Amicus Curiae Brief — Kimel v. Florida Board of Regents

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No. 98-791, 98-796

IN THE SUPREME COURT OF THE UNITE

J. DANIEL KIMEL, JR.., et al.,

Petitioners,

v.

STATE OF FLORIDA BOARD OF REGENTS, et al..,

Respondents.

UNITED STATES OF AMERICA,

Petitioner,

v.

FLORIDA BOARD OF REGENTS, et al.,

Respondents.

ON WRITS OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

BRIEF OF AMICI CURIAE STATES OF

OHIO AND TENNESSEE AND

CONNECTICUT, DELAWARE, GEORGIA,

HAWAII, IDAHO, KANSAS, LOUISIANA,

MAINE, MICHIGAN, MISSISSIPPI, MONTANA,

NEBRASKA, NEVADA, NEW JERSEY,

OKLAHOMA, OREGON, RHODE ISLAND,

UTAH, VERMONT AND THE

COMMONWEALTHS OF PENNSYLVANIA

AND VIRGINIA IN SUPPORT OF RESPONDENTS

PAUL G. SUMMERS BETTY D. MONTGOMERY

Attorney General and Attorney General of Ohio

Reporter of Tennessee EDWARD B. FOLEY

MICHAEL E. MOORE State Solicitor

-Solicitor General STEPHEN P. CARNEY*

Cordell Hull Building Associate Solicitor

Nashville, Tennessee 27343 *Counsel of Record

(615) 741-3491 MATTHEW J. LAMPKE

Assistant Solicitor

30 East Broad Street, 17" Floor

Columbus, Ohio 43215-3428

(614) 466-8980

Counsel for Amici States

RICHARD BLUMENTHAL

Attorney General

State of Connecticut

M. JANE BRADY

Attorney General

State of Delaware

THURBERT E. BAKER

Attorney General

State of Georgia

EARL |. ANZAI

Attorney General

State of Hawaii

ALAN G. LANCE

Attorney General

State of Idaho

CARLA J. STOVAL

Attorney General

State of Kansas

RICHARD P. IEYOUB

Attorney General

State of Louisiana

ANDREW KETTERER

Attorney General

State of Maine

JENNIFER M. GRANHOLM

Attorney General

State of Michigan

MIKE MOORE

Attorney General

State of Mississippi

JOSEPH P. MAZUREK

Attorney General

State of Montana

DON STENBERG

Attorney General

State of Nebraska

FRANKIE SUE DEL PAPA

Attorney General

State of Nevada

JOHN J. FARMER, JR.

Attorney General

State of New Jersey

W.A. DREW EDMONDSON

Attorney General

State of Oklahoma

HARDY MYERS

Attorney General

State of Oregon

D. MICHAEL FISHER

Attorney General

Commonwealth of

Pennsylvania

SHELDON WHITEHOUSE

Attorney General

State of Rhode Island

JAN GRAHAM

Attorney General

State of Utah

WILLIAM H. SORRELL

Attorney General

State of Vermont

MARK L. EARLEY

Attorney General

Commonwealth of Virginia

TABLE OF CONTENTS

PAG

STATEMENT OF AMICI INTEREST .............cccccccceeseseeees

1 |. | ee ED 3

ee ee 5

I, THE ADEA DOES NOT CONTAIN AN

UNMISTAKABLY CLEAR, TEXTUAL

EXPRESSION OF AN _ INTENT TO

ABROGATE THE STATES’ ELEVENTH

AMENDMENT IMMUNITY .................:ccccseeceeeeees 6

II. THE ADEA IS NOT APPROPRIATE

REMEDIAL LEGISLATION UNDER SECTION

5 OF THE FOURTEENTH AMENDMENT ........ 12

A. Congress Found No Evidence Of

Unconstitutional Age Discrimination

By The States When It Extended The

ADEA To Cover State Employment In

Sita ieaittieteniannenncneneenanssetenenscncesenscsccsessesessesees 15

B. The ADEA’s Restrictions Are Far Out

Of Proportion To Constitutional

Guarantees Against Irrational Age

ey.

ea aT 3]

TABLE OF AUTHORITIES

PAGE

Cases

Alden v. Maine

SOW a, SESE ED ermcrimmemmntis |

Atascadero State Hosp. v. Scanlon

Oe dC no © Fe

Blanciak v. Allegheny Ludlum Corp.

TORTIE Os COND ccsihintnsetceermeninen 27

City of Boerne v. Flores

ee We SNe CEOS cxmtcstnnictacannnianiiei passim

City of Rome v. United States -

TY -

Civil Rights Cases

Se tale GUD cnccnennteninsninenceninatensiistnemennens 13,14

Cover v. Board of Regents of the State of Tennessee

154 F.3d 296 (6" Cir. 1998)

cert. petition pending, No. 98-821 oo... ceeeeeeeees 27

Cooper v. New York State Office of Mental Health

162 F.3d 770 (2d Cir 1998)

petition for cert. pending, No. 98-1524 oe. |

Dellmuth v. Muth

oe PT ne | Se

LELOC v. Wyoming

SED U.S. ZEB (IDES) cccccccccccccessesescsserces 13, 15, 26, 29

Employees of the Dep't of Public Health &

Welfare v. Missouri

a

Engel v. Davenport

BO Wels FO CURES cennenmemmmmmninn 12

Florida Prepaid Postsecondary Educ. Expense

Bd. v. College Sav. Bank

ee passim

Hazen Paper Co. v. Higgins

SOT U.S GO6 (1DDS) .....cccccccoccsecesoosseosses

Johnson v. Mayor of Baltimore

ne

Katzenbach v. Morgan

SBA U.S. GEE (19GB) ....cccocccocrcccscrsscesees

Marbury v. Madison

9 OLA B50 CERIO cessensczssscsssssssesessncscsese

Massachusetts Board of Retirement v. Murgia

eT

Mieneault v. Peck

158 F.3d 1131 (10" Cir. 1998)

petition for cert. pending, No. 98-1178

Oscar Mayer & Co. v. Evans

GEG GS FIC TS VOD cccnnssessesessessscssensesses

Pennhurst State Sch. And Hosp. v. Halderman

GED Wee GQ FEIIGD ccnccscesssecssscsassnsesssnves

Port Auth. Trans-Hudson Corp. v. Feeney

ee

Seminole Tribe v. Florida, 517 U.S. 44 (1996)

South Carolina v. Katzenbach

Fa as Be CRED cxnssesmcesenstensensmen:

Teamsters v. United States

Ge TE, Fe RSS OD cccnesemnnsesresmseseneens

United Air Lines, Inc. v. McCann

GIO Ge FSG G. FD D ccccssssnssssnsccssescnceesens

United States v. Mississippi

ee

Vance v. Bradley

es CEP TED cececinicneeeimnnesin

Washington v. Davis, 426 U.S. 229 (1976) .....

Western Airlines v. Criswell

GIB UB. GRC F TDD cccsccssssscssccssnsenescness

seseussseessonens 26

7

mana

pesanesney passim

) encsnswensnee 19

7”

21

21

29

senssneunennensee 27

Statutes and Other Authorities

rai SEITE ‘esnesnasueiineneinnatiamicesiitnianesiniatabimsiniabiesienaniaiiteatans 11

io iis UITTTED cencirdesenemmmnnmendeinnaenS 12

SAITEK TEI cxneneouteenmnnmenentsitinteeinnnniamunieteimaeneenieatéi 12

Sirs CIES ‘conninnscinennicnentntemuntenensnmnntiseimetinbenee 12

Se Eeiiss: UIE eeceneteneinesiinastiiplinediidiatenipasinaniontiin 10, 11, 12

eT acs TITTY crvcuinsnestnrnmntonintnininteenmnieaamei passim

See Ca se TEED cusicineneientidtiinaneiadninemeineanemmanesbieinnnasinhlinitiaian |

rs ITED eniennnensenenvansinannnctetussnnenentanwnsnniil passim

Ps CED ccccpenscsnntcsnanmnntenisintnntcntnemnnntinl passim

ares MITT sceceeeicinceidesiaisecnieanieiiiaieetaalaieceeteaincaaa 7

a tie TEIETEED eiinncdsretenaneasinasianinsnntnishneieaidueniemennmmmmeaetinl 7

Fea NE CESS CUED cnrcnsenssncuninicnnienieeninmanaenseetes 16

es es CD ne CED cencensiiniiisincinntninetennncstamennnimaatia 16

H.R. Rep. No. 88, 103 Cong., 1“ Sess. (1993) woes 13

H.R. Rep. No. 913, 93d Cong., 2d Sess. 40 (1974) wc. 16

S. Rep. No. 93-846, at 112 (1974) cccccccccccessesseessesseseeeneenes 17

S. Rep. No. 690, 93d Cong., 2d Sess. 55 (1974) ..0........... 16

The Older = American Worker: — Age

Discrimination in Employment (1965) (Labor

Report), reprinted in’ Equal Employment

Opportunity Comm'n (EEOC), Legislative

History of the Age Discrimination in

Employment Act 16-41 (1981) ......cccccsccceseceeseecsseceeseeenses 15

Vv

Senate Special Comm. On Aging, 92d

Cong., 2d Sess., Cancelled Careers: The

Impact of Reduction-in-Force Policies on

Middle-Aged Federal Employees (“Comm.

gh REESE ee oe ee

Senate Special Comm. On Aging, 93d

Cong., 1” Sess., I/mproving the Age

Discrimination Law (Comm. Print 1973).................

OGD, GARB. FORD CURVED cxncccnccenscensessnsernsseveeseee

STATEMENT OF AMICI INTEREST

The States of Ohio, Tennessee and 21 other amici

States urge the Court to affirm the judgment below. In doing

so, they join both Florida and Alabama in this case, as well

as at least two other states—New Mexico and New

York—that have independently asked the Court to similarly

protect the States’ immunity. See Migneault v. Peck, 158

F.3d 1131 (10" Cir. 1998), petition for cert. pending, No. 98-

1178; Cooper v. New York State Office of Mental Health, 162

F.3d 770 (2d Cir. 1998), petition for cert. pending, No. 98-

1524. At issue is whether the States’ Eleventh Amendment

immunity from money-damages suits was abrogated when

Congress enacted the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. §621, et seg. Subsumed in the issue

are two questions: whether Congress expressed an

unmistakably clear intent to abrogate the States’ immunity,

and if so, whether it had the power to do so under Section 5

of the Fourteenth Amendment.

As this Court reaffirmed just this past Term, under

our federalist Constitution the States “retain ‘a residuary and

inviolable sovereignty,’ and are “not relegated to the role of

mere provinces or political corporations.” Alden v. Maine,

119 §.Ct. 2240, 2247 (1999). As sovereigns, the States have

a Vital interest in ordering their own affairs—particularly their

management of the internal machinery of State

governments—without the undue interference of being haled

into federal court and forced to explain, at great cost, each

and every employment decision they make.

The States share many concerns about such ADEA

suits generally, and about the type of ADEA suits at issue

here in particular, for reasons of both purse and principle. At

the most concrete level, the States face considerable costs in

defending these cases, even if they win, along with the

potential and actual costs of damages and attorney fees if

they lose. But more importantly, the States seek to ensure

2

‘that their constitutional sovereign immunity is overridden by

Congress only when Congress truly acts to remedy

constitutional violations by the States. The States’ unique

status as.sovereigns is not honored if Congress may override

States’ immunity by pointing to alleged constitutional

violations by private or non-State governmental actors—yet

that is all that the relevant legislative record shows here.

In defending their sovereign immunity against one

aspect of the ADEA—money-damages suits in federal

court—the States emphatically do not question the ADEA

itself, nor its goal of eradicating age discrimination. To the

contrary, the States have been leaders, not followers, in

protecting their own employees, as well as citizens in the

private sector, from age discrimination. Indeed, it is in part

because States have actively prevented, rather than

committed, age discrimination that Congressional abrogation

is unwarranted here. But if the States are to continue to act

as laboratories of democracy, as they did when many

preceded the federai government in outlawing age

discrimination, and as they continue to do in everything from

education to welfare reform, they must not be hamstrung by

the threat of suit whenever they act, but must instead

maintain the flexibility that attends their sovereignty.

All of this ultimately furthers the transcendent goal of

federalism, reflecting our national belief that individual

liberty is most effectively secured by dividing the country

into federal and State governments, each with well-preserved

and separate sovereign powers. In the interest of preventing

the dilution of these critical principles, the amici States

submit this brief for the Court's consideration.

SUMMARY OF ARGUMENT

The ADEA does not contain an unmistakably clear,

unequivocal and textual expression of congressional intent to

abrogate the States’ Eleventh Amendment immunity.

Because the States are powerless to correct judicial

misapprehensions of Congress's intent to abrogate, strict

enforcement of the so-called “clear-statement™ rule is

essential to safeguard the States” constitutionally secured

immunity from suit in federal court. The States therefore

respectfully urge this Court to reject petitioners’ invitation to

relax the standards of clarity and specificity required by such

cases as Dellmuth v. Muth, 491 U.S. 223 (1989), Atascadero

State Hosp. v. Scanlon, 473 U.S. 234 (1985), and Employees

of the Dep't of Public Health & Welfare v. Missouri, 411

U.S. 279 (1973).

None of the statutory provisions from which

petitioners would have this Court divine an intent to abrogate

are sufficiently explicit under these prior cases. — First,

Congress's 1974 decision to subject the States to the

substantive provisions of the ADEA does not supply the

required clear statement. Although Congress expanded the

ADEA's definition of “employer” to include the States at that

time, Congress neither inserted the word “employer” into 29

U.S.C. §626(c), which is the source of the right to bring a

private enforcement action under the ADEA, nor otherwise

amended the Act to address, even indirectly, the topic of the

States” sovereign immunity.

Petitioner's reliance upon the ADEA’s cross

reference to §216(b) of the Fair Labor Standards Act of 1938

(“FLSA”) (29 U.S.C. §216(b)) is” similarly unavailing.

Under this Court’s clear statement jurisprudence, the required

expression of an intent to abrogate must appear “in the statute

itself” (Atascadero State Hosp., 473 U.S. at 243), in other

4

words, within the provisions of the ADEA. Congressional

intent to alter through abrogation the fundamental balance of

cur federal system should not be inferred from a mere

reference to the terms of another, wholly separate and

distinct, statutory scheme. Moreover, even if the words of

§216(b) of the FLSA are read verbatim into the ADEA, as

petitioners insist they must be, those words subject

employers to private actions in federal court only for

violations of the FLSA’s minimum wage and hour and

retaliatory discharge provisions. The language of §216(b)

does not subject State employers (or any other category of

employer for that matter) to suit in federal court for

violations of the ADEA.

Nor did Congress have the power to abrogate the

States” Eleventh Amendment immunity. Congress can

abrogate only to remedy unconstitutional State action, so

Congress must first identify a predicate “pattern § of

constitutional violations” by the States. Florida Prepaid

Postsecondary Educ. Expense Bd. v. College Sav. Bank, 119

S.Ct. 2199, 2206-07 (1999). But the legislative history--both

in 1967 when Congress enacted the ADEA and in 1974 when

Congress added State employees to its coverage--contains

not a single identified violation, let alone a pattern. The 1967

record shows evidence of private sector age discrimination,

but does not show any State discrimination. Quite to the

contrary, the record shows that States led the way in

protecting their own employees, as well as private sector

employees, from age discrimination. Indeed, the federal

government looked to the States as a model in enacting the

ADEA .

Congress extended ADEA coverage to the States on

perhaps several different bases, but none of those bases

involved age discrimination by States. The stated basis for

applying the ADEA to States was that it was a “logical

extension” of Congress’s decision to extend economic

legislation—-the Fair Labor Standards Act-to the States.

Congress did review evidence of governmental age

discrimination—but' that) concerned federal, not State,

discrimination. And Congress apparently had a general

notion that public and private employees should enjoy the

same standards of protection. But none of these concerns

raise the specter of unconstitutional age discrimination,

Even if a minimal predicate were presumed, the

ADEA’s restrictions on the States go far beyond

guaranteeing constitutional protections, The ADEA subjects

State employment decisions to exacting scrutiny, prohibiting

au wide sweep of policy choices that are undoubtedly

constitutional. The narrow exception ADEA offers for “bona

fide occupational qualifications” is much more demanding

than the constitutional rational basis test) that would

otherwise apply. And ADEA suits intrude on more than

strictly employment decisions, as almost any policy choice

can be alleged to have a “disparate impact” on older

employees — such as the Florida Board of Regents’ choice

here to allow State universities flexibility in spending their

budgets. This suit is just one example of the broad and deep

reach of the ADEA.

Because Congress had neither the power nor the

express intent to abrogate state sovereign immunity when it

passed the ADEA, the Eleventh Amendment bars this suit,

and the judgment below should be affirmed.

ARGUMENT

The States” sovereign immunity is essential to our

federalist system of government, and as such, it should not

be—and cannot be, under the Court's plain rules—abrogated

6

lightly. Several principles help to cabin Congress” power to

abrogate the States’ immunity, and to guide the Court’ in not

too easily inferring abrogation. Applying these principles

shows that in extending the coverage of the ADEA to cover

States as employers, Congress neither expressed the intent

nor had the power to abrogate the States’ sovereign

immunity.

I. THE ADEA DOES NOT CONTAIN” AN

UNMISTAKABLY CLEAR, TEXTUAL

EXPRESSION OF AN INTENT TO ABROGATE

THE STATES’ ELEVENTH AMENDMENT

IMMUNITY.

This Court should decline petitioners’ invitation to

retreat from its historical insistence upon an “unmistakably

clear” (Atascadero State Hosp. v. Scanlon, 473 U.S, 234, 242

(1985)), “unequivocal and textual” (Dellmuth v. Muth, 491

U.S. 223, 230 (1989)) expression of congressional intent to

abrogate the States’ Eleventh Amendment immunity “in the

statute itself.” Atascadero State Hosp., 473 U.S. at 243. The

“clear-statement™ rule is more than a mere “rule of

construction,” as the United States would have it. Brief for

the United States (“U.S. Br.”) at 12. Rather, its strict

observance by Congress and vigilant enforcement by the

federal courts are essential to protect from inadvertent

encroachment “the States’ constitutionally secured immunity

from suit in federal court.” Atascadero State Hosp., 473 U.S.

at 242. The rule has the salutary effect of directly focusing

Congress's attention on “the vital role of the doctrine of

sovereign immunity in our federal system” (Pennhurst State

Sch. and Hosp. v. Halderman, 465 U.S. 89, 99 (1984)) before

it undertakes to alter “the fundamental constitutional balance

between the Federal Government and the States” through

abrogation. Atascadero State Hosp., 473 U.S. at 238. At the

same time, the rule protects the States against “judicial

misapprehension of that abrogation,” which the States “are

unable directly to remedy.” Port Auth. Trans-Hudson Corp.

v. Feeney, 495 U.S. 299, 305 (1990). The burden of

compliance for Congress ts negligible’, while the dangers to

state sovereignty threatened by any relaxation of the clear-

statement requirement are substantial.

Petitioners urge this Court to discover in the ADEA

an intent to abrogate, not from any unmistakably clear

language to that effect in the fext itself, but rather (1) based

upon a chain of inferences that may be drawn trom the

interplay between two provisions of the statute (29 U.S.C. §§

626(c) and 630(b)); and (2) based upon a reference contained

in a third provision of the ADEA (29 U.S.C. §626(b)) to an

entirely different statute (29 U.S.C. §216(b)). Neither route

leads to its desired destination.

Be First, petitioners focus on the 1974

amendment to the ADEA, which expanded the definition of

“employer” to include “a State or political subdivision of a

State and any agency or instrumentality of a State.” 29

U.S.C. §630(b). Petitioners further note that, since its

original enactment in 1967, the ADEA has afforded to

persons aggrieved by a violation of the Act the right to sue in

federal court for redress: “Any person aggrieved may bring a

civil action in any court of competent jurisdiction for such

legal and equitable relief as will effectuate the purposes of

this chapter...” 29 U.S.C. §626(c). When the two

'See, e.g., Florida Prepaid, \19 §.Ct. at 2203 (1999), quoting

35 U.S.C. §296(a) ("Any State . . . shall not be immune,

under the eleventh amendment of the Constitution of the

United States or under any other doctrine of sovereign

immunity, from suit in federal court . . . for infringement of a

patent.”’)

8

provisions are considered in tandem, petitioners reason, it

must necessarily follow that the 1974 amendment supplied a

clear statement of congressional intent to subject the States to

suits by private persons in federal court for violations of the

ADEA: “In extending the ADEA to the States in 1974,

therefore, Congress placed States as employers squarely

within an existing enforcement scheme that specifically and

expressly contemplated suits by employees against

employers in federal court.” U.S. Br. at 14.

The expanded definition of “employer,” even when

read together with §626(c), falls far short of the standard of

clarity demanded by this Court’s prior cases. The basic flaw

in petitioners’ reasoning is that the word “employer”

nowhere appears in §626(c). It cannot be disputed that

§626(c) has from the beginning conferred a right to bring a

civil action in federal court for redress of grievances under

the ADEA. And, given the subject matter of the ADEA, it

may be assumed that, when Congress enacted §626(c) in

1967, “employers” were the intended target of the suits

contemplated by that provision. But, when Congress

amended the definition of “employer” in 1974 to include the

States, it neither amended §626(c) to insert the word

“employer” nor made any other change in the text of the

ADEA to address, even indirectly, the subject of the States’

sovereign immunity. While it no doubt may be inferred from

the 1974 decision to subject the States to the substantive

requirements of the ADEA that Congress may also have

supposed that States too could now be sued under §626(c),

the fact remains that Congress nowhere made a statement to

that effect in the text. While Congress need-not use

particular “magic words” to exercise its powers of

abrogation, this Court has traditionally required an explicit,

textual statement of some description in order to override the

protections of the Eleventh Amendment. “[A] permissible

inference, whatever its logical force,” cannot qualify as “the

9

unequivocal declaration which . . . is necessary before [this

Court} will determine that Congress intended to exercise its

powers of abrogation.” De//muth, 491 U.S, at 232 (emphasis

supplied).

Indeed, §$626(c) of the ADEA would still fall short of

the clarity required by this Court's prior decisions, even if it

expressly authorized suit against an “employer.” That is the

teaching of Employees of the Dep't of Public Health &

Welfare v. Missouri, 411 U.S. 279 (1973). In Missouri, as

here, the definition of “employer” in the Fair Labor

Standards Act of 1938 had originally excluded the States, but

the statute was later amended to cover certain state hospitals

and related institutions. In contrast to the ADEA, however,

the statutory scheme involved in Missouri expressly rendered

an “employer” liable to an “employee” for violations of the

statute and authorized actions “to recover such liability” in

courts of competent jurisdiction. 411 U.S. at 283 (emphasis

supplied). While, based on these provisions, this Court

harbored “no doubt that Congress desired to bring under the

Act employees of hospitals and related institutions” of the

States, the Court nevertheless held that the statutory scheme

was insufficiently explicit to “lift the sovereign immunity of

the States” from private enforcement actions in federal court.

411 U.S, at 285.°

2. Nor does the immediately — preceding

subsection of the ADEA—29 U.S.C. §626(b)—supply the

“See also Atascadero State Hosp., 473 U.S. at 242-47

(provisions of the Rehabilitation Act of 1973 authorizing suit

against “any recipient of Federal assistance,” coupled with

implementing regulations expressly defining the class of

recipients to include the States, constitute insufficient

expression of intent to abrogate).

a 10

unequivocal expression of an intent to abrogate plainly

lacking in the text of §626(c). Petitioners wish to find that

expression through §626(b)'s reference to §216 of the Fair

Labor Standards Act of 1938 (“FLSA”):

The provisions of this chapter [the ADEA]

shall be enforced in accordance with the

powers, remedies, and procedures provided in

sections 211(b), 2/6... ., and 217 of this title,

and subsection (c) of this section.

29 U.S.C. §626(b) (emphasis supplied). In turn, §216(b) of

title 29 provides, in pertinent part:

Any employer who violates the provisions of

section 206 or section 207 of this title shall be

liable to the employee or employees affected

in the amount of their unpaid minimum

wages, or their unpaid — overtime

compensation, as the case may be, and in an

additional equal amount as _— liquidated

damages. Any employer who violates the

provisions of section 215(a)(3) of this title

shall be liable for such legal or equitable relief

as may be appropriate to effectuate the

purposes of section 215(a)(3) of this title,

including without limitation employment,

reinstatement, promotion, and payment of

wages lost and an additional equal amount as

liquidated damages. An action to recover the

liability prescribed in either of the preceding

sentences may be maintained against any

employer (including a public agency) in any

Federal or State court of competent

jurisdiction by any one or more employees for

and in behalf of himself or themselves and

other employees similarly situated. . . .

29 U.S.C. §216(b) (emphasis supplied). Because §216(b) of

the FLSA expressly authorizes suits against “any employer

(including a public agency) in any Federal . . . court .

petitioners argue that the ADEA’s reference in §626(b) to

$216 provides the clear statement they seek of Congress's

intent to authorize private suits under the ADEA against

State employers in federal court.

But the argument wholly ignores the requirement that

effective language of abrogation must appear “in the statute

itself.” Atascadero State Hosp., 473 U.S. at 243. The

language upon which petitioners rely appears in the FLSA,

not in the ADEA. This Court has never suggested that a

mere reference in one statute to a provision in another can

qualify as an unmistakable expression in the text of the

former of congressional intent to abrogate the States’

immunity from suit under that statute. As this Court has

cautioned, Congress should not be presumed to have

undertaken the serious business of abrogation—an action that

disturbs “the fundamental balance between the Federal

Government and the States”"—by dropping “coy hints” of its

intention to do so. Dellmuth, 491 U.S. at 231.

lt is no answer to this objection that §626(b)'s

reference to §216 may be said to “incorporate” that section of

the FLSA verbatim into the ADEA. By its express terms,

$216(b) authorizes actions “against any employer (including

“Public agency” is elsewhere defined in the FLSA to include

“the government of a State or political subdivision thereof”

and “any agency of .. . a State, or a political subdivision of a

State...” 29 U.S.C. §203(x).

12

a public agency)” only “to recover the liability prescribed in

either of the preceding sentences” of §216. Those two

“preceding sentences” create employer liability for violations

of the minimum wage and hour provisions of the FLSA (29

U.S.C. §§206, 207) and for violations of the FLSA’s

retaliatory discharge prohibition (29 U.S.C. §215(a)(3)).

Those two sentences do not prescribe any liability for

violations of the ADEA.

Thus, the very words of §216(b) from which

petitioners seek to construct their “clear statement” belie any

claim that §626(b)'s incorporation of them has subjected the

States to private enforcement actions in federal court under

the ADEA. If §626(b)’s reference to §216 “makes [§216(b)]

as much a part of [the ADEA] as though it had been

incorporated at full length” (U.S. Br. at 1S n. 15, quoting

Engel vy. Davenport, 271 U.S. 33, 38 (1926)), then every

word of §216(b), not just a selective abridgement thereof,

must be considered. The words chosen by Congress—all of

the words—are indeed quite clear, and none of them

authorizes suit against State employers (or against any other

employer for that matter) for violations of the ADEA. The

source of the private right of action under the ADEA is

$626(c), and, as set forth above, §626(c) does not contain any

clear statement of congressional intent to abrogate the States’

Eleventh Amendment immunity.

II. THE ADEA IS NOT APPROPRIATE

REMEDIAL LEGISLATION UNDER SECTION

5 OF THE FOURTEENTH AMENDMENT

Congress is empowered by Section 5 of the

Fourteenth Amendment to “enforce, by appropriate

legislation, the provisions” of the Amendment. In a

word—enforce—Congress’s power was limited even as it was

being broadened. Thus, Congress's remedial power to

13

enforce constitutional rights, which is broad, has always been

distinguished from the power to define those rights, which is

fully beyond Congress's reach. Florida Prepaid, 119 S.Ct. at

2202; City of Boerne v. Flores, 521 U.S. 507, 517 (1997);

Civil Rights Cases, 109 U.S. 3 (1883). As the Court

explained in City of Boerne:

Congress does not enforce a constitutional

right by changing what the right is. It has

heen given the power “to enforce,” not the

power to determine’ what constitutes a

constitutional violation. Were it not so, what

Congress would be enforcing would no longer

be, in any meaningful sense, the “provisions

of [the Fourteenth Amendment].”

City of Boerne, 521 U.S. at 519 (emphasis supplied). Even

where Congress steers clear of redefining rights, but acts

solely to enforce them, its enforcement power is limited by

Section 5 to enacting only appropriate legislation.

First, the remedial power is triggered only by factual

evidence of a pattern of constitutional violations: Congress

“must identify conduct transgressing the Fourteenth

Amendment's substantive provisions.” Florida Prepaid, 119

S.Ct. at 2207; City of Boerne, 521 U.S. at 530-31; EEOC v

Wyoming, 460 U.S. 226, 260 (1983) (“Congress may act only

where a violation lurks”)Burger, C.J., dissenting). The

Court properly defers to Congress’ ability to evaluate the

facts it finds, but such deferer.ce does not relieve Congress of

the duty to find facts: anecdotes and assertions of protecting

“constitutional values” are not enough. See City of Boerne,

521 U.S. at 530-31 (dismissing anecdotes); compare H.R.

Rep. No. 88, 103" Cong., 1" Sess., at 9 (1993) (RFRA’s

proponents claimed that Section 5 authorized Congress “to |

provide statutory protection for a constitutional value when

14

the Supreme Court had been unwilling to assert its

authority”) (emphasis supplied). Moreover, those facts must

constitute a pattern, not an instance or two, see Florida

Prepaid, 119 S.Ct. at 2207, and those facts must involve

truly constitutional violations, not perfectly constitutional

acts that Congress might seek to outlaw. City of Boerne, 521

U.S. at 530-31 (emphasis of RFRA hearings was on laws that

met constitutional standards).

Second, even when Congress may act to remedy

violations, it is not given a blank check, but must act in

proportion to the wrongs it finds: Congress “must tailor its

legislative scheme to remedying or preventing such conduct.”

Florida Prepaid, \\9 §.Ct. at 2207; City of Boerne, 521 U.S.

at 520. (“There must be a congruence and proportionality

between the injury to be prevented or remedied and the

means adopted to that end”). This tailoring rule, rooted in

Section 5's limit of “appropriate legislation,” is as time-

honored as it is essential to holding the line between

enforcing and defining rights. See Civil Rights Cases, 109

U.S. 3, 13 (1883) (Section 5 legislziion must “be adapted to

the mischief and wrong which the Amendment was intended

to provide against”); City of Boerne, 117 S. Ct. at 2164

(requiring “congruence and proportionality”). If no tailoring

were required, the enforcement-only limitation would have

no meaning, as a Congress that failed to find violations in

one area could simply point to any slight violation in another

field to justify power over both areas and more.

The extension of the ADEA to the States fails on both

counts. | No constitutional violations precipitated the

extension, and the strictures of the Act go far beyond

anything required by the Constitution.

15

A. Congress Found No Evidence Of

Unconstitutional Age Discrimination By

The States When It Extended The ADEA

To Cover State Employment In 1974.

I. The ADEA was not enacted nor extended to

the States, to remedy unconstitutional age discrimination.

When Congress passed the ADEA in 1967, it applied only to

private sector employment; and State, local, and federal

employees were all excluded. The legislation was preceded

by extensive hearings and reports regarding the prevalence of

age discrimination in the private sector. See EEOC vy.

Wyoming, 460 U.S. at 229-33. But in all of these

investigations, it seems that there was not a sing/e mention of

_ States as employers at all, let alone as discriminatory ones,

By contrast, the federal government looked to the

States, which had already paved the way in outlawing age

discrimination in employment, for advice and as models of

how to best implement antidiscrimination policies. See The

Older American Worker: Age Discrimination in Employment

(1965) (Labor Report), reprinted in Equal Employment

Opportunity Comm'n (EEOC), Legislative History of the Age

Discrimination in Employment Act 16-41 (1981), at 9-10

(“As part of the preparation for this report, a conference of

State administrators of age discrimination laws was convened

by the Secretary of Labor, in September 1964, to see their

views on the effectiveness of such legislation.”) The

Secretary of Labor’s 1965 report devoted a section to State

laws, entitled with the observation that “{a]rbitrary age

discrimination is significantly reduced in States which have

strong laws, actively administered, directed against

discrimination based on age.” /d. at 9. -Almost half of the ~

States had such laws at the time, with some dating back

16

decades earlier and most covering private and State

employees alike. /d.; see, e.g., N.J. Stat. §52:14-11 (1938);

R.I. Gen. Laws 28-6-1 (1956). The Secretary praised both

the intent and the effectiveness of such State laws, noting as a

drawback not the States’ intent or commitment, but. that

limited resources prevented States from doing more,

demonstrating why federal action was needed. The Older

American Worker at 10.

2. Years later, Congress still had not identified

any unconstitutional State discrimination when it extended

ADEA coverage to include federal, State, and local

employees as part of the Fair Labor Standards Act (“FLSA”)

Amendments of 1974. The oulk of the hearings and reports

on the bill concerned the FLSA provisions, governing

minimum wage, overtime pay, and the like. The ADEA

itself had been modeled on the FLSA in 1967, and the

consensus was that the ADEA amendment was “a logical

extension of the committee's decision to extend FLSA

coverage to Federal, State, and local employees.” S. Rep.

No. 690, 93d Cong., 2d Sess. 55 (1974); H.R. Rep. No. 913,

93d Cong., 2d Sess. 40 (1974) (same).

The legislative record on this ADEA amendment is

sparse, and the little there is demonstrates that not only was

there no evidence of State constitutional violations, but also

that neither State action (unconstitutional or not) nor

constitutional violations (by States or others) was a focus of

Congress’ attention. One apparent focus of Congress’

attention, and perhaps a prime impetus for Congress’ actions,

was Congress’ recognition that the federal government itself

did not practice what it preached regarding age

discrimination. In introducing the original standalone bill in

i972, Senator Bentsen cited several examples of federal

government discrimination: “there is very disturbing

evidence to suggest that the Federal Government . .. may be

17

a leading offender in applying pressure tactics to coerce older

workers to retire at an early age.” 118 Cong. Rec. 7745

(1972) (emphasis supplied). See also S. Rep. No. 93-846, at

112 (1974) (finding that in federal government employment,

“older employee[s] had been singled out for reduction-in-

force action; that the emphasis on early retirement placed an

unequal burden on middle-aged workers; and in certain

training programs youth is emphasized in determining

eligibility”). As to the federal government, Senator Bentsen

relied on more than just anecdotes or rhetoric, citing a recent

committee report on federal government practices. /d., citing

Senate Special Comm. On Aging, 92d Cong., 2d Sess.,

Cancelled Careers: The Impact of Reduction-in-Force

Policies on Middle-Aged Federal Employees (“Comm. Print

1972”); see also Senate Special Comm. On Aging, 93d

Cong.. I“ Sess.. Improving the Age Discrimination Law

(Comm. Print 1973).

In all of the committee reports, hearings, and other

records leading up to 1974 amendments, the sole mentions of

State age discrimination were some cursory comments by

Senator Bensten.. Introducing his bill in 1972, Senator

Bensten began by asserting “mounting evidence that

employees of Federal, State and local governments”

experience discrimination, but he went on to discuss federal

discrimination at length. He mentioned States only one more

time, commenting that “[lJetters from my own State have

revealed that State and local governments have also been

guilty of discrimination toward older employees.” 118 Cong.

Rec. 7745 (1972). In the 1974 floor debate, Senator Bensten

again cited “letters from State and local employees.” See

Legislative History of the Fair Labor Standards Amendments

of 1974, Senate Committee on Labor and Public Welfare

(Comm. Print 1976) Vol. II at 1955 (floor debate on S. 2747,

Mar. 7, 1974). Aside from these comments—and even

assuming the “letters” comments to reflect evidence—the

18

record is bereft not only of another shred of evidence of any

State age discrimination, let alone a constitutional problem,

but the record also lacks even another rhetorical assertion of

such a problem."

On this “record,” then, it should be safe to say that in

“enacting the [ADEA amendments], Congress identified no

pattern of [age discrimination] by the States, let alone a

pattern of constitutional violations.” See Florida Prepaid,

slip op. at 2207. Indeed, despite any superficial notion that

age discrimination is closer to equal protection concerns than

the Patent Remedy Act is to due process, the ADEA record

here stands on even weaker ground than did the Patent

Remedy Act. Congress did not identify even two examples

of State age discrimination, cf. id., nor even hold up one

extended example of a State employee alleging

discrimination. Cf. id. at *15 (Stevens, J. dissenting) (noting

specific testimony about the patent case of Marian Chew).

And surely an unspecified reference to constituent letters

carries no more weight than the anecdotes rejected in both

Florida Prepaid and City of Boerne. Florida Prepaid, \\9

S.Ct. at 2207; City of Boerne, 521 U.S. at 532.

The legislative record not only fails to reveal

evidence of violations by States, but it also fails to

demonstrate that Congress was concerned with constitutional

* As in 1967, the legislative record from 1967-1974 does not

mention the State as employers, but the record notes the

growing number of States that outlawed age

discrimination—including in State employment—beforé the

1974 amendments were passed. See 118 Cong. Rec. 7745

(1972) (Sen. Bentsen); Secretary of Labor, Age

Discrimination In Employment Act of 1967 (1972) (annual

report) at 6, 18-29 (Table 7); See Appendia A.

19

violations at all. To be sure, Senator Bentsen did once

invoke “the principles underlying” then-recent legislation

extending Title VII to public employees, but those principles

are a matter of policy as well as constitutional law. And

other comments suggest that Congress and the President

simply thought that providing age discrimination coverage to

State employees was good social policy, and that “age-ism”

should be eradicated the same as racism or other “isms.”

H.R. Rept. No. 93-913, 93 Cong., 2d Sess. reprinted at

U.S. Code Cong. & Admin. News (1974), 2811, 2849

(“Discrimination based on age—what some people call ‘age-

ism’—can be as great an evil in our society as discrimination

based on race or religion or any other characteristic which

ignores a person's unique status . . . it destroys the spirit of

those who want to work and it denies the National [sic] the

contribution they could make if they were working.”).

Further, any comparisons to other forms of discrimination

were undercut by Congress’ finding (regarding private sector,

not State, practices) that age discrimination did not present

nearly as stark a situation as race and sex discrimination did.

See Senate Special Comm. on Aging, 93d Cong., Ist Sess.,

Improving the Age Discrimination Law Ul (Comm. Print

1973) (improving the Law) (“There are no situations like the

race cases .. . [nor is there anything analogous to the equal

pay sex discrimination cases”).”

* One type of “equal treatment” concern raised by Congress

was equality between private-sector and public-sector

employees, but that classification not only receives minimal

protection, but it does not even raise concerns of “invidious

discrimination.” Indeed, were this distinction a legitimate

source of Section 5 power, Seminole Tribe's rejection of

Commerce Clause-based abrogation would be eviscerated.

Seminole Tribe v. Florida, 517 U.S. 44 (1996). Congress

could simply regulate private behavior (regarding

employment or otherwise) under its Commerce power, and

20

3. Consequently, Congress’ power to remedy

constitutional violations was not triggered at all by any

Congressional findings, and nothing proffered by either

Petitioner changes that result. The United States’ heading on

this point is telling: “Congress Determined, On An Ample

Record, That Unconstitutional Discrimination Against Older

Workers Is Sufficiently Widespread To Warrant Preventive

And Remedial Legislation.” U.S. Br. at 29. True to the

heading, the United States recites extensive legislative

history evidencing findings of “widespread”

discrimination—by the private sector, and by the federal

government, but not by the States. Id. at 29-39. The only

State-specific “evidence” noted by either the United States or

Kimel appears to be Senator Bentsen’s comments, with his

references to constituent letters.

The evidence of widespread societal or private-sector

discrimination can not suffice, as that view flies in the face of

not only logic but of Florida Prepaid. After all, the private

sector is rife with patent infringement, and thousands of cases

are filed each year. If Congress could surmise that States, as

large employers, must reflect corporate practice in

employment, then why not presume that States, as large

enterprises, must surely infringe patents at the rate of more

than eight a century? Cf. Florida Prepaid, 119 S. Ct. at

2210-2211.

Moreover, there are reasons to infer that States are

less likely to discriminate than private-sector employers.

First, the States have been leaders in establishing

antidiscrimination laws in their role as regulators of the

private sphere, and hypocrisy should not be the presumed

then invoke Section 5 to “equalize” across the public-private

divide.

21

position without evidence. See Appendix A and B. Second,

unlike private employers, State employment is largely

covered by civil service rules, which are designed to drain

employment decisions of everything but merit, and often

require “cause” for dismissal, thus automatically removing

age as well as other improper classifications from the

equation.

Nor can Petitioners point to legislative records after

1974 to establish a factual predicate of unconstitutional

discrimination. Normally, “[iJt is the intent of the Congress

that enacted [the section] . . . that controls.” Oscar Mayer

and Co. vy. Evans, 441 U.S. 750, 758 (1979), quoting

Teamsters v. United States, 431 U.S. 324, 354 n. 39 (1977).

Here, where the issue is not purely legislative intent, but the

factual predicate available to Congress, data collected by

previous Congresses might be considered. But post-1974

Congresses cannot retroactively justify purported Section 5

legislation, as “[IJegislative observations 10 years after the

passage of the Act are in no sense part of the legislative

history.” United Air Lines, Inc. v. McCann, 434 U.S. 191,

200 n. 7 (rejecting use of 1977 ADEA amendment history

when construing sections passed previously).

Moreover, the 1977 record, even if considered,

_ merely confirms that Congress did not uncover constitutional

violations, but as in City of Boerne, addressed solely the type

of constitutional behavior that the legislation would prohibit.

In passing the 1977 amendments, Congress sought to

statutorily reverse the result in Massachusetts Board of

Retirement v. Murgia, 427 U.S. 307 (1976); Vance vy.

Bradley, 440 U.S. 93 (1979), and other cases that upheld the

constitutionality of mandatory retirement ages, by forbidding

under ADEA that which was permitted under the 14th

Amendment. House Select Committee on Aging, 95" Cong.,

1“ Sess.. Mandatory Retirement: The Social and Human

99

-_-——_

Cost of Enforced Idleness 38 (Comm. Print 1977) (“If

mandatory retirement because of age—the final step in the

practice of age discrimination—is not be declared

unconstitutional by the Courts, then Congress should act to

make such a practice illegal”. )

Despite this meager evidence, the United States urges

that the record should suffice because the Court should defer

to Congress’ superior factfinding ability. U.S. Br. at 39. But

this presupposes that some facts be found, so that the Court

may defer to Congress’ assessment of those facts. If the facts

of a few patent suits could not suffice to trigger such extreme

deference, then neither can the “evidence” of some purported

constituent letters with nothing more.

Nor is such extreme deference mandated by the

voting rights cases. In South Carvlina v. Katzenbach, 383

U.S. 301 (1966), and Katzenbach v. Morgan, 384 U.S. 641

(1966), the Court upheld Congress’ suspension of literacy

tests under Section 5 because such tests historically had been

used to disenfranchise blacks. See also City of Rome vy.

United States, 446 U.S. 156 (1980) (refusing “to disturb

Congress’ considered judgment that banning electoral

changes that have a discriminatory impact is an effective

method of preventing States from [undoing] or [defeating]

the rights recently won by Negroes”). In sharp contrast, the

Court has already noted that age discrimination does not

carry the same type of history that is unfortunately well-

founded regarding racial discrimination. Murgia, 427 U.S. at

313. |

For all of these reasons, Congress had no evidence

before it of constitutionally-impermissible age discrimination

by any States when it extended the ADEA’s coverage to all

of the States. For this reason alone, the ADEA extension is

23

not legitimate Section 5 legislation, and the States’ immunity

should prevail.

B. The ADEA’s Restrictions Are Far Out Of

Proportion To Constitutional Guarantees

Against Irrational Age Discrimination.

I. The ADEA’s strict limits on the use of age in

employment decisions go far beyond what is required by the

Fourteenth Amendment, and swept under the ADEA’s

prohibitions are .wide ranges of constitutionally valid

conduct. Thus, even if Congress had adequate cause to enact

any remedy against the States regarding age discrimination,

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, unconstitutional behavior.”

Florida Prepaid, 119 S.Ct+at 2207, citing City of Boerne,

$21 U.S. at 532.

If the ADEA were designed to enforce existing

constitutional protections, it would codify the “rational basis”

standard of review, as legislative classification based on age

is neither suspect nor quasi-suspect and therefore is subject

only to “rational basis” scrutiny under the Equal Protection

Clause. Murgia, 427 U.S. at 314; Vance, 440 U.S. at 97. But

the ADEA goes further, and ratchets up the scrutiny applied

to employment decisions in which age is a factor to a level

essentially indistinguishable from the scrutiny applicable to

decisions based on ethnicity or gender. By subjecting age-

based classifications to a strict scrutiny standard, the ADEA

attempts to substantively change the constitutional rights of

those individuals protected by the ADEA by creating a new

“suspect classification.” That this sort of restructuring of

constitutional rights is beyond Congress’ power has been

recognized by the Court since Marbury v. Madison, 5 U.S.

137 (1803).

24

As the Court stated in City of Boerne:

If Congress could define its own powers by

altering the Fourteenth Amendment's

meaning, no longer would the Constitution be

“superior paramount law, unchangeable by

ordinary means.” It would be “on a level with

ordinary legislative acts, and like other acts. . .

ulterable when the legislature shall please to

alter ut.” Under this approach it is difficult to

conceive of a principle that would limit

congressional power.

City of Boerne, 521 U.S. at 529, quoting Marbury y.

Madison, 5 U.S. 137. 177 (internal citations omitted).

Even if the legislative history supported the notion

that the ADEA’s extension to the States was a response to

discriminatory age limits set in the past, it was precisely such

age limits that were held nor to violate the Equal Protection

Clause in Murgia and Vance vy. Bradley. Thus, the ADEA

cannot be regarded as an effort to “remedy” prior state

violations of the Equal Protection Clause’s rational basis test:

rather, it “remedied” behavior well within constitutional

bounds. Cf. City of Boerne, 521 U.S. at 535,

Nor can the ADEA be defended as merely codifying

the rational basis standard, see U.S. Br. at 46, as the narrow

defense allowed for “bona fide occupational qualifications”

(“BFOQs”) that are “reasonably necessary” is a far cry from

rational basis. As this Court explained, presenting a

successful BFOQ defense requires much more than offering a

“rational basis” for an action. See Western Airlines y.

Criswell, 472 U.S. 400, 421 (1985) (rational basis standard is

“significantly different from that conveyed by the statutory

25

phrase “reasonably necessary’™); id. at 422 (“rational basis

standard is also inconsistent with” ADEA standard and

BFOQ requirements).

Under normal rational basis review, a plaintiff must

establish the invalidity of the challenged practice or law, and

a reviewing court may hypothesize any rational justification

for the government practice, whether it actually motivated

the government actors or not. But to establish a BFOQ

defense, an employer has the burden of proof, and it must

prove that

An employer asserting a BFOQ defense has the burden of

proving that (1) the age limit ts reasonably necessary to

the essence of the business, and either (2) that all or

substantially all individuals excluded from the job

involved are in fact disqualified, or (3) that some of the

individuals so excluded possess a disqualifying trait that

cannot be ascertained except by reference to age. If the

employer's objective in asserting a BFOQ is the goal of

public safety, the employer must prove that the

challenged practice does indeed effectuate that goal and

that there is no acceptable alternative which would better

advance it or equally advance it with less discriminatory

impact.

Criswell, 472 U.S. at 417 0.24 (emphasis supplied). This

stringent standard is the stuff of strict scrutiny—"no

acceptable alternative”—not of rational basis.

The chasm between constitutional standards and the

ADEA is further demonstrated by the Court's decision that

the federal government is free to impose stricter standards

upon State and local governments as employers, forbidding

the use of most mandatory age limits, even while the federal

government continues to use such limits for federal

26

employees. See Johnson v. Mayor of Baltimore, 472 US.

353, 370-71 (federal civil service age limit is not proof of

BFOQ for similar State employees). Assuming, of course,

that such federal practice clears constitutional scrutiny, the

States are plainly foreclosed from a wide range of practices

that are open to the United States. and that would be

constitutionally open to the States. This result — that the

federal government remains able to choose policies that it

forbade for the States under the ADEA - is particularly ironic

in light of Congress's reliance on federal government age

discrimination when it extended the ADEA to the States.

Moreover, Congress apparently understood that the

ADEA standard it established was stronger — than

constitutional — standards. After Murgia upheld the

constitutionality of a mandatory retirement age in 1976,

Congress amended the ADEA to expressly forbid most such

age limits. Such now-forbidden limits would almost

certainly survive constitutional scrutiny. See Wyoming, 460

U.S. at 260-61 (Burger, C.J., dissenting) (“Were we asked to

review the constitutionality of the Wyoming State Highway

Patrol and Game and Fish Warden Retirement Act, we would

reach a result consistent with Bradley and Murgia.”)

2. The stricter limits of the ADEA intrude deeply

into the operation of State government. Contrary to the

United States’ description of employment as “only” one

narrow area of State activity, U.S. Br. at 49, the States’

employment decisions necessarily involve every area of State

government, as the State cannot act except through its agents.

The ADEA dictates a core part of State action within every

known _— field—education, health. corrections, — law

enforcement, etc.

The intrusion is greatly broadened and deepened by

the reality of disparate impact suits. While the United States

27

correctly notes that the availability of such suits under the

ADEA is still unsettled by this Court, U.S. Br. at 46 0.45,

Hazen Paper Co. v. Higgins, 507 U.S. 604, 610 (1993), the

reality is that the States face such suits constantly and must

defend against them. See Coger, 154 F.3d 296 (6th Cir.

1998), cert. petition pending, No. 98-821. Indeed, this very

suit involves disparate impact claims, sce Petitioner Kimel’s

Brief ("Kimel Br.”) at 8-9 n. 9, and similar suits have

burdened many States. See, ¢.g.. Coger v. Board of Regents

of the State of Tennessee, 154 F.3d 296, 299 (6" Cir. 1998)

(disparate impact claims), cert. petition pending, No. 98-821;

Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 (3""

Cir. 1995) (State Job Services office sued for administering

General Aptitude Test Battery for use in referring applicants

to employers). And because the hallmark of immunity ts

relief from the burdens and indignity of suit, not merely from

imposition of liability, it does the States little good to note

the future possibility that such suits will be judicially

abolished, after a quarter-century of States’ facing them to

varying degrees.

Moreover. the flexibility of disparate impact theory

means that such suits can affect much more than typical

hiring and firing decisions. For example, in Blanciak, the

Pennsylvania Jobs Office was sued along with private

employers under the ADEA, and the plaintiffs alleged that

the Jobs Office discriminated by administering the General

Aptitude Test Battery in order to match employees and

employers. Blanciak, 77 F.3d at 693. While such testing

would easily survive Equal Protection review, see

Washington v. Davis, 426 U.S. 229 (1976), it apparently may

open the State to ADEA litigation, thus deterring the use of

such tests and causing the State employment agency to use

some other, perhaps less appropriate, tool to serve its citizens

in job placement.

28

Even more broadly, disparate impact suits cast a

shadow not only on State employment practices, but threaten

States’ ability to decide basic issues of budgeting, and even

to determine the fundamental structure and execution of

government functions. Indeed, the facts of this case illustrate

the breadth and depth of the impact of ADEA suits on

government decisions. The Florida Board of Regents was

sued for what is essentially a policy decision—to allocate

certain funds to state universities while allowing each school

the flexibility to spend its funds as it saw fit. Kimel Br. at 8

n. 8. Because two universities chose not to spend the money

on scheduled salary enhancements for long-term faculty

members—typically older faculty—the Board of Regents must

defend its decision not to mandate how the money must be

spent. Consequently, virtually any budget decision—such as

spending money on textbooks, libraries, or student aid, rather

than faculty pay—could be similarly challenged as having a

disparate impact, or could even be alleged as a cover for

disparate treatment. Policy choices to eliminate or shrink

departments, or to privatize government functions, could

likewise be challenged.

The United States turns Boerne on its head by

suggesting that the intrusion into State activity is minimized

or even eliminated because the States, by enacting their own

antidiscrimination laws, have “disclaimed any interest in

using age” in most employment decisions. U.S. Br. at 51-52.

This view puts States in an impossible bind: if States do not

act to halt conduct that Congress dislikes, it is more likely

that Congress will find predicate violations to exercise its

remedial power. But if they do act, that self-correction can

justify Congressional abrogation because the interference has

a “minimal impact” on State activity. U.S. Br. at 47-48. But

surely the States also foreswear intentional patent

infringement as a matter of policy, and the States have

enshrined protection of the free exercise of religion in their

29

state constitutions. But these policy choices did not grant

Congress power to enact the Patent Remedy Act or RFRA

intrude on the theory that it would not change much that the

States seek to do.

Perhaps the greatest evidence that States see the

ADEA as intrusive is the very fact that States have fought

this and similar suits so vigorously. If the money-damages

suits had little impact on State activity, and if States cared

little if they were sued in State or federal courts, or under

State or federal law, then States would not find it worth the

effort to fight for this principle. Yet the courts have been full

of such resistance by the States, and this very case represents

only one of several that have been fought ail the way to this

Court. By their statements in all of these cases, the States

have indicated a collective majority view that ADEA suits

intrude upon our immunity.

Though the amici States stand firm in favor of

immunity from money-damages suits in federal courts, it

must not be forgotten that State and local government

employees are still protected from age discrimination. First,

and most important, those substantive protections are

available in similar or better measure by the States’ own

laws. See Appendix B. And the ADEA itself still applies, as

this Court has already held that the ADEA is a valid

enactment as applied to the States pursuant to the Commerce

Clause, EEOC v. Wyoming, 460 U.S. 226 (1983), and the

Eleventh Amendment does not protect the States from suit by

the federal government, United States v. Mississippi, 380

U.S. 128, 140-41 (1965), as exemplified in part here. Thus,

although Florida Prepaid and City of Boerne require

dismissal of the claims in this case, State officials are not

30

excused from compliance with the ADEA, and State

employees are protected from age discrimination.

3]

CONCLUSION

For all of the above reasons, the amici States urge the

Court to affirm the judgments below.

Respectfully submitted,

PAUL G. SUMMERS BETTY D. MONTGOMERY

Attorney General and Attorney General of Ohio

Reporter of Tennessee EDWARD B. FOLEY

MICHAEL E. MOORE State Solicitor

Solicitor General STEPHEN P. CARNEY*

Cordell Hull Building Associate Solicitor

Nashville, Tennessee 27343 *Counsel of Record

(615) 741-3491 MATTHEW J. LAMPKE

Assistant Solicitor

30 East Broad Street, 17" Floor

Columbus, Ohio 43215-3428

(614) 466-8980

Counsel for Amici States

Date: August 17, 1999

A-|

APPENDIX A

STATE LAWS PROTECTING PUBLIC

EMPLOYEES FROM AGE

DISCRIMINATION IN 1974

California

Connecticut

Delaware

Florida

Illinois

Indiana

lowa

Louisiana °

Maine

Maryland

Massachusetts

Michigan

Nevada

New Hampshire

New Jersey

Cal. Gov't Code § 12900 et seq.

Conn. Gen. Stat. § 46a-51 et seq.

Del. Code Ann. Tit. 19 § 710 et seq.

Fla. Stat. Ann. § 112.043 et seq.

Ill. Rev. Stat. 1973, ch. 48, § 881 et seq.

Ind. Code Ann. § 22-9-2-1 et seq.

lowa Code Ann. § 216.1 et seq.

LAS-Const. Art. I, § 3.

Me. Rev. Stat. Ann. tit. 5, § 4551 et seq.

Md. Cod. Ann. Art. 49B § | et seq.

Mass. Gen. Laws ch. 151B § | et seq.

Mich. Comp. Laws § 423.301 et seq.

(Repealed in 1977 § 432.303a et seq.)

Nev. Rev. Stat. § 281.370

N.H. Rev. Stat. Ann. § 354-A:1 et seq.

N.J. Stat. § 52:14-11

(hiring practices only)

A-2

APPENDIX A

STATE LAWS PROTECTING PUBLIC

EMPLOYEES FROM AGE

DISCRIMINATION IN 1974

New Mexico

New York

North Dakota

Oregon

Pennsylvania

Rhode Island

South Dakota

South Carolina

Vermont

Washin gton

West Virginia

N.M. Stat. Ann. § 28-1-1 et seq.

NY Exec Law § 290 et seq.

N.D. Cent. Code § 34-01-17

OR. Rev. Stat. § 659.010 et seq.

Pa. Stat. Ann. Tit. 43 § 951 et seq.

(Purdon)

R.I. Gen. Laws 28-6-1 et seq.,

(Repealed in 1980 by § 28-6-1 et seq.)

S.D. Codified Laws § 3-6A-15

S.C. Code Ann. § 1-13-10 et seq.

Vt. Stat. Ann. tit. 3 § 1001 et. seq.

(hiring practices only)

Wash. Rev. Code § 49.60.010 et seq.

W. Va. Code § 5-1 1-1 et seq.

A-3

APPENDIX B

STATE LAWS PROTECTING PUBLIC

EMPLOYEES FROM AGE DISCRIMINATION

Alabama Ala. Admin. Code r.670-X-4-.01

Alaska AK Stat §18.80.200 et seq.

Arizona Ariz. Stat. § 41-1461 et seq.

Arkansas AR. Stat. § 21-3-201 et seq.

California Cal. Gov't Code § 12900 et seq.

Colorado Col. Stat. § 24-34-40] et seq.

Connecticut Conn. Gen. Stat. § 46a-51 et seq.

Delaware Del. Code Ann. Tit. 19 § 710 et seq.

Florida Fla. Stat. Ann. § 760.01 et seq.

Georgia G.A. Stat. § 45-19-20 et seq.

Hawaii H.I. Stat. § 378-1 et seq.

Idaho Idaho Code Ann. § 67-5901 et seq.

Illinois Ill. Rev. Stat. 775 5/2-101 et seq.

Indiana Ind. Code Ann. § 22-9-2-] et seq.

lowa lowa Code Ann. § 216.1 et seq.

Kansas KS ST § 44-1111 et seq.

Kentucky KY ST § 344.010 et seq.

Louisiana

Maine

Maryland

Massachusetts

Michigan

Minnesota

Mississippi

Missouri

Montana

Nebraska

Nevada

New Hampshire

New Jersey

New Mexico

New York

North Carolina

North Dakota

Ohio

LA RS § 23:301 et seq.

LSA-Const. Art. I, § 3

Me. Rev. Star. Ann. tit. 5 § 4551 et seq.

Md. Cod. Ann. Art. 49B § | et seq.

Mass. Gen. Laws ch. 151B § | et seq.

Mich. Comp. Laws § 37.2101 et seq.

MN Stat. § 363.01 et ie

MS Stat. §§ 25-9-103, 25-9-149

MO § 213.010 et seq.

Mont. Code Ann. § 49-3-101 et seq.

Neb. Rev. Stat. 48-100! et seq.

Nev. Rev. Stat. § 281.370

N.H. Rev. Stat. Ann. § 354-A:1 et seq.

N.J. Stat. Ann. § 10:3-1 et seq.

N.M. Stat. Ann, § 28-1-1 et seq.

NY Exec Law § 290 et seq.

Gen. Stat. of N.C. 126-16 and 126-36

N.D. Cent. Code § 14-02.4-01 et seq.

Ohio Rev. Code. § 4112.01 et seq.

Oklahoma

Oregon

Pennsylvania

Rhode Island

South Carolina

South Dakota

Tennessee

Texas

Utah

Vermont

Virginia

Washington

West Virginia

Wisconsin

Wyoming

A-5

Okla. Stat. Ann. tit. 25, §§ 1201, 1302

et seq.

Or. Rev. Stat § 659.010 et seq.

Pa. Stat. Ann. tit. 43 § 951 et seq.

R.I. Gen. Laws Ann. § 28-5-1 et seq.

S.C. Code Ann. § 1-13-10 et seq.

S.D. Codified Laws § 3-6A-15

Tenn. Code Ann. 4-21-101 et seq.

Tex. Labor Code Ann. § 21.001 et seq.

Utah Code Ann. 34A-5-101 et seq.

Vt. Stat. Ann. tit. 21 § 495 et seq.

Va. Code Ann, § 2.1-116.10 et seq.

Wash. Rev. Code § 49.60.010 et seq.

W Va. Code § 5-1 1-1 et seq.

Wis. Stat. Ann. § 111.19 et seq.

Wy. Stat. Ann. § 27-9-101 et seq.