- The Washington Times - Thursday, February 22, 2001

The Supreme Court yesterday broadened state immunity to congressional mandates by overturning a 1990 law that let disabled state workers seek money for job discrimination in civil rights lawsuits against their agencies.

The latest in a string of 5-4 decisions buttressing state sovereignty quickly became a symbolic lightning rod for critics, even though the court deemed the scope of such discrimination too slight to justify the kind of federal enforcement used in the Voting Rights Act.

"We hold that such suits are barred by the Eleventh Amendment," Chief Justice William H. Rehnquist wrote in a 5-4 opinion with Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

"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," they said.

The Americans With Disabilities Act forbids discrimination against disabled workers and requires employers to offer reasonable accommodations to otherwise qualified employees. The decision does not forbid the U.S. Equal Employment Opportunity Commission from suing states, but that agency was considered unlikely to act often in individual cases.

The opinion said the circumstances of job discrimination cited by Congress to justify applying the ADA to state governments for the purpose of private lawsuits did not compare with racial injustices that provoked passage of the Voting Rights Act.

In a dissenting opinion, Justice Stephen G. Breyer wrote, "In fact, Congress compiled a vast legislative record documenting massive, society-wide discrimination against persons with disabilities."

He was joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg, all of whom hold a broader view of Section 5 of the 14th Amendment, which lets Congress override state sovereignty to ensure equal protection and due process of law.

Among the 5-4 decisions in the past five years that curbed federal authority were decisions finding the Gun-Free School Zones Act unconstitutional, overturning a law that let victims of sexual violence sue their attackers in federal court, and nullifying the federal Age Discrimination in Employment Act as it applied to states.

"We haven't seen any judicial state of mind like this" since the court tossed New Deal laws, said University of Virginia law professor A.E. Dick Howard.

"Five justices on the court are deeply committed to protecting states' rights and limiting federal power," said University of Southern California law professor Erwin Chemerinsky.

People for the American Way called the decision an "unconscionable" rollback of individual rights and another argument to replace the majority justices.

"By once again resurrecting the long-discredited theory of states' rights, the Supreme Court has denied state employees with disabilities the full protection of our equal employment opportunity laws," said PFAW President Ralph Neas.

Former President George Bush, who signed the ADA in 1990, filed a brief for the state workers that said the law let disabled people "pass through once-closed doors."

The justices reversed lower-court rulings in favor of asthmatic Milton Ash, an Alabama Department of Youth Services security officer who asked to avoid carbon monoxide and cigarette smoke, and Patricia Garrett, whose absences for cancer treatment to a demotion at the University of Alabama in Birmingham.

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