Amicus Curiae Brief — Atascadero State Hospital v. Scanlon

No. 84-351 | FILER

FEB 99 1995

Supreme Court of the United HrakeyOee. svevas

IN THE

U.S

OCTOBER TERM, 1984

>

ATASCADERO STATE HOSPITAL

and

CALIFORNIA DEPARTMENT OF MENTAL HEALTH,

Petitioners,

on

DOUGLAS JAMES SCANLON,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION FOUNDATION AND THE AMERICAN CIVIL

LIBERTIES UNION FOUNDATION OF SOUTHERN

CALIFORNIA AS AMICI CURIAE

SUPPORTING AFFIRMANCE

DAVID L. SHAPIRO

(Counsel of Record)

PAUL L. HOFFMAN 1525 Massachusetts Avenue

MARK D. ROSENBAUM Cambridge, Massachusetts 02138

American Civil Liberties (617) 495-4618

Union Foundation of

Southern California

633 South Shatto Place

Los Angeles, CA 90005

(213) 487-1720

BURT NEUBORNE

CHARLES S. SIMS

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800

INTEREST OF AMICI

The American Civil Liberties Union (ACLU) is a nation-

wide, nonpartisan organization of more than 250,000 members

dedicated to the protection of civil liberties and civil rights.

The ACLU Foundation of Southern California is a state

affiliate of the ACLU. Either as counsel for a party or as

amicus curiae, the ACLU has frequently asserted the federal

statutory and constitutional rights of handicapped persons.

The ACLU has also previously filed briefs in this Court

concerning the proper scope of the Eleventh Amendment.

With the consent of the parties, indicated by letters we have

lodged with the Clerk of the Court, we file this brief amici

curiae to bring our experience to bear on the important

questions presented by this case.

TABLE OF CONTENTS

INTEREST OF AMICI ..........cccccccccccccccces

TABLE OF AUTHORITIES. ..........ccccccccccces

STATEMENT OF THE CASE ..........ccececeeces

SUMMARY OF ARGUMENT..............--+-0055

ARGUMENT. .......cccccccccccccccccccccssceseses

I. Congress Has Effectively Abrogated Eleventh

Amendment Immunity in Private Suits for Viola-

tion of Section 504 of the Rehabilitation Act ....

Il.

A.

Congress Has Authorized a Private Remedy

for Violation of Section 504 Against All Re-

cipients of Federal Assistance, Including the

States and Their Departments..............

. Congressional Abrogation of Eleventh

Amendment Immunity in This Case Does Not

Require State Consent to Be Effective.......

. If State Consent is Required, It May Be In-

ferred From the Continued Acceptance of

Federal Assistance With Notice of the Condi-

tions Imposed by Federal Law .............

This Case Affords an Opportunity to Clarify the

Scope and Application of the Eleventh Amend-

11

12

14

18

ill

TABLE OF AUTHORITIES

Cases PAGE

Alabama v. Pugh, 438 U.S. 781 (1978)............. 4, 9, 16

Alexander v. Choate, 53 U.S.L.W. 4072 (U.S. Jan. 9,

EEE REL ccc ese sccnceccenacces 7,9

Bossier Parish School Bd. v. Lemon, 370 F.2d 847 (Sth

Cir.), cert. denied, 388 U.S. 911 (1967)............. 8

Brown v. Sibley, 650 F.2d 760 (Sth Cir. 1981) ......... 5

Cannon v. University of Chicago, 441 U.S. 677 (1979) 8

Chisholm v. Georgia, 2 Dall. (2 U.S.) 419 (1793)...... 15

Consolidated Rail Corp. v. Darrone, 104 S. Ct. 1248

Peek eee ectecsescceccccceccecs 2

Edelman v. Jordan, 415 U.S. 651 (1974) ............. 4, 13

EEOC v. Wyoming, 460 U.S. 226 (1983) ............. 12

Employees v. Department of Public Health & Welfare,

ke tac s ee eccncccecs 13, 14

Ex parte Young, 209 U.S. 123 (1908). ................ 16

Fitzpatrick v. Bitzer, 427 U.S. 445 (1976)............. 4, 11

Florida Dep’t of Health & Rehabilitative Services v.

Florida Nursing Home Ass’n, 450 U.S. 147 (1981)...10, 13

Fullilove v. Klutznick, 448 U.S. 448 (1980) ........... 12

Hans v. Louisiana, 134 U.S. 1 (1890)........... 4, 15, 17, 18

Hospital Building Co. v. Trustees of the Rex Hospital,

ee acc c ese sncececes l

Hutto v. Finney, 437 U.S. 678 (1978) .............. 9, 10, 11

Lau v. Nichols, 414 U.S. 563 (1974) ................. 8

Lloyd v. Regional Transportation Authority, 548 F.2d

EEE ee 12

iV

PAGE

Milliken v. Bradley, 433 U.S. 267 (1977). ...........4.. 4

Mills Music, Inc. v. Arizona, 591 F.2d 1278 (9th Cir.

PC kvecudndedcideann ieeeseceaanseneunanauns 5

Nevada v. Hall, 440 U.S. 410 (1979). ............045. 16

Parden v. Terminal Railway, 377 U.S. 184 (1964)... .5, 10, 13

Parks v. Pavkovic, 536 F. Supp. 296 (N.D. Ill. 1982)... 12

Peel v. Florida Dep’t of Transportation, 600 F.2d 1070

ES onc ciate eee ede Dee eReaee 13

Pennhurst State School & Hospital v. Halderman, 104 S.

Ge EE 53.60 4sgkbdsoebesbessnecuanesebass 14, 16

Quern v. Jordan, 440 U.S. 332 (1979). ........520005- 9

Scanlon v. Atascadero State Hospital, 677 F.2d 1271 (9th

Cir. 1982), vacated and remanded, 104 S. Ct. 1583, on

remand, 735 F.2d 359 (9th Cir. 1984). .............. 2

Southeastern Community College v. Davis, 442 U.S. 397

PEE cb Aknsd chads ches eed chen nen daewekedéane 13

Statutes and Regulations

Education Acts, 20 U.S.C. §§ 1401 ef seg............. 12

Title IX of the Education Amendments of 1972, 20

SP ice Cee ee G0 GO oon cevecivcacdcsccésccseves 5,6

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

SF kcccpucenavesessvéceueedsdetedeuessaauend passim

ee es OP PU 6k bn dé Seve cusaceeunt obese vanees 7

Title VI of the Civil Rights Act of 1964, 42 U.S.C.

Se SG MD, once ecncescuvcdousdketséuceees 5, 6, 7,8

GP es OI oo eercvawisccrccttenseieeees 1]

42 Fed. Reg. 22677 (May 4, 1977), 45 C.F.R. § 84.3(f).. 8

PAGE

Legislative Materials

Senate Report No. 890, 95th Cong., 2d Sess. 19 (1978) 8,9

Senate Report No. 1297, 93d Cong., 2d Sess. 39-40

SE 6on6hbendannedaeeunes tnbhedsenwuses4isees 6, 8

110 Congressional Record 10075-76 (1964)............ 8

110 Congressional Record 1378 (1964) ............... 8

117 Congressional Record 45974-75 (1971)............ 12

118 Congressional Record 525 (1972) ................ 12

119 Congressional Record 24587 (1973) .............. 6

124 Congressional Record 30346 (1978) ..............

124 Congressional Record 30347 (1978) .............. 9

Implementation of Section 504, Rehabilitation Act of

1973: Hearings Before the Subcommittee on Select

Education of the House Committee on Education and

Labor, 95th Cong., Ist Sess (1977)................. 7

Other Authorities

Engdahl, Jmmunity and Accountability for Positive

Governmental Wrongs, 44 U. Colo. L. Rev. 1 (1972) 14

Field, The Eleventh Amendment and Other Sovereign

Immunity Doctrines, 126 U. Pa. L. Rev. 515 (1977)

(Part I), 126 U. Pa. L. Rev. 1203 (1978) (Part II)... = 14,

15, 17

Fletcher, A Historical Interpretation of the Eleventh

Amendment: A Narrow Construction of an Affirma-

tive Grant of Jurisdiction Rather than a Prohibition

Against Jurisdiction, 35 Stan. L. Rev. 1033 (1983)... 14

Gibbons, The Eleventh Amendment and State Sovereign

Immunity: A Reinterpretation, 83 Colum. L. Rev.

PN 26s cade ndandieat sheeheddnskcecnuess 14, 15

vi

PAGE

C. Jacobs, The Eleventh Amendment and Sovereign

Immunity (1972) ......ccccccccccccccccecescscees 14

Orth, The Interpretation of the Eleventh Amendment,

1798-1908: A Case Study of Judicial Power, 1983 U.

By SG MD 5. 66 046.008 Vin Cee enecedeeesoescsee< 14

Shapiro, Wrong Turns: The Eleventh Amendment and

the Pennhurst Case, 98 Harv. L. Rev. 61 (1984)..... 14, 16

IN THE

Supreme Court of the United States

OCTOBER TERM, 1984

No. 84-351

>

ATASCADERO STATE HOSPITAL

and

CALIFORNIA DEPARTMENT OF MENTAL HEALTH,

Petitioners,

—-\V .—

DOUGLAS JAMES SCANLON,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

>

BRIEF OF THE AMERICAN CIVIL LIBERTIES

UNION FOUNDATION AND THE AMERICAN CIVIL

LIBERTIES UNION FOUNDATION OF SOUTHERN

CALIFORNIA AS AMICI CURIAE

SUPPORTING AFFIRMANCE

STATEMENT OF THE CASE

In November 1979, Douglas Scanlon filed this suit in a

California federal district court against the Atascadero State

Hospital and the California Department of Mental Health.' He

1. The summary of the case in this statement is drawn from Scanlon’s

complaint. See J.A. 2-23. Since the case arises on a motion to dismiss, the

allegations of the complaint are taken to be true for purposes of this

proceeding. See Hospital Building Co. v. Trustees of the Rex Hospital, 425

U.S. 738, 740 (1976). :

(footnote continued on following page)

2

alleged in his complaint that he suffers from diabetes mellitus

and loss of vision in one eye, that in February 1978 he applied

for a position as a graduate student assistant in recreation

therapy at Atascadero Hospital, and that after a physical

examination, the hospital withdrew a job offer it had made

because his diabetes was “uncontrolled” and because he lacked

vision in one eye.

Scanlon then complained to the regional Office of Civil

Rights of the Department of Health, Education and Welfare.

That office determined that the withdrawal of the job offer

violated Section 504 of the Rehabilitation Act of 1973, 29

U.S.C. § 794, which provides that “[n]o otherwise qualified

handicapped individual . . . shall . . . be subjected to dis-

crimination under any program or activity receiving Federal

financial assistance.” When conciliation efforts failed, the

present action to redress the violation was brought.” The

complaint prayed for a declaratory judgment and injunctive

relief, as well as backpay, “any further compensatory dam-

ages,” costs, and reasonable attorney’s fees.

The defendants’ motion to dismiss was granted by the

district court on the grounds (1) that Section 504 did not

prohibit discrimination against the handicapped in a federally

assisted activity unless a primary purpose of that federal

assistance was to provide employment, and (2) that the action

was barred by the Eleventh Amendment. The Court of Ap-

peals affirmed on the first of these grounds, 677 F.2d 1271 (9th

Cir. 1982), but after the decision in Consolidated Rail Corp. v.

Darrone, 104 S. Ct. 1248 (1984), this Court vacated and

remanded for reconsideration. 104 S. Ct. 1583 (1984). On

remand, the Court of Appeals concluded (1) that under Dar

rone, Section 504 was applicable even if the primary purpose

of the federal assistance was not to provide employment, and

(2) that the suit was not barred by the Eleventh Amendment.

The Department of Mental Health is the state agency responsible for

supervising and administering the Atascadero Hospital. Both defendants

allegedly receive funds from the federal government.

2. Scanlon also alleged in his complaint that the defendants’ actions

violated two California statutes.

3

735 F.2d 359 (9th Cir. 1984). The latter determination is now

before this Court for review.

SUMMARY OF ARGUMENT

The Rehabilitation Act of 1973 and its amendments repre-

sent a major effort by Congress to deal with one of the

enduring social problems of our day—that of enabling the

handicapped to lead full and useful lives. As an essential part

of this effort, Congress prohibited discrimination against the

handicapped not only by federal agencies and contractors but

also by all recipients of federal financial assistance, and autho-

rized a private remedy against any recipient who violated that

prohibition.

The language and legislative history of the act and its

amendments demonstrate that the states and their d2part-

ments, as principal recipients of federai assistance, fall within

the scope of that statutory prohibition and of the private

remedy afforded for its violation. Thus Congress, acting pur-

suant to its constitutional power under Section 5 of the

Fourteenth Amendment and the spending clause of Article I,

has effectively abrogated Eleventh Amendment immunity

when such a remedy is sought.

Since congressional abrogation of Eleventh Amendment im-

munity in this case is based in substantial part on congressional

power under the Fourteenth Amendment, state consent to suit

is not required in order for the abrogation to be effective. Even

if consent were required, it may properly be inferred from

continued state acceptance of federal financial assistance with

full notice of the conditions imposed on acceptance by federal

law.

Although existing law supports the conclusion that Califor-

nia and its departments may not claim immunity in this action,

the present state of Eleventh Amendment doctrine is complex

and confusing. Recent studies have laid the foundation for an

interpretation of the Amendment that is more closely tied to its

language and intended purpose, and the present case provides

an excellent vehicle for reconsidering existing doctrine and

4

clarifying this important area of constitutional law. Properly

applied, the Eleventh Amendment is not a bar to this action

because (1) it is not a suit against a state by a citizen of another

State, and (2) federal jurisdiction is based not on the identity of

the parties but on the presence of a federal question. The

remaining issue—whether the state may claim its common law

immunity from an unconsented suit—raises a straightforward

question of statutory construction to be decided on the basis of

the language and purpose of the relevant law. Here, that

immunity must yield to the congressional decision to provide a

federal forum for the effective vindication of federal rights.

ARGUMENT

I. Congress Has Effectively Abrogated Eleventh Amend-

ment Immunity in Private Suits for Violation of Section

504 of the Rehabilitation Act.

Under existing precedent, a state may claim Eleventh

Amendment immunity from private suit in a federal court even

if the suit is brought by a citizen of that state, and even if the

basis of jurisdiction is that the action arises under federal law.

See, e.g, Hans v. Louisiana, 134 U.S. 1 (1890); Edelman v.

Jordan, 415 U.S. 651 (1974).? But this Court has recognized

the power of Congress, when acting under Section § of the

Fourteenth Amendment, to abrogate that immunity in order to

implement the Amendment’s requirements. See Fitzpatrick v.

Bitzer, 427 U.S. 445 (1976). Moreover, the Court has upheld

3. It is not entirely clear whether this conclusion is derived directly from

the Eleventh Amendment or indirectly from the doctrine of sovereign

immunity which the Eleventh Amendment is said to reflect. For simplicity,

the rule will be referred to here as one of Eleventh Amendment immunity.

In the present case, the only defendants are agencies of the state; no state

officials have been joined. Thus if Eleventh Amendment immunity applies,

none of the relief sought may be obtained, even though some aspects of that

relief might be available in a suit against state officials. Compare Alabama v.

Pugh, 438 U.S. 781 (1978), with Milliken v. Bradley, 433 U.S. 267, 288-90

(1977).

5

congressional action subjecting a state to suit as part of the

exercise of other powers delegated to Congress, at least when

the conduct of the state can fairy be said to constitute consent.

See, e.g., Parden v. Terminal Railway, 377 U.S. 184 (1964).*

Congress, in the relevant sections of the Rehabilitation Act,

has effectively exercised this power to abrogate Eleventh

Amendment immunity. This statute represents a major legisla-

tive effort to protect the handicapped against discrimination

and thus to ensure to them the equal protection of the laws

guaranteed by the Fourteeth Amendment. An essential aspect

of this effort is the authorization of a private remedy against

any recipient of tederal funds who engages in prohibited

discrimination. And like the other important civil rights stat-

utes on which it is patterned,’ the Rehabilitation Act is signifi-

cantly directed at the states themselves as principal recipients

of federal funds.

Congressional authority to enact Section 504, as it applies to

the states and their departments, rests not only on Section 5 of

the Fourteenth Amendment but also on the spending power in

Article I, Section 8. Whether or not Congress has authority to

abrogate state sovereign immunity without state consent in

action taken under the spending power, continued acceptance

of federal assistance by a state after Congress has made its

purpose clear constitutes effective consent to the bringing of a

citizen suit in federal court.

These conclusions are not simply appropriate to the interpre-

tation of the Rehabilitation Act. They are essential if the

worthy purpose of that statute ‘is to be realized.

4. Cf. Mills Music, Inc. v. Arizona, 591 F.2d 1278 (9th Cir. 1979) (power

of Congress under the copyright and patent clause of Article I, Section 8).

5. Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d ef seq.,

and Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 ef

seq. See Brown v. Sibley, 650 F.2d 760, 767 (Sth Cir. 1981) (noting “virtual

identity between the discrimination provisions of Section 504 and those of

Title VI and Title 1X”).

6

A. Congress Has Authorized a Private Remedy for Violation

of Section 504 Against All Recipients of Federal Assis-

tance, Including the States and Their Departments.

As originally enacted in 1973, the Rehabilitation Act envi-

sioned a far-reaching program to increase opportunities for the

handicapped—by providing programs and funding to the

states, by authorizing federal agencies to implement the act,

and by imposing obligations on federal agencies, federal con-

tractors, and recipients of federal funds. The prohibition of

discrimination in Section 504 formed a critical part of this

vision. As Senator Taft, a member of the Committee on Labor

and Public Welfare, stated (119 Cong. Rec. 24587 (1973)):

[I]f we are to assure that all handicapped persons may

participate fully in the rewards made possible by the

vocational rehabilitation program, we must devote all our

energy toward the elimination of the most disgraceful

barrier of all—discrimination.

The 1973 Act did not expressly provide for private enforce-

ment of the duties imposed by Section 504, but Congress left

no doubt of its purpose on this score when it enacted a sevies of

amendments to the Act in 1974. The Senate Report accom-

panying those asscndments, S. Rep. No. 1297, 93d Cong., 2d

Sess. 39-46:(1974), noted that Section 504 was almost identical

to the anti-discrimination provisions of Title VI of the 1964

Civil Rights Act, § 601, 42 U.S.C. § 2000d, and Title IX of the

1972 Education Amendments, § 901, 20 U.S.C. § 1681, and

then continued:

The language of section 504, in following the above-

cited Acts, further envisions the implementation of a

compliance program which is similar to those Acts. . . .

This approach ... would ensure administrative due

process (right to hearing, right to review), provide for

administrative consistency within the Federal government

as well as relative ease of implementation, and permit a

judicial remedy through a private action. (Emphasis

added.)

7

If the history of this statute ended here, some question might

be raised about the demonstration of congressional purpose,

since the clearest evidence was a statement in a committee

report issued a year after Section 504 was enacted into law.°

But Congress went on in the course of further amendments in

1978 to make its purpose explicit. After hearings that focused

in significant part on the need for an express private remedy

and for recovery of attorney’s fees by successful litigants,’

Congress added a new Section 505, 29 U.S.C. § 794a. This

section provides that the remedies, procedures, and rights in

Title VI of the 1964 Civil Rights Act “shall be available to any

person aggrieved by any act or failure to act by any recipient of

Federal assistance” under section 504, 29 U.S.C. § 794a (a)(2)

(emphasis added), and further provides that in any action to

enforce the act, the court has discretion to allow “the prevail-

ing party, other than the United States, a reasonable attorney’s

fee as part of the costs,” 29 U.S.C. § 794a(b).

Senator Cranston, the author of the attorney’s fee provision,

explained its purpose in detail on the floor of the Senate,

saying that “[p]rivate enforcement of these title V rights is an

important and necessary aspect of assuring that these rights are

vindicated and enforcement is uniform.” 124 Cong. Rec. 30346

(1978).

The reference in Section 505 to Title VI of the 1964 Civil

Rights act is especially significant. Although Title VI did not

explicitly provide a private remedy for its violation, federal

courts, including this Court, have consistently found such a

6. This Court has recently noted, however, that since the 1974 amend-

ments were “virtually contemporaneous” with the 1973 Act, “the amend-

ments and their history do shed significant light on the intent with which

§ 504 was enacted.” Alexander v. Choate, 53 U.S.L.W. 4072, 4077 n.27 (U.S.

Jan. 9, 1985).

7. See Implementation of Section 504, Rehabilitation Act of 1973:

Hearings Before the Subcommittee on Select Education of the House

Committee on Education and Labor, 95th Cong., \st Sess. (1977).

8

remedy to be available,* and Congress in 1974 and again in

1978 acted on the understanding that the remedy did exist.?

The reference to Title VI also underscores the intent of

Congress to make this private remedy available against the

States and their departments. The major purpose of Title VI

was to end discrimination on the basis of race, gender, and

national origin by state and local governments, the principal

recipients of federal funds. As Senator Javits stated during the

debates, “We are primarily trying to reach units of govern-

ment, not individuals.” 110 Cong. Rec. 13700 (1964); see also

id. at 10075-76 (Letter of Attorney General Kennedy to Sena-

tor Cooper stating that “it is to discrimination by such State

and local agencies that title VI is basically directed.”).

Indeed, the language of Section 505 itself leaves no doubt of

Congress’s intent. The provision authorizes a remedy against

“any recipient” of federal funds, and regulations issued by the

Department of Health, Education and Welfare in 1977 had

explicitly defined “recipient” to include “any state or its

political subdivision, any instrumentality of a state or its

political subdivision . . . or any person to which Federal

financial assistance is extended . . .” 42 Fed. Reg. 22677 (May

4, 1977), 45 C.F.R. § 84.3(f). And the Senate Report accom-

8. See, e.g., Lau v. Nichols, 414 U.S. 563 (1974); Bossier Parish School

Bd. v. Lemon, 370 F.2d 847, 852 (Sth Cir.), cert. denied, 388 U.S. 911 (1967).

9. See S. Rep No. 1297, 93d Cong., 2d Sess. 39-40 (1974); S. Rep. No.

890, 95th Cong., 2d Sess. 19 (1978); cf. Cannon vy. University of Chicago,

441 U.S. 677, 703 (1979) (“We have no doubt that {in 1972] Congress

intended to create Title IX remedies comparable to those available under

Titie VI and that it understood Title VI as authorizing an implied private

cause of action for victims of the prohibited discrimination.”).

The United States suggests in its amicus brief in this Court, U.S. Br. at 13,

that Congress may have had some question in 1978 about the availability of a

private remedy under Title VI. This suggestion is rebutted by the legislative

history of the amendments. As noted by the United States in its amicus brief

in support of Scanlon in the court below (p. 33): “When Section 505(a)(2)

was enacted in 1978, Congress understood that Title VI provided a private

cause of action and intended, as it had indicated in 1974, that such a remedy

should be available under Section 504.”

9

panying the 1978 amendments expressly referred to these

regulations and to their conformity with regulations promul-

gated under Title VI. See S. Rep. No. 890, 95th Cong., 2d

Sess. 19 (1978).'°

Finally, Senator Cranston, in his remarks on the floor of the

Senate, spoke directly of actions against states to enforce

Section 504:

[W]ith respect to State and local bodies or State and

local officials, attorney’s fees . . . would be collected

from the official . . . or from the State or local govern-

ment—regardless of whether such agency or government

is a named party. The authorization of attorney’s fees

under proposed § 505(b) in cases brought to enforce title

V is within the power of Congress under among other

things, section 5 of the 14th Amendment. Thus, in ac-

cordance with the Supreme Court’s decision in Hutto v.

Finney [437 U.S. 678 (1978)], the 11th Amendment is no

bar to the recovery of attorney’s fees under proposed

section 505(b) . . .'' 124 Cong. Rec. 30347 (1978).

j

This Court has held that congressional purpose to abrogate

Eleventh Amendment immunity must be clearly shown. See,

e.g., Quern v. Jordan, 440 U.S. 332, 343-45 (1979). But the

10. This Court has on several occasions recognized these regulations as an

important source of guidance on the meaning of the 1978 amendments. See,

e.g., Alexander v. Choate, 53 U.S.L.W. at 4076 n.24.

11. Both the petitioner and the United States (in its amicus brief in this

Court) seek to minimize the importance of this statement by pointing to its

emphasis on fee awards. This effort to distinguish away even a direct

reference to the abrogation of the Eleventh Amendment must fail. Senator

Cranston’s point was that attorney’s fees could be recovered from state

funds under this section whether or not a Title V enforcement action was

brought directly against the state as a “named party.” His assumption that an

enforcement action could be brought against the state as a named party in an

appropriate case is consistent only with congressional abrogation that is

broader than the mere authorization of fees; in the absence of such abroga-

tion even prospective relief may be sought only against individuals. See

Alabama v. Pugh, 438 U.S. ‘781 (1978).

10

Court has never held that abrogation of immunity must be

stated in so many words in the text of the statute in order to be

effective. On the contrary, the Court has found legislative

abrogation even in the absence of express statutory language.

See, e.g., Hutto v. Finney, 437 U.S. 678 (1978). And despite

petitioner’s efforts to explain Hutto as a case relating solely to

litigation costs, the Court in that case emphasized that its

refusal to require express abrogation would have obtained

“[e]ven if we were not dealing with an item such as costs.” /d.

at 698 n.31."

To insist on greater specificity than exists in this case would

be to demand a degree of precision that can only frustrate the

effectuation of congressional purpose. Congress provided for

§ 504 actions against state agencies because the availability of a

private remedy against an offending state is critical to the

fulfillment of the goals of Section 504. The states and their

departments head the list of federally assisted grantees, and the

alternative tool of administrative enforcement—a cutoff of

federal funds—is too Draconian to be useful in all but the most

flagrant and pervasive instances of unlawful conduct.

In its amicus brief in this Court, the United States attempts

to make the requirement of specificity even more onerous and

unrealistic. It is not sufficient, the United States suggests, for

the language and history of a statute to make clear the purpose

of Congress to abrogate immunity and to subject the state to

12. The Court in Hutto pointed to the strength of the legislative history

and to the source of congressional action in Section 5 of the Fourteenth

Amendment. Cases in which greater emphasis has been put on the impor-

tance of express language, e.g., Florida Dep’t of Health & Rehabilitative

Services v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981), have not been

cases in which Congress was legislating in the exercise of authority under

Section 5. Cf. Parden v. Terminal Railway, 377 U.S. 184 (1964) (subjecting

State to suit under the Federal Employers Liability Act).

11

suit; Congress “must clearly express an intention to permit

retrospective damage suits in federal court if it so intended.”

U.S. Br. at 16 n.10 (emphasis added). This argument contains

two flaws. First, it relies on cases in which congressional

authority to legislate did not derive from Section 5 of the

Fourteenth Amendment. See supra note 12. Second, even cases

in which Congress undeniably intended to authorize suit would

often fail this test. For example, in Fitzpatrick v. Bitzer, 427

U.S. 445 (1976), Congress had not explicitly provided that

states were subject not only to actions for prospective relief for

violations of Title VII but also to the monetary awards autho-

rized in 42 U.S.C. § 2000e-5(g). Yet the Court quite properly

held that Congress had intended to subject states to such suits,

and in so holding the Court gave full effect to the legislative

purpose.'?

B. Congressional Abrogation of Eleventh Amendment Im-

munity in This Case Does Not Require State Consent to

Be Effective.

When Congress abrogates Eleventh Amendment immunity

in the exercise of its power under Section 5 of the Fourteenth

Amendment, state consent to that abrogation is not required.

See, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445 (1976); Hutto v.

Finney, 437 U.S. 678 (1978). Indeed, if consent were a condi-

tion of abrogation in this circumstance, effective implementa-

tion of the Fourteenth Amendment might be held hostage to

the will of the states themselves.

For the first time, petitioners have suggested in their brief in

this Court that authority for application of the Rehabilitation

Act to the states does not derive from Section 5 but only from

13. Since only state agencies and not state officials have been sued in the

present action, the Eleventh Amendment, if applicable, may bar all claims

for relief, prospective as well as retrospective. See supra note 3. The United

States recognizes, U.S. Br. at 16 n.11, that this inappropriate consequence

may flow from acceptance of its argument that Congress has not done

enough to make clear its desire to subject the states to suits for retrospective

relief.

12

the spending power in Article I. But there is no doubt that the

desire of Congress to secure equal protection of the laws for

the handicapped was an important basis of this legislation.

This idea was expressed by several sponsors of the original

proposals out of which the Act evolved,'* as well as by Senator

Cranston in the remarks quoted above, see supra at 9. More-

over, the Act’s provisions, which are based on extensive consid-

eration of the denial of opportunity to the handicapped by

governmental and private agencies, are intimately related to

the protections afforded by the Education Acts, 20 U.S.C.

§§ 1401 et seq. And the origin of those laws in the Fourteenth

Amendment has been judicially recognized. See, e.g., Parks v.

Pavkovic, 536 F. Supp. 296, 306-11 (N.D. 111. 1982).

The case is thus similar to Fullilove v. Klutznick, 448 U.S.

448 (1980), in which the Court concluded that the basis of the

congressional program there at issue lay in the commerce

power as the program related to private contractors and in “the

power to enforce the equal protection guarantees of the Four-

teenth Amendment insofar as the rrogram objectives pertain

to the action of state and local grantees.” 448 U.S. at 475.'5

C. If State Consent is Required, It May Be Inferred From the

Continued Acceptance of Federal Assistance With Notice

of the Conditions Imposed by Federal Law.

Even were the Court to conclude that Congress has not here

legislated under Section 5 of the Fourteenth Amendment, the

Sstate’s claim to immunity should not succeed. Assuming ar-

guendo that the spending power in Article I, Section 8 were the

14. As noted in Lioyd v. Regional Transportation Authority, 548 F.2d

1277, 1280 n.9 (7th Cir. 1977), Section 504 had its genesis in an attempt in

1971 and 1972 by Representative Vanik and Senator Humphrey to amend

Title VI. The remarks of those sponsors, as they relate to the Fourteenth

Amendment, may be found at 117 Cong. Rec. 45974-75 (1971) and 118

Cong. Rec. 525 (1972).

15. The Court has made it clear that an express statement by ‘Congress of

reliance on Section 5 is not required. See EEOC v. Wyoming, 460 U.S. 226,

243 n.18 (1983).

12

sole source of congressional aut.\ority for this statute, the

decisions of this Court do not clearly determine the question

whether abrogation of immunity must be accompanied by state

consent to suit in order to be effective. See, e.g., Parden v.

Terminal Railway, 377 U.S. 184 (1964); Edelman v. Jordan,

415 U.S. 651 (1974).'* But even if state consent is required, it is

clear that in appropriate cases consent may be inferred from

conduct. Here, a critical combination of factors is present.

First, Congress has legislated a private remedy against a class

of persons (“recipients” of federal assistance) which in terms

embraces the states and indeed highlights their inclusion. In

this respect, the case differs from Edelman v. Jordan, 415 U.S.

651 (1974), and Florida Dep’t of Health & Rehabilitative

Services v. Florida Nursing Home Ass’n, 450 U.S. 147 (1981).

Second, the state agencies that are defendants in this case have

continued not only to carry on the normal business of govern-

ment but also to accept federal assistance in the very programs

and activities that are the subject of this suit. In this respect,

the case differs from Employees v. Department of Public

Health & Welfare, 411 U.S. 279 (1973). The state has therefore

acted with full understanding of the consequences of its actions

and with complete freedom to reject federal aid if those

consequences are unacceptable. Thus the requisites of knowing

consent have been made out.”

16. Cf. Peel v. Florida Dep’t of Transportation, 600 F.2d 1070 (Sth Cir.

1979) (analyzing Supreme Court authority and suggesting that state consent

is not required when abrogation of immunity is based on exercise of the war

power, Art. I, Section 8).

17. Indeed, it is noteworthy that the state of California, whose depart-

ments are defendants in this case, participated as an amicus supporting the

suit of a private person under § 504 against a state agency in Southeastern

Community College v. Davis, 442 U.S. 397 (1979). Since the named defen-

dant in that case was a state agency, an Eleventh Amendment question could

have been raised, even if the sole relief sought was prospective in nature.

Moreover, given that an Eleventh Amendment defense “partakes of the

nature of a jurisdictional bar,” Edelman v. Jordan, 415 U.S. at 678, this

Court could have raised the Eleventh Amendment issue in that case on its

own motion. However, this Court did not do so.

14

Il. This Case Affords an Opportunity to Clarify the Scope

and Application of the Eleventh Amendment.

As shown in Part I, existing precedent fully supports the

conclusion that the present suit may be brought against the

state of California and its departments in a federal court. But

as many commentators have observed, the present state of

Eleventh Amendment jurisprudence is complex, uncertain, and

confusing.'* For example, there is uncertainty about the degree

of precision required for congressional abrogation of Eleventh

Amendment immunity under grants of legislative power other

than that in the Fourteenth Amendment, about the necessity of

State consent to suit, and about the kinds of state behavior that

may constitute consent in particular contexts. Moreover,

individual Justices have expressed wide disagreement about

the relationship of the doctrine of sovereign immunity, the

Eleventh Amendment, and other provisions of the Constitu-

tion. See, for example, the several opinions in Employees v.

Department of Public Health & Welfare, 411 U.S. 279 (1973),

and in Pennhurst State School & Hospital v. Halderman, 104

S. Ct. 900 (1984).

At the same time, an outpouring of scholarly research in

recent years has cast new light on the purpose and scope of the

Eleventh Amendment and on the place of sovereign immunity

doctrine in constitutional law.'? This research strongly suggests

18. See C. Jacobs, The Eleventh Amendment and Sovereign Immunity

(1972); Engdahl, Immunity and Accountability for Positive Governmental

Wrongs, 44 U. Colo. L. Rev. | (1972); Field, The Eleventh Amendment and

Other Sovereign Immunity Doctrines, 126 U. Pa. L. Rev. 515 (1977) (Part 1),

126 U. Pa. L. Rev. 1203 (1978) (Part II); Fletcher, A Historical Interpreta-

tion of the Eleventh Amendment: A Narrow Construction of an Affirmative

Grant of Jurisdiction Rather than a Prohibition Against Jurisdiction, 25

Stan. L. Rev. 1033 (1983); Gibbons, The Eleventh Amendment and State

Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889 (1983);

Orth, The Interpretation of the Eleventh Amendment, 1798-1908: A Case

Study of Judicial Power, 1983 U. Ill. L. Rev. 423; Shapiro, Wrong Turns:

The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61

(1984).

19. See authorities cited supra note 18, especially Engdahl, Field, Gibbons,

and Orth.

15

that state sovereign immunity was not viewed by the Framers

as a constitutional limitation on federal judicial power either

before or after adoption of the Eleventh Amendment. it

further suggests that the Eleventh Amendment itself should not

be given an expansive interpretation that bears little relation-

ship to its text. Rather it should be read, in accordance with its

language, as an amendment drafted by the Federalists “in the

narrowest possible form that would serve to quiet the rapidly

mobilizing reaction to Chisholm [v. Georgia, 2 Dall. (2 U.S.)

419 (1793)], while leaving intact the rest of article III,”—an

amendment that would “reach cases such as Chisholm—over

which the Supreme Court’s jurisdiction was original and based

solely on party status but leave intact the clauses in article III,

section 2 dealing with subject matter jurisdiction, especially

federal question jurisdiction.” Gibbons, supra note 18, at

1934.

Under this approach, the Eleventh Amendment would apply

to bar a federal court suit on/y when the asserted basis of

jurisdiction was that the defendant was a state and the plaintiff

was a citizen of another state. Indeed, no Supreme Court

decision before Hans v. Louisiana, 134 U.S. 1 (1890), gave the

Amendment a broader reading, and the revisionism of the

Hans decision was born out of the political controversy over

repudiation of state debts in the aftermath of Reconstruction.”

See Gibbons, supra note 18, at 1968-2003.

This recent scholarship provides a firm foundation for a

restatement of the significance of the Eleventh Amendment

and of sovereign immunity doctrine. Neither the Amendment

nor the doctrine erects a constitutional barrier to congressional

authorization of suit against a state in a federal court when

that authorization is incidental to the proper exercise of any

delegated power. There is no warrant for any requirement of

20. Hans was the first Supreme Court decision to hold that the Constitu-

tion barred a suit against a state by one of its own citizens. (There is some

-support for the view that even Hans did not hold that such a suit was

constitutionally precluded, but subsequent decisions have plainly regarded it

as standing for that proposition. See Field, supra note 18 (Part I), at 536-46

& nn. 81, 86.)

16

extraordinary and virtually unattainable specificity in drafts-

manship or of “consent” on the part of the state when federal

power is duly exercised. The question whether Congress has

overridden a state’s common law immunity from suit is, like

any other question of statutory construction, one that involves

the careful ascertainment of legislative purpose.

Existing precedent of this Court is in important ways consis-

tent with this approach, though it often looks in couflicting

directions. For example, while these amici believe that last

Term’s sharply divided decision in Pennhurst, supra, reached

an unfortunate and unnecessary result, we also believe that the

majority’s rationale supports a fresh approach to the scope of

federal authority. The great case of Ex parte Young, 209 U.S.

123 (1908), the Pennhurst Court said, rested not on the

“fiction” that a government official acting in violation of law

was stripped of his official authority, but rather on the clear

need “to permit the federal courts to vindicate federal rights

and hold state officials responsible to the ‘supreme authority

of the United States.’” 104 S. Ct. at 910 (quoting Ex parte

Young, 209 U.S. at 160). Recognition that the Eleventh

Amendment need never be a barrier to the attainment of that

goal—the effective vindication of federal rights—would thus

harmonize with this -:nderstanding of Ex parte Young’s ra-

tionale.”!

We submit, therefore that the time and occasion are ripe for

the Court, at the least, to clarify the authority of Congress to

subject the states and their departments to federal court suit.”

21. Moreover, recognition that state sovereign immunity is not man-

dated by any provision of the Constitution would be fully consistent with this

Court’s decision in Nevada v. Hall, 440 U.S. 410 (1979), which allowed the

state of Nevada to be sued in a California court without Nevada’s consent.

See Shapiro, supra note 18, at 79-80.

22. This case also affords an opportunity to rule that when the doctrine of

Ex parte Young pcrmaits a federal court suit for prospective relief in order to

vindicate federal rights, that relief may be sought not only against public

officers “in tweir individual capacity” but also “in their official capacity,”

i.e., against the state itself. The current rule, reflected in Alabama v. Pugh,

supra note 3, often serves as a procedural trap for the unwary.

17

More fundamentally, we believe the occasion is an appropriate

one to reconsider the rationale of the decision in Hans v.

Louisiana, supra,” and to hold that the Eleventh Amendment

does not apply to the present suit for two independent reasons:

(1) the suit is not one brought against a state by a citizen of

another state, and (2) federal jurisdiction is based not on party

identity but on the presence of a federal question. When the

Eleventh Amendment issue is thus stripped away, the question

whether the State of California can be sued without its con-

sent, despite the traditional immunity of the state from suit,

becomes a straightforward question of statutory construction

which should be answered in the affirmative for reasons stated

in Part I of this brief.

We have not set forth in full the historical and analytical

bases for these conclusions because the relevant studies are

readily at hand and because we are not sure whether the Court

will find it necessary or appropriate to follow this course. But

if the Court wishes to have fuller briefing and argument of

these questions, we suggest that it set the case for reargument

and ask the parties and amici to address the question whether

the rationale of Hans v. Louisiana and related decisions should

now be reconsidered.

23. Even if the rationale of Hans is reconsidered along the lines suggested

here, alternative grounds would support the result in that case. See Field

(Part 11), supra note 18, at 1266.

18

CONCLUSION

For the foregoing reasons, we urge that the decison below be

affirmed. If the Court believes that the case affords an oppor-

tunity for reconsideration of the rationale of Hans v. Loui-

siana and related decisions, the Court may wish to set the case

for reargument and ask the parties and amici to address these

fundamental questions of Eleventh Amendment doctrine.

PAUL L. HOFFMAN

MARK D. ROSENBAUM

American Civil Liberties

Union Foundation of

Southern California

633 South Shatto Place

Los Angeles, CA 90005

(213) 487-1720

Respectfully submitted,

DAVID L. SHAPIRO

(Counsel of Record)

1525 Massachusetts Avenue

Cambridge, Massachusetts 02138

(617) 495-4618

BURT NEUBORNE

CHARLES S. SIMS

American Civil Liberties

Union Foundation

132 West 43rd Street

New York, New York 10036

(212) 944-9800*

* Counsel gratefully acknowledge the assistance of Carl H. Loewenson,

Jr., a law school graduate awaiting admission to the Bar of the State of New

York.