The U.S. Supreme Court's New Federalism and Its Impact on Antidiscrimination Legislation

Published date01 March 2003
AuthorNorma M. Riccucci
Date01 March 2003
Subject MatterArticles
/tmp/tmp-17W2RWVAQ8maII/input ARTICLES
DOI: 10.1177/0734371X02250108
The U.S. Supreme Court’s New
Federalism and Its Impact on
Antidiscrimination Legislation
Rutgers University, Campus at Newark
In recent years, the U.S. Supreme Court has developed a new federalism policy
that has eviscerated the powers of the U.S. Congress in favor of states’ rights. This
article addresses the implications of the Supreme Court’s new federalism policy
for the Americans With Disabilities Act (ADA) of 1990 and the Age Discrimi-
nation in Employment Act (ADEA) of 1967 as amended. It focuses on two recent
High Court decisions,
Kimel v. Florida Board of Regents and Garrett v. the
University of Alabama, which greatly reduced the scope of both the ADA and
the ADEA. In light of these decisions, alternative actions for enforcing
antidiscrimination laws are provided.

Keywords: federalism; civil rights, states’ rights; sovereign immunity; discrimi-
nation; 14th Amendment; employment legislation
ers from the federal government to the states, not only by the executive
branch but by the judicial branch of government as well. The issue of federal-
ism—or more appropriately, the new federalism—as it pertains to the courts
refers to the distribution of power between state and federal courts. At its core
is the concept of “state sovereignty,” which, through a number of constitu-
tional provisions, seeks to preserve the “immunity”1 rights of states, protecting
them from unnecessary or unwarranted intrusion by the federal government.
Recently, the U.S. Supreme Court has brought the new federalism to the fore-
front of constitutional law.
This article examines the U.S. Supreme Court’s role in the new federal-
ism, particularly around two pieces of antidiscrimination legislation: The
Americans with Disabilities Act (ADA) of 1990 and the Age Discrimina-
tion in Employment Act (ADEA) of 1967 as amended. It begins with a brief
examination of the legal framework under which the Supreme Court has
been applying and justifying its federalism policy. It then examines the
Review of Public Personnel Administration, Vol. 23, No. 1 March 2003 3-22
DOI: 10.1177/0734371X02250108
© 2003 Sage Publications

Supreme Court’s decisions in two cases involving antidiscrimination laws:
Kimel v. Florida Board of Regents (2000) and Garrett v. the University of Ala-
(2001). The implications of these decisions and viable legal responses
to them are also addressed.
It should be noted at the outset that the analysis presented here does not
address the official or personal immunity doctrines as they pertain to indi-
vidual government employees (see Rosenbloom, 1994, 1997). These
immunity doctrines address whether federal, state, and local government
officials or employees who violate an individual’s statutory or constitutional
rights can be sued and held liable for their actions. However, as will be dis-
cussed later in the text, reliance on these doctrines may provide alternative
relief to state employees alleging they have been discriminated against based
on age or disability.
In the past two decades or so, as the U.S. Supreme Court has been faced
with opportunities to strike a balance between state and federal power, it has
sided almost exclusively with the states. The U.S. Supreme Court’s policy of
federalism has, in effect, resulted in severe restrictions to an individual’s
ability to sue a state in federal court for federal rights’ violations (Braveman,
2000; Wise, 2001).
In two landmark cases, Seminole Tribe of Florida v. Florida (1996) and
Alden v. Maine (1999),2 the U.S. Supreme Court expanded the boundaries
of the new federalism to extraordinary dimensions.3 In Seminole and Alden,
a Court majority held that Congress is barred from authorizing individuals
to pursue private suits for damages in the federal courts against the states
when it does so pursuant to its commerce clause powers.4 The Court opined
that Congress cannot subject an unconsenting state to suit in either federal
or (its own) state court, whether the suit is brought by a citizen or
noncitizen of that state and whether it is based on federal law or state law.
The rulings limit congressional legislation in favor of states’ rights, restrict
the role of the federal courts in adjudicating claims alleging state violations
of federal rights, and ultimately impede an individual’s ability to seek court
enforcement of their federal and perhaps even state rights against a state
(Goodman, 2001; Wise, 2001).
It is important to enunciate the constitutional provisions invoked by the
Supreme Court in its new federalism rulings. When we think of state sover-
eignty, we typically think of the 10th and 11th Amendments to the U.S.

Constitution. The 10th Amendment, ratified in 1791 as part of the Bill of
Rights, reserves all powers not specifically granted to the United States to
the states and to the people, respectively. It seeks to protect state govern-
ments from being “commandeered” by the federal government or from
being eviscerated as viable political entities (Printz v. United States, 1997).
In short, it limits Congress’s powers to regulate state governments.
The 11th Amendment, which has been more critical than the 10th to the
Supreme Court’s new federalism policy, gave concrete and specific expres-
sion to the abstract or general guarantee of the 10th Amendment. Ratified
in 1795, it originally sought to prevent a resident of one state from suing
another state in federal court. It was proposed and ratified in response to the
U.S. Supreme Court ruling in Chisholm v. Georgia (1793), in which the
State of Georgia was being sued in federal court by a citizen of South
Carolina. Georgia claimed sovereign immunity and refused to appear in
court. By a vote of 4 to 1 the Court issued a judgment against Georgia, stat-
ing that a state could be sued by citizens of another state.5
In an explicit effort to overturn the Chisholm decision, the 11th Amend-
ment was proposed and ratified. It was a direct solution that remained
unambiguous until Congress enacted the Judiciary Act of 1875, which was
part of the post-Civil War civil rights legislation and guaranteed the right of
a citizen to sue his or her own state in federal court. As will be seen shortly, it
is the 11th Amendment that the U.S. Supreme Court has primarily relied
upon in applying its new federalism policy, essentially granting state gov-
ernments much greater immunity from lawsuits.
Finally, state sovereignty claims also weigh congressional power as
defined by the commerce clause of Article I of the U.S. Constitution and § 5
of the 14th Amendment, which grants the U.S. Congress authority to enact
legislation enforcing the 14th Amendment.6 The 14th Amendment essen-
tially applies the Bill of Rights to state governments.7
The Supreme Court’s reliance on the commerce clause in applying its
new federalism policy was first seen in its 1995 United States v. Lopez ruling.
For the first time since the New Deal, the Supreme Court invalidated a fed-
eral statute enacted pursuant to the interstate commerce clause.8 In Lopez,
the Court declared unconstitutional a law9 banning the possession of guns
within 1,000 feet of a school, despite the aggregate impact of the regulated
activity on the national economy through its effects on education and
crime. Turning heavily on whether the law or the activity being regulated
affected “economic activity,” the Court ruled that “the possession of a gun
in a local school zone is in no sense an economic activity that might,

through repetition elsewhere, have such a substantial effect on interstate
commerce” (p. 549).10
Similarly, in the United States v. Morrison (2000), the same narrowly
divided Court struck down a provision of the 1994 Violence Against
Women Act11 (VAWA) creating a federal civil remedy against the perpetra-
tors of gender-motivated crimes of violence. Again, the Court stressed the
noneconomic nature of the regulated activity, stating that Congress does
not have the authority to regulate a criminal offense such as rape because it is
not an economic issue. The Morrison Court stated that “gender-motivated
crimes of violence are not, in any sense, economic activity” (p. 598). It said
[while] the statute, is supported by numerous findings regarding the serious
impact of gender-motivated violence on victims and their families, these
findings are substantially weakened by the fact that they rely on reasoning
that this Court has rejected, namely a but-for causal chain from the initial
occurrence of violent crime to every attenuated effect upon interstate com-
merce. (p. 599)
Broadly interpreted, the Morrison and Lopez rulings suggest, in effect, that
Congress, pursuant to the commerce clause, can only regulate an activity if
it is economic and has a substantial impact on interstate commerce.12
The Morrison Court further ruled that § 5 of the 14th Amendment also
does not give Congress the authority to enact the provision of the VAWA
creating a federal civil remedy for victims of gender-motivated violence. In
so doing, the Court referred to its decision in City of Boerne v. Flores (1997),
in which it ruled that the 14th Amendment places limitations on the...

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