Chapter 4: The Eleventh Amendment

      As of the autumn of 2000, the question of whether Eleventh Amendment sovereign immunity protects states from lawsuits under the ADA has not been decided by the United States Supreme Court. In October 2000 the Court heard arguments in a case that raises the issue,[310] and petitions for certiorari have been filed in at least three other cases.[311]  Whatever the outcome of these cases, advocates should have some familiarity with the topic.

      On its face, the Eleventh Amendment prohibits citizens of one state from suing another state in federal court, and prohibits those who are not citizens from suing a state in federal court.  The Supreme Court, however, has interpreted the Eleventh Amendment far more broadly.  Over a century ago, the Court held that the Eleventh Amendment also provides immunity for states from suit in federal court by their own citizens, and held that the immunity applied not only to state law claims but federal claims as well.[312]

      Eleventh Amendment sovereign immunity has a number of exceptions, one or more of which might apply to ADA claims on behalf of clients in TANF programs.

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A. Exception: Suits Against Non-States

      Counties and municipalities are not “states” and are not protected by suit in federal court under the Eleventh Amendment. In determining whether a government entity is a state, the relevant issue is whether the government unit or agency is an “arm of the state” or a “municipal corporation or other political subdivision.”[313]  The answer will depend on the nature of the law creating the government entity.  Given the degree of flexibility states have in the design and operation of TANF programs, the question of whether the agencies running the programs are arms of the state may differ from one TANF program to another.

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B. Exception: Waiver by States or Abrogation by Congress

      States can waive sovereign immunity and consent to be sued in federal court, and Congress can abrogate sovereign immunity.[314] Abrogation by Congress is valid if: 1) Congress unequivocally expressed its intent to abrogate; and 2) Congress had the power to do so.[315]  Congressional intent to abrogate state immunity when enacting the ADA could not be more clear.[316] The ADA states:  “[a] State shall not be immune under the Eleventh Amendment to the constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter.”[317]  Thus, the question is whether Congress has the power to abrogate.

      To determine whether Congress has the power to abrogate state immunity courts look at the constitutional provisions on which the statute was enacted, and the reach of the statute itself.[318]  Congress must have the power to enact the statute, and there must be a  “congruence” and “proportionality” between the statue and the constitutional violations the statute was intended to prevent or remedy. [319]  The “purpose” section of the ADA provides that the ADA was intended to “invoke the sweep of congressional authority, including the power to enforce the Fourteenth Amendment and to regulate commerce, in order to address the major areas of discrimination faced day-to-day by people with disabilities.”[320]  Thus Congress relied on at least two constitutional bases for its power to enact the ADA: The Fourteenth Amendment and the Commerce Clause.

      The Supreme Court has held that Congress does not have sufficient authority to abrogate state sovereign immunity under the Commerce Clause.[321] The Supreme Court has long made clear, however, that Congress has sweeping power to enact legislation under Section 5 of the Fourteenth Amendment that curtails states’ rights,[322] including statutes that impose monetary relief against states.[323] The question, then, is whether the ADA is congruent and proportional to remedy and prevent constitutional violations of the Fourteenth Amendment against people with disabilities.  Statutes enacted by Congress to “prevent” or “remedy” constitutional violations must enforce existing legal standards as determined by the Supreme Court; they cannot change the standard for what a constitutional violation is.[324]  However legislation preventing or remedying constitutional violations can fall within the sweep of Congress’ power even if, in the process, it prohibits some conduct that is not in fact unconstitutional.[325]

      As it is up to the Supreme Court to determine the standard for equal protection violations against people with disabilities, Eleventh Amendment analysis of the ADA depends in large part on case law interpreting the Equal Protection Clause of the Fourteenth Amendment as it applies to people with disabilities.  In City of Cleburne v. Cleburne Living Center., Inc.,[326] an agency proposing to operate a community residence for people with mental retardation brought a challenge under the Equal Protection Clause to a local ordinance requiring special use permits for such residences.  The Court rejected the argument that people with mental retardation are a quasi-suspect class entitled to intermediate scrutiny under the Equal Protection Clause.[327]  Nevertheless, applying what it called a “rational basis” level of scrutiny, it struck down the permit requirement,[328] an unusual occurrence under this standard of review. Although Cleburne involved only people with mental retardation, subsequent courts have held that the rational basis level of scrutiny also applies to classifications made on the basis of other disabilities.[329]

      Many Courts of Appeals have held that Congress has the power under the Fourteenth Amendment to abrogate state sovereign immunity when enacting the ADA.[330]  A few of these cases were decided prior to City of Boerne, and in some cases courts assumed that Cleburne did not define the limits of the constitutional standard for Equal Protection violations against people with disabilities.[331] In the majority of these cases, however, Courts considered Boerne and nonetheless concluded that the ADA was proportional to prevent or remedy Constitutional violations against people with disabilities. They pointed to the statement of Congressional “findings” in the ADA[332] and the extensive discussion in the legislative history of the discrimination against people with disabilities as evidence that Congress found widespread discrimination against people with disabilities.[333]

      A number of Circuits, however, have held that the Fourteenth Amendment does not provide sufficient authority for Congress to abrogate sovereign immunity when enacting the ADA.[334]  In the view of these courts, the reasonable accommodation requirement in the ADA goes beyond the prohibition on irrational disability-based classifications;[335] the ADA legislative history did not link testimony and findings of discrimination to violations of the constitutional standard;[336] there was no widespread pattern of “irrational” disability discrimination by the states discussed in the legislative history;[337] the breadth of Title II and its applicability to every state and local government agency is not proportional to the discrimination discussed in the legislative history;[338] state anti-discrimination laws prevent or remedy widespread disability discrimination by states;[339] or Title II of the ADA exceeds Congress’ power for other reasons.[340]  Some of these cases appear to hold only that a particular section of the Title II regulations is beyond the scope of Congress’ authority[341] or that although the ADA cannot be enforced by private litigation in federal court, it is valid legislation.[342] Other decisions are much broader, holding that the application of the ADA to states was not a proper exercise of congressional power.[343] 

      During the 1999-2000 term, the Supreme Court held in a 5-4 opinion in Kimel v. Florida Board of Regents [344] that Congress did not have the authority to abrogate Eleventh Amendment immunity when it enacted the Age Discrimination in Employment Act (ADEA).  Like the ADA, ADEA contains a clear statement of intent to abrogate Eleventh Amendment immunity, but the Court held that Congress lacked the power to abrogate.[345]  The Court reasoned that classifications based on age do not receive strict scrutiny under the Equal Protection Clause and thus the ADEA’s broad restriction on age-based classifications by states was out of proportion to the harm the statute was meant to prevent or remedy.[346]  The Court also relied on the fact that there was no evidence in the legislative history of a pattern of unconstitutional age discrimination by states,[347] and the fact that the plaintiffs had another avenue for relief, namely, state laws prohibiting age discrimination.[348] Given that ADA is a federal civil rights statute similar in some respects to the ADEA, the Supreme Court is likely to take a similar approach when analyzing Eleventh Amendment abrogation under the ADA.  

      There are a number of grounds for distinguishing Kimel from cases challenging the ADA on Eleventh Amendment grounds.  One is the ADA’s extensive legislative history and the frequent references to discrimination in transportation, education and other services that to a large extent are operated by state and local governments.  Another is the history of discrimination against people with disabilities discussed in Cleburne. A third is the fact that the Court struck down the ordinance in Cleburne even under a rationale basis review, which indicates that unconstitutional treatment of people with disabilities may be easier to prove than unconstitutional age discrimination. Fourth, Cleburne’s holding that a rational basis level of scrutiny is sufficient to protect people with disabilities rested in part on the fact that people with disabilities are not a politically powerless because they have laws such as Section 504 to protect their rights.  If people with disabilities could no longer use those laws to sue states, a major rationale for Cleburne’s application of a rationale basis level of scrutiny would be eliminated. Fifth, it is possible that the Court will make a distinction between ADA employment discrimination claims against states and other types of ADA claims against states.   However, given the close vote in Kimel, it is difficult to predict what will happen.

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C. Exception: Suits for Injunctive Relief against State Officials

      Eleventh Amendment immunity has a long-established exception, originating with Ex parte Young,[349] for plaintiffs seeking prospective injunctive relief against state officials. The theory behind the exception is that officials committing constitutional violations could not be acting under the imprimatur of the state, and thus are not entitled to state immunity.  Many ADA Title II lawsuits against states should fall within this exception. Nevertheless, the exception does have limits.  The Supreme Court has held that “equitable restitution” in the form of public benefits that would have been provided if the state had complied with the constitution in the past is not injunctive relief and does not fall within the exception, because plaintiffs are in fact seeking compensation for the failure to receive benefits in the past, which is retroactive monetary relief.[350]  In addition, suing a state official instead of the state does not necessarily bring the suit within the exception.  The key issue is whether the official or the state treasury will be paying for relief ordered by the court.[351]  In recent years, the Court has confirmed the continuing validity of Ex parte Young,[352] though some members of the Court have expressed the view that its application should be narrowed to federal civil rights cases and cases in which plaintiffs lack an alternative state forum.[353]  Lower courts have continued to apply the exception in ADA cases.[354] One Circuit, however, has held that public entities are the only proper defendants in cases brought under Title II and therefore state officials cannot be sued under Title II under the Ex parte Young exception. [355]      

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D. Congressional Authority Under the Spending Clause

      The “purpose” section of the ADA indicates that in enacting the ADA, Congress may have relied on its authority under constitutional provisions other than the Commerce Clause and the Fourteenth Amendment.[356] It is possible that these other Constitutional provisions provide sufficient authority for Congress to abrogate Eleventh Amendment immunity. One possible basis of authority is the Spending Clause, which permits Congress to place conditions on the receipt of federal funds by states.

      To be a valid exercise of authority under the Spending Clause, a statute must: 1) be in pursuit of the general welfare; 2) the condition imposed on states in return for receiving federal money must be unambiguously stated, and 3) the condition imposed must be related to the federal interest that prompted the legislation.[357]  The Supreme Court has taken a fairly relaxed view of “relatedness,” holding, for example, that Congress could pass legislation requiring states to adopt a minimum drinking age as a condition of receiving federal funds for highway construction, because of the connection between the drinking age and drunk driving.[358] Under this test Congress may well have the authority to enact legislation that conditions the receipt of federal funds on compliance with Title II of the ADA.  But unless the ADA is amended to provide funding for ADA compliance, which is not likely, this would require amendment of another statute that does provide funding to include an unambiguous statement conditioning receipt of funds on compliance with Title II.  It may be possible, however, to argue that when applying Title II of the ADA to TANF, no such amendment is necessary because PRWORA states that the ADA “shall apply to any program or activity which receives funds provided under this part.”[359]  Thus an argument can be made that Congress has already conditioned receipt of federal TANF funds on compliance with the ADA. 

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E. Restriction on Suits Against States Under Federal Law in State Court

      Unfortunately, the Supreme Court further extended the reach of the Eleventh Amendment during its 1998-99 term, holding that when Congress lacks the authority to abrogate a state’s Eleventh Amendment immunity from being sued in federal court for violation of a federal statute, the state is also immune from suit under the same federal statute in state court.[360]  

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F. Eleventh Amendment Immunity Under Section 504 of the Rehabilitation Act

      In Atascadero State Hospital v. Scanlon,[361] the Supreme Court held that Congress did not include an unequivocal statement of intent to waive Eleventh Amendment immunity in Section 504 of the Rehabilitation Act.  Congress subsequently amended Section 504 to add an unequivocal statement of abrogation.[362]  The Supreme Court subsequently referred to this amendment as an “unambiguous waiver of immunity,”[363] and the lower federal courts have agreed.[364]  However, as with Title II of the ADA, courts are divided on the question of whether Section 504 is a valid exercise of Congress’ power under the Fourteenth Amendment.[365]

      A number of courts have held that Section 504 was enacted under Congress’ authority under the Spending Clause.[366]  Frequently, it is defendants who have made Spending Clause arguments, in an attempt to prevent plaintiffs from obtaining damages under Section 504.[367]  As Section 504 applies to recipients of federal funding, it presents a much stronger argument for Spending Clause authority than Title II does in its current form.

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G. State Antidiscrimination Laws

      Even if advocates are unable to sue states under the ADA in federal and state court, it is still possible to use state and local laws prohibiting discrimination on the basis of disability.  In the coming years, advocates may need to rely on these laws more heavily.  Advocacy efforts may be needed to strengthen these laws so they can serve as an effective means of protecting the rights of people with disabilities.