- The Washington Times - Saturday, January 22, 2000

January has been an important month for states' rights. A string of decisions have been forthcoming in line with this Supreme Court's reading of the Constitution, effectively restraining federal intervention in areas better left to states. But as the cases in question demonstrate, Americans need not fear an ebb in federal power.

On Friday, liberal court watchers were concerned to learn that lawsuits brought against states by their employees for violations of the Americans with Disabilities Act (ADA) will be coming up for review. Arguments will be heard in a Florida case in April and a ruling could come in July. As in other cases recently ruled on by the court, if Congress didn't bother to document alleged bias by the states against the handicapped when it wrote the law, this court appears ready to take a dim view of ADA suits against the states.

The court has already ruled on age discrimination and equal pay suits, and the trend seems clear.

Two of the cases involved universities whose employees alleged school bias in violation of the 1967 Age Discrimination in Employment Act (ADEA) and its subsequent amendments. In one, 36 current and former faculty members and librarians at Florida State University and Florida International University claimed they hadn't received the salary increases younger faculty members had received. Separately, two associate professors at the University of Montevallo in Alabama said they were likewise mistreated. And in a third case, a Florida prison guard said he had lost out on a promotion because of age discrimination.

Congress, wrote Justice Sandra Day O'Connor for the 5-member majority, clearly intended to override states' 11th Amendment immunity against being sued in federal courts when it passed ADEA, but it had no constitutional authority to do so. That immunity isn't absolute; one can sue states in federal courts, for example, on grounds of racial or religious bias. But age discrimination isn't as "suspect" as the latter two. That is, there is never a rational basis for discriminating on the basis of race or religion. There can be good reasons to discriminate by age, as when states set mandatory retirement ages for emergency personnel.

Moreover, Justice O'Connor wrote, older persons "unlike those who suffer discrimination on the basis of race or gender, have not been subjected to a history of purposeful unequal treatment." As a matter of fact, she continued, "Congress failed to identify a widespread pattern of age discrimination by the states."

Does that mean that seniors have no recourse should they believe they are the victims of age bias? Hardly. All but two states one of them, ironically, Alabama have age discrimination statutes on the books under which they may file claims.

Interestingly, the first to feel the impact was not a senior but female professors from Illinois and New York who had filed suit against universities there, alleging violations of a 1963 federal law requiring employers to give men and women equal pay for equal work. Lower courts had ruled state institutions had no immunity from federal lawsuits in such cases, but in the wake of the high court's findings in the age discrimination case, the justices ordered the lower courts to reconsider their rulings.

All of which leaves activists free to lobby state officials for laws protecting any constituency they wish against bias. And they can do so without disrupting a balance of power between the federal government and states that protects not one group or another but everyone.

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