Order Code RS20472
Updated October 25, 2000
CRS Report for Congress
Received through the CRS Web
The Americans with Disabilities Act:
Eleventh Amendment Issues
Nancy Lee Jones
American Law Division
The Supreme Court has granted certiorari and heard oral argument in Garrett v.
University of Alabama, a case involving the application of the Eleventh Amendment to
the Americans with Disabilities Act (ADA). Garrett is likely to be one of the most
significant cases of the 2000-2001 Supreme Court term as it could have an impact on
ADA coverage of states and localities and on the doctrine of federalism. This report will
provide a brief overview of the Eleventh Amendment and its application to the ADA.
It will be updated as appropriate. For a more detailed analysis of the ADA see Jones,
“The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues,”
CRS Report 98-921.
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 Eleventh Amendment.3 Essentially, these cases, combined with several from
505 U.S. 144 (1992).
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 Report RL30315.
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
Congressional Research Service ˜ The Library of Congress
previous terms, limit 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.
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 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 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
in College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Board, supra,
Florida Prepaid Postsecondary Educ. Expense Board v. College Savings Bank, supra,
and Kimel v. Florida Board of Regents.4 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 discussion of these conditions is found in City of Boerne v. Flores5
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....”6
The grant of authority to Congress is not unlimited, however. Acknowledging that “the
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).
528 U.S. 62 (2000).
521 U.S. 507 (1997).
Id. at 518.
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 prevented or remedied and the
means adopted to that end.”7 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.”8 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.”9
The Supreme Court’s decision in Kimel used the same reasoning advanced in its
earlier Eleventh Amendment cases to conclude that the Age Discrimination in Employment
Act (ADEA) contained a clear statement of congressional intent to abrogate the Eleventh
Amendment but 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 Boerne, supra, 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 under the Equal Protection
Clause.”10 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
Id. at 519-520.
Id. at 532.
Id. at 534.
Kimel, supra, at 18.
Id. at 19 citing Cleburne v. Cleburne Living Center, 473 U.S. 432, 440 (1985).
Id. at 19.
more state employment decisions and practices than would likely be held unconstitutional
under the applicable equal protection, rational basis standard.”13
The ADA and Sovereign Immunity. The ADA cites to the Fourteenth Amendment
as its constitutional basis,14 specifically abrogates state immunity under the Eleventh
Amendment15 and thus would appear to meet the specificity required for such a statement
of abrogation by Kimel. The issue, then, is whether the other elements of a successful
abrogation, as described by the Supreme Court in the cases discussed above, are present.
The Supreme Court granted certiorari in two cases involving this issue, Alsbrook v. City
of Maumelle16 and Florida Department of Corrections v. Dickson,17 but the cases were
settled prior to oral argument.18 However, the issue resurfaced when the Court granted
certiorari in Garrett v. University of Alabama.19
In Garrett, the Eleventh Circuit held that the state was not immune from suits
brought by state employees. The court of appeals decision involved two consolidated
lawsuits by separate Alabama employees. One of these employees, Patricia Garrett, had
been undergoing treatment for breast cancer when, she alleged, she was transferred from
her unit after being told that her boss did not like sick people. The second plaintiff, Milton
Ash, alleged that the Alabama Department of Human Services did not enforce its nonsmoking policy and that he was not able to control his asthma.20 The district court held
that the accommodation provisions of the ADA were not a valid exercise of Congress’
enforcement power under the Fourteenth Amendment and thus Congress did not abrogate
the Eleventh Amendment.21 The Eleventh Circuit disagreed and held that states do not
have Eleventh Amendment immunity from claims brought under the ADA. The majority
did not provide a detailed analysis in this decision but rather referred to the Eleventh
Circuit’s decision in Kimel regarding the ADA and observed that “we, of course, are
bound by the decision....” Kimel, as was discussed above, was decided by the Supreme
Court but only regarding the ADEA claim; the Supreme Court did not address the ADA
issue that had been before the Eleventh Circuit. The Supreme Court held oral argument
in Garrett on October 11, 2000.
Garrett is one of the most closely watched cases in the 2000-2001 Supreme Court
term and the likely outcome is not at all clear. The courts of appeals had been split in their
determinations prior to the Supreme Court’s decision in Kimel but court of appeals
Id. at 22.
42 U.S.C. §12101(b)(4).
42 U.S.C. §12202.
68 U.S.L.W. 3478 (January 21, 2000).
2000 U.S. LEXIS 996 (January 25, 2000).
2000 U.S. LEXIS 1545 (Feb. 23, 2000). See Linda Greenhouse, “Justices Rebuff Inmate’s Bid
on Early Supervised Release,” The New York Times A-18 (March 2, 2000).
68 U.S.L.W. 3649 (April 18, 2000).
9 BNA’s Americans with Disabilities Act Manual 46, 47 (April 27, 2000).
989 F. Supp. 1409 (N.D. Ala. 1998).
decisions since Kimel have found that the ADA does not properly abrogate the Eleventh
An examination of the statutory language and legislative history indicates that the
ADA could meet the Court’s abrogation requirements to be “appropriate” legislation,
remedial, and have a “congruence and proportionality” between the injury to be prevented
and the means adopted to that end. However, given the recent lack of success in
abrogating the Eleventh Amendment, the Court’s examples regarding race and sex, and
the high standard for finding “congruence and proportionality,” it is possible the Court
would find that the ADA does not successfully abrogate the Eleventh Amendment.23
Appropriate Legislation to Enforce the Substantive Provisions of the
Fourteenth Amendment. The ADA is a civil rights statute. It enforces constitutional
standards to address the major areas of discrimination faced by individuals with disabilities
and specifically invokes “the power to enforce the fourteenth amendment.”24 In Cleburne
v. Cleburne Living Center,25 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 Fourteenth Amendment. Expanding upon Cleburne, the ADA specifically
finds that “individuals with disabilities are a discrete and insular minority who have been
faced with restrictions and limitations, subjected to a history of purposeful unequal
treatment, and relegated to a position of political powerlessness in our society, based on
characteristics that are beyond the control of such individuals and resulting from
stereotypic assumptions not truly indicative of the individual ability of such individuals to
participate in, and contribute to, society.”26 The statement of findings and purposes and
the legislative history of the ADA draw parallels to the treatment of individuals with
disabilities and racial minorities whose protection the Court has found to be within
congressional authority. 27
Remedial Legislation. The ADA would arguably meet the Supreme Court’s
requirement that the legislation be remedial in nature. Although there was some legislative
history under the ADEA, it was determined by the Supreme Court in Kimel to be
inadequate to fulfill the remedial requirement of successful abrogation. The record under
the ADA is more extensive and includes statutory language, report language, and hearing
See Lavia v. Commonwealth of Pennsylvania, 224 F.3d 190 (3d Cir. 2000); Erickson v.
Northeastern Illinois University, 207 F.3d 945 (7th Cir. 2000); Popovich v. Cuyahoga County
Court of Common Pleas, 2000 U.S. App. LEXIS 23388 (September 18, 2000).
It should be noted that although the Supreme Court has considered other cases under Title II of
the ADA, the Eleventh Amendment issue was not addressed.
42 U.S.C. §12101(b)(4).
473 U.S. 432 (1985).
42 U.S.C. §12101(a)(7).
See, 42 U.S.C. §12101; Testimony of Sandy Parrino, quoted in S.Rept. 101-116, 101st Cong.,
1 Sess. (1989).
The ADA’s statement of findings and purpose indicates that historically society has
tended to isolate and segregate individuals with disabilities and notes that individuals with
disabilities, unlike individuals who have experienced discrimination due to race, have often
had no legal recourse to remedy such discrimination. The ADA states that its purpose is
“to provide clear, strong, consistent, enforceable standards addressing discrimination
against individuals with disabilities.”28 The instances of discrimination detailed in the
hearings on the ADA and described in the House and Senate Reports also support the
remedial nature of the legislation and specifically discuss the inadequacy of state laws.29
For example, the House report states: “State laws are inadequate to address the pervasive
problems of discrimination that people with disabilities are facing....Too many States, for
whatever reason, still perpetuate confusion.....The fifty State Governor’s Committees, with
whom the President’s Committee on Employment of People with Disabilities works, report
that existing state laws do not adequately counter acts of discrimination against people
“Congruence and Proportionality” Between the Injury to be Prevented and the
Means Adopted. The Supreme Court also requires that when Congress uses its power
to abrogate state immunity by legislating pursuant to section 5 of the Fourteenth
Amendment there must be a “congruence and proportionality” between the injury to be
prevented and the means adopted. The finding of the inadequacy of existing remedies in
both the statute and its legislative history combined with the remedies enacted by the ADA
suggest a proportionality sufficient to meet the Supreme Court’s requirements.
It could be argued that the requirement of the ADA for reasonable accommodations
places a burden on employers and others that is inappropriate; however, the ADA also
contains limitations on this requirement. For example, for the purpose of employment, an
employer need not make an accommodation if he or she can demonstrate that the
accommodation would impose an undue hardship on the operation of the business.31
42 U.S.C. §12101(b)(2).
See S.Rept.101-116, 101st Cong., 1st Sess. (1989); H.Rept. 101-485, Part 2, 101st Cong., 2d
H.Rept. 101-485, Part 2, 101st Cong., 2d Sess. 47 (1990), reprinted in 4 USCCAN 329 (1990).
In addition to this report language, hearings on the ADA also contain testimony and studies which
indicate discrimination against individuals with disabilities by states and localities. For example,
testimony by Laura D. Cooper before the Subcommittee on Civil and Constitutional Rights of the
House Judiciary Committee on the ADA gave several examples of discrimination she had
experienced including inaccessible municipal buses and inaccessible voting places. “Americans
with Disabilities Act of 1989,” Hearings before the Subcommittee on Civil and Constitutional
Rights, House Judiciary Committee (August 3, 1989), reprinted in 3 “Legislative History of Public
Law 101-336 The Americans with Disabilities Act,” Prepared for the House Committee on
Education and Labor, 101st Cong., 2d Sess. (Dec. 1990), Serial No. 102-C at 1984. See also
testimony regarding problems with police services, Id. at 1005, 1008, 1118, 1197; testimony
regarding access to state courts, Id. at 1079; testimony regarding state hospitals, Id. at 1203;and
testimony regarding state employment, Id. at 1225, 1247.
42 U.S.C. §12112(b)(5)(A).