From the issue dated January 21, 2000

Supreme Court Blocks Federal Age-Bias Lawsuits by Public-College Employees By PATRICK HEALY Washington In a ruling last week that college lawyers hailed but many faculty leaders decried, ALSO SEE: The full text of the ruling the U.S. Supreme Court said that employees of public universities may not sue their institutions -- or state governments -- in federal court on claims of age discrimination. The case, involving a group of Florida public-university employees, asked the court to decide whether federal protections from age discrimination trumped the constitutional immunity that protects states from federal lawsuits. The 5-to-4 decision came down on the side of the states, reflecting the court's recent trend toward striking down federal laws that interfere with states' rights. The majority opinion strongly held that states' immunity guarantee under the 11th Amendment of the U.S. Constitution can rarely be restricted, and, moreover, that individuals are not clearly protected from age discrimination under the 14th Amendment's rights to equal protection. "States therefore may discriminate on the basis of age without offending the Fourteenth Amendment if the age classification in question is rationally related to a legitimate state interest," the opinion stated. Age may serve as a useful "proxy" to determine qualifications for a job, for example, the decision said. Workers in most states can still bring age-discrimination lawsuits under state civil-rights statutes, the opinion added. The decision provided a ringing defense of states' rights under the 11th Amendment, which generally protects states and their institutions from federal lawsuits. Legal observers also said it could limit individuals' ability to sue colleges and states under some other federal antidiscrimination laws, such as the Americans With Disabilities Act of 1990, because disability, like age, is not a status that is protected in the U.S. Constitution. "The decision comes down to a question of power -- by what authority the federal government would impose its conception of civil rights upon a state entity, including a university," said Douglas Kmiec, a professor of constitutional law at Pepperdine University and an expert on 11th Amendment cases. Last week's case involved 36 current and former faculty members and librarians at Florida State University and Florida International University who sued the state Board of Regents in 1995 over a salary dispute. The employees, all over age 40, argued that the regents had refused to order the universities to adjust the group's salaries as promised, resulting in a disparate impact on the base pay of older employees with many years of service. The group sued under the Age Discrimination in Employment Act of 1967, which Congress passed to bar employers, including states, from discriminating against workers on the basis of their age. The merits of the lawsuit have never been much at issue. Rather, the question raised before one federal court after another was whether the Florida regents -- and thereby the state -- were protected under the 11th Amendment from lawsuits based on the 1967 law. Justice Sandra Day O'Connor, writing for a majority that has also backed states in other 11th Amendment cases, said that Congress exceeded its authority by passing the age-discrimination law. The U.S. Constitution does not consider age a "suspect classification" deserving equal protection -- as it does race, for example -- and states had given Congress no reason to believe that age discrimination was rampant and required federal action, the majority concluded. "Congress never identified any pattern of age discrimination by the States, much less any discrimination whatsoever that rose to the level of constitutional violation," the opinion stated. Justice O'Connor was joined in her decision by Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas. Robert A. Burgoyne, a Washington lawyer who works on higher-education issues, said the court's decision provides public universities with a new precedent with which to battle discrimination lawsuits. "This is a case the higher-education community was actively following," Mr. Burgoyne said. He and others said the ruling raises questions about the fate of the Americans With Disabilities Act, which has also been challenged in federal court. "There's a split in the courts right now on whether the A.D.A. was properly enacted in terms of the 11th Amendment," Mr. Burgoyne said. "The more statutes that the court views with this type of eye, it suggests they're going to look closely at other similar statutes." Gregg A. Gleason, general counsel to the Florida Board of Regents, said the decision was important for the universities involved. But he questioned its broad significance, echoing Justice O'Connor's statement that many Americans can still sue under state laws. "This may simply be a change-of-venue issue," he said. But Rosie Webb Joels, president of the United Faculty of Florida, a union for professors at public universities in the state, said the decision stripped a significant protection for older faculty and staff members. "If individuals, because of age, are treated in the workplace in ways that are negative, it's an issue that is even more fundamental than employee rights. It's an issue of human dignity and fairness and equity," Ms. Joels said. Justice John Paul Stevens wrote a brief but sharply worded dissent attacking the majority opinion, and was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, and David H. Souter. Justice Stevens said he believed Congress had made the appropriate deliberations and steps in deciding to pass the age-discrimination act and to limit states' immunity under it. "Congress can use its broad range of flexible legislative tools to approach the delicate issue of how to balance local and national interests in the most responsive and careful manner," Justice Stevens wrote. "It is quite evident, therefore, that the Framers did not view this Court as the ultimate guardian of the States' interest in protecting their own sovereignty from impairment by 'burdensome' federal laws," the justice added. http://chronicle.com Section: Government & Politics Page: A30 Easy-to-print version E-mail this article