UNIVERSITY OF ALABAMA V. GARRETT: FEDERALISM LIMITS ON THE AMERICANS WITH DISABILITIES ACT
CRS Report for Congress
Received through the CRS Web
University of Alabama v. Garrett: Federalism
Limits on the Americans with Disabilities Act
Nancy Lee Jones
American Law Division
On Feb. 21, 2001, the Supreme Court in a 5-4 decision, held that the Eleventh
Amendment bars suits to recover monetary damages by state employees under title I of
the Americans with Disabilities Act (ADA). Although the ruling is narrowly focused
concerning the ADA, it has broad implications regarding federal-state power and
emphasizes the difficulty of drafting federal legislation under section 5 of the Fourteenth
Amendment that will withstand Eleventh Amendment scrutiny. This report will briefly
discuss Garrett and its implications for the ADA, federalism and congressional power.
For more detailed information on the ADA see CRS Report 98-921, The Americans with
Disabilities Act (ADA): Statutory Language and Recent Issues. This report will not be
Supreme Court Interpretations of the Eleventh Amendment. Although
federalism was for many years largely ignored, starting in 1992 with New York v. United
States1 the Supreme Court began what some commentators have referred to as a “rebirth
of federalism.”2 A recent chapter in this “rebirth” involves a trio of cases from June 1999
where the Supreme Court expanded state sovereign immunity from suit under the Eleventh3
Amendment. Essentially, these cases, combined with several from previous terms, limit
1 505 U.S. 144 (1992).
2 Curt A. Levey, “The Quiet Revolution Conservatives Continue Federalism Resurgence by
Expanding State Immunity,” 157 N.J.L.J. 707 (August 23, 1999). See also Thomas, “Federalism
and the Constitution: Limits on Congressional Power,” CRS Rep. No. 30315.
3 Alden v. Maine, 527 U.S. 706 (1999)(Congress lacks the authority when exercising Article I
powers to subject non-consenting states to private suits for damages in state courts); College
Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U. S.666 (1999) (The
Trademark Remedy Clarification Act, TRCA, which subjected states to suit for false and
misleading advertising, did not validly abrogate state sovereign immunity; neither the right to be
free from a business competitor’s false advertising nor a more generalized right to be secure in
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the extent to which Congress can abrogate the state’s sovereign immunity from suit. In
other words, Congress may statutorily allow a state to be sued by individuals but this
congressional power is limited and has become even more circumscribed with the Court’s
determination in Garrett.
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.” The Supreme Court has found that the Eleventh Amendment applies to suits by
citizens against their own states and cannot be abrogated by the use of Article I powers
but that section 5 of the Fourteenth Amendment can be used for abrogation in certain
limited circumstances. Section 5 of the Fourteenth Amendment states: “The Congress
shall have the power to enforce, by appropriate legislation, the provisions of this article.”
The circumstances where section 5 of the Fourteenth Amendment can be used to
abrogate the Eleventh Amendment were discussed in the recent Supreme Court decisions.
They reiterated the principle that the Congress may abrogate state immunity from suit
under the Fourteenth Amendment and found that there were three conditions necessary
for successful abrogation.
!Congressional power is limited to the enactment of “appropriate”
legislation to enforce the substantive provisions of the Fourteenth
!The legislation must be remedial in nature.
!There must be a “congruence and proportionality” between the injury to
be prevented and the means adopted to that end.
The clearest pre-Garrett discussion of these conditions is found in City of Boerne v.
Flores4 where the Supreme Court held that the Religious Freedom Restoration Act
(RFRA) exceeded congressional power. In reaching its holding, the Court acknowledged
that section 5 was a positive grant of legislative power to Congress. “Legislation which
deters or remedies constitutional violations can fall within the sweep of Congress’
enforcement power even if in the process it prohibits conduct which is not itself
unconstitutional....”5 The grant of authority to Congress is not unlimited, however.
Acknowledging that “the line between measures that remedy or prevent unconstitutional
actions and measures that make a substantive change in the governing law is not easy to
discern, and Congress must have wide latitude in determining where it lies,” the Court
emphasized that there must be a “congruence and proportionality between the injury to be
one’s business interests qualifies as a property right protected by the Due Process Clause); Florida
Prepaid Postsecondary Educ. Expense Bd. v. College Savings Bank,527 U.S. 627
(1999)(Congress may abrogate state sovereign immunity but must do so through legislation that
is appropriate within the meaning of section 5 of the Fourteenth Amendment; Congress must
identify conduct that violates the Fourteenth Amendment and must tailor its legislation to
remedying or preventing such conduct).
4 521 U.S. 507 (1997).
5 Id. at 518.
prevented or remedied and the means adopted to that end.”6 In applying this analysis to
factual situations, the Court compared and contrasted RFRA and the Voting Rights Act.
Congress had before it a record of state voting laws passed due to bigotry when it passed
the Voting Rights Act; the Court found no such record of religious persecution occurring
during the past forty years examined during the enactment of RFRA. But even if there had
been a stronger legislative record, the Court found that RFRA could not be considered
remedial. “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.”7 The Court observed that RFRA would require a state to demonstrate a
compelling interest and show that it has adopted the least restrictive means of achieving
that interest, a test that “is the most demanding test known to constitutional law.”8
The Supreme Court’s decision in Kimel v. Florida Board of Regents9 used the same
reasoning advanced in its earlier Eleventh Amendment cases to conclude that the Age
Discrimination in Employment Act (ADEA) exceeded congressional authority under
section 5 of the Fourteenth Amendment. The ADEA prohibits discrimination by an
employer due to age and provides several exceptions, for example, where there is a “bona
fide occupational qualification.” In 1974 the ADEA was amended to extend its
discrimination prohibition to the States.
Quoting extensively from City of Boerne v. Flores, the Kimel Court adhered to its
conditions for abrogation limiting congressional power to (1) the enactment of
“appropriate legislation,” (2) remedial legislation, and (3) a “congruence and
proportionality” between the injury to be prevented and the means adopted to that end.
The ADEA requirements were not found to be “appropriate.” The Court stated that “the
substantive requirements the ADEA imposes on state and local governments are
disproportionate to any unconstitutional conduct that conceivably could be targeted under10
the Equal Protection Clause.” Age classifications were not seen 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.”11 In addition, the Court
found, older persons have not been subjected to a “history of purposeful unequal
treatment” and “old age does not define a discrete and insular minority because all persons,
if they live out their normal life spans, will experience it.”12 As a consequence, the ADEA
was found to prohibit “substantially more state employment decisions and practices than
would likely be held unconstitutional under the applicable equal protection, rational basis13
6 Id. at 519-520.
7 Id. at 532.
8 Id. at 534.
9 528 U.S. 62.
10 Kimel at 82-83.
11 Id. at 83 citing Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).
13 Id. at 86.
University of Alabama v. Garrett. In Garrett the Supreme Court expanded
upon its interpretation of federalism and found that the Eleventh Amendment bars the
recovery of monetary damages by state employees under title I of the ADA. Garrett
involved two consolidated cases brought by separate Alabama employees. One of the
employees, Patricia Garrett, had been undergoing treatment for breast cancer when, she
alleged, she was transferred to a lesser position after having been told that her supervisor
did not like sick people. The second plaintiff, Milton Ash, alleged that the Alabama
Department of Human Services did not enforce its non-smoking policy and that, therefore,
he was not able to control his asthma. The Eleventh Circuit held that the state was not
immune from suits for damages. The Supreme Court reversed.
Writing for the majority, Chief Justice Rehnquist briefly examined the ADA’s
statutory language and the general principles of the Eleventh Amendment immunity. He
observed that the first step in applying these principles was to identify the scope of the
constitutional right at issue, in other words, to identify constitutional rights to individuals
with disabilities have to be free from discrimination. Discussing Cleburne v. Cleburne
Living Center,14 Chief Justice Rehnquist emphasized that discrimination against individuals
with disabilities is entitled to only “minimum ‘rational-basis’ review” and stated: “Thus,
the result of Cleburne is that States are not required by the Fourteenth Amendment to
make special accommodations for the disabled, so long as their actions towards such
individuals are rational. They could quite hard headedly - and perhaps hardheartedly - hold
to job qualification requirements which do not make allowance for the disabled. If special
accommodations for the disabled are to be required, they have to come from positive law
and not through the Equal Protection Clause.”15
After examining the constitutional rights of individuals with disabilities, the majority
opinion in Garrett examined whether Congress had identified a history and pattern of
unconstitutional employment discrimination by the states against individuals with
disabilities. Chief Justice Rehnquist observed that the authority of Congress under section
5 of the Fourteenth Amendment “is appropriately exercised only in response to state
transgressions.”16 He found that the legislative history of the ADA did not identify such
a pattern. Although the record was replete with examples of discrimination, Chief Justice
Rehnquist noted that most of these examples were drawn from units of local government
and not the states and that “the Eleventh Amendment does not extend its immunity to units
of local government.”17 Although the examples regarding state discrimination involved,
among others, a department head at the University of North Carolina who refused to hire
and applicant who was blind, a microfilmer at the Kansas Department of Transportation
who was fired due to his epilepsy; and deaf workers at the University of Oklahoma who
were paid a lower salary than those who could hear, the Garrett majority observed that
whether such actions would rise to irrational constitutional discrimination was debatable.
14 473 U.S. 432 (1985). In Cleburne, the Supreme Court applied the Fourteenth Amendment to
individuals with mental retardation and found that, although such individuals were not part of a
suspect class, a zoning ordinance which excluded group homes from certain locations violated the
15 Slip op. at 9-10.
16 Slip op. at 10.
17 Slip op. at 11.
The majority opinion went on to note that even if constitutional discrimination were
assumed for these instances, they do not suggest the pattern of unconstitutional
discrimination necessary for enactment of legislation under section 5 of the Fourteenth
Amendment. Chief Justice Rehnquist further stated that “had Congress truly understood
this information as reflecting a pattern of unconstitutional behavior by the States, one
would expect some mention of that conclusion in the Act’s legislative findings. There is
The Garrett majority observed that even if a pattern of unconstitutional discrimination
by states was found, issues relating to whether there was a “congruence and
proportionality” between the injury to be prevented and the means adopted would raise
concerns. Chief Justice Rehnquist observed that “it would be entirely rational (and
therefore constitutional) for a state employer to conserve scarce financial resources by
hiring employees who are able to use existing facilities” but that the ADA requires that
existing facilities be readily accessible to and usable by individuals with disabilities.”19 The
ADA’s accommodation requirements were seen as “far exceed(ing) what is
constitutionally required.”20 The ADA’s requirements forbidding standards, criteria, or
methods of administration that disparately impact individuals with disabilities were also
seen as inconsistent with the requirements for legislation under section 5 of the Fourteenth
In conclusion, the majority opinion stated that “Congress is the final authority as to
desirable public policy, but in order to authorize private individuals to recover money
damages against the States, there must be a pattern of discrimination by the States which
violates the Fourteenth Amendment, and the remedy imposed by Congress must be
congruent and proportional to the targeted violation. Those requirements are not met
here....”21 However, after reaching this holding, the Garrett majority went on to note that
it does not mean that individuals with disabilities have no federal recourse. The opinion
was limited to the recovery of monetary damages and the standards of title I of the ADA
were seen as still applicable to the states. In addition, the Court noted that the federal
government could enforce those rights in actions for monetary damages and that state law
would offer some means of redress.
In a concurring opinion, Justices Kennedy and O’Connor, emphasized the limited
nature of the opinion stating that “what is in question is not whether the Congress, acting
pursuant to a power granted to it by the Constitution, can compel the States to act. What
is involved is only the question whether the States can be subjected to liability in suits
brought not be the Federal Government but by private persons seeking to collect moneys
form the state treasury without the consent of the State.”22
18 Slip op. at 13.
19 Slip op. at 14.
20 Slip op. at 14.
21 Slip op. at 16.
22 Concurring op. at 3.
Justice Breyer, joined by Justices Stevens, Souter and Ginsburg, strongly disagreed
with the majority’s opinion and stated that Congress could have reasonably concluded that
the title I remedies of the ADA were appropriate legislation under the Fourteenth
Amendment. The emphasis in the majority opinion on the limited legislative history was
described as ignoring the “powerful evidence of discriminatory treatment throughout
society in general” which “implicates state governments as well, for state agencies form
part of that same larger society.”23 The rules the majority used to find the legislative
record inadequate were seen as flawed, using standards more appropriately applied to
judges than to Congress. In the view of the dissenters, Congress has broad authority to
remedy violations of the Fourteenth Amendment. “There is simply no reason to require
Congress, seeking to determine facts relevant to the exercise of its §5 authority, to adopt
rules or presumptions that reflect a court’s institutional limitations. Unlike courts,
Congress can readily gather facts from across the Nation, assess the magnitude of a
problem, and more easily find an appropriate remedy.”24
The dissent also took issue with the interpretation of the congruency and
proportionality standard and compared the majority’s “harsh review of Congress’ use of
its §5 power” to the restrictions on the commerce power made by the Supreme Court in
the 1930's and later rejected. In conclusion, Just Breyer stated: “The Court, through its
evidentiary demands, its non-deferential review, and its failure to distinguish between
judicial and legislative constitutional competencies, improperly invades a power that the
Constitution assigns to Congress....Its decision saps §5 of independent force, effectively
‘confin(ing) the legislative power...to the insignificant role of abrogating only those state25
laws that the judicial branch [is] prepared to adjudge unconstitutional.’”
Implications of Garrett. University of Alabama v. Garrett is a major decision,
further emphasizing the Court’s federalism theories and raising separation of powers issues
as well.26 Although the majority does not rule out all legislation enacted pursuant to
section 5 of the Fourteenth Amendment, it has made the enactment of such legislation
significantly less likely to withstand Eleventh Amendment scrutiny. In addition, the
Court’s comments on disparate impact discrimination could signal a challenge to other
uses of this approach and some commentators have stated this could have implications for
other statutes, including title VII of the Civil Rights Act which prohibits racial
discrimination.27 More specifically, with regard to the ADA, the majority took pains to
describe the limited nature of the holding. It is limited to title I of the ADA, deals only
with monetary damages and leaves open other avenues of relief such as enforcement by
the Equal Employment Opportunities Commission and state laws. However, the absence
of monetary damages does make individual suits against states much less likely and has
been described as a significant blow to ADA enforcement.
23 Dissenting op. at 3.
24 Dissenting op. at 9.
25 Dissenting op. at 14, citing Katzenbach v. Morgan, 384 U.S. 641, 648, n.7.
26 Linda Greenhouse, “The High Court’s Target: Congress,” The New York Times wk 3 (Feb 25,