THE SUPREME Court heard arguments last week in the case of a group of current and former faculty members at Florida public universities who have made age discrimination claims against the schools. The issues in the case are dense, but Kimel v. Florida Board of Regents could prove to be one of the most important cases of this Supreme Court term. Indeed, the case is about age discrimination only at its most superficial level. At its core, Kimel deals with the structural relationship between Congress and the states and the question of how completely state sovereignty protects state governments against federal laws that give individuals the right to sue for damages.
Kimel is the latest -- and in some respects the most dramatic -- of a chain of troubling Supreme Court cases that have bolstered state sovereign immunity in recent years. This line of cases has had the perverse effect, in the name of federalism, of freeing states from the dictates of federal laws -- or, at least, of making it impossible for individuals to sue for damages when states violate those laws. What makes the Kimel case particularly disturbing is that it asks the justices to apply the logic of these prior cases to an area of law -- anti-discrimination -- in which federal intervention in state affairs has both huge historical importance and what ought to be solid constitutional foundations.
There is no question that anti-discrimination statutes passed under Congress's 14th Amendment power to ensure the equal protection of law can trump the states' sovereign immunity. This ensures that states can be sued under federal laws against race discrimination, for example. But many anti-discrimination statutes -- the age-discrimination law at issue in Kimel included -- were passed under other congressional law-making powers. Laws passed under these powers, the court has held in the past few years, cannot strip states of the immunity that is -- in the court majority's view anyway -- theirs as an inherent feature of their sovereignty. So the dual question at issue in Kimel is whether Congress meant to strip the states of their sovereign immunity when it passed its age-discrimination law and whether the 14th Amendment gives it such power even when the record does not reflect that the law was passed under the 14th Amendment. In other words, the Kimel case will clarify just how narrowly the court means to construe the 14th Amendment exception to its prior restrictions on congressional authority to strip states of their sovereign immunity.
This court's penchant for federalism gives rise to great nervousness among many liberals. This anxiety is an understandable legacy of the civil rights era, but liberal fear of federalism today is more than a little overblown. Indeed, a good bit of what the court contemplates by way of tinkering with the balance between Congress and the states is actually healthy.
But this line of cases is not healthy. Particularly in the context of combating discrimination, where federal power has historically been the key instrument for protecting constitutional rights, making states less answerable to their citizens for violations of federal law is a vision of constitutional structure that is deeply unattractive. Though few expect the Supreme Court to rethink the direction in which it has been heading on state sovereign immunity issues, Congress should at least be permitted to pass anti-discrimination laws that apply evenly to private and public sector employers alike.