U.S. Surpreme Court Undermines Power of the 11th Amendment

Statement by the Committees of Correspondence for Democracy & Socialism Amendment

May 10, 2001

On February 21, 2001, the United States Supreme Court decided in the case of University of Alabama v. Garrett, that private plaintiffs may not bring suits alleging violations of Title I of the Americans With Disabilities Act against State defendants. This is merely the latest extension of the Court's regressive jurisprudence surrounding the Eleventh Amendment to the U.S. Constitution.

The Eleventh Amendment states that "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." It was designed to prevent suits brought in federal courts against States by citizens of different States. Having its origins in the period immediately after the American anti-colonial revolution, this amendement was passed to overturn an earlier Supreme Court decision which allowed a wealthy South Carolina citizen to bring suit in federal court against the state of Georgia for failing to pay war debts owed to him after the American revolution. Congress passed the 11th Amendment because it was aware that the federal courts had no means to enforce judgments for money against individual States, and should not be forced to do so unless the suit was brought against a State by its own citizens.

If matters had rested here, we wouldn't have the terrible consequences of decisions like the recent Garrett ruling. However, in a series of post Reconstruction, 19th century rulings, the Supreme Court extended the language of the 11th Amendment to prohibit federal courts from hearing and settling disputes suits brought by citizens against their own state governments, even when the plaintiffs claimed that their rights under federal law were being violated. The key decision came in a 1890 case, Hans v Louisiana, and created tremendous havoc in the federal judiciary. The federal courts had been built up after the Civil War for the express purpose of protecting newly freed slaves from state violations of the rights guaranteed by the newly enacted 13th, 14th, and 15th Amendments and their statutory civil rights companions. The decision in Hans to buttress state immunity was decided by many of the same justices who voted to jettison some of the early Reconstruction Civil Rights statutes, and wrote the formulation of "separate but equal accommodations" into the law of the land.

Early in the Twentieth Century, more progressive members of the Supreme Court realized the damage that had been done by this expansion of State immunity beyond the actual words of the Eleventh Amendment and developed mechanisms to avoid the consequences of this construction. The law responded to people's struggles for judicial enforcement of federal constitutional and statutory protections to such an extent that by the time of the Warren Court of the 1960's, Eleventh Amendment doctrine had become outdated. Now, one was allowed to sue state officials in federal court to stop unconstitutional conduct; Congress could authorize suits by private citizens against States in federal court for monetary damages when the State violated federal law and was a recipient of federal funds; and Congress could abrogate or override State immunity pursuant to particular constitutional provisions when vital federal interests were at stake.

As in many other areas, the current Rehnquist Court has revived 19th Century precedent to roll back the work of the earlier Warren Court to recreate the Eleventh Amendment as a shield insulating States against suits for violations of federal law. In a series of decisions over the past 15 years, the Court has protected States from suits alleging that States have withheld welfare checks in violation of federal guidelines, suits claiming that States have failed to provide care for residents in mental hospitals, suits claiming that States have violated federal law giving rights to Native American nations, suits seeking to enforce against States federal fair labor standards, suits alleging discrimination by States against older workers, and most recently, suits alleging that States have discriminated against people with disabilities.

The disability case, University of Alabama v. Garrett, dismissed a suit brought by a registered nurse who took temporary leave from her Director's position for breast cancer treatment. When she returned to work, she was transferred to a lower paying position. Her lawsuit alleged that federal law prohibited States from "discriminating against a qualified individual with a disability because of the disability of such individual." In deciding that a State entity, the University of Alabama, could not be sued, the Court added to its series of 5-4 rulings protecting states from their civil rights violations. Ironically, the deciding vote was cast by Justice Sandra Day O'Connor, also a breast cancer survivor, who exercised the privilege of returning to her Supreme Court seat after her treatment, a privilege she denied plaintiff in this case, Patricia Garrett.

In addition to the many cases decided by the Supreme Court, there have been hundreds of others decided by the lower federal courts under Supreme Court guidelines protecting prisons, schools, state police forces and other state entities from suits for civil rights violations. Title VII of the Civil Rights Act of 1964 is one of the few remaining remedies against State and private discrimination in employment. Will the Court next hold that State agencies, where tremendous numbers of statutory beneficiaries are employed, are immune from suits alleging discrimination under this legislation?

The thrust of these cases is drastically to cut back the power of the federal judiciary and the federal legislature, both of which served as important allies during key moments of peoples' struggles in the United States, to halt violations of civil rights. The most important thing we can do to counter this judicial counter-revolution in employment law is to engage in workplace organization and education. As we strenghten the commitment to ending discrimination, push affirmative action and press for disability rights, there will be less litigation from disgruntled employees and potential employees. The less litigation there is, the less opportunity there is for the courts to roll back our hard-won rights.

WHAT YOU CAN DO a) Work with your union to expand education about employee rights and fight managerial efforts to eliminate job benefits.

b) Plan an educational event for your organization to help others understand the meaning of these sorts of court decisions and the need to strengthen affirmative action programs and disability rights. Contact the Committees of Correspondence if you need help finding a speaker.

c) Support local efforts aimed at strengthening the enforcement of laws designed to protect our civil rights, be they at the local, state or national level.

---------------------------------- Statement issued by: Committees of Correspondence for Democracy and Socialism 11 John Street, Room 506 New York, NY 10038 phone: 212.233.7151 fax: 212.233.7063 email: natcofc@aol.com web:www. cofc.org