: has Congress abrogated the states’ injury begotten.” for the it has Eleventh immunity to suits un Elrod, City at 612 F.2d Owen v. (1) der the ADEA or the ADA? This 622, 651, 100 Independence, 446 U.S. court’s review of such issues of law is de 1398, 1415,63 L.Ed.2d 673 Florida, novo. See Seminole Tribe v.

III. CONCLUSION Cir.1994), aff'd, reasons, foregoing For the I would hold (1996). effectively abrogated the sovereign immunity enacting states’ Therefore, as well the ADA. II. Discussion

would affirm the district courts’ decisions in (cid:127)A. Abrogation Dickson, Kimel and and would reverse the district court’s decision in MacPherson. Ac- judicial power of the United States cordingly, I concur judgment does not extend to suit in equity law or II Part opinion Edmondson’s prosecuted commenced or against one of the respectfully otherwise dissent. United States citizens of that or another Const, XI; state. See U.S. amend. Hans v. COX, Judge, concurring part Circuit Louisiana, 1, 14-15, dissenting part: L.Ed. 842 Congress lacks the authority the states’ if first it “un the states’ Eleventh Amendment equivocally expressed] its intent to immunity to suit in federal court on claims immunity,” “pursuant and second it acts Age under either the in Em- Discrimination to a power.” valid exercise of See Seminole ployment Act or the Americans -withDisabili- Florida, Tribe v. reason, ties Act. For that I concur in Judge (1996) 134 L.Ed.2d 252 Edmondson’s conclusion that the states are Mansour, 64, 68, 106 Green v. S.Ct. immune to ADEA suits. I respectfully dis- 423, 426, 88 371 sent, however, from holding the that Congress provided has a clear statement of enjoy states do not immunity the same intent to ADA suits. the ADA. The Act provides that State shall “[a] not be immune Background I. the eleventh amendment....” 42 § plaintiffs Each of U.S.C. 12202. As Edmondson these three consol- out, appeals points idated sued a instrumentality, presents state the ADEA a harder asserting claims under the ADEA question. hand, or ADA. Congress On one identified

1445 (RFRA), plaintiffs Act 42 and Restoration- of employees potential as state potential prohibit- defendants. On The as 2000bb 2000bb-4. RFRA the states hand, the words Congress never uses governmental other entities from ed all “substan- “immunity.” See or “Eleventh Amendment” tially burdening” religion the exercise of un- Opinion, supra, at Judge Edmondson’s they compelling doing less had interest for words, Notwithstanding the omission these employed the “least so and had restrictive potential states explicit designation of as furthering that Id. means” interest. con has circuit courts to led four defendants (b). 2000bb-l(a), With the RFRA’s strin- cléarly intend to did clude rule, Congress gent sought to resurrect immunity the states’ rights First and Fourteenth Amendment Univ., Pittsburg v. State Hurd suits. Supreme had believed Court (10th Cir.1997); v. Blanciak F.3d extinguished Employment Division v. Corp., 77 Allegheny Ludlum F.3d Smith, U.S. S.Ct. Cir.1996) (3d (dictum); Davidson v. Board (1990). A L.Ed.2d 876 Roman Catholic Univs., 920 Colleges & Governors of Boerne, Texas, Act church invoked the (7th Cir.1990); v. Ramirez F.2d permit the town the church a when denied Serv., Puerto Rico Fire space. worship additional add (1st Cir.1983). Supreme has The Court at -, at 2160. The district S.Ct. agreed reasoning with other contexts. beyond held that the RFRA was Con- court Tribe, 56,116 S.Ct. See Seminole powers, Fourteenth Amendment gress’s (Indian Gaming designation Act’s at 1124 Supreme agreed. Court sufficient); parties Dellmuth states Muth, 223, 233,109 The Court rested this conclusion on a basic J., (Sealia, concur The ultimate principle: unique, Court is (“I join Jus ring) opinion [four authority scope on the of Fourteenth Amend Court, understanding of] tices at -, rights. See id. 117 S.Ct. preclude congres reasoning that its does Thus, may not define sovereign immunity in elimination of sional Rather, rights. these See id. Con- declare subjects statutory clearly text States only enforce Fourteenth gress monetary damages, though without suit for rights Supreme Amendment has Court immuni explicit sovereign reference to state -, recognized. See id. at Amendment.”); ty Fitz or the Eleventh creating 2164. Enforcement include Bitzer, patrick v. beyond clearly rights guaranteed those some (1976) (Title 2666, 2670, 49 VU’s L.Ed.2d 614 -, See id. at by the Constitution. parties enough). designation states as concluded, But, at 2163. the Court thorny Fortunately, of Con- issue rights proportion- must extensions of such here. gress’s intent not be resolved need injury al to an unconstitutional Congress clearly expressed Whether at -, seeking remedy. id. See intent, it lacks the suit in court states’ federal proportional The RFRA was.not The ADEA or the ADA. actions under the injury to response any con- only one Court has identified identified two circum- rights. Court § 5 Four- grant power, stitutional the RFRA to be “sub- that showed stances Amendment, under which teenth it, legislation, as the Court called stantive” Semi- may defeat the states’ - than enforcement Fourteenth rather- Tribe, nole First, Congress guarantees. recently has revisited 1125-28. (or findings without even the RFRA enacted power. the limits on that widespread vio- hearings) on the existence Abrogate: City B. Power to right constitutional' lations Boerne Flores at -, recognized. Supreme Court has Id. Second, sim- at rather than Flores,- U.S. -, 117 S.Ct. City Boerne v. of 2157, violations, (1997), remedying any ply L.Ed.2d 624 117 S.Ct. 138 rights RFRA that far exceeded Religious Freedom the created struck down the Court 1446 violations, Supreme legislative Court has read First Amendment and the at -, provide. See id. 117 history primary pur

Amendment indicates that the Act’s Smith, generally appli Under S.Ct. at 2170. pose was to vindicate the Fifteenth Amend incidentally burden reli cable statutes rights voting ment that Southern laws and 878-79, see 494 at gion permissible, U.S. are practices defeating. Morgan, were 1600; the RFRA could not be at Carolina, 648, 1722; 86 S.Ct. at South 383 Fourteenth any First and Amend enforcing 313, 811, 328, U.S. at 818-19. free from incidental burdens right to be Congress remedy took measures tailored Boerne, religious practice. See - the constitutional violations: the measures Therefore, U.S. at -, at 2171. Con prohibiting patently were limited to unconsti have under the Four gress did establishing policing tutional conduct and enact the statute. teenth Amendment to violations; they ap mechanisms for future § sets the RFRA outside 5’s Boerne thus only plied to states where found cases, boundary. earlier both concern Two constitutional violations were the most com ing Voting Rights exemplify Act of mon; provi the Act contained “bailout” § proper power. exercise jurisdictions complied sions to relieve The first case is Carolina v. Katzen South with the Constitution from the Act’s re bach, S.Ct Boerne, at -, See straints. (1966), rejected which a broad attack on Voting Rights Act effect- provi geographically most of the restricted guarantees. uated established constitutional Voting Rights Act. sions of the The second is Voting Rights Boerne and the Act cases Morgan, Katzenbach v. Only by teach us these lessons: respecting (1966), upheld which Supreme interpretations Court of the Four provision of the Act that invalidated New teenth Amendment can im- avoid English-literaey voter-qualification York’s permissibly interpreting the it Amendment cases, Morgan appears rule. Of the two - Boerne, at ---, self. See powers Congress, attribute broadest 117 S.Ct. at 2166-67. nonetheless arguably recognizing congressional power may, warrant, if proce circumstances tweak Supreme to effectuate Court-identi dures, presumptively find certain facts to be rights fied but also to find Fourteenth true, presumptive and deem certain conduct yet rights identified ly light Supreme unconstitutional in Supreme Morgan, Court. See 384 U.S. at Carolina, interpretation. See South 650-51, 86 S.Ct. at 1723-24. 328, 333, 335, U.S. at 86 S.Ct. at 821-22. language The Boerne Court dismissed Thus, legislation pursuant enacted Morgan suggests has must hew to the contours of Court- powers interpret broad both the Four rights defined Fourteenth Amendment un teenth Amendment and effectuate Four legislation proportional response less the is a rights, teenth Amendment U.S.— pattern to a documented of constitutional -, but the Court violation. holdings Voting reaffirmed its in these ---, Rights Act cases. Id. at Legislation? C. Is the ADEA Enforcement S.Ct. at 2166-68. The differences between qualify does not underlying Voting the circumstances proper Boerne’s rule as a exercise of Con Rights Act leading and those to the RFRA First, are, all, gress’s power.1 the ADEA con striking. passing after Before Act, Voting Rights rights fers far more thoroughly doc extensive than those the history Second, umented a provides. of obvious Fifteenth Fourteenth Amendment pre-Boerne 1. There is law other circuits find 86 S.Ct. at that Boerne has - -, ing proper. rejected, the exercise to be since Ramirez Serv., (1st Second, Puerto Fire Rico 715 F.2d it treats all "discrimination" as Elrod, Cir.1983); equally impermissible E.E.O.C. v. under the Protec- Grisell, Cir.1982); Arritt v. Congress's pow- tion Clause and therefore within (4th Cir.1977). They analy remedy. simply share similar er to That is not true. Race and sis, First, discrimination, age example, subject which has two flaws. it rests on broad are language Morgan, very degrees scrutiny. 384 U.S. at different Katzenbach

1447 (policy required judges at 2395 pro ADEA as a S.Ct. not enact Congress did Vance, 93, 70); at widespread viola retire at 440 U.S. 99 S.Ct. any response to portional rights. (policy required foreign service offi- at 939 elderly’s constitutional tion of the 60); Murgia, 427 at cers to retire at U.S. that the right The Fourteenth 307, required police (policy at 2562 S.Ct. pro- equal of arguably guards is that 50). case, at In each officers retire gener- Clause Equal The Protection tection. perception acuity that mental policymaker’s treating similarly ally prohibits states physical age was stamina decline differently. Romer v. See situated citizens enough support rational the line basis 1620, 620, 621, Evans, 116 S.Ct. 517 U.S. age between those .under the retirement (1996). 1623, But the de- 134 L.Ed.2d 472, Gregory, over it. at those 501 U.S. according to the gree protection varies of 2407; Vance, 98-109, at S.Ct. U.S. at against or the person discriminated class 943-49; 315-16, Murgia, 427 at S.Ct. at U.S. compromises. interest that the classification Thus, it is clear that the S.Ct. 2567-68. Cleburne, Living v. City Tex. Cleburne See Supreme arbitrary not all Court does deem 440-42, 3249, Ctr., 432, 105 S.Ct. 473 U.S. treatment offensive to the Fourteenth (1985). 3254-55, State action 87 L.Ed.2d spry octogenarian, To a Amendment. imposes rights, or dif- that confers different course, mandatory age is retirement arbi- duties, persons belonging to non- ferent trary: permit it an assessment of does if action permissible suspect classes is capacities. his or her individual To violate govern- legitimate to a has a rational relation Clause, however, Equal Protection 630, Romer, interest. 517 U.S. mental See arbitrary line must have no rational S.Ct. itself 472, Gregory, 501 basis. See class, suspect elderly are not a short, Equal at 2407. In Protection disadvantages them is con state action that permits it has a ra- Clause state action —if passes if this rational basis test. stitutional may look like arbitrariness. basis—that tional 470, Ashcroft, 501 Gregory v. (1991); contrast, 2395, 2406, 115 By ADEA was L.Ed.2d 410 enacted 111 S.Ct. arbitrariness, Murgia, unconstitutional or Massachusetts Bd. Retirement combat all 2562, 2567, legislative history 96 S.Ct. shows that Con- not. Its (1976). test, deplored, L.Ed.2d 520 Under gress particularly and wished Supreme ban, will overturn state arbitrary age Court that overlooked limits varying “unless the treatment measure some individuals’ abilities. See E.E.O.C. groups persons is so unrelated 226, 231, different Wyoming, 460 U.S. 103 S.Ct. legiti combination (1983); the achievement see also 29 75 L.Ed.2d conclude that purposes 621(a)(2) (statement mate that we findings [people’s] Greg irrational.” (“the actions were arbitrary purpose) setting age limits (quot at 2406 ory, 501 U.S. at job performance regardless potential 93, 97, Bradley, ing Vance v. practice”). a common Not sur- has become (1979)) 939, 942-43, prisingly, Supreme Court has read the (alterations original). And state does prohibit arbitrary line-drawing— ADEA to not violate the Protection Clause line-drawing a rational basis. even that has “merely because the classifications made very age “It essence of discrimination imperfect.” are Id. at laws employee for an older to be fired because Murgia, 427 U.S. at at 2407 productivity and com- employer believes that 2568). Moreover, challenging “those S.Ct. at Paper petence age.” with old Hazen decline judgment must convince the legislative Biggins, 507 Co. v. legislative court that the facts on which “Thus apparently based could classification ‘employers are to the ADEA commands that reasonably to be true be conceived employees ... on their mer- [older] evaluate decisionmaker.”, Vance, 440 governmental employer age.’ ... The its and not their U.S. at 99 S.Ct. at 949. employ- rely age proxy for an cannot oh characteristics, pro- such as remaining ee’s put has three manda- test, those ductivity, must instead focus on policies but tory age retirement to this directly.” Id. at factors passed. Gregory, all have Lines, Air (quoting practically Western Inc. v. in her paradigmatic a stead — Criswell, 2743, 472 U.S. 105 S.Ct. ADEA Izquierdo violation. See Prieto v. 2756, (1st Rosa, 467, 469, Mercado 894 F.2d Cir.1990). gone And one court has far so accordingly puts mandatory The question any the existence of constitution ages rigorous to a much more test retirement right against al age-motivated em individual Protection Clause. A ration- Equal than the ployment Davey, actions. See Whitacre v. Criswell, not suffice. al basis does (D.C.Cir.1989). 890 F.2d n. 3 Rather, 421, “[u]nless a employer can establish substantial basis an might expect As one considering after nearly employees believing for that all or all differences, Congress’s these reasons for age qualifications required lack the above an amending subject the ADEA to states to its age position, for the selected for manda- restraints did not lie concern for the Con- tory age than 70 be an retirement less must reports stitution. The accompanying the impractical highly at which it is for the em- 1974 amendments do not mention the Consti- ployer testing individual [e]nsure H.R.Rep. tution at all. See No. 93-913 employees necessary qualifi- will have the (1974), reprinted 2811, in 1974 U.S.C.C.A.N. job.” cations for the Id. Congressional 2849-50. debate over the 2756; Grisell, see also Arritt 567 F.2d amendments, which were included (4th Cir.1977) (finding a mandato- Fair Labor Standards Act of was silent ADEA, ry hiring age maximum violative on constitutional Cong. violations. See 120 Clause). Equal but not of the Protection (1974). Rec. 8759-69 support- The Mandatory age limits are not idea, simply thought ers good it was a gulf elderly’s illustration of the between the that it furthered enforcement constitution- rights Equal under the Protection Clause rights. al See 1974 U.S.C.C.A.N. at 2849 elderly’s rights and the under the ADEA. (“Discrimination age on based some —what disparate impact State action that has a on people ‘age-ism’ great call be as an evil —can probably old workers does not violate the society our as discrimination based on race Clause, Equal Protection but violate religion any other characteristic which Davis, Compare Washington the ADEA. ignores person’s unique an status as indi- 229, 239-40, 2040, 2047-48, vidual and treats him or her as a member of (1976) (rejecting disparate- 48 L.Ed.2d 597 arbitrarily-defined some group.”) impact theory Equal of violation of the Pro (March 23,1972)). Richard M. Nixon Address tection suspect Clause even for classifica sum, the ADEA has created new class tions), University with MacPherson v. rights, but in response threat to Montevallo, (11th 922 F.2d 770-73 Cir. rights. The ADEA thus fails 1991) (recognizing disparate-impact claim Boerne’s for legisla standard enforcement ADEA). theory under the Some courts have tion. Because the ADEA is not a valid exer held that the ADEA so far overshadows § cise Congress’s authority, equal protection rights that the ADEA has abrogated could not have the states’ Elev completely displaced § 42 U.S.C. 1983 as a enth Amendment to suit. age vehicle for discrimination claim. See Health, Dep’t v. Texas 126 F.3d Lafleur D. Is the ADA Legislation? Enforcement (5th Cir.1997); Zombro v. Baltimore ADA is not a City valid enforcement Dep’t, Police stat- 868 F.2d (4th Cir.1989). for ute the same two reasons the ADEA Even where such a First, not. recognized, aged, claim is like the enjoy Fourteenth disabled Amend permit special ment has been no rights Equal held to demotion of a under the Protection proffered worker for the rational reason Clause.2 Court has never new, young, and attractive faces were needed suspect found disabled to be a or even (5th1 respectfully part company Cir.1998); 2. Here I California, with Chief Clark v. Ninth, cert, Eighth, Hatchett and Fifth Cir.), pet. filed, agree general Circuits. with those circuits' U.S.L.W. 3308 The Clark court con analyses scope power. Congress's cludes that the ADA lies within en AFSCME, See Autio v. Local 140 F.3d 802 pro- forcement because the Constitution (8th Cir.1998); Louisiana, Coolbaugh v. Cleburne, provides greater protection City Tex. v. the ADA much class. quasi-suspect 432, 445-16, Ctr., for the disabled than does the Protec- Living Cleburne tion Clause. leading course” (declining [the] to “set out The second reason the ADA is not enforce- quasi-suspect status for disabled legislation unaccompanied is that it was ment Doe, infirm); v. Doe also Heller see widespread by any finding that violation of rights required constitutional disabled’s position). (confirming this prophylactic the creation remedies. discriminating against the men action legislative history, Congress not even did disabled, retarded, a subset of the tally remedy ADA mention that the was meant to City basis review. subject to rational of Fourteenth Amendment violations. The Cleburne, at 3258. 473 U.S. at reports accompany Act committee interpreted courts have these The lower discouraging employ- effect of emphasize only rational basis review holdings require ment discrimination the disabled and against the disabled. for all discrimination society caring costs to for those who could See, e.g., Dugger, Lussier v. themselves, care for absent discrimination. Cir.1990). (11th this review is And See, 41-47, e.g., H.R.Rep. No. compelled searching: are “courts reprinted in 1990 U.S.C.C.A.N. 323-29. accept legislature’s rational-basis review implying Far from that this state of affairs an, imper even when there is generalizations any resulted from violations of Heller, fect fit between means and ends.” rights, legislative history Act and the 509 U.S. at dismayed by itself show that was contrast, prohibits By the ADA distinc- rights enjoyed the lack of the disabled before if ration- generalizations tions built on —even passage. the Act’s See U.S.C. practically prohibits al. It discrimination 12101(a)(4) (“[Individuals § expe- who have reflect a reason that does not business rienced discrimination on the basis of disabil- 12112(a); § necessity. see See ity legal have often had no recourse to re- Services, Pritchard v. Southern Co. also see, discrimination^]”); e.g., dress such id. at Cir.) (listing elements 47-48,1990 U.S.C.C.AN. at 329-30. Altruis- claim), prima reh’g facie ADA amended on tic economic concerns motivated (11th Cir.1996), part, in other 102 F.3d 1118 Act—not defense Constitution. — U.S. -, denied, cert. laudability Congress’s goals provides no requires It assess- exception the limits on Four- employee’s ment of each abilities and reason- power. teenth Amendment point of undue able accommodation ADEA, Like the the ADA was not enforce 12111(8)(defining hardship. 42 U.S.C. See legislation under Boerne’s rule. Con disability” “qualified with a as one individual gress therefore could not the states’ job perform functions of who can essential accommodation); id. reasonable 12112(b)(5)(A) (defining discrimination as III. Conclusion accommodations, failure to make reasonable reasons, foregoing For the I would: affirm accommodation would create undue unless MacPherson; employer); H.R.Rep. and reverse hardship for the No. the dismissal reprinted of the motions to dismiss in Ki- denials (“[C]overed, Dickson, entities U.S.C.C.A.N. instruc- mel and and remand with required employment are to make decisions jurisdiction. for want of tions dismiss applicable appli- based on facts individual employees, not on the basis of

cants or

presumptions as to what a class of individuals do.”). Thus,

with disabilities can or cannot Coolbaugh people. hibits discrimination disabled that kind discrimination. essentially reasoning go enough; and Autio courts make the same mis- See id. This does not far J., (Smith, Coolbaugh, take. 136 F.3d at 441 matters what kind of discrimination the Constitu- dissenting). prohibits, and the ADAwas aimed tion whether

Case Details

Case Name: Kimel v. State of FL Bd. of Regents

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Apr 30, 1998

Citation: 139 F.3d 1426

Docket Number: 96-2788, 96-3773 and 96-6947

Court Abbreviation: 11th Cir.