Nanda, Navreet v. Bd Trustees Univ IL

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 01-3448

NAVREET NANDA,

Plaintiff-Appellee,

v.

BOARD OF TRUSTEES OF THE

UNIVERSITY OF ILLINOIS, BELLUR

PRABHAKAR, GERALD MOSS, et al.,

Defendants-Appellants.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 00 C 4757—Rebecca R. Pallmeyer, Judge.

____________

ARGUED APRIL 4, 2002—DECIDED SEPTEMBER 17, 2002

____________

Before RIPPLE, KANNE and EVANS, Circuit Judges.

RIPPLE, Circuit Judge. Navreet Nanda, Ph.D., brought this

discrimination action against her former employer, the

Board of Trustees of the University of Illinois, as well as

her former supervisors and colleagues at the University

(collectively “the University”). The University moved to

dismiss Dr. Nanda’s complaint, principally on the basis

that Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. § 2000e et seq. (“Title VII”), did not validly

abrogate the State’s sovereign immunity under the Elev-

2 No. 01-3448

enth Amendment. The district court rejected this argument

and held that Congress validly abrogated Eleventh Amend-

ment immunity when it extended Title VII to the States.

For the reasons set forth in the following opinion, we affirm

the judgment of the district court.

I

BACKGROUND

A. Facts

Dr. Nanda was employed as an assistant professor in the

Department of Microbiology at the University’s Chicago

campus. In July 1998, Bellur Prabhakar, the Chairman of

the Department of Microbiology and Immunology, recom-

mended to the University that Dr. Nanda be issued a

terminal contract that would end, at its expiration, her

employment with the University. The University accepted

Dr. Prabhakar’s recommendation and issued Dr. Nanda a

terminal contract ending on August 31, 1999. Dr. Nanda’s

efforts to reverse the decision through the University’s

grievance process were unsuccessful. After exhausting her

administrative remedies, Dr. Nanda filed this action in

district court.

Dr. Nanda’s complaint included three counts. In Count I,

Dr. Nanda alleged that she had suffered harassment and

that her employment had been terminated on the basis

of her sex, race and national origin in violation of Title

VII. Count II of Dr. Nanda’s complaint set forth a parallel

claim under 42 U.S.C. §§ 1983 and 1988 for violations of

her equal protection rights and sought injunctive relief,

compensatory damages and punitive damages against

the University as an institution and also her supervisors

for violations of her equal protection rights. Finally, Count

No. 01-3448 3

III, a state tort law claim, alleged that Dr. Prabhakar had

interfered intentionally with Dr. Nanda’s employment

relationship with the University.

The University timely moved to dismiss Dr. Nanda’s

complaint. With respect to Count I, the University main-

tained that Congress did not abrogate properly the States’

sovereign immunity under the Eleventh Amendment when

it enacted the Equal Employment Act of 1972 (the “1972

Act”) which extended Title VII’s coverage to the States. The

individual defendants and the University moved to dis-

miss Count II on the ground that the named administra-

tors were not “persons” within the meaning of 42 U.S.C.

§ 1983. Finally, Dr. Prabhakar moved to dismiss Count III

on the ground that the pleaded state cause of action was

preempted by a state statutory cause of action.

In her response, Dr. Nanda submitted that Congress had

the authority to extend Title VII to the States pursuant to

§ 5 of the Fourteenth Amendment. Specifically, Dr. Nanda

claimed that Title VII passed the “congruence and propor-

tionality” test articulated in City of Boerne v. Flores, 521

U.S. 507 (1997), and its progeny. According to Dr. Nanda,

“Title VII does not raise the level of scrutiny given to race,

national origin and gender classifications beyond that

granted in the Equal Protection Clause and, therefore, Title

VII is congruent with the Equal Protection Clause.” R.58

at 5. Furthermore, Dr. Nanda pointed to the historical prob-

lems of race and gender discrimination, and to specific

evidence of discrimination against women in institutions

of higher education, to establish that Congress’ response

to the problem of gender discrimination was proportion-

ate. See id. at 6-8.

With respect to Count II, Dr. Nanda contended that Count

II of her complaint stated a claim under § 1983 because

it alleged deliberate conduct for which she sought puni-

4 No. 01-3448

tive damages and because she sought injunctive relief

which “may be granted under § 1983 without violating

the Eleventh Amendment.” Id. at 10. Finally, Dr. Nanda

maintained that her allegations against Dr. Prabhakar

in Count III were distinguishable from her allegations of

civil rights violations made in the first two counts, and,

therefore, that count should be considered independent

of those violations under Illinois tort law.

B. District Court Opinion

After considering the arguments of the parties, the dis-

trict court granted in part and denied in part the Univer-

sity’s motion. The district court acknowledged that, in

several recent cases, the Supreme Court had held that

Congress had encroached on the States’ Eleventh Amend-

ment immunity. However, with respect to whether Con-

gress had abrogated properly the States’ Eleventh Amend-

ment immunity in enacting the 1972 Act, the court de-

termined that it was not “writ[ing] on a clean slate.” R.79

at 3.

The district court began its analysis by stating that “[i]n

Fitzpatrick v. Bitzer, 427 U.S. 445, 447 (1976), the Supreme

Court concluded that in the 1972 Amendment to Title

VII of the Civil Rights Act of 1964, ‘Congress, acting un-

der § 5 of the Fourteenth Amendment, authorized federal

courts to award money damages . . . against a state

government . . . .’ ” R.79 at 3. Since that time, the court

continued, numerous courts of appeals had permitted Title

VII claims for damages against the States. The district

court specifically mentioned and followed the decision of

the Eighth Circuit in Okruhlik v. University of Arkansas

ex rel. May, 255 F.3d 615 (8th Cir. 2001). In that case, the

Eighth Circuit concluded that Congress validly had abro-

gated the States’ Eleventh Amendment immunity when it

No. 01-3448 5

extended Title VII to the States. The district court, “per-

suaded by Okruhlik and the authorities cited therein, con-

clude[d] that it may, consistent with the Constitution,

exercise jurisdiction over Professor Nanda’s Title VII

claims.” R.79 at 6. It therefore denied the University’s mo-

tion to dismiss Count I.

With respect to Count II, the district court held that,

by virtue of the Supreme Court’s decision in Will v. Michi-

gan Department of State Police, 491 U.S. 58, 71 (1989), “a

lawsuit under § 1983 against state officials constitutes a

suit against the State itself, and that neither a State nor its

officials acting in their official capacities are ‘persons’ under

§ 1983 for purposes of damage awards.” R.79 at 7. Con-

sequently, the district court dismissed Dr. Nanda’s claims

for damages. However, because “the Court acknowledged

in Will that a claim for injunctive relief may properly be

brought against state officials,” the district court allowed

Dr. Nanda’s claim for injunctive relief to go forward. Id.

Finally, the district court determined that Dr. Nanda’s

claim for intentional interference with contract contained

in Count III was linked inextricably with the allegations

that Dr. Prabhakar’s actions were motived by sex, race

and national origin. Therefore, the Illinois Human Rights

Act provided the exclusive remedy for the alleged con-

duct and preempted Dr. Nanda’s state tort claim. The

court therefore granted Dr. Prabhakar’s motion to dis-

miss Count III.

The University timely appealed the district court’s denial

1

of its motion to dismiss Counts I and II.

1

Dr. Nanda did not cross-appeal the district court’s dismissal

of Count III, and no arguments concerning Count III are before

this court.

6 No. 01-3448

II

DISCUSSION

A. Eleventh Amendment Immunity

Under 28 U.S.C. § 1291, this court has jurisdiction only

from “final decisions” of the district courts. See 28 U.S.C.

§ 1291; Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d

541, 546 (7th Cir. 2001). This court has held that a district

court’s denial of a motion to dismiss is not a final decision.

See United States v. Michelle’s Lounge, 39 F.3d 684, 702 (7th

Cir. 1994) (“Ordinarily, of course, a denial of a motion

to dismiss is not a final order.”). However, the collateral

order doctrine provides a “narrow” exception to the final-

ity rule. This doctrine permits an appeal from a non-final

judgment, such as the denial of a motion to dismiss, when

the following criteria are met: (1) the order “conclusively

determine[s] a disputed question”; (2) the order “resolve[s]

an important issue completely separate from the merits

of the action”; and (3) the order is “effectively unreview-

able on appeal from a final judgment.” Coopers & Lybrand

v. Livesay, 437 U.S. 463, 468 (1978). It is well-settled that the

issue of Eleventh Amendment immunity, which encom-

passes both immunity from liability as well as immu-

nity from suit, is “irretrievably lost” if not immediately ap-

pealable and therefore is properly raised in a collateral

appeal. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf

& Eddy, Inc., 506 U.S. 139, 147 (1993) (“We hold that

States and state entities that claim to be ‘arms of the State’

may take advantage of the collateral order doctrine to ap-

peal a district court order denying a claim of Eleventh

Amendment immunity.”). Thus, we have jurisdiction to

review the district court’s denial of Eleventh Amendment

immunity.

No. 01-3448 7

We review a district court’s decision to dismiss a claim

on Eleventh Amendment immunity grounds de novo.

See Cherry, 265 F.3d at 547. The University urges us to re-

verse the district court’s decision on the Eleventh Amend-

ment issue and reiterates many of the arguments that

it made in support of its motion to dismiss. Specifically,

the University contends that, when the Supreme Court

handed down its most recent Eleventh Amendment case,

Board of Trustees of the University of Alabama v. Garrett, 531

U.S. 356 (2001), the Court established a higher bar for

congressional abrogation of the States’ Eleventh Amend-

ment immunity. In the University’s view, in order to abro-

gate properly Eleventh Amendment immunity, a Con-

gressional enactment must not only pass the “congruence

and proportionality” test, but also must be supported

by clear evidence of past constitutional violations set forth

in the legislative record. The district court, continues

the University, paid only lip service to this second re-

quirement. The University contends that, because the

legislative record does not reveal a pattern of past con-

stitutional wrongs to support the extension of Title VII to

the States, Title VII cannot survive an Eleventh Amendment

challenge.

Dr. Nanda, and the United States as intervenor, argue the

opposite. According to these parties, federal courts only

have to look for a legislative record of constitutional

violations if the congressional action fails the “congruence

and proportionality” test. In their view, because Title

VII proscribes only unconstitutional behavior, the dis-

trict court did not have to examine the legislative record

for a history of constitutional violations. In the alterna-

tive, Dr. Nanda and the United States maintain that, if

courts have to examine the legislative record to assess

the need for congressional action, there is ample evidence

8 No. 01-3448

in the record to justify the extension of Title VII to the

2

States.

The Eleventh Amendment states: “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.” U.S. Const.

2

The United States argues that Fitzpatrick v. Bitzer, 427 U.S. 445

(1976), disposes of the issue currently before this court. In

Fitzpatrick, the Court determined that Congress, as part of its

powers under § 5 of the Fourteenth Amendment, may “provide

for private suits against States or state officials which are

constitutionally impermissible in other contexts.” Id. at 456.

Although many courts, including our own, see Merhab v. Ill. State

Toll Highway Auth., 267 F.3d 710, 711 (7th Cir. 2001) (citing

Fitzpatrick for proposition that “there is no Eleventh Amend-

ment immunity to suits under Title VII”); Love v. Waukesha Joint

Sch. Dist. #1, Bd. of Educ., 560 F.2d 285 (7th Cir. 1977), took

Fitzpatrick to resolve all Eleventh Amendment challenges to

Title VII, the decision did hold open the possibility of an Elev-

enth Amendment challenge to Title VII based on Congress’

authority under § 5 of the Fourteenth Amendment; it stated:

“Apart from their claim that the Eleventh Amendment bars

enforcement of the remedy established by Title VII in this

case, respondent state officials do not contend that the substan-

tive provisions of Title VII as applied here are not a proper ex-

ercise of congressional authority under § 5 of the Fourteenth

Amendment.” Fitzpatrick, 427 U.S. at 456 n.11. The combination

of this possibility with the detailed Eleventh Amendment anal-

ysis the Court has employed in recent cases suggests to us

that the most prudent course is to assume that neither Fitz-

patrick nor our earlier summary treatment of the issue through

reliance on Fitzpatrick necessarily disposes of the issue currently

before us.

No. 01-3448 9

3

amend. XI. A state’s immunity, however, is not absolute;

“Congress may abrogate the State’s Eleventh Amendment

immunity when it both unequivocally intends to do so

and acts pursuant to a valid grant of constitutional au-

thority.” Garrett, 531 U.S. at 363 (internal quotation marks

4

and citations omitted). The Supreme Court has recog-

nized that “the Eleventh Amendment, and the principle of

state sovereignty which it embodies, are necessarily lim-

ited by the enforcement provisions of § 5 of the Fourteenth

Amendment.” Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)

(internal citations omitted). Congress, therefore, “may sub-

ject nonconsenting States to suit in federal court when it

does so pursuant to a valid exercise of its § 5 power.”

Garrett, 531 U.S. at 364. We must ascertain, therefore, what

constitutes a valid exercise of § 5 power to determine

if Congress’ extension of Title VII to the States falls with-

in that grant of authority.

The Fourteenth Amendment states, in relevant part:

Section 1. . . . No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive

3

Although the text of the Amendment does not forbid suits

against a State by its own citizens, “the sovereign immunity

enjoyed by the States extends beyond the literal text of the

Eleventh Amendment.” Fed. Mar. Comm’n v. South Carolina State

Ports Auth., 122 S. Ct. 1864, 1871 (2002). Specifically, the Su-

preme Court “has consistently held that an unconsenting State

is immune from suits brought in federal courts by her own

citizens as well as by citizens of another State.” Edelman v. Jordan,

415 U.S. 651, 662-63 (1974) (citing cases).

4

The University does not dispute that Congress unequivocally

intended to abrogate the States’ Eleventh Amendment immu-

nity when it passed the 1972 Act.

10 No. 01-3448

any person of life, liberty, or property, without due

process of law; nor deny to any person within its

jurisdiction the equal protection of the law.

....

Section 5. The Congress shall have the power to en-

force, by appropriate legislation, the provisions of this

article.

U.S. Const. amend. XIV. Section 5 of the Fourteenth Amend-

ment gives to Congress the right to “enforce the substan-

tive guarantees contained in § 1 by enacting ‘appropriate

legislation.’ ” Garrett, 531 U.S. at 365. This Congressional

determination of necessity and propriety is “entitled to

much deference.” City of Boerne v. Flores, 521 U.S. 507, 536

(1997). Nevertheless, Congress’ power is limited to en-

forcement; the Fourteenth Amendment does not give

Congress the power “to determine what constitutes a

constitutional violation,” City of Boerne, 521 U.S. at 519, a

responsibility reserved to the Court, see Garrett, 531 U.S.

at 365.

A review of the Supreme Court’s § 5 jurisprudence and

our own court’s implementation of these principles is

helpful in drawing this distinction between enforcing

and redefining the protections of the Fourteenth Amend-

ment.

1. Supreme Court Precedent

Through a recent line of cases, the Court has articulated

what constitutes a proper exercise of the Fourteenth

Amendment enforcement power vis a vis the Eleventh

Amendment. We begin our review with City of Boerne v.

Flores.

No. 01-3448 11

a. City of Boerne

In City of Boerne, the Court considered the constitution-

ality of the Religious Freedom Recovery Act (“RFRA”),

specifically whether Congress, in enacting RFRA, properly

had exercised its enforcement power under § 5 of the

Fourteenth Amendment. The Court first “acknowledge[d]

that § 5 is a ‘positive grant of legislative power to Con-

gress.’ ” Id. at 517 (quoting Katzenbach v. Morgan, 384 U.S.

641, 651 (1966)). “Legislation which deters or remedies

constitutional violations can fall within the sweep of Con-

gress’ enforcement power even if in the process it prohib-

its conduct which is not itself unconstitutional and in-

trudes into ‘legislative spheres of autonomy previously

reserved to the states.’ ” Id. at 518. However broad Con-

gress’ power under § 5, the Court continued, it is not

unlimited. The Court explained that “[t]he design of the

Amendment and the text of § 5 are inconsistent with the

suggestion that Congress has the power to decree the

substance of the Fourteenth Amendment’s restrictions on

the States.” Id. at 519. Congress is limited to “enforcing” the

rights guaranteed by the Amendment. Id. The Court recog-

nized that

[w]hile the line between measures that remedy or

prevent unconstitutional actions and measures that

make a substantive change in the governing law is

not easy to discern, and Congress must have wide

latitude in determining where it lies, the distinction

exists and must be observed. There must be a congru-

ence and proportionality between the injury to be

prevented or remedied and the means adopted to that

end.

Id. at 519-20.

The Court then examined the provisions of RFRA to

determine if it was a valid exercise of Congress’ § 5 powers.

12 No. 01-3448

The parties presented RFRA as a measure to “prevent[]

and remed[y] laws which are enacted with the unconsti-

tutional object of targeting religious beliefs and practices.”

Id. at 529. The Court stated that “[t]he appropriateness

of remedial measures must be considered in light of the

evil presented. Strong measures appropriate to address

one harm may be an unwarranted response to another,

lesser one.” Id. at 530 (citing South Carolina v. Katzenbach,

383 U.S. 301, 308 (1966)). According to the Court, RFRA’s

legislative record lacked examples of instances in which

laws of general applicability were enacted by the States

for the purpose of inflicting religious discrimination.

Rather, congressional hearings had focused on laws of

general applicability that placed only incidental burdens

on religion. The lack of a legislative record, however,

was not dispositive. The Court stated that

[r]egardless of the state of the legislative record, RFRA

cannot be considered remedial, preventive legisla-

tion, if those terms are to have any meaning. RFRA is

so out of proportion to a supposed remedial or preven-

tive object that it cannot be understood as responsive

to, or designed to prevent, unconstitutional behavior.

Id. at 532. Consequently, RFRA could not stand in the face

of the Eleventh Amendment challenge.

b. Florida Prepaid

The Court next addressed the interplay of the Eleventh

and Fourteenth Amendments in Florida Prepaid Post Second-

ary Education Examination Board v. College Savings Bank,

527 U.S. 627 (1999). In that case, the Court addressed an

Eleventh Amendment challenge to the Patent and Plant

Variety Protection Remedy Clarification Act (the “Patent

Remedy Act”), which allowed patent holders to pursue

No. 01-3448 13

infringement actions against the States. In assessing the

validity of the congressional action, the Court reiterated

the requirements of congruence and proportionality estab-

lished in City of Boerne:

We . . . held that for Congress to invoke § 5, it must

identify conduct transgressing the Fourteenth Amend-

ment’s substantive provisions, and must tailor its

legislative scheme to remedying or preventing such

conduct.

RFRA failed to meet this test because there was little

support in the record for the concerns that animated

the law.

Id. at 639.

Following this course, the Court first identified the

Fourteenth Amendment “evil” or “wrong” that Congress

intended to remedy “ ‘with reference to the historical ex-

perience . . . it reflects.’ ” Id. at 639-40 (quoting City of

Boerne, 521 U.S. at 525). In Florida Prepaid, as in City of

Boerne, the Court was unable to identify a pattern of con-

stitutional wrongs by the States against patent holders. The

Court went on to state that, although the “lack of support

in the legislative record is not determinative,” id. at 646,

identifying and assessing “the wrong or evil is still a crit-

ical part of our § 5 calculus because ‘[s]trong measures

appropriate to address one harm may be an unwarranted

response to another, lesser one,’ ” id. (quoting City of

Boerne, 521 U.S. at 530). When there is little evidence of

constitutional harm in the legislative record, the means of

combatting the feared unconstitutional action must be

tailored to address clear constitutional violations. Because

the Patent Remedy Act offended this principle of propor-

tionality, the Court held that it was not a valid exercise

of Congress’ § 5 powers.

14 No. 01-3448

c. Kimel

The Age Discrimination in Employment Act was the

next Congressional enactment to meet with an Eleventh

Amendment challenge. In Kimel v. Florida Board of Regents,

528 U.S. 62 (2000), the Court addressed the issue of wheth-

er Congress validly abrogated Eleventh Amendment im-

munity in the ADEA. The Court reiterated the breadth of

congressional power pursuant to the Fourteenth Amend-

ment: “Congress’ power ‘to enforce’ the Amendment in-

cludes the authority both to remedy and to deter viola-

tion of rights guaranteed thereunder by prohibiting a

somewhat broader swath of conduct, including that which

is not itself forbidden by the Amendment’s text.” Id. at 81.

However, applying its now-established congruence and

proportionality requirements, see id. at 82, the Court held

that “the ADEA is not ‘appropriate legislation’ under § 5

of the Fourteenth Amendment.” Id. at 82-83. Initially, the

Court observed that, because age discrimination is sub-

ject only to rational basis review under the Equal Protec-

tion Clause, only irrational age classifications violate the

Constitution. “Judged against the backdrop of our equal

protection jurisprudence [on age discrimination],” the Court

stated, “it is clear that the ADEA is ‘so out of proportion

to a supposed remedial or preventive object that it cannot

be understood as responsive to, or designed to prevent un-

constitutional behavior.’ ” Id. at 86 (quoting City of Boerne,

521 U.S. at 532). However, “[t]hat the ADEA prohibits

very little conduct likely to be held unconstitutional, while

significant, d[id] not alone provide the answer to [the] § 5

inquiry.” Id. at 88. The Court’s task was to discern whether

the ADEA was proper prophylactic legislation or an at-

tempt by Congress “to substantively redefine the States’

legal obligations with respect to age discrimination,” and

one means to make such a determination was to examine

the legislative record. Id. To the Court, this review con-

No. 01-3448 15

firmed that Congress’ extension of the ADEA to the

States “was an unwarranted response to a perhaps inconse-

quential problem.” Id. at 89. According to the Court,

Congress never identified any pattern of age discrim-

ination by the States, much less any discrimination

whatsoever that rose to the level of constitutional

violation. The evidence compiled by petitioners to

demonstrate such attention by Congress to age dis-

crimination by the States falls well short of the mark.

That evidence consists almost entirely of isolated sen-

tences clipped from floor debates and legislative re-

ports.

Id. Looking back to its decision in City of Boerne, the Court

held that, although this lack of support in the legisla-

tive record was not determinative, “Congress’ failure to

uncover any significant pattern of unconstitutional discrimi-

nation here confirms that Congress had no reason to be-

lieve that broad prophylactic legislation was necessary in

this field.” Id. at 91. The Court then concluded that, “[i]n

light of the indiscriminate scope of the Act’s substan-

tive requirements, and the lack of evidence of widespread

and unconstitutional age discrimination by the States, we

hold that the ADEA is not a valid exercise of Congress’

power under § 5 of the Fourteenth Amendment.” Id.

d. Garrett

Finally, in Board of Trustees of the University of Alabama

v. Garrett, 531 U.S. 356 (2001), the Court considered an

Eleventh Amendment challenge to the Americans with

Disabilities Act (“ADA”). Again, the Court’s task was to

determine whether the ADA was proper enforcement leg-

islation, as opposed to a usurpation of the Court’s respon-

sibility “to define the substance of constitutional guaran-

16 No. 01-3448

tees.” Id. at 365. “Accordingly,” stated the Court, “§ 5

legislation reaching beyond the scope of § 1’s actual guaran-

tees must exhibit ‘congruence and proportionality between

the injury to be prevented or remedied and the means

adopted to that end.’ ” Id. (quoting City of Boerne, 521 U.S.

at 520). The Court’s first step in this analysis was to iden-

tify the scope of the constitutional right at issue. It noted

that the Equal Protection clause affords only rational

basis review for disability discrimination. Once the Court

determined “the metes and bounds of the constitutional

right in question, [it] examine[d] whether Congress identi-

fied a history and pattern of unconstitutional employment

discrimination by the States against the disabled.” Id. at

368. It noted that “Congress’ § 5 authority is appropriately

exercised only in response to state transgressions.” Id.

However, the legislative record of the ADA, the Court

noted, focused heavily on the private sector. Few ex-

amples from the record involved the States, and the Court

found it “debatable” whether these incidents evidenced

“irrational” state action or merely “an unwillingness on

the part of state officials to make the sort of accommoda-

tions for the disabled required by the ADA.” Id. at 370.

However, the Court held that, even if each incident

showed unconstitutional action on the part of the State,

“these incidents taken together fall far short of even sug-

gesting the pattern of unconstitutional discrimination on

which § 5 legislation must be based,” id., and thus the

ADA “raise[d] the same sort of concerns as to congruence

and proportionality as were found in City of Boerne,” id. at

372. “[I]n order to authorize private individuals to recover

money damages against the States,” the Court stated, “there

must be a pattern of discrimination by the States which

violates the Fourteenth Amendment, and the remedy im-

posed by Congress must be congruent and proportional

to the targeted violation.” Id. at 374. With respect to the

ADA, those requirements had not been met. See id.

No. 01-3448 17

Although articulated and ordered slightly differently

within each case, we believe that these cases identify sev-

eral guiding principles that must inform our Eleventh

Amendment analysis. First, congressional action taken

pursuant to § 5 of the Fourteenth Amendment is not lim-

ited to parroting the language of § 1. Section 5 is a positive

grant of power, and Congress may enact reasonable pro-

phylactic legislation in the face of constitutional violations.

However, Congress’ enforcement power must stop

short of redefining the States’ substantive obligations

under the Fourteenth Amendment. Whether a particular

congressional response enforces, as opposed to defines,

the States’ obligations under § 1 of the Fourteenth Amend-

ment is determined by looking at the scope of the enact-

ment compared with the constitutional right being pro-

tected. If the scope of the remedy is broad, it must be

justified by a proportionately pressing need. Finally, al-

though legislative history is not determinative of this

inquiry, it is one means—and perhaps the most telling

means—of assessing the depth of the constitutional prob-

lem and the consequent need for a congressional remedy.

2. Circuit Precedent

This court has applied the principles set forth above in

considering two Eleventh Amendment challenges to the

Equal Pay Act. In Varner v. Illinois State University, 226

F.3d 927 (7th Cir. 2000), cert. denied, 533 U.S. 902 (2001),

this court followed the analysis set forth by the Supreme

Court in City of Boerne and its progeny, and first looked

at the conduct targeted by the Equal Pay Act. We acknowl-

edged that, in light of the burden-shifting provisions of the

Equal Pay Act, “an employer is potentially subject to

liability without a showing of discriminatory intent”—a

18 No. 01-3448

prerequisite for a constitutional violation. Id. at 932. How-

ever, we noted, based on the Court’s rulings, the fact

that the Equal Pay Act prohibited some constitutional

conduct did not end the inquiry: “The question before us,

therefore, is not whether the remedial provisions of the

Equal Pay Act prohibit some constitutional conduct.

Instead, we must consider whether the Act can be char-

acterized as a proportional and congruent response to

the problem of unconstitutional wage discrimination

based on gender.” Id. at 933.

In applying the principles of congruence and propor-

tionality, we noted three distinctions between the Equal Pay

Act and the legislative provisions that the Court had

struck down. First, the Equal Pay Act was “less indis-

criminate in scope” than those acts, id.; it contained ex-

emptions from liability for employers “who can provide

a neutral explanation for a disparity in pay,” id. at 934.

Furthermore, the Equal Pay Act addressed a problem—

gender discrimination—which was subject to heightened

scrutiny under the Constitution. Finally, Congress had

gained an historical understanding of the problem of gen-

der discrimination through other legislation. All of these

considerations militated against a finding that Congress

had acted to redefine the States’ obligations under the

Equal Protection Clause as opposed to simply enforcing

the already stringent requirements on the States.

In upholding the Equal Pay Act against the Eleventh

Amendment challenge, we rejected the view that explicit

legislative findings were a necessary element of the § 5

inquiry. In Varner, the University had urged that, because

“the legislative findings underlying the Equal Pay Act

address only the problem of discrimination in private

industry,” there was no record to justify extension of

the Equal Pay Act to public employers. Id. at 935. We stated:

No. 01-3448 19

Although we recognize that a review of the legislative

record can be an instructive means of distinguish-

ing appropriate remedial action from an impermis-

sible substantive change in legal rights, we want to

emphasize that a “lack of support [in the legislative

record] is not determinative of the § 5 inquiry.” This

observation is particularly relevant in the context of

the Equal Pay Act, where the value of congressional

findings is greatly diminished by the fact that the Act

prohibits very little constitutional conduct and where

the historical record clearly demonstrates that gender

discrimination is a problem that is national in scope.

Id. (quoting Kimel, 528 U.S. at 91; internal citations omitted).

Consequently, we determined that subjecting state enti-

ties to liability under the Equal Pay Act did not violate the

Eleventh Amendment.

Shortly thereafter, we revisited our decision in Varner

in light of the Supreme Court’s decision in Garrett. See

Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d 541 (7th

Cir. 2001). We restated the governing standard as follows:

Congress can enact legislation to remedy or prevent

conduct that violates the Fourteenth Amendment, but

Congress cannot redefine or expand the substance of

the Fourteenth Amendment itself. Thus there must be

a congruence and proportionality between the injury to

be prevented or remedied and the means adopted to

that end. This means that Congress must carefully

tailor its legislation so that it enforces the Fourteenth

Amendment without altering the Amendment’s mean-

ing.

Id. at 549 (internal quotation marks and citations omitted).

We then examined the scope of the Equal Pay Act to

determine whether it was consistent and compatible with

20 No. 01-3448

the Fourteenth Amendment or whether it expanded the

substantive prohibitions of the Amendment by prohibit-

ing more state action than would be unconstitutional.

As part of this analysis, we examined the legislative rec-

ord to assess whether Congress had identified a pattern of

unconstitutional conduct by the States. Noting that the

Court had advised that this evidence “is not determinative

of the § 5 inquiry,” we stated that “[s]uch evidence tends to

ensure that Congress’ means are appropriate under § 5

when the statute in question pervasively prohibits consti-

tutional State action.” Id. at 549 (internal quotation marks

and citations omitted). We dismissed the argument that

Garrett

established a new, bright-line rule that Congress’

attempt to abrogate immunity from a federal statute

is invalid if the statute lacks specific findings that

the States had engaged in a pattern of unconstitu-

tional conduct of the type prohibited by the statute. . . .

All Garrett does is further demonstrate that the legisla-

tive record is an important factor when the statute in

question pervasively prohibits constitutional State

action.

Id. at 553. Consequently, again we sustained the Equal Pay

Act as it applied to the States.

3. Application

As detailed above, in determining whether Congress

overstepped its constitutional authority in applying Title VII

to the States, we must “identify with some precision the

scope of the constitutional right at issue,” here the limita-

tions that § 1 of the Fourteenth Amendment places upon

States’ treatment of women and of ethnic and racial minori-

No. 01-3448 21

ties. Garrett, 531 U.S. at 365. We explained this level of

protection in Varner:

Under the Constitution, gender-based classifications

are afforded heightened scrutiny. Once an individual is

able to establish the existence of a gender-based dis-

tinction, “[p]arties who seek to defend gender-based

government action must demonstrate an ‘exceedingly

persuasive justification’ for that action.”

226 F.3d at 934 (quoting United States v. Virginia, 518 U.S.

5

515, 531 (1996); internal citations omitted). In the em-

ployment context, courts have given effect to this consti-

tutional prohibition by allowing plaintiffs to prove their

case using the familiar construct of a prima facie case; this

court has stated:

Although as an original matter it seems odd that the

pleading and proof of liability in a case under the

Constitution would be the same as in a case under a

statute passed in 1964, this is indeed the teaching of an

unbroken phalanx of decisions by this and other courts.

These cases hold that the issue of liability and the

method of proving liability are the same, though only

in a disparate-treatment case . . . .

Riordan v. Kempiners, 831 F.2d 690, 695-96 (7th Cir. 1987).

Thus, “all that is required to establish prima facie liability,

and thus allow the plaintiff to get to the jury, is evidence

5

Racial classifications are subject to strict scrutiny—they must

promote a compelling state interest and be narrowly tailored

to serve that interest. See Billings v. Madison Met. Sch. Dist., 259

F.3d 807, 815 (7th Cir. 2001).

22 No. 01-3448

[6]

of a disparity in treatment between equally qualified

workers of different sexes, from which discriminatory intent

can be inferred.” Id. at 695; see also Johnson v. Chapel Hill

Indep. Sch. Dist., 853 F.2d 375, 381 (5th Cir. 1988) (“A plain-

tiff proceeding on a disparate treatment theory of employ-

ment discrimination must show disparate treatment and

discriminatory motive. A plaintiff can establish a prima

facie case, however, by producing evidence of disparate

treatment alone.” (internal citations omitted)).

The Supreme Court also has instructed us to evaluate

the scope of the congressional action at issue to determine

to what extent, if any, the act prohibits conduct allowed

by the Constitution. At issue here is the disparate treat-

ment prohibition of Title VII. It states in relevant part:

It shall be an unlawful employment practice for an

employer—

(1) to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against

any individual with respect to his compensation,

terms, conditions, or privileges of employment,

because of such individual’s race, color, religion,

sex, or national origin; or

6

The allegations in Dr. Nanda’s complaint are limited to claims

of intentional discrimination, i.e., disparate treatment. Because

Dr. Nanda’s claims are disparate treatment claims, and because

the University does not contend that Title VII’s disparate im-

pact provisions should factor into the Eleventh Amendment

calculus, we limit our review to Title VII’s disparate treatment

provisions. Cf. In re: Employment Discrimination Litig. Against

the State of Ala., 198 F.3d 1305 (11th Cir. 1999) (considering

Eleventh Amendment challenge to disparate impact provision of

Title VII without consideration of the disparate treatment pro-

vision).

No. 01-3448 23

(2) to limit, segregate, or classify his employees

or applicants for employment in any way which

would deprive or tend to deprive any individual

of employment opportunities or otherwise ad-

versely affect his status as an employee, because

of such individual’s race, color, religion, sex or

national origin.

42 U.S.C. § 2000e-2(a). Like the prohibition of the Equal

Protection Clause, this language is aimed at intentional

discrimination, and “[t]o prove a violation of this provi-

sion, a plaintiff must proffer either direct or indirect evi-

dence of the employer’s discriminatory intent.” Bennett v.

Roberts, 295 F.3d 687, 694 (7th Cir. 2002). When using

the indirect method, the plaintiff establishes a prima facie

case of discriminatory intent by showing: (1) that she

belongs to a protected category; (2) that she suffered an

adverse employment action; (3) that she was meeting

her employer’s legitimate expectations; and (4) similarly

situated individuals not in a protected category were treated

more favorably by the employer. See, e.g., Maarouf v. Walker

Mfg. Co., 210 F.3d 750, 752 (7th Cir. 2000). Thus, both the

aim of Title VII, as well as the method for proving viola-

tions of Title VII, are the same as those of the Equal Protec-

7

tion Clause.

7

Both Dr. Nanda and the Government argue that Title VII does

not prohibit any constitutional conduct because the burdens of

proof on employers is the same under both the Equal Protec-

tion Clause and Title VII. The University responds to this argu-

ment accordingly:

The substantive provisions of Title VII were enacted in 1964,

not in 1972, and the States at that time were expressly

excluded from coverage because of sovereign immunity. If

(continued...)

24 No. 01-3448

A review of the standards of the Equal Protection Clause

and of Title VII reveals that Title VII “enforces the Four-

teenth Amendment without altering its meaning.” Cherry,

265 F.3d at 549. The fact that Congress was not attempt-

ing to “redefine” the Fourteenth Amendment in extend-

ing Title VII to the States is also clear from the legislative

record. In undertaking a review of the legislative record,

we are cognizant of the Court’s instruction that “lack of

support [in the legislative record] is not determinative of

the § 5 inquiry,” Kimel, 528 U.S. at 91, and we recognize

that “the value of congressional findings is greatly dimin-

ished” by the fact that the disparate treatment provisions

of Title VII prohibit little, if any, constitutional conduct,

Varner, 226 F.3d at 935.

7

(...continued)

the court were to accept the argument of Nanda and the

United States, the court would be required to conclude

that since, in 1964, the Title VII protections were identical

to the protections of § 1 of the Fourteenth Amendment

they were at that time, by definition, congruent and propor-

tional and that, abrogation, without more, occurred. The

court would then have to conclude that in 1964, Congress,

when it enacted Title VII, abrogated the States’ immunity

and at the same time expressly excluded the States from Title

VII’s coverage, an absurd conclusion.

Reply Br. at 1-2. This response, we believe, lacks both logic and

persuasiveness. The substantive provisions of Title VII did not

change between 1964 and 1972; the 1972 amendment mere-

ly extended Title VII to the States. It is perfectly appropriate,

therefore, in applying principles of congruence and proportional-

ity, to compare the substantive provisions of Title VII, as ex-

tended to the States in 1972, to the limitations placed on the

States by the Equal Protection Clause.

No. 01-3448 25

In the present case, the legislative record confirms that

Congress was responding to a pattern of discrimination

by the States. The legislative history shows that Congress

relied upon and adopted two comprehensive studies of

racial and national origin discrimination to support its

proposed legislation. See H.R. Rep. No. 92-238, at 17 (1971).

The first of these “indicate[d] that widespread discrim-

ination against minorities exist[ed] in State and local

government employment . . . .” Id. The legislative record

also specifically addresses the problem of racial and gen-

der discrimination in academia. See id. at 19-20. Finally,

statistical evidence bolstered Congress’ view that “there

exist[ed] a profound economic discrimination against

women workers” across all fields, and, consequently, leg-

islation was needed to strengthen and broaden federal

administrative procedures for combatting this discrimina-

tion. Id. at 4.

Not only did Congress document the need for additional

legislation protecting minority and women workers em-

ployed by the states, local governments, and specifically

educational institutions, Congress had become familiar with

the problems of race and national origin discrimination

in the public and private sector in enacting the Civil

Rights Act of 1964, and with the problems of gender

discrimination in considering the Equal Rights Amendment

and the Educational Opportunity Act, see Okruhlik v.

Univ. of Ark. ex rel. May, 255 F.3d 615, 625 (8th Cir. 2001).

Such familiarity “ ‘reduce[s] the need for fresh hearings

and prolonged debates.’ ” Id. (quoting Fullilove v. Klutznick,

448 U.S. 448, 503 (1980) (Powell, J., concurring)). As we

concluded in Varner, “[w]e believe that this evidence is

sufficient to support the limited action taken by Congress

in its passage of [the 1972 Act], particularly given the well-

documented history of gender [and race] discrimina-

tion in this Nation, a history that is embodied in the Su-

26 No. 01-3448

preme Court’s own jurisprudence.” Varner, 226 F.3d at

935-36.

We are not alone in concluding that Congress validly

abrogated the States’ Eleventh Amendment immunity in

passing the 1972 Act. In Okruhlik, the Eighth Circuit also

rejected an Eleventh Amendment challenge to Title VII.

Following the guidelines of the Supreme Court, that cir-

cuit looked at the legislative history where it found “much

support” for Congress’ action. Okruhlik, 255 F.3d at 624.

As well, it compared the scope of the employer’s responsi-

bility under Title VII to its responsibility under the Equal

Protection Clause and noted that “the elements of a claim

of intentional discrimination are essentially the same un-

der Title VII and the Constitution.” Id. at 626. Any dif-

ferences between the two protections, either by way of

8

remedies or scope, were “proportional and congruent”

responses to a pattern of unconstitutional state action. Id.

Because the disparate treatment provision of Title VII

prohibits little if any constitutional behavior and because

Congress was acting on a solid evidentiary ground in ex-

tending Title VII to the States, we hold that the 1972 Act

validly abrogated the States’ Eleventh Amendment im-

munity with respect to Title VII disparate treatment claims.

B. Prayer for Injunctive Relief in Count II

The University also challenges the district court’s failure

to dismiss Dr. Nanda’s claims for injunctive relief pursuant

8

The Eighth Circuit considered the effect of Title VII’s disparate

impact provisions as well as Title VII’s disparate treatment

provision. See Okruhlik v. Univ. of Ark. ex rel. May, 255 F.3d 615,

626 (8th Cir. 2001).

No. 01-3448 27

to 42 U.S.C. § 1983. The University and its officials con-

tend that the district court erred when it let stand Dr.

Nanda’s request in Count II for injunctive relief against

the University officials in their official capacities. Because

the requested relief of reinstatement can be granted only

by the University acting through its trustees, the defen-

dants contend that this request is appropriately character-

ized as a request for injunctive relief against the Univer-

sity. The University, they continue, is protected by the

Eleventh Amendment from such relief. Before we address

the merits of this claim, we must first consider whether we

9

have jurisdiction to entertain this aspect of the appeal.

We believe that we have jurisdiction over this conten-

tion for the same reason that we have jurisdiction over

the earlier contention concerning the applicability of the

Eleventh Amendment to a suit under Title VII. In essence,

the defendants are claiming that the Eleventh Amend-

ment provides them with a shield from litigating this

claim. This situation therefore is different from the situa-

tion in Cherry in which we held that a claim of immu-

nity from punitive damages under Title IX was not the

equivalent of a claim of immunity from litigation. See

Cherry, 265 F.3d at 547. As our citations to Burns-Vidlak

v. Chandler, 165 F.3d 1257, 1260 (9th Cir. 1999), and to

Pullman Construction Industries, Inc. v. United States, 23 F.3d

1166, 1169 (7th Cir. 1994), confirm, in Cherry we were

9

Dr. Nanda did not argue that this court lacked jurisdiction to

entertain the University’s appeal on this issue; however, this

court must assure itself of its own jurisdiction regardless of

whether the issue was raised by a party. See Wingerter v. Chester

Quarry Co., 185 F.3d 657, 660 (7th Cir. 1999) (“A court of ap-

peals has an obligation to examine its jurisdiction sua sponte,

even if the parties fail to raise a jurisdictional issue.”).

28 No. 01-3448

speaking of a claim of immunity not based on the Eleventh

Amendment.

We agree with the district court that, under § 1983, a

suit against state officials in their official capacity limited

to injunctive relief is not barred by the Eleventh Amend-

ment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71

n.10 (1989). Whether such relief is warranted and whether

it is warranted against these defendants are matters not

properly before us on this interlocutory appeal.

Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED

A true Copy:

Teste:

_____________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-97-C-006—9-17-02