5. Perhaps
Inconsequential
Problems
PROBABLY UNTRUE BUT RATIONALLY
CONCEIVABLE STEREOTYPES
Age is an easy and obvious way by which people may be classified. School age and voting age are fixed by law; retirement age often has been. Distinctions of this kind appear to be natural and unavoidable, necessary for the functioning of society, and not invidious. Like any system of classification, they submerge the individual in the group and fail to recognize exceptions. They suppose the stereotypical. They act on the basis of the average. When the individual is merged in the average, does the individual suffer a loss of civil rights?
In 1964, in the course of enacting the Civil Rights Act, Congress directed the secretary of labor to report on the extent of
The secretary's report led in 1967 to the Age Discrimination in Employment Act (ADEA). The law had been recommended by President Johnson in “Older Americans,” a message to Congress emphasizing the “hundreds of thousands” unemployed “because of arbitrary age discrimination.” Twenty-four states already prohibited such discrimination to some degree. It was time, the president said, to treat it as a national problem. The bill passed both the House and the Senate by unanimous consent. The ADEA covered firing or failing to hire an employee because of age, with exceptions for bona fide occupational requirements. It covered only those between forty and sixty-five, only employers of twenty or more, and only nongovernmental employees.
In 1972, not coincidentally a presidential election year, “ageism” as a term of opprobrium was given presidential recognition. In a message to Congress, President Nixon declared that ageism “can be as great an evil in our society as discrimination
No legislation resulted immediately. In 1973, the creation by the Senate of a Special Committee on the Ageing reflected the increasing political power of older Americans. A working paper for the committee, entitled “Improving the Age Discrimination Law,” reported that the Department of Labor had filed 140 suits charging age discrimination and that, of over six thousand business establishments investigated by the department in 1972, 36 percent had been in violation of the ADEA. A number of corporate managers, the report asserted anecdotally, still thought preference for younger employees was “a good idea” and saw age discrimination as “a fact of corporate life.”
In 1974, the presidential message of 1972 was called to mind by Congress and followed. It was explained in the committee report that the omission of governmental employees in 1967 was not “a conscious decision,” but had come about because they fell outside the Fair Labor Standards Act and so were outside the enforcement powers of the Department of Labor, ADEA's designated enforcer. The Fair Labor Standards Act was now amended to include “a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State.” The legislation passed 375 to 37 in the House and 71 to 19 in the Senate and was signed into law by President Ford.
Among the several smaller worlds affected by the change, none had more interest in it than the world of state colleges and universities characterized by mandatory retirement ages based partly on stereotypes of intellectual vigor declining with age, partly on a preference for periodic injections of fresh thinking. After extending the ADEA to cover public employees, Congress enacted the law in 1978, barring mandatory retirement for those covered by the ADEA, at that time all those under the age of seventy. In 1986, the ADEA was again amended to eliminate the upper age above which the protections of the act did not extend. The 1986 amendment contained an exemption for tenured professors, who could still be subject to mandatory retirement but only until 1994.
Roderick MacPherson and Marvin Narz were faculty at the College of Business of the University of Montevallo, a part of the educational system of the state of Alabama located in Shelby County, Alabama. Each was an associate professor who had not been promoted. Each believed that his age had led to discriminatory evaluations of his ability. In 1994, MacPherson, aged fifty-seven, and Narz, aged fifty-eight, sued Montevallo. The university claimed the immunity of the state. Judge William H. Acker Jr., of the district court for Northern Alabama, dismissed the suit.
In 1995, J. Daniel Kimel, a faculty member at Florida State University, sued the Florida Board of Regents for age discrimination. A group of other faculty and librarians became coplaintiffs and were later joined by other faculty and librarians from Florida International University, another university of the state. All at ages above forty, the plaintiffs asserted that the state system had not allocated funds to provide agreedon salary
Appeals in all three cases were taken to the Eleventh Circuit Court of Appeals. The solicitor general of the United States intervened to defend the antidiscrimination law. Chief Judge Joseph W. Hatchett thought none of the defendants was immune. Judge James L. Edmondson doubted that Congress had meant to abrogate the states' immunity. Judge Emmett Ripley Cox thought that the ADEA as applied to the states was “not a proportional response to any widespread violation of the elderly's constitutional rights.” The legislation, in his view, went well beyond what the constitution as interpreted by the Supreme Court required. The legislative sponsors hadn't mentioned the constitution at all, but had “simply thought it [the law] was a good idea.” The circuit court, two to one, dismissed the three cases.
Taking this position, the Eleventh Circuit joined the Eighth Circuit, which had held the University of Minnesota immune. Six other circuits—the Second, the Fifth, the Sixth, the Seventh, the Ninth, and the Tenth—had ruled to the contrary. In the face of this split among the circuits, it was easy for the Supreme Court to decide to grant certiorari, and the court picked the three appeals from the Eleventh to decide the issue for the country.
The structure of decision for the national court was set by Seminole, Boerne, and College Savings Bank. Congress, in the exercise of its article I power over interstate commerce, could make a standard applicable to the fifty states but could not make the states amenable to suits for damages by individuals claiming the protection of the standard. Congress could only make the states suable by exercising its fourteenth amendment, section 5 power. To do that, Congress had to abrogate the states' immunity. Then it had to act on a record establishing an evil and devise a commensurate and proportionate response. Congress had specifically stated that states were not immune from suits under the ADEA (two justices found the act ambiguous and so disagreed with the abrogation of immunity). But once again Congress had failed the Boerne tests. The evil had not been established. The legislative response was disproportionate. The states remained immune.
The point of departure for the court was its own teaching on age discrimination. The court had already held that states did not violate the constitution if there was a rational basis for the line they drew based on age. It was alright for Massachusetts to require state police to retire at fifty— relative youth was a qualification for the job. It was alright for Missouri to require state judges to retire at seventy. It was, the court had said, “an unfortunate fact of life that physical and mental capacities sometimes diminish with age,” so “the people may therefore wish to replace some older judges.” The Supreme Court, all of whose members were, in ADEA terms, “older judges,” had gone on to say, “It is far from true that all judges suffer significant deterioration in performance at age 70. It is probably not true that most do. It may not be true at all.” But what was probably not true could
Against this backdrop of courtmade constitutional law, Congress had gone too far in making all discrimination against the elderly unlawful. True, Congress had made an exception for jobs that required younger persons, but the exception had been narrowed by the court itself to jobs where youth was not merely a reasonable requirement, but a requirement of “reasonable necessity.” So interpreted, the ADEA set a universal standard higher than the court set as a constitutional requirement, and only what was a constitutional requirement could be imposed on the states. Congress could not go beyond the court's constitutional standard and impose “substantially higher burdens on state employers.”
In the light of the court's constitutional standard, Congress had not “identified any pattern of age discrimination” by the states; much less had it identified “any discrimination that rose to the level of constitutional violation.” The evidence before Congress had been newspaper articles about federal employees and letters from constituents to senators, plus a 1966 report prepared by the state of California pointing to age discrimination by its public agencies. But the discrimination that California had documented was rational discrimination allowed by California law and by the ADEA itself; even if California had shown unconstitutional discrimination by California, its failings would not justify extension of the ADEA to all fifty states. In sum, “Congress had virtually no reason to believe that state and local governments were unconstitutionally discriminating against their employees on the basis of age.” Therefore the court held
Congress had passed the Age Discrimination in Employment Act and extended it to the 4.5 million employees of the states in entire innocence. Unknowing of, and unsuspecting, the Boerne criteria that would be announced years later, Congress had acted in 1967, 1974, 1978, and 1986 like all legislatures act most of the time. An organized constituency had told the members that there was a problem. The members' own experiences were not to the contrary. Two presidents told them that there was a serious evil to be remedied. Both major parties agreed that solutions were needed. The legislature responded to its constituents, its own experience, its leaders, the major parties, and to the absence of much opposition. Congress did not build a record the way a trial judge builds a record that will sustain scrutiny by an appellate court. The criteria of Boerne retroactively invalidated the legislation.
The court again split, five to four, with the same dissenters as in College Savings Bank. Explicitly reproved by the court for not accepting the recent precedents, the dissenters defended themselves against the reproof. The lead case limiting Congress's power under article I, Seminole, was so “profoundly misguided” that it did not deserve respect as binding precedent. Moreover, in the interpretation of the constitution, there was less force in the rule of stare decisis because, as Brandeis had pointed out long ago, the court frequently changed its mind on constitutional questions and rightly so, given the difficulty of correcting the court's mistakes by amendment of the constitution. In the
Beyond the dissenters' critique, the opinion of the court on its own terms deserves comment. Twice the court complained of the burden placed on local governments. But local governments were not before the court, and the fourteenth amendment restricted action by the states, not cities. The court repeated Boerne that Congress had “wide latitude” in enforcing the guarantees of the fourteenth amendment. The court noted that Congress could enact “reasonably prophylactic legislation.” The exercise of section 5 power by Congress was “entitled to much deference.” But these generalities were subverted by the court's close scrutiny of the evidence on which Congress had acted and by the court's measuring of the proportionality of the legislation to the evil established. Congress, the court said, was not confined to law “that merely parrots the precise working” of the fourteenth amendment; Congress could forbid “a somewhat broader swath of conduct.” A “swath” refers metaphorically to the path cut by
As to the ADEA, the court thought Congress had addressed a maybe inconsequential problem. But by virtue of the litigation before the court and the circuits, the court had to be aware that many state universities and colleges forced retirement of elderly faculty. Was this problem of higher education of no consequence? Or was it to be dismissed, like the forced retirement of judges, as based on a belief in the decline of mental vigor with advance in age, a belief that, although probably not true, could rationally be conceived to be true?
More fundamental, how reasonable was it for the court to rely on what could “rationally” be believed about the effect of age? At one time in American history, Thomas Jefferson, surely a rational person, had believed in the inferiority of African Americans. He had accepted a prevalent stereotype that fed irrational prejudice. Was the stereotype of the intellectually declining person of seventy or sixty-five anything different? Why should what was “probably not true” be taken as the basis for discrimination treated as rational?
Bowing to the stereotype of the elderly, the court unwittingly demonstrated the prevalence of the stereotype throughout the land. If the court itself thought the stereotype a reasonable belief, could not anyone conclude that the prejudice was pretty universal? Faulting Congress for not documenting specific acts of discrimination by the states, the court overlooked what Congress had demonstrated: that, throughout American society, employment discrimination against the elderly was widespread. On
The court itself was, perhaps, the least representative body in America to judge of the existence of discrimination based on age. At the time of the court's pronouncement on the ADEA, its members ranged in age from fifty-one to seventynine. Each member was protected by article III of the constitution guaranteeing each justice life tenure unless impeached. If a member retired, the annuity on retirement equaled the salary being paid. Secure in their employment and their income, the members of the court had no personal experience of the bite of age discrimination and could not expect to have experience of it. They judged the possible inconsequentialness of forced retirement with the serenity of observers who would never undergo it.
From this vantage point, the court went out of its way to say that the elderly were not “a discrete and insular minority.” This classic phrase, first inserted in a footnote in Carolene Products in the 1930s, was the description of any group likely to be the subject of discrimination, unable to protect itself in the political process, and so deserving of the special solicitude of the court. It was true that the Indian tribes trying to protect their burial grounds, as well as the members of the Native American religion, had been members of discrete and insular minorities and had not received any help from the court. Still, the phrase, familiar to every law student, had an evocative resonance. If the elderly were not a discrete and insular minority, the court implied, there was no reason to come to their assistance with the ADEA. And they were not, the court reasoned, because “all persons,
How insensitive to human experience that truism was as a reason for denying the minority status of the aged. At any given time, the majority of persons are not old. That someday those persons will be old is almost as small a restraint upon their beliefs and actions as the knowledge that they once had lived in wombs impels them to reject abortion. That was then, old age comes in the future, this is now, so human experience suggests that human beings reason. All the laws and practices of the society at large that required compulsory retirement at a given age, all the laws and practices that justified the ADEA as rational legislation for private employers, demonstrated that the majority looked at those it could conveniently catalog as old and treated them differently and worse. If the majority stuck together, the discrete and insular minority of the old could do little about it.
THE STRIKINGLY FAMILIAR FEEL
OF THE ELEVENTH AMENDMENT
With the decisions of College Savings Bank and Kimel in 1999, it was evident to all observers of the court that the battle of Boerne had been but the opening encounter in what had now become a continuing struggle between an innovative and entrenched group of five justices committed to an agenda controlled by sovereign immunity and a minority, one vote short, attempting to defend positions once believed to be established. In 2000, the Americans with Disabilities Act (ADA) was where the two sides clashed.
When Congress enacted the ADA in 1990, it began the statute with the finding that 43 million Americans have one or more physical or mental disabilities and that “historically, society has tended to isolate and segregate individuals with disabilities.” Discrimination against such individuals was “a serious and pervasive social problem,” persisting in employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services. The disabled, Congress found, were “a discrete and insular minority” with their status “based on characteristics that go beyond the control of such individuals” and determined by “stereotypic assumptions.”
As early as 1920, Congress had legislated in aid of the disabled. The pace of legislation had picked up in the late 1960s, and by 1988 ten federal acts were in place partially protecting the disabled. In 1988, Congress created the Task Force on the Rights and Empowerment of Americans with Disabilities, which held hearings in every state and heard the testimony of thousands of disabled individuals who had suffered discriminatory acts. At the conclusion of this process, the task force chairman, Justin Dart, testified that the discrimination was “massive, society-wide.”
Congress itself over a two-year period held nineteen hearings before House or Senate committees that took testimony from the disabled, their advocacy organizations, and academic experts. Congress confirmed its sense of society's crippling stereotypes by national opinion polls and by census data on the disabled. Drawing on all this information and on its members' own experience of life in the United States, Congress made the findings that formed the first part of the statute enacted in 1990. What
Patricia Garrett had begun work in 1977 at University of Alabama Hospital in Birmingham as a registered nurse. By 1994, aged fifty-six, she had been promoted to director of nursing, OB/Gyn/Neonatal Services. In September 1994, she was diagnosed as having breast cancer. She underwent lumpectomy, radiation, and chemotherapy. According to Garrett, her supervisor, Sabrina Shannon, the hospital's associate executive director, initially encouraged, then pressured her to take leave or transfer to a lesser job. Shannon had Garrett's old job listed as open. Garrett found herself locked out of the hospital's computer systems. When she described these events to her doctor in March 1995, he warned her that workplace harassment was harmful to her health. She took leave and returned to work in July 1995. Shannon told her she was not wanted back. At the insistence of the personnel department, she was allowed back but found her supervisor so critical that she accepted a transfer to a convalescent hospital at a $13,000 cut in compensation. She sued the hospital under the ADA.
A separate suit was brought by Milton Ash, a security officer in the Alabama Department of Youth Services since 1993. He suffered from chronic asthma and sleep apnea. He requested the department to enforce its no-smoking rule in the small gatehouse where he worked and to fix the departmental vehicles he rode so that carbon monoxide would not be emitted within them. The department did not respond. Ash complained to the Equal Employment Opportunity Commission. His performance
District Judge William M. Acker Jr. dismissed both suits on the ground of the sovereign immunity of the defendants. The cases were consolidated on appeal to the Eleventh Circuit, which held that Congress in the ADA had unequivocally abrogated state immunity. The court did not go on to address the proportionality of the statute. The district court was reversed. The defendants sought certiorari and got it from the Supreme Court.
As the hour of judgment came for the ADA and state employees, the solicitor general of the United States defended the statute, and organizations that had helped to pass it filed briefs as amici. They included Self-Advocates Becoming Empowered; the National Association of Protection and Advocacy Systems; and the United Cerebral Palsy Association.
Ominously for Garrett and Ash, the opinion of the court began with a recitation of the text of the eleventh amendment followed by this declaration:
Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own State… . The ultimate guarantee of the Eleventh Amendment is that non-consenting States may not be sued by private individuals in federal court.
The courtcreated doctrine of the sovereign immunity of the states was now formally equated with a text in the constitution, said to guarantee this immunity. Congress could abrogate that immunity by properly using its section 5 power under the fourteenth
Under the court's precedents, discrimination against the disabled was not unconstitutional if the discrimination had a rational basis. The legislative record, the court said, “simply fails to show that Congress did in fact identify a pattern of irrational state discrimination against the disabled.” At most, the court's attention had been directed by the litigants to “half a dozenexamples” where a state was involved, and even in these cases it was debatable whether the states' acts of discrimination had been irrational. The committee reports of House and Senate mentioned discrimination by private employers but not by states, suggesting that “no pattern of unconstitutional state discrimination had been documented.”
Even if it were possible “to squeeze out of these examples” a pattern, the ADA was a disproportionate remedy. The ADA's requirement that facilities used by employees be made accessible to the disabled went beyond what “the constitution,” i.e., the court, required from a rational state employer. The ADA, moreover, put the burden on the employer to show that a modification of facilities would impose an “undue hardship.” The constitution, i.e., the court, put the burden on the employee. In a word, Congress had gone farther than the court, the evil of a discriminatory pattern by the states had not been proved, and Congress's response had not been congruent and proportionate. The ADA, as applied to state employees, was unconstitutional.
The four dissenters evaluated the evidence before Congress differently. If the evidence showed massive discrimination by private employers and by municipalities, there was no reason to
The court had it backwards, the dissent continued, when the court put the burden on Congress to prove that its legislation was justified. The burden was on those challenging the law. “Unlike courts, Congress directly reflects public attitudes and beliefs, enabling Congress better to understand where, and to what extent,” refusal to accommodate a disability was unjustified. The court, holding the ADA unconstitutional, supposed that many state discriminations were rationally justified; but such a presumption of rationality was to guide courts reviewing legislation, not Congress viewing the practices of the nation. The court was standing principle “on its head.”
The dissent went on to challenge the court's test of what was “congruent.” A congruent remedy could exceed what the constitution by itself required. Under section 5 of the fourteenth
The spirit of John Marshall spoke in the dissent. And, the majority was reminded, first, that while the court had repeatedly in recent cases spoken of its deference to Congress, it did not show deference; and second, that its treatment of the section 5 power of Congress was “reminiscent” of the discredited limitation that the court in the 1930s had put on Congress's power over commerce. In conclusion, the court “improperly invades a power that the Constitution assigned to Congress.”
Improperly weighing the evidence before Congress, denying the competence of Congress, turning principle topsyturvy, invading a domain assigned by the constitution to the legislature— the dissent's indictment of the court reflected the degree to which the court had departed from precedent to keep the states from being sued. The continuing division in the court was a measure of the magnitude of the shift in the middle ground where the power of the nation was being narrowed.