Less than Meets the Eye: Antidiscrimination and the Development of Section 5 Enforcement and Eleventh Amendment Abrogation Law Since City of Boerne v. Flores

Abstract

In a series of cases beginning with Boerne v. City of Flores (1997), Supreme Court has adopted a new interpretation of Eleventh Amendment. This has been interpreted for a century to bar citizen law suits against unconsenting states, unless Congress validly exercises its enforcement powers under Section 5 of Fourteenth Amendment to abrogate state's sovereign immunity. It is widely thought that Boerne Doctrine significantly raises bar for Congress to validly exercise its Section 5 powers because it requires proof of a pattern of state violation of constitutional rights and suitability of remedy to problem (congruence and proportionality), not just, as previously, a clear statement of intent to abrogate. In Kimel v. Fla. Bd. of Regents (2000), Court struck down application of federal age discrimination law (the ADEA) to states as involving invalid exercise of Section 5 powers because Congress did not show enough evidence of a pattern of state constitutional violations that this law might remedy. The Court did same in Univ. of Ala. v. Garrett (2001) for federal disability employment discrimination law. In both cases Court made a fine grained analysis of evidence in legislative record, discarding much of it irrelevant or not probative. Some constitutional law scholars warned that the sky is falling for federal antidiscrimination law.I show by close reading of pertinent cases that Boerne Doctrine is, or has become, far less restrictive than is widely thought. Properly understood, Doctrine now involves what I call an Inverse Relation Rule. This means that Court requires more evidence of a pattern of constitutional violations where standard of review for rights at question is lower (rational basis for age and disability in Kimel and Garrett respectively), but requires less evidence of such violations as rights in question involve more heightened review. That is, higher degree of scrutiny appropriate for right protected by legislation, lower degree of rigor with which Court will interrogate evidence.Thus in Hibbs v. Fla. Bd of Regents (2003), Court found that Congress had validly exercised its Section Five powers in enacting Family Medical Leave Act, which concerns sex discrimination (intermediate review). In Tennessee v. Lane (2004) Court found similarly that public access Title of ADA applied to states, because that case implicated fundamental rights such as access to criminal justice (strict scrutiny).Throughout development of Boerne Doctrine, Court expanded scope of usable evidence. In Hibbs and Lane, Court allowed as evidence supporting valid use of Section 5 powers facts of sort Court had rejected as inadequate in Kimel and Garrett. The Court increasingly brought in in evidence outside record and made its own factual findings. In United States v. Georgia (2006), a prisoner disability access rights case under Title II of ADA that court interpreted as coextensive with Eighth Amendment rights not to be subject to cruel and unusual punishment (strict scrutiny), Court required no evidence at all of a pattern of state constitutional violations for valid Congressional exercise of Section 5 powers. Thus, way rights implicated in Congressional action are framed is crucial to successful abrogation of state sovereign immunity. If they are framed as rights involving heightened scrutiny, intensity of Court's examination of evidence for a pattern of discrimination, amount of evidence required, and appropriateness of remedy offered will be much reduced, and probability of finding of a valid use to Section 5 to abrogate state sovereign immunity will be increased. If rights at issue can be framed as requiring only rational basis review, intensity of Court's examination of evidence will rise and, likelihood that Congress will have successfully abrogated state sovereign immunity will fall. I show this by a hypothetical reconsideration of Kimel under Boerne Doctrine as it has evolved, among other things, reading ADEA as involving a remedy for deprivation of due process property rights (strict scrutiny), and showing how that might change outcome. Both plaintiffs and defendants, as well as judges, can use this analysis in developing theory of a case.An issue not discussed in paper, but now (2013) pertinent concerns states of Voting Rights Act (VRA). Throughout all Boerne Doctrine cases, and there are many, Court cites VRA as a model example of proper exercise of Congress' Section 5 powers. With Voting Rights Act itself now coming before Court, it may be important for Boerne Doctrine, and analysis and conclusions presented in this paper, how Court decides challenges to VRA.