On April 3-5, Assistant Dean Charles Rudnick and second year law student
Randy Clarke will be attending a meeting in Budapest of the Independent
International Commission on Kosovo. Chicago-Kent has been asked
by the Commission to assist in its analysis of human rights violations
in Kosovo before, during, and after the recent armed conflict there.
A team of Chicago-Kent students enrolled in the War Crimes Documentation
IPRO have been contacting national, international, and nongovernmental
organizations to obtain available data on human rights violations in Kosovo.
Congress overstepped its bounds and individuals who claim they were the victims of disability discrimination are barred from pursuing private litigation against a state entity in federal court, a divided appeals court panel has held.
In an opinion Tuesday, two members of a panel of the 7th U.S. Circuit Court of Appeals said lawmakers went too far when they created a private right of action against states in the Americans with Disabilities Act.
An individual's right to pursue such an action is limited by the 11th Amendment, which makes states immune from private suit in the federal courts, the panel's majority said.
The majority did acknowledge that Congress has the power under the commerce clause to forbid rational discrimination" -- distinctions that are rationally related to an employer's objective -- even though such discrimination does violate the 14th Amendment's equal protection clause.
But statutes barring rational discrimination against employees do not automatically apply if the employer happens to be a state entity, the majority continued.
Citing three recent Supreme Court decisions, the majority said the extent of section 5 of the 14th Amendment -- which gives Congress the power to enforce that amendment's provisions -- is limited.
Statutes that create new rights, or expand old rights beyond the 14th Amendment's bounds, do not enforce' that amendment," Judge Frank H. Easterbrook wrote in an opinion joined by Judge Jesse E. Eschbach.
And the right of private federal action against states contained in the ADA, 42 U.S.C. sec12111, does not enforce the 14th Amendment's prohibition against irrational distinctions based on disabilities," the majority said.
To hold that Congress was merely enforcing the 14th Amendment by giving employees the go-ahead to sue states in federal court for making rational distinctions based on disabilities would be a legal fiction," the majority said.
The panel's third member disagreed.
In a dissenting opinion, Judge Diane P. Wood said that sovereign immunity can be overcome consistently with the law."
One way to accomplish that goal is to enact legislation that abrogates that immunity, Wood said. And she said Title I of the ADA was an example of such legislation.
Citing Kimel v. Florida Board of Regents, 120 S. Ct. 631 (2000), Wood said statute's provisions are proportionate to the unconstitutional conduct -- discrimination against people with disabilities -- targeted by statute.
The legislative record showed that Congress found that those who are disabled will suffer during the time they are disabled from the same invidious discrimination that has haunted racial minorities and women," Wood said.
And she said the legislative record showed that Congress found both a pattern of discrimination committed by the states and discrimination that rises to the level of a constitutional violation.
The record showed that discrimination occurred in areas that are controlled to a significant degree by state and local government," including education and transportation, Wood said.
Melinda Erickson v. Board of Governors of State Colleges and Universities for Northeastern Illinois University, No. 98-3614.
The case before the 7th Circuit panel stemmed from a lawsuit that Melinda Erickson brought brought under the ADA and Pregnancy Discrimination Act, 42 U.S.C. sec2000e.
Erickson claimed Northeastern Illinois University violated those acts when it fired her for excessive absences stemming from treatment for infertility.
Northeastern took an interlocutory appeal to the 7th Circuit after U.S. District Judge John A. Nordberg denied its motion to dismiss on the ground of sovereign immunity under the 11th Amendment. 1998 U.S. Dist. Lexis 15779 (N.D. I11 Oct. 1, 1998).
The clashing opinions issued Monday by members of the 7th Circuit panel echoed the debate that has taken place in recent years before the U.S. Supreme Court over the boundaries between state and federal authority.
In Boerne v. Flores, 521 U.S. 507 (1997), the high court struck down the Religious Freedom Restoration Act of 1993, which required states to accommodate religious practices.
In three cases decided the same day in 1999, the Supreme Court voted 5-4 to limit Congress' power to create laws that intrude on state's sovereignty.
In one of those cases, Florida Prepaid Post secondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999), the court held that Congress could not use section 5 of the 14th Amendment to abrogate a state's sovereign immunity from a suit claiming violations of patent and trademark laws.
This year, the high court in Kimel held that section 5 does not allow employees to bring an action against their state employer under the Age Discrimination in Employment Act, 29 U.S.C. sec 621.
The Supreme Court reached that conclusion after determining that the equal protection clause permits a state to consider an employee's age unless age has no rational relationship to the state's objective.
On Tuesday, an attorney for Northeastern Illinois University, Mark T. Dunn of Bloomington, noted that the Supreme Court in recent years has been more closely defining the boundaries of appropriate action by Congress under section 5 of the 14th Amendment."
And the 7th Circuit in the Erickson opinions apparently was the first appellate court to consider the question of those boundaries since the Kimel decision came out, Dunn said.
Erickson was represented in the case by Terrance A. Norton, a professor at Chicago-Kent College of Law. Norton was out of the country and could not be reached for comment.
The United States, which intervened in the case to defend the ADA's constitutionality, was represented before the 7th Circuit by Seth M. Galanter of the Department of Justice in Washington.
In its opinion, the 7th Circuit panel's majority emphasized that Erickson still may pursue a lawsuit against the university -- so long as it is not in federal court.
All our holding means is that private litigation to enforce the ADA
may not proceed in federal court," the majority said. Erickson
may repair to Illinois court -- for although states may implement a blanket
rule of sovereign immunity, see Alden v. Maine, 527 U.S. 706 (1999), Illinois
has not done this."
abolished. Some of her topics of discussion included racial reconciliation, political and economic development, the increasing problem of AIDS, and the preservation of law and order.
Week of April 3, 2000