2013] DEFERENCE DETERMINATIONS 467
In Board of Trustees v. Garrett, a well-known, contentious decision, the
U.S. Supreme Court invalidated provisions of the Americans with Disabilities
Act (“ADA”), which authorized state employees to recover money damages
from their state employers for violations of the Act.1 Congress had sought to
abrogate the states’ sovereign immunity from such lawsuits pursuant to its
power under Section 5 of the Fourteenth Amendment.2 In so doing,
Congress made factual findings regarding the pervasiveness of
discrimination against individuals with disabilities.3 When the Court struck
down that abrogation of sovereign immunity, it rejected the relevance of
those findings, faulting Congress for not showing enough evidence of state
discrimination against the disabled.4 The full doctrinal picture is, of course,
more complicated, but the Court was decidedly undeferential to Congress
despite the factual record it had gathered.
The Court’s approach to evaluating congressional findings, however, is
inconsistent, both in the Section 5 context and more generally. Indeed, just
two years after Garrett, the Court in Nevada Department of Human Resources v.
Hibbs was far more respectful of Congress’s findings in upholding the Family
and Medical Leave Act’s (“FMLA”) abrogation of state sovereign immunity.5
Breaking from Garrett’s undeferential approach, Hibbs emphasized the
evidence Congress had amassed and found it sufficient to “justif[y]
Congress’ passage of prophylactic § 5 legislation.”6
The FMLA findings the Court accepted in Hibbs, however, seem quite
similar to the ADA findings rejected in Garrett. Both records, for instance,
relied heavily on private-sector labor statistics, yet the Court did little to
explain why such facts were inadequate in Garrett but sufficient in Hibbs.7 In
reality, the discrepancy is best explained not by Congress’s findings, but
rather by doctrinal differences involving the standard of review for the
underlying discrimination Congress sought to prevent.8 But while those
differences might help justify the divergent outcomes in the two cases, they
neither reconcile the Court’s varying degrees of deference to congressional
fact-finding nor justify the Court’s failure to explain those different levels of
1. Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 360 (2001).
2. Id. at 363–64.
3. Id. at 369 (quoting 42 U.S.C. § 12101(a)(2) (2000)).
4. See id. at 370.
5. Nev. Dep’t of Human Res. v. Hibbs, 538 U.S. 721 (2003).
6. Id. at 730.
7. See id. at 730 n.3 (conceding that Congress’s findings addressed “policies in the private
sector,” but contending that such policies “differ little from those offered private sector
8. See infra notes 64–65 and accompanying text.