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...by a number of federal laws, state employers may not be required to conform to those regulations. Similarly, while the manner in which private employers provide services to the public are regulated by federal laws, state and local governmental service providers may be exempt from that regulatory scheme. Why? The Eleventh Amendment to the United States Constitution provides that, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." As a result, states may enjoy sovereign immunity, and may not be subject to the jurisdiction of federal courts in cases in which plaintiffs seek judicial relief under federal law. This paper will discuss the application of sovereign immunity with respect to federal civil rights legislation, and discuss the most recent case to present this issue, which was decided by the Supreme Court this term.
STATE SOVEREIGN IMMUNITY
In essence the Eleventh Amendment precludes federal courts from adjudicating disputes brought against state governmental entities "by Citizens of another State, or by Citizens or Subjects of any Foreign State." Although the Eleventh Amendment does not expressly preclude citizens from bringing suits against the state in which they reside, the Supreme Court has interpreted the constitutional provision as precluding federal jurisdiction over suits against nonconsenting States, even by its own citizens. (College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 1999). The amendment has been interpreted as prohibiting Congress from authorizing subject matter jurisdiction for suits against states in which the immunity has been neither waived nor effectively abrogated, although it can be argued that that the restriction was intended only to be for suits against states based upon diversity jurisdiction, not federal question jurisdiction. (Chemerinsky, 1997).
Further, the amendment specifically addresses Article III jurisdiction of federal courts, seemingly leaving open the question of whether or not state courts may entertain such federal law claims brought by citizens against states. However, in a case involving alleged violations of the overtime provisions of the Fair Labor Standards Act of 1938, the Court determined that no judicial forum is available for suits against states if Congress has not expressly and legitimately waived immunity. (Alden v. Maine, 1999). "We hold that the powers delegated to Congress under Article I ... do not included the power to subject nonconsenting States to private suits for damages in state courts." (Alden v. Maine, 712, 1999). The Fair Labor Standards Act, however, was passed pursuant to the Interstate Commerce Clause, so the case did not address the legitimacy of suits filed in state court raising federal claims passed pursuant to the Fourteenth Amendment.
Whether or not suits legitimately are permitted by citizens against states under federal law usually involves a two-step inquiry to determine 1) if Congress unequivocally expressed its intent to abrogate that immunity, and 2) if it did, whether Congress acted pursuant to a valid grant of constitutional authority. (Kimel v. Florida Board of Regents, 2000). In Seminole Tribe of Florida v. Florida the Supreme Court held that Congress lacks power under Article I to abrogate the states' sovereign immunity. That case involved the Constitution's Indian Commerce Clause, which grants the federal government authority over Indian commerce. Specifically at issue in the case was the Indian Gaming Regulatory Act passed by Congress in an effort to provide a statutory basis for the operation and regulation of gaming by Indian tribes. (25 U.S.C. [section] 2701 (2005)). Previously, in Pennsylvania v. Union Gas Company (1989), a plurality of the Court concluded that the Interstate Commerce Clause granted Congress the power to abrogate state sovereign immunity, stating that the power to regulate interstate commerce would be "incomplete without the authority to render States liable in damages ..." (Pennsylvania v. Union Gas Company, 19-20, 1989). However, in Seminole Tribe the Court overruled Union Gas, confirming that the background principle of state sovereign immunity embodied in the Eleventh Amendment may not be abrogated by Congress, even when the Constitution vests in Congress complete law-making authority over a particular area, such as the regulation of Commerce among the Indian Tribes. The Court concluded that the "Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed upon federal jurisdiction." (Seminole Tribe of Florida v. Florida, 73, 1996).
In contrast, Section 5 of the Fourteenth Amendment, which states "Congress shall have power to enforce, by appropriate legislation, the provisions of this article," does grant Congress the authority to abrogate the States' sovereign immunity. In Fitzpatrick v. Bitzer, the Court recognized that "the Eleventh Amendment, and the principle of state sovereignty which it embodies ... are necessarily limited by the enforcement provisions of Section 5 of the Fourteenth Amendment." (Fitzpatrick v. Bitzer, 456, 1976). As a result, plaintiffs may bring suits under civil rights legislation if the Congressional abrogation of immunity is constitutional under the Fourteenth Amendment, Section 1 of which provides in pertinent part that "[N]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."
Courts are somewhat deferential to the determination of Congress as to the legislation that is needed to secure Fourteenth Amendment rights. In City of Boerne v. Flores (1997) the Court concluded that Congress' enforcement powers includes the authority to remedy, as well as to deter, the violation of guaranteed rights. By the same token the Court admonished that Congress was only given the power to enforce the Amendment, not to determine what constitutes a violation of rights under the Amendment. The Court observed that the determination as to whether or not prophylactic legislation constitutes appropriate remedial legislation, or instead effects a substantive redefinition of the Fourteenth Amendment right at issue, is often difficult. As such, the Court concluded that while Congress should be afforded some deference as to where that line should be drawn "there must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." (City of Boerne v. Flores, 520, 1997). This "congruence and proportionality" test applies to the validity of applying federal civil rights legislation, to state governments. In other words, courts must examine the history and pattern of civil rights violations by states to determine if such conduct is proportionate to the remedial or preventive objectives of the legislation.
A key factor in such an analysis is the nature of the constitutional right allegedly violated by the state. State practices, which classify persons based upon suspect classifications such as race, are subject to the most rigid scrutiny under constitutional law (Korematsu v. United States, 1944). States must establish a compelling state interest and demonstrate a means narrowly tailored to achieve that interest in order to justify practices that treat persons differently based upon race or ethnicity. (Regents of University of California v. Bakke, 1978; Adarand Constructors, Inc. v. Pena, 1995). In comparison, classifications based upon sex are analyzed by an intermediate level of review, which requires states to establish that gender classifications serve an important governmental objective, and are substantially related to the achievement of those objectives. (Craig v. Boren, 1976; States v. Virginia, 1996). Other classifications of persons by states by other criteria, such as disability, are subject to a rational relationship review under constitutional law, which questions only whether or not the policy or practice is rationally related to a legitimate governmental objective. (Cleburne v. Cleburne Living Center, Inc., 1985). Classifications based upon age fall into this type of categorical review as well. (Massachusetts Board of Retirement v. Murgia, 1976).
In addition to the heightened judicial scrutiny of state classifications for members of suspect classes, constitutional jurisprudence recognizes that certain fundamental...
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