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

Hastings Constitutional State Quarterly Vol. 38, No. 2, p. 259 (2011)

80 Pages Posted: 30 Apr 2013


In a series of cases beginning with Boerne v. City of Flores (1997), the Supreme Court has adopted a new interpretation of the 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 the Fourteenth Amendment to abrogate the state's sovereign immunity. It is widely thought that the Boerne Doctrine significantly raises the bar for Congress to validly exercise its Section 5 powers because it requires proof of a pattern of state violation of constitutional rights and the suitability of the remedy to the problem ("congruence and proportionality"), not just, as previously, a clear statement of intent to abrogate.

In Kimel v. Fla. Bd. of Regents (2000), the Court struck down the application of federal age discrimination law (the ADEA) to the 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 the same in Univ. of Ala. v. Garrett (2001) for federal disability employment discrimination law. In both cases the Court made a fine grained analysis of the evidence in the 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 the pertinent cases that the Boerne Doctrine is, or has become, far less restrictive than is widely thought. Properly understood, the Doctrine now involves what I call an Inverse Relation Rule. This means that the Court requires more evidence of a pattern of constitutional violations where the standard of review for the rights at question is lower (rational basis for age and disability in Kimel and Garrett respectively), but requires less evidence of such violations as the rights in question involve more heightened review. That is, the higher the degree of scrutiny appropriate for the right protected by the legislation, the lower the degree of rigor with which the Court will interrogate the evidence.

Thus in Hibbs v. Fla. Bd of Regents (2003), the Court found that Congress had validly exercised its Section Five powers in enacting the Family Medical Leave Act, which concerns sex discrimination (intermediate review). In Tennessee v. Lane (2004) the Court found similarly that the public access Title of the ADA applied to the states, because that case implicated fundamental rights such as access to criminal justice (strict scrutiny).

Throughout the development of the Boerne Doctrine, the Court expanded the scope of usable evidence. In Hibbs and Lane, the Court allowed as evidence supporting valid use of Section 5 powers facts of the sort the Court had rejected as inadequate in Kimel and Garrett. The Court increasingly brought in in evidence outside the 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 the court interpreted as coextensive with Eighth Amendment rights not to be subject to cruel and unusual punishment (strict scrutiny), the Court required no evidence at all of a pattern of state constitutional violations for valid Congressional exercise of Section 5 powers.

Thus, the way the 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, the intensity of the Court's examination of the evidence for a pattern of discrimination, the amount of evidence required, and the appropriateness of the remedy offered will be much reduced, and the probability of finding of a valid use to Section 5 to abrogate state sovereign immunity will be increased. If the rights at issue can be framed as requiring only rational basis review, the the the intensity of the Court's examination of the evidence will rise and, the likelihood that Congress will have successfully abrogated state sovereign immunity will fall. I show this by a hypothetical reconsideration of Kimel under the Boerne Doctrine as it has evolved, among other things, reading the ADEA as involving a remedy for deprivation of due process property rights (strict scrutiny), and showing how that might change the outcome. Both plaintiffs and defendants, as well as judges, can use this analysis in developing the theory of a case.

An issue not discussed in the paper, but now (2013) pertinent concerns the states of the Voting Rights Act (VRA). Throughout all the Boerne Doctrine cases, and there are many, the Court cites the VRA as a model example of proper exercise of Congress' Section 5 powers. With the Voting Rights Act itself now coming before the Court, it may be important for the Boerne Doctrine, and the analysis and conclusions presented in this paper, how the Court decides the challenges to the VRA.

Keywords: civil rights, anti-discrimination law, age discrtimination, disability discrimination, federal jurisdiction, constitutional law, rights, standard of review, Eleventh Amendment, Fourteenth Amendment, Section Five Enforcement Powers, State Sovereignty, Sovereign Immunity, Abrogation

Suggested Citation

Schwartz, Justin, Less than Meets the Eye: Antidiscrimination and the Development of Section 5 Enforcement and Eleventh Amendment Abrogation Law Since City of Boerne v. Flores. Hastings Constitutional State Quarterly Vol. 38, No. 2, p. 259 (2011), Available at SSRN: https://ssrn.com/abstract=2258064 or http://dx.doi.org/10.2139/ssrn.2258064

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