Melinda Erickson, United States of America, Intervenor v. Board of Governors of State Colleges and Universities for Northeastern Illinois University

*953 DIANE P. WOOD, Circuit Judge,

dissenting.

The Americans with Disabilities Act, or ADA, 42 U.S.C. § 12111 et seq., stands at the intersection of two lines of cases that address Congress’s power under section 5 of the Fourteenth Amendment to abrogate the Eleventh Amendment immunity of the states. Laws that fall within the section 5 power may abrogate the States’ Eleventh Amendment immunity from suit, if Congress has made its intent to abrogate “unmistakably clear” in the language of the statute. See City of Boerne v. Flores, 521 U.S. 507 , 117 S.Ct. 2157 , 138 L.Ed.2d 624 (1997); Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 , 105 S.Ct. 3142 , 87 L.Ed.2d 171 (1985). When the question has been whether Title VII of the Civil Rights Act represents a valid use of Congress’s power under section 5, courts have answered in the affirmative. See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456-57 , 96 S.Ct. 2666 , 49 L.Ed.2d 614 (1976); In re Employment Discrimination Litigation Against State of Alabama, 198 F.3d 1305 , 1324 (11th Cir.1999) (finding that disparate impact analysis is a valid prophylactic measure and thus that this aspect of Title VII, equally with the disparate treatment branch, is a valid exercise of section 5 power).

On the other hand, the Supreme Court has recently ruled that the Age Discrimination in Employment Act, or ADEA, 29 U.S.C. §§ 621-34 , exceeded Congress’s section 5 powers and thus could not as a matter of law override the State’s Eleventh Amendment immunity. Kimel v. Florida Board of Regents, — U.S.-, 120 S.Ct. 631 , 145 L.Ed.2d 522 (2000). The question before us today, as the majority recognizes, is which line of authority to apply to yet another statute, the ADA. This is plainly a delicate and difficult issue, as the Supreme Court itself appeared to have signaled when it granted certiorari in Florida Dept, of Corrections v. Dickson, — U.S.-, 120 S.Ct. 976 , 145 L.Ed.2d 926 (2000), and in Alsbrook v. Arkansas, — U.S.-, 120 S.Ct. 1003 , 145 L.Ed.2d 947 (2000), two cases presenting precisely the problem before us now. The Court dismissed those two petitions under S.Ct. Rule 46.1, and so it will not be considering the issue during the present Term. See Florida Department of Corrections v. Dickson, — U.S.-, 120 S.Ct. 1236 , 145 L.Ed.2d 1131 (2000), and Alsbrook v. Arkansas, — U.S.-, 120 S.Ct. 1265 , — L.Ed.2d-(2000). We must therefore decide this case without the prospect of immediate guidance from Washington. For the reasons I explain below, I conclude that Title I of the ADA falls within Congress’s section 5 powers under the principles the Court has articulated. I would therefore find that Erickson is entitled to bring her ADA suit against Northeastern Illinois University consistently with the Eleventh Amendment, and I respectfully dissent.

I

Although the literal language of the Eleventh Amendment addresses only the question of the extent of the judicial power of the United States (which “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, amend. XI), the Supreme Court has held in a recent line of decisions that the meaning of this part of the Constitution is not limited to the precise words of the text. Instead, the Eleventh Amendment reflects the structural fact that each state is a sovereign entity within the federal system, and as such, each state enjoys sovereign immunity from suit except insofar as its immunity has legitimately been curtailed. See Seminole Tribe v. Florida, 517 U.S. 44, 54 , 116 S.Ct. 1114 , 134 L.Ed.2d 252 (1996); Alden v. Maine, 527 U.S. 706 , 119 S.Ct. 2240, 2253-54 , 144 L.Ed.2d 636 (1999); Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 , 119 S.Ct. 2199, 2204 , 144 L.Ed.2d 575 (1999).

*954 There are a number of ways in which sovereign immunity can be overcome consistently with the law: the state might consent to suit; to much the same effect, it might choose to waive its sovereign immunity; or Congress might enact legislation that abrogates the state’s immunity. 1 Only the last of those options is relevant here. Abrogation is constitutionally possible only in narrow circumstances. First, Congress must make its intent to abrogate “unmistakably clear” in the language of the statute. See Kimel, 120 S.Ct. at 640 (citing Dellmuth v. Muth, 491 U.S. 223, 228 , 109 S.Ct. 2397 , 105 L.Ed.2d 181 (1989), and quoting from Atascadero, 473 U.S. at 242 , 105 S.Ct. 3142 ). Second, it must act pursuant to a valid grant of constitutional power. Kimel, 120 S.Ct. at 642 ; City of Boerne, 521 U.S. 507, 519 , 117 S.Ct. 2157 ; Green v. Mansour, 474 U.S. 64, 68 , 106 S.Ct. 423 , 88 L.Ed.2d 371 (1985). Here, everyone agrees that the only source of congressional power at issue is section 5 of the Fourteenth Amendment. Cf. Florida Prepaid, 119 S.Ct. at 2205 .

In Kimel , the Court found that the ADEA satisfied the “clear statement” requirement for abrogation. 120 S.Ct. at 640-^42. The majority finds, and I agree, that the same is true of the ADA. Unlike the majority, however, I also conclude that Congress legitimately used its power under section 5 of the Fourteenth Amendment when it made the ADA applicable to the states.

As I have already noted, we know that Title VII represents a valid exercise of Congress’s section 5 power to abrogate the Eleventh Amendment immunity of the states, but the ADEA does not. The Kimel Court made the latter finding because, following City of Boerne , it concluded that the ADEA was a measure that went beyond either enforcement of the Fourteenth Amendment or valid prophylactic measures designed to prevent violations of the Constitution. See Kimel, 120 S.Ct. at 645, 648-49 . In Florida Prepaid, the Court explained the difference between valid efforts to exercise section 5 powers and those that go beyond the constitutional limits as follows:

While 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 congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end.

119 S.Ct. at 2205 (quoting from City of Boerne, 521 U.S. at 519-20 ).

*955 While the majority appears to concede that Kimel should guide our decision with respect to the ADA, its reading of Kimel overlooks important qualifications on that decision. The majority sees Kimel as a case holding that virtually all discrimination that is subject to rational basis review for equal protection clause purposes is outside the scope of Congress’s section 5 powers. Ante, at 948. I find no hint of this in Kimel ; to the contrary, after recognizing that age discrimination is subject to rational basis review, the Court took pains to analyze the ADEA in detail before finding that it cannot be sustained against the states as a valid exercise of the section 5 powers. That analysis would have been entirely beside the point if the mere fact of rational basis review was enough to decide the case. Furthermore, the majority here, in rejecting the idea that the accommodation provisions of the ADA could be sustained under section 5 (ante at 950) ignores the express holding of Kimel that “we have never held that section 5 precludes Congress from enacting reasonably prophylactic legislation.” 120 S.Ct. at 648. Last, the majority appears to hold that virtually all antidiscrimination statutes that focus on disparate impact, rather than intentional disparate treatment, exceed Congress’s section 5 powers. In so doing, it has created a square conflict with the Eleventh Circuit’s decision in Employment Discrimination, supra, 198 F.3d at 1324.

Kimel provides the analytical approach for assessing whether a statute addressing discrimination is a valid exercise of the section 5 power. Looking at both the legislative record and the language of the pertinent statute, the Kimel Court first asked whether the substantive requirements of the statute were proportionate to any unconstitutional conduct that the statute could have targeted. 120 S.Ct. at 645. It looked to earlier decisions that had considered the constitutional implications of age discrimination and found it significant that all had upheld age distinctions against constitutional challenges. See Gregory v. Ashcroft, 501 U.S. 452 , 111 S.Ct. 2395 , 115 L.Ed.2d 410 (1991); Vance v. Bradley, 440 U.S. 93 , 99 S.Ct. 939 , 59 L.Ed.2d 171 (1979); Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 , 96 S.Ct. 2562 , 49 L.Ed.2d 520 (1976) (per curiam). Second, it consulted the legislative record to see if it revealed either (1) a pattern of age discrimination committed by the states or (2) “any discrimination whatsoever that rose to the level of constitutional violation.” 120 S.Ct. at 648-50. Finding neither element present, the Court concluded that Congress did not in the ADEA validly abrogate the states’ sovereign immunity.

Following this roadmap, one can see that the ADA differs critically from the ADEA in the areas the Supreme Court deemed significant. The first question concerns the level of constitutional protection the Supreme Court has recognized in prior cases for persons with disabilities. With that standard in mind, the next question is whether the ADA represents a proportionate response to the likelihood of constitutional violations.

The leading case on the equal protection dimensions of disability discrimination is City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 , 105 S.Ct. 3249 , 87 L.Ed.2d 313 (1985). Athough, as the majority observes, the Court ultimately decided that rational basis review was proper for the ordinance in that case, the majority finds the Court’s reasoning to be irrelevant, ante at 949. The majority also pays no heed to the fact that the Court struck down the Cleburne ordinance because it unconstitutionally discriminated against the mentally retarded (clearly illustrating that legislation prohibiting discrimination with respect to a category that receives rational basis review might indeed be enforcing the Constitution). I cannot dismiss either aspect of Cleburne so readily.

The specific question before the Court in Cleburne was whether a local ordinance that required a special use permit for a home for the mentally retarded, but that imposed no such requirement for many similar uses, violated the equal protection rights of the mentally disabled. The *956 Court held that mental retardation should not be treated as a “quasi-suspect classification” for equal protection purposes, but it nevertheless found that the ordinance failed rational basis scrutiny, because the permit requirement “rest[ed] on an irrational prejudice against the mentally retarded .... ” Cleburne, 473 U.S. at 450 , 105 S.Ct. 3249 . 2 In coming to that conclusion, the Court subjected the city’s proffered reasons in defense of the ordinance to careful scrutiny, even while it avoided introducing undue rigidity into its analysis by using terms like “suspect” or “quasi-suspect” classifications — terms which the Court later pointed out had sometimes given rise to the erroneous notion that scrutiny that was strict in theory was often fatal in fact. See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237 , 115 S.Ct. 2097 , 132 L.Ed.2d 158 (1995).

Both the rationale of Cleburne and the nature of disability discrimination itself, as outlined in the congressional findings and legislative history of the ADA, highlight important differences between disability and age as bases for differential treatment, and they reveal, contrary to the majority’s surprising suggestion, that the ADA is indeed a statute designed to prohibit irrational discrimination.

As the Kimel Court observed, older persons “have not been subjected to a history of purposeful unequal treatment.” 120 S.Ct. at 645 (citing Murgia, 427 U.S. at 313 , 96 S.Ct. 2562 , quoting San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1, 28 , 93 S.Ct. 1278 , 36 L.Ed.2d 16 (1973)). In contrast, Congress found in the ADA that disabled persons have been “subjected to a history of purposeful unequal treatment,” “in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services.” 42 U.S.C. § 12101 . Second, harking back to the well known idea in United States v. Carolene Products, 304 U.S. 144 , 152-53 n. 4, 58 S.Ct. 778 , 82 L.Ed. 1234 (1938), in no meaningful sense of the term can the elderly be regarded as a “discrete and insular minoritfy]”; to the contrary, as Kimel notes, “all persons, if they live out their normal life spans, will experience [old age].” 120 S.Ct. at 645. This is a strong reason to believe that the normal political processes are adequate to protect the interests of the elderly and that they will not be singled out for unconstitutionally discriminatory treatment.

The disabled stand in a distinctly different position. Not everyone is or will become disabled. And the fact that some disabilities arise later in life and some do not persist for a lifetime does not make them the equivalent of the inexorable aging process. The point is 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. The ADA reflects Congress’s finding that society has the ability to, and has historically, “tended to isolate and segregate individuals with disabilities.” 42 U.S.C. § 12101 .

There are other reasons as well to conclude that the ADA is a permissible exercise of Congress’s section 5 power. Apart from the salient differences between age and disability as bases for categorization, the two statutes fare quite differently under the proportionality analysis required by Boeme and Kimel . The broad sweep of the ADEA caused the Supreme Court to *957 find that it was not a proportional response to the problem of age discrimination. The ADEA prohibits all employment discrimination on the basis of age against persons in the protected class (those above the age of 40). 29 U.S.C. § 623 (a)(1). The only tempering of this rule appears in the statutory rules allowing an employer to justify age-based distinctions if it shows either a substantial basis for believing that all or nearly all employees above a given age lack the qualifications required for the position or that reliance on the age classification is necessary because individual testing for qualifications is highly impractical. Kimel, 120 S.Ct. at 647 (citing Western Air Lines v. Criswell, 472 U.S. 400, 422 , 105 S.Ct. 2743 , 86 L.Ed.2d 321 (1985)). The EEOC’s implementing regulations, as well as cases decided under the ADEA, make it clear that these exceptions were intended to be narrow ones. See 29 C.F.R. § 1625.6 (a); see also Western Air Lines, 472 U.S. at 422 , 105 S.Ct. 2743 .

The ADA adopts a more nuanced approach to the problem of disability discrimination. An employer is entitled to treat a disabled person differently — indeed, even to deny employment to the person on that basis — if there are no reasonable accommodations that will permit the individual to do the job and she cannot handle the job without accommodations. 42 U.S.C. § 12113 .- See, e.g., Stewart v. County of Brown, 86 F.3d 107, 112 (7th Cir.1996); Pond v. Michelin North America, Inc., 183 F.3d 592, 596 (7th Cir.1999); Sieberns v. Wal-Mart Stores, Inc., 125 F.3d 1019, 1022 (7th Cir.1997). Thus, while an employer discriminating on the basis of age must demonstrate that it would be “highly impractical” not to do so, an employer making distinctions on the basis of disability need only show that “reasonable steps” of accommodation, such as modifying work schedules, training materials, facilities, or policies, will not work. See 42 U.S.C. §§ 12113 , 12111. The incorporation of a reasonableness standard in the duty to accommodate, which itself modifies the duty not to discriminate on the basis of disability, is essentially a legislative incorporation of the proportionality test required under the Constitution. It also illustrates, contrary to the majority’s suggestion, that the duty to accommodate is not a command to give “special” treatment; instead, it spells out the way that discrimination is to be avoided. I would therefore find that the ADA meets the first part of the Kimel analysis.

The second question under Kimel requires us to consider whether the legislative record reveals either a pattern of age discrimination committed by the states or “any discrimination whatsoever that [rises] to the level of constitutional violation.” 120 S.Ct. at 649. Here, although the evidence is stronger on the second point than the first, the record shows both kinds of disability discrimination.

With respect to the first question (i.e. legislative findings pertaining specifically to state behavior), the legislative record is admittedly sparse. Nevertheless, the House Report notes that “inconsistent treatment of people with disabilities by different state or local government agencies is both inequitable and illogical.” H.R.Rep. No. 101-485(11), U.S. Code Cong. & Admin. News at 319. More importantly, the express congressional findings with respect to pervasive discrimination address many areas that are controlled to a significant degree by state and local governments. For example, Congress identified discrimination in education as a particular problem. See 42 U.S.C. § 12101 (3). Education in this country is overwhelmingly an enterprise of state and local government. 3 Another sector singled out in the statute was health services, see 42 U.S.C. § 12101 (3), in which state and local governments also play a powerful role. 4 The story is *958 similar for transportation, which is also mentioned in § 12101(3). 5 Congress’s specific attention to sectors with such a substantial state and local governmental presence indicates that it knew that government action at the state level was an important part of the problem it was addressing.

The other evidence the Kimel Court found lacking for the ADEA — a record of discrimination that reveals constitutional violations — is present in abundance for the ADA. It would be hard to imagine greater scrutiny than Congress gave to the harm caused by disability discrimination when it passed the ADA. Its findings explain in painstaking detail the extent of the evil. See 42 U.S.C. § 12101 . 6 We give congressional findings substantial deference, because Congress “is far better equipped than the judiciary to amass and evaluate the vast amounts of data bearing upon legislative questions.” Turner Broadcasting System, Inc. v. F.C.C., 520 U.S. 180, 195 , 117 S.Ct. 1174 , 137 L.Ed.2d 369 (1997). This is the legislative task the Supreme Court contemplated in Cleburne , where it held that the way disabled people are “to be treated under the law is a difficult and often a technical matter, very much a task for legislators guided by qualified professionals and not by the perhaps ill-informed opinions of the judiciary.” Cleburne, 473 U.S. at 442-43 , 105 S.Ct. 3249 .

*959 The ADA’s legislative findings distinguish the ADA from both the ADEA and RFRA, the statute before the Court in City of Boeme. Like the ADEA and unlike the ADA, Congress did not make findings in the RFRA about the seriousness or scope of discrimination against religious persons. See 42 U.S.C. §§ 2000bb to 2000bb-^4. As I have already noted, in the ADEA Congress never identified “any discrimination whatsoever that rose to the level of constitutional violation.” Kimel, 120 S.Ct. at 649 . The only evidence the Kimel Court found showing the harm at which the ADEA was aimed was a few “isolated sentences clipped from floor debates and legislative reports.” Id. When formulating the ADA, in contrast, Congress compiled an immense legislative record. It examined all this evidence and found that “[t]he severity and pervasiveness of discrimination against people with disabilities [was] well documented.” H.R. 101-485(11), U.S. Code Cong. & Admin. News at 312. This factor therefore points toward a conclusion that the legislative basis for a valid exercise of Congress’s section 5 powers is present for the ADA, even though it was not for the ADEA or RFRA.

Before leaving this subject, it is important to note that the majority has elevated a single point in the legislative history to dispositive significance: the absence of a statement somewhere to the effect that “we are passing this law because we need to correct discrimination on the basis of disability committed by the states.” I see nothing in Kimel that gives such primacy to this single point. Combining the explicit coverage of sectors in which the states are the principal actors, with the deliberate decision of Congress to make the states subject to the statute, and finally with the enormous legislative record documenting the depth of the problem of disability discrimination, I find the second part of the Kimel approach to be satisfied for the ADA.

II

Given its conclusion about the Eleventh Amendment, the majority does not reach the last question that was presented in this case, which was whether the analysis that applies to an Eleventh Amendment argument directed at the general prohibition in the ADA against discrimination is different from the analysis appropriate to the accommodation provisions of the Act. Because I would reject the general Eleventh Amendment defense, I add a brief word on this point. In my view, because the accommodation duty and the duty to avoid discrimination are nothing more than two sides of the same coin, the answer is no.

The ADA defines discrimination to include “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless ... [the] covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.” 42 U.S.C. § 12112 (b)(5)(A). The Act also provides that an employer may defend against a charge of discrimination by showing that its goals require discrimination — that they “cannot be accomplished by reasonable accommodation.” 42 U.S.C. § 12113 (a).

The University argues that this statutory accommodation process is unconstitutional under Printz v. United States, 521 U.S. 898 , 117 S.Ct. 2365 , 138 L.Ed.2d 914 (1997), because it violates the Tenth Amendment by forcing state officials to administer a federal regulatory scheme. In my view, however, the Printz model has no bearing on the question before us. The flaws the Court identified in Printz included the act of conscripting state officials to administer a federal program, the effective reallocation of duties from the branches of the federal government to which the Constitution assigned them to the state officials, and the conferral of policy-making authority on the state officials without adequate guidance. The Printz Court found *960 that forcing the state to implement this type of regulatory system violated the principles of separation of powers and dual sovereignty. Id. at 922, 932, 930 , 117 S.Ct. 2365 .

The ADA does not establish anything like the regulatory scheme for handguns at issue in Printz . The ADA is instead a straightforward law prohibiting discrimination on the part of all employers, private and governmental alike, and defining the way the prohibition must be implemented. It provides the employers with precise definitions to follow: a reasonable accommodation is one tailored to the discrimination issue before the employer, which does not “impose an undue hardship on the operation [of the employer’s business].” 42 U.S.C. § 12112 (b)(5)(A). Unlike the regulatory system before the Printz Court, the ADA does not confer any special powers on employers in general or on state employers in particular. Employers are not administering a federal benefit by providing a reasonable accommodation; they are refraining from discrimination and to some degree taking preventative measures. There is no duty to accommodate that is separate from the general obligation to avoid discrimination against the disabled.

It bears repeating that, for this purpose, state employers stand in exactly the same position as private employers. As this court held in Travis v. Reno, 163 F.3d 1000, 1004-05 (7th Cir.1998), federal law may pervasively regulate states as market participants; the anti-commandeering law of Printz only comes into play when the federal government calls on the states to use their sovereign powers to implement a federal regulatory program. In Travis , which came to the result later endorsed by the Supreme Court in Reno v. Condon, supra, we concluded that the Drivers Privacy Protection Act (DPPA) did not violate the Tenth Amendment. The DPPA requires disclosure of certain records by the state, and so necessarily forces the state to come up with a system of determining which records should be disclosed, as well as how best to disclose them. The system was found constitutional because it affects states in their role as owners of databases, not in their role as governments. Condon, 120 S.Ct. at 672; Travis, 163 F.3d at 1004 .

Though the ADA forces the states to comply with a federal regulation, it affects the states in their role as employers, not in their role as governments. Federal regulations of states acting as employers have been upheld in the past. In Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 , 105 S.Ct. 1005 , 83 L.Ed.2d 1016 (1985), the Court held that state employers may be forced to follow the federal Fair Labor Standards Act’s wage and hour rules. Nothing in the recent line of Eleventh Amendment decisions undermines that rule. To the contrary, in Alden v. Maine the Court went out of its way to reaffirm that “[t]he constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law.” 119 S.Ct. at 2266. Instead, the Court assumed that the states would ordinarily live up to their duties under federal law as a matter of good faith, and it noted that enforcement of federal obligations by the federal government remains permissible under the constitutional design. Id. at 2267. The fact of dual sovereignty does not, therefore, carry with it any implication that states are allowed to disregard or to frustrate valid federal programs. See City of New York v. United States, 179 F.3d 29, 35 (2d Cir.1999).

By defining discrimination in part as not making reasonable accommodations to disabled employees, the ADA does impose costs on employers, including the states. Employers must affirmatively act to alter any practices they have in place that discriminate against the disabled. Of course, this makes a great deal of sense. Just because an employer has a discriminatory practice, such as maintaining steep stairways or only offering breaks at wide intervals and therefore not allowing diabetics to take their medication, does not mean that the employer should be able to continue *961 such a discriminatory practice without violating the ADA, any more than an employer’s refusal in the past to construct a women’s restroom would justify a refusal to hire female employees. The ADA allows an employer to adjust the workplace environment on a case-by-case basis, adopting only those changes that are reasonably necessary to refrain from discriminating against the disabled individual or individuals in question.

The ADA hardly broke new ground when it incorporated this type of affirmative duty. The Equal Protection Clause often requires states to take affirmative measures to eliminate or prevent discriminatory systems. For example, states with racially discriminatory reapportionment plans must redraw their congressional districts. See, e.g., Shaw v. Reno, 509 U.S. 630, 652 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993) (holding that the state’s reapportionment plan might violate the Equal Protection Clause). The logic of the University’s argument here would, if taken to its limits, call into question every affirmative injunction a court has ever entered to prevent threatened future violations of the constitutional guarantee of equal protection of the laws. Nothing in the Supreme Court decisions on which the University relies even hints at such a radical result. Similarly, the First Amendment guarantee of the right of free exercise of religion carries with it an implied duty on the part of the state to make reasonable adjustments. See, e.g., Sherbert v. Verner, 374 U.S. 398, 403-04 , 83 S.Ct. 1790 , 10 L.Ed.2d 965 (1963); Wisconsin v. Yoder, 406 U.S. 205, 231 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546 , 113 S.Ct. 2217 , 124 L.Ed.2d 472 (1993); Zorach v. Clauson, 343 U.S. 306, 313-14 , 72 S.Ct. 679 , 96 L.Ed. 954 (1952). Boerne does not overrule these direct constitutional rulings.

Last, as I indicated above, I do not read any of the Supreme Court’s recent decisions as overruling prior rulings that have upheld congressional legislation prohibiting measures with a discriminatory impact as valid exercises of the section 5 power. As the Eleventh Circuit explained in Employment Discrimination, “disparate impact analysis was designed as a ‘prophylactic’ measure.” 198 F.3d at 1321 (citing Connecticut v. Teal, 457 U.S. 440, 449 , 102 S.Ct. 2525 , 73 L.Ed.2d 130 (1982), Albemarle Paper Co. v. Moody, 422 U.S. 405, 417 , 95 S.Ct. 2362 , 45 L.Ed.2d 280 (1975), and Griggs v. Duke Power Co., 401 U.S. 424, 435 , 91 S.Ct. 849 , 28 L.Ed.2d 158 (1971)). The Eleventh Circuit went on to explain that even though, in a disparate impact case, “the plaintiff is never explicitly required to demonstrate discriminatory motive, a genuine finding of disparate impact can be highly probative of the employer’s motive since a racial ‘imbalance is often a telltale sign of purposeful discrimination.’ ” Id. (citing International Brotherhood of Teamsters v. United States, 431 U.S. 324 , 339-40 n. 20, 97 S.Ct. 1843 , 52 L.Ed.2d 396 (1977)). It found from this that the disparate impact provisions of Title VII are preventive rules that have the necessary congruence between the means used and the constitutional violation to be addressed (intentional discrimination). Id. at 1322. Nothing in Kimel comes close to suggesting that the Court was overruling this long line of its own authority, upon which the Eleventh Circuit carefully relied, and I am not prepared to take that step in the present case.

For all these reasons, I therefore respectfully dissent from the majority’s conclusion that the Eleventh Amendment bars Erickson’s suit against Northeastern University.

. The extent of the protection from suit that results from a finding of sovereign immunity is also an important question, because, at least in certain contexts, sovereign immunity is qualified rather than absolute. See, e.g., the Foreign Sovereign Immunities Act, 28 U.S.C. §§ 1602 , 1605. Despite the exchange between the majority and dissenters in College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 , 119 S.Ct. 2219, 2230-31, 2235-37 , 144 L.Ed.2d 605 (1999), on the significance of market participation for sovereign immunity purposes, there remains some tension in the Supreme Court’s cases on this point. See Reno v. Condon, -U.S.-, 120 S.Ct. 666 , 145 L.Ed.2d 587 (2000) (finding the Driver’s Privacy Protection Act to be a valid exercise of Congress’s Commerce Clause power, and non-violative of state sovereignty under both the Tenth and Eleventh Amendments, because it regulated the state’s market activities): California v. Deep Sea Research, 523 U.S. 491, 506-07 , 118 S.Ct. 1464 , 140 L.Ed.2d 626 (1998) (finding that, in determining whether sovereign immunity applies to states, the Court looks at whether sovereign immunity would apply to the federal government, because "this Court has recognized a correlation between sovereign immunity principles applicable to States and the Federal government,” and at whether sovereign immunity would apply to a foreign government). Although I recognize that the Supreme Court may ultimately have more to say on the subject, I am assuming here, consistently with College Savings and Kimel , that the commercial character of the operation of a state university system is not enough to qualify the state’s Eleventh Amendment immunity.

. This implies a more exacting test for rationality than the majority finds in Cleburne, ante at 949-50. The majority goes on to advance the astonishing propositions that it would be rational for a university to conclude that anyone not in the top 1% of the population is not apt to be a good teacher and scholar, or that it would be rational to refuse to hire a blind professor because she could not master material as fast as her sighted colleagues. Such a view flies in the face of evidence about the accomplishments of the visually impaired; it assumes rationality in the process of choosing who exactly falls within the top 1% of the population; and it illustrates exactly the kind of stereotyped thinking that the ADA was designed to combat.

. A 1995 study by the Department of Education showed that 90% of elementary and secondary education in the United States is public — only 10% of students are enrolled in private schools. See <http://www.ed.gov>.

. Together, state and local governments were *958 responsible for 12.7% of the United States’ health expenditures in 1998, while private individuals and corporations were responsible for only 54% of those costs. See <http://www.hcfa.gov>.

. Government as a whole paid about 50% of transportation costs in the United States in 1996, with state and local governments covering about 60% of those costs, or 34.5% of the total. See <http://www.bts.gov>.

. Congress found that:

(1) some 43,000,000 Americans have one or more physical or mental disabilities, and this number is increasing as the population as a whole is growing older;

(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem;

(3) discrimination against individuals with disabilities persists in such critical areas as employment, housing, public accommodations, education, transportation, communication, recreation, institutionalization, health services, voting, and access to public services;

(4) unlike individuals who have experienced discrimination on the basis of race, color, sex, national origin, religion, or age, individuals who have experienced discrimination on the basis of disability have often had no legal recourse to redress such discrimination;

(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers, overprotective rules and policies, failure to make modifications to existing facilities and practices, exclusionary qualification standards and criteria, segregation, and relegation to lesser services, programs, activities, benefits, jobs, or other opportunities;

(6) census data, national polls, and other studies have documented that people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged socially, vocationally, economically, and educationally;

(7) individuals with disabilities are a discrete and insular minority who have been faced with restrictions and limitations, subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society, based on characteristics that are beyond the control of such individuals and resulting from stereotypic assumptions not truly indicative of the individual ability of such individuals to participate in, and contribute to, society;

(8) the Nation’s proper goals regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals, and

(9) the continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity.

42 U.S.C. § 12101 .