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  •   State Age-Bias Liability at Issue Before Justices

    By Joan Biskupic
    Washington Post Staff Writer
    Thursday, October 14, 1999; Page A2

    The Supreme Court heard arguments yesterday in an age discrimination case that ultimately could have wide ramifications for how civil rights laws are enforced in the states.

    The case, brought by a group of professors at Florida state universities who claim they were unfairly denied raises, will determine whether public workers can sue the states that employ them for violations of the federal Age Discrimination in Employment Act, which protects workers who are 40 or older.

    The dispute, along with two related cases from Florida and Alabama, gives the court an opportunity to continue its pattern of bolstering states' rights at the expense of congressional power. As one element of that trend, the court has limited individuals' ability to sue when states violate their rights under federal law.

    But yesterday's case drives the court deeper into civil rights terrain than past disputes. A federal appeals court had ruled against the professors, relying on the general immunity from lawsuits accorded the states by the 11th Amendment, and rejecting arguments that Congress intended to lift that immunity through its 14th Amendment power to enforce equal protection of the laws.

    From their questions yesterday, the justices seemed prepared to agree that states cannot be sued for age discrimination. But it was unclear how far the majority's reasoning might go toward barring claims brought against states based on other civil rights laws. Some justices observed that age bias is in a different category from discrimination based on race, national origin or sex, which is prohibited by the Constitution and is a more suitable area for congressional action.

    During yesterday's hour of vigorous arguments, Jeremiah A. Collins, representing the university faculty and other public workers, contended that when Congress amended the ADEA in 1974 to cover state employers, it clearly canceled the states' sovereign immunity from lawsuits in order to attack the "pervasive problem" of "unfounded prejudice" against older workers.

    But Justice Sandra Day O'Connor observed that federal legislators failed even to mention the 11th Amendment, which generally shields states from lawsuits by individuals. Justice Anthony M. Kennedy, who, like O'Connor, is a critical vote in disputes over federal-state relations, added, "Congress didn't have the debate we're having here" about states' liability for age discrimination. "It didn't come close to it."

    Representing the Florida and Alabama agencies yesterday, attorney Jeffrey S. Sutton argued that Congress could not use its 14th Amendment power to subject states to lawsuits without first finding that they engaged in widespread bias--which he said Congress had failed to do. Sutton told the court that older workers are adequately protected by local anti-discrimination laws and that there is no need for Congress to interfere with state sovereignty.

    While the case of Kimel v. Florida Board of Regents goes to the heart of Congress's power to enforce federal civil rights laws, a ruling will have a more immediate impact on older workers. AARP and groups representing university workers and municipal employees have sided with the state workers, as has the Clinton administration. Separately, 23 states have joined with the Florida and Alabama agencies in asking the justices to rule that states cannot be taken to court for alleged age discrimination. A ruling the dispute is expected before the term ends next June.

    © 1999 The Washington Post Company

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