Kimel v. Florida Board of Regents

528 U.S. 62

Case Year: 2000

Case Ruling: 5-4, Affirmed

Opinion Justice: O?Connor

FACTS

In Seminole Tribe of Florida v. Florida (1996) the Court held that Article I of the Constitution does not permit Congress to abrogate the states’ sovereign immunity from suits commenced or prosecuted in the federal courts. In Alden v. Maine(1999) the justices pushed Seminole Tribe further, ruling that Congress cannot subject nonconsenting states to private suits for damages even in their own courts.

At issue in this case is whether Congress can make states liable for suits brought under the federal Age Discrimination in Employment Act of 1967 (ADEA), which makes it unlawful for an employer, including a state, “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ... because of such individual’s age.” Three sets of plaintiffs brought suit under the act, alleging that Florida discriminated against them on the basis of age.

 

JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT.

The Age Discrimination in Employment Act of 1967 as amended [in 1994] makes it unlawful for an employer, including a State, “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual ... because of such individual’s age.” In these cases, three sets of plaintiffs filed suit under the Act, seeking money damages for their state employers’ alleged discrimination on the basis of age. In each case, the state employer moved to dismiss the suit on the basis of its Eleventh Amendment immunity. The District Court in one case granted the motion to dismiss, while in each of the remaining cases the District Court denied the motion. Appeals in the three cases were consolidated before the Court of Appeals for the Eleventh Circuit, which held that the ADEA does not validly abrogate the States’ Eleventh Amendment immunity. In these cases, we are asked to consider whether the ADEA contains a clear statement of Congress’ intent to abrogate the States’ Eleventh Amendment immunity and, if so, whether the ADEA is a proper exercise of Congress’ constitutional authority. We conclude that the ADEA does contain a clear statement of Congress’ intent to abrogate the States’ immunity, but that the abrogation exceeded Congress’ authority under §5 of the Fourteenth Amendment....

The Eleventh Amendment states:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

Although today’s cases concern suits brought by citizens against their own States, this Court has long “‘understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms.’” Seminole Tribe of Fla. v. Florida (1996). Accordingly, for over a century now, we have made clear that the Constitution does not provide for federal jurisdiction over suits against nonconsenting States. Petitioners nevertheless contend that the States of Alabama and Florida must defend the present suits on the merits because Congress abrogated their Eleventh Amendment immunity in the ADEA. To determine whether petitioners are correct, we must resolve two predicate questions: first, whether Congress unequivocally expressed its intent to abrogate that immunity; and second, if it did, whether Congress acted pursuant to a valid grant of constitutional authority.

To determine whether a federal statute properly subjects States to suits by individuals, we apply a “simple but stringent test: ‘Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.’” We agree with petitioners that the ADEA satisfies that test. The ADEA states that its provisions “shall be enforced in accordance with the powers, remedies, and procedures provided in sections 211(b), 216 (except for subsection (a) thereof), and 217 of this title, and subsection (c) of this section.” Section 216(b), in turn, clearly provides for suits by individuals against States....

... In light of our conclusion that Congress unequivocally expressed its intent to abrogate the States’ Eleventh Amendment immunity, we now must determine whether Congress effectuated that abrogation pursuant to a valid exercise of constitutional authority.

This is not the first time we have considered the constitutional validity of the 1974 extension of the ADEA to state and local governments. In EEOC v. Wyoming, we held that the ADEA constitutes a valid exercise of Congress’ power “[t]o regulate Commerce ... among the several States,” Art. I, §8, cl. 3, and that the Act did not transgress any external restraints imposed on the commerce power by the Tenth Amendment. Because we found the ADEA valid under Congress’ Commerce Clause power, we concluded that it was unnecessary to determine whether the Act also could be supported by Congress’ power under §5 of the Fourteenth Amendment. Resolution of today’s cases requires us to decide that question.

In Seminole Tribe, we held that Congress lacks power under Article I to abrogate the States’ sovereign immunity. “Even when the Constitution vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States.”... Under our firmly established precedent then, if the ADEA rests solely on Congress’ Article I commerce power, the private petitioners in today’s cases cannot maintain their suits against their state employers.

JUSTICE STEVENS disputes that well-established precedent again. [See Alden, Seminole Tribe (STEVENS, J., dissenting).] InAlden, we explained that, “[a]lthough the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design.” For purposes of today’s decision, it is sufficient to note that we have on more than one occasion explained the substantial reasons for adhering to that constitutional design. Indeed, the present dissenters’ refusal to accept the validity and natural import of decisions rendered over a full century ago by this Court, makes it difficult to engage in additional meaningful debate on the place of state sovereign immunity in the Constitution. Today we adhere to our holding in Seminole Tribe: Congress’ powers under Article I of the Constitution do not include the power to subject States to suit at the hands of private individuals.

 

Section 5 of the Fourteenth Amendment, however, does grant Congress the authority to abrogate the States’ sovereign immunity. In Fitzpatrick v. Bitzer, (1976), we recognized that “the Eleventh Amendment, and the principle of state sovereignty which it embodies, are necessarily limited by the enforcement provisions of §5 of the Fourteenth Amendment.” Since our decision in Fitzpatrick, we have reaffirmed the validity of that congressional power on numerous occasions. Accordingly, the private petitioners in these cases may maintain their ADEA suits against the States of Alabama and Florida if, and only if, the ADEA is appropriate legislation under §5.

The Fourteenth Amendment provides, in relevant part:

“Section 1.... No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”...

“Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”

As we recognized most recently in City of Boerne v. Flores (1997), §5 is an affirmative grant of power to Congress. “It is for Congress in the first instance to ‘determin[e] whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,’ and its conclusions are entitled to much deference.” Congress’ §5 power is not confined to the enactment of legislation that merely parrots the precise wording of the Fourteenth Amendment. Rather, Congress’ power “to enforce” the Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment’s text.

Nevertheless, we have also recognized that the same language that serves as the basis for the affirmative grant of congressional power also serves to limit that power.... The ultimate interpretation and determination of the Fourteenth Amendment’s substantive meaning remains the province of the Judicial Branch. In City of Boerne, we noted that the determination whether purportedly prophylactic legislation constitutes appropriate remedial legislation, or instead effects a substantive redefinition of the Fourteenth Amendment right at issue, is often difficult. The line between the two is a fine one. Accordingly, recognizing that “Congress must have wide latitude in determining where [that line] lies,” we held that “[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.”

In City of Boerne, we applied that “congruence and proportionality” test and held that the Religious Freedom Restoration Act of 1993 (RFRA) was not appropriate legislation under §5. We first noted that the legislative record contained very little evidence of the unconstitutional conduct purportedly targeted by RFRA’s substantive provisions. Rather, Congress had uncovered only “anecdotal evidence” that, standing alone, did not reveal a “widespread pattern of religious discrimination in this country.” Second, we found that RFRA is “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.”...

Applying the same “congruence and proportionality” test in these cases, we conclude that the ADEA is not “appropriate legislation” under §5 of the Fourteenth Amendment. Initially, the substantive requirements the ADEA imposes on state and local governments are disproportionate to any unconstitutional conduct that conceivably could be targeted by the Act. We have considered claims of unconstitutional age discrimination under the Equal Protection Clause three times. In all three cases, we held that the age classifications at issue did not violate the Equal Protection Clause. Age classifications, unlike governmental conduct based on race or gender, cannot be characterized as “so seldom relevant to the achievement of any legitimate state interest that laws grounded in such considerations are deemed to reflect prejudice and antipathy.” Older persons, again, unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a “‘history of purposeful unequal treatment.’” Old age also does not define a discrete and insular minority because all persons, if they live out their normal life spans, will experience it. Accordingly, age is not a suspect classification under the Equal Protection Clause.

States may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest.... [B]ecause an age classification is presumptively rational, the individual challenging its constitutionality bears the burden of proving that the “facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.”...

Judged against the backdrop of our equal protection jurisprudence, it is clear that the ADEA is “so out of proportion to a supposed remedial or preventive object that it cannot be understood as responsive to, or designed to prevent, unconstitutional behavior.” The Act, through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable equal protection, rational basis standard. The ADEA makes unlawful, in the employment context, all “discriminat[ion] against any individual ... because of such individual’s age.” Petitioners, relying on the Act’s exceptions, dispute the extent to which the ADEA erects protections beyond the Constitution’s requirements. They contend that the Act’s prohibition, considered together with its exceptions, applies only to arbitrary age discrimination, which in the majority of cases corresponds to conduct that violates the Equal Protection Clause. We disagree.

Petitioners stake their claim on §623(f)(1). That section permits employers to rely on age when it “is a bona fide occupational qualification reasonably necessary to the normal operation of the particular business.” Petitioners’ reliance on the “bona fide occupational qualification” (BFOQ) defense is misplaced. Our interpretation of §623(f)(1) in Western Air Lines, Inc. v. Criswell(1985), conclusively demonstrates that the defense is a far cry from the rational basis standard we apply to age discrimination under the Equal Protection Clause. The petitioner in that case maintained that, pursuant to the BFOQ defense, employers must be permitted to rely on age when such reliance has a “rational basis in fact.” We rejected that argument, explaining that “[t]he BFOQ standard adopted in the statute is one of ‘reasonable necessity,’ not reasonableness,” and that the ADEA standard and the rational basis test are “significantly different.”...

Petitioners also place some reliance on the next clause in §623(f)(1), which permits employers to engage in conduct otherwise prohibited by the Act “where the differentiation is based on reasonable factors other than age.” This exception confirms, however, rather than disproves, the conclusion that the ADEA’s protection extends beyond the requirements of the Equal Protection Clause. The exception simply makes clear that “[t]he employer cannot rely on age as a proxy for an employee’s remaining characteristics, such as productivity, but must instead focus on those factors directly.” Under the Constitution, in contrast, States may rely on age as a proxy for other characteristics. Section 623(f)(1), then, merely confirms that Congress, through the ADEA, has effectively elevated the standard for analyzing age discrimination to heightened scrutiny.

That the ADEA prohibits very little conduct likely to be held unconstitutional, while significant, does not alone provide the answer to our §5 inquiry. Difficult and intractable problems often require powerful remedies, and we have never held that §5 precludes Congress from enacting reasonably prophylactic legislation. Our task is to determine whether the ADEA is in fact just such an appropriate remedy or, instead, merely an attempt to substantively redefine the States’ legal obligations with respect to age discrimination. One means by which we have made such a determination in the past is by examining the legislative record containing the reasons for Congress’ action....

Our examination of the ADEA’s legislative record confirms that Congress’ 1974 extension of the Act to the States was an unwarranted response to a perhaps inconsequential problem. Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation. The evidence compiled by petitioners to demonstrate such attention by Congress to age discrimination by the States falls well short of the mark. That evidence consists almost entirely of isolated sentences clipped from floor debates and legislative reports....

...[T]he United States’ argument that Congress found substantial age discrimination in the private sector is beside the point. Congress made no such findings with respect to the States. Although we also have doubts whether the findings Congress did make with respect to the private sector could be extrapolated to support a finding of unconstitutional age discrimination in the public sector, it is sufficient for these cases to note that Congress failed to identify a widespread pattern of age discrimination by the States.

A review of the ADEA’s legislative record as a whole, then, reveals that Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age. Although that lack of support is not determinative of the §5 inquiry, Congress’ failure to uncover any significant pattern of unconstitutional discrimination here confirms that Congress had no reason to believe that broad prophylactic legislation was necessary in this field. In light of the indiscriminate scope of the Act’s substantive requirements, and the lack of evidence of widespread and unconstitutional age discrimination by the States, we hold that the ADEA is not a valid exercise of Congress’ power under §5 of the Fourteenth Amendment. The ADEA’s purported abrogation of the States’ sovereign immunity is accordingly invalid.

Our decision today does not signal the end of the line for employees who find themselves subject to age discrimination at the hands of their state employers. We hold only that, in the ADEA, Congress did not validly abrogate the States’ sovereign immunity to suits by private individuals. State employees are protected by state age discrimination statutes, and may recover money damages from their state employers, in almost every State of the Union. Those avenues of relief remain available today, just as they were before this decision.

Because the ADEA does not validly abrogate the States’ sovereign immunity, however, the present suits must be dismissed. Accordingly, the judgment of the Court of Appeals is affirmed.

It is so ordered.

JUSTICE STEVENS, WITH WHOM JUSTICE SOUTER, JUSTICE GINSBURG, AND JUSTICE BREYER JOIN, DISSENTING IN PART AND CONCURRING IN PART.

Congress’ power to regulate the American economy includes the power to regulate both the public and the private sectors of the labor market. Federal rules outlawing discrimination in the workplace, like the regulation of wages and hours or health and safety standards, may be enforced against public as well as private employers. In my opinion, Congress’ power to authorize federal remedies against state agencies that violate federal statutory obligations is coextensive with its power to impose those obligations on the States in the first place. Neither the Eleventh Amendment nor the doctrine of sovereign immunity places any limit on that power.

The application of the ancient judge-made doctrine of sovereign immunity in cases like these is supposedly justified as a freestanding limit on congressional authority, a limit necessary to protect States’ “dignity and respect” from impairment by the National Government. The Framers did not, however, select the Judicial Branch as the constitutional guardian of those state interests. Rather, the Framers designed important structural safeguards to ensure that when the National Government enacted substantive law (and provided for its enforcement), the normal operation of the legislative process itself would adequately defend state interests from undue infringement.

It is the Framers’ compromise giving each State equal representation in the Senate that provides the principal structural protection for the sovereignty of the several States. The composition of the Senate was originally determined by the legislatures of the States, which would guarantee that their interests could not be ignored by Congress. The Framers also directed that the House be composed of Representatives selected by voters in the several States, the consequence of which is that “the states are the strategic yardsticks for the measurement of interest and opinion, the special centers of political activity, the separate geographical determinants of national as well as local politics.”

Whenever Congress passes a statute, it does so against the background of state law already in place; the propriety of taking national action is thus measured by the metric of the existing state norms that Congress seeks to supplement or supplant. The persuasiveness of any justification for overcoming legislative inertia and taking national action, either creating new federal obligations or providing for their enforcement, must necessarily be judged in reference to state interests, as expressed in existing state laws. The precise scope of federal laws, of course, can be shaped with nuanced attention to state interests. The Congress also has the authority to grant or withhold jurisdiction in lower federal courts. The burden of being haled into a federal forum for the enforcement of federal law, thus, can be expanded or contracted as Congress deems proper, which decision, like all other legislative acts, necessarily contemplates state interests. Thus, Congress can use its broad range of flexible legislative tools to approach the delicate issue of how to balance local and national interests in the most responsive and careful manner. It is quite evident, therefore, that the Framers did not view this Court as the ultimate guardian of the States’ interest in protecting their own sovereignty from impairment by “burdensome” federal laws.

Federalism concerns do make it appropriate for Congress to speak clearly when it regulates state action. But when it does so, as it has in these cases, we can safely presume that the burdens the statute imposes on the sovereignty of the several States were taken into account during the deliberative process leading to the enactment of the measure. Those burdens necessarily include the cost of defending against enforcement proceedings and paying whatever penalties might be incurred for violating the statute. In my judgment, the question whether those enforcement proceedings should be conducted exclusively by federal agencies, or may be brought by private parties as well, is a matter of policy for Congress to decide. In either event, once Congress has made its policy choice, the sovereignty concerns of the several States are satisfied, and the federal interest in evenhanded enforcement of federal law, explicitly endorsed in Article VI of the Constitution, does not countenance further limitations. There is not a word in the text of the Constitution supporting the Court’s conclusion that the judge-made doctrine of sovereign immunity limits Congress’ power to authorize private parties, as well as federal agencies, to enforce federal law against the States. The importance of respecting the Framers’ decision to assign the business of lawmaking to the Congress dictates firm resistance to the present majority’s repeated substitution of its own views of federalism for those expressed in statutes enacted by the Congress and signed by the President.

The Eleventh Amendment simply does not support the Court’s view. As has been stated before, the Amendment only places a textual limitation on the diversity jurisdiction of the federal courts. Because the Amendment is a part of the Constitution, I have never understood how its limitation on the diversity jurisdiction of federal courts defined in Article III could be “abrogated” by an Act of Congress. Here, however, private petitioners did not invoke the federal courts’ diversity jurisdiction; they are citizens of the same State as the defendants and they are asserting claims that arise under federal law. Thus, today’s decision (relying as it does on Seminole Tribe) rests entirely on a novel judicial interpretation of the doctrine of sovereign immunity, which the Court treats as though it were a constitutional precept. It is nevertheless clear to me that if Congress has the power to create the federal rights that these petitioners are asserting, it must also have the power to give the federal courts jurisdiction to remedy violations of those rights, even if it is necessary to “abrogate” the Court’s “Eleventh Amendment” version of the common-law defense of sovereign immunity to do so. That is the essence of the Court’s holding in Pennsylvania v. Union Gas Co. (1989).

I remain convinced that Union Gas was correctly decided and that the decision of five Justices in Seminole Tribe to overrule that case was profoundly misguided. Despite my respect for stare decisis, I am unwilling to accept Seminole Tribe as controlling precedent. First and foremost, the reasoning of that opinion is so profoundly mistaken and so fundamentally inconsistent with the Framers’ conception of the constitutional order that it has forsaken any claim to the usual deference or respect owed to decisions of this Court. Stare decisis, furthermore, has less force in the area of constitutional law. And in this instance, it is but a hollow pretense for any State to seek refuge in stare decisis protection of reliance interests. It cannot be credibly maintained that a State’s ordering of its affairs with respect to potential liability under federal law requires adherence to Seminole Tribe, as that decision leaves open a State’s liability upon enforcement of federal law by federal agencies. Nor can a State find solace in the stare decisis interest of promoting “the evenhanded ... and consistent development of legal principles.” That principle is perverted when invoked to rely on sovereign immunity as a defense to deliberate violations of settled federal law. Further, Seminole Tribe is a case that will unquestionably have serious ramifications in future cases; indeed, it has already had such an effect, as in the Court’s decision today and in the equally misguided opinion of Alden v. Maine (1999). Further still, the Seminole Tribe decision unnecessarily forces the Court to resolve vexing questions of constitutional law respecting Congress’ §5 authority. Finally, by its own repeated overruling of earlier precedent, the majority has itself discounted the importance of stare decisis in this area of the law. The kind of judicial activism manifested in cases like Seminole Tribe [and] Alden v. Maine represents such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises.

Accordingly, I respectfully dissent.