The Journal of The DuPage County Bar Association

Back Issues > Vol. 13 (2000-01)

Counterpoint: Congress Did Properly Waive the States’ Sovereign Immunity in Enacting the ADA
William D. Goren

As an avid writer and follower of the Americans With Disabilities Act of 1990 (ADA) and the jurisprudence the Act has engendered, I think the hottest issue in the field now is whether Congress properly waived sovereign immunity in enacting the ADA. This term the United States Supreme Court is visiting this issue in the Eleventh Circuit case of Garrett v. University of Alabama at Birmingham Board of Trustees.1 How will the Supreme Court rule? That is absolutely impossible to say. However, what this article proposes to do is to suggest a way the Supreme Court could justifiably find that the ADA appropriately waives sovereign immunity.

To set the stage for the argument, a short discussion of the majority opinion in Erickson v. Board of Governors is in order.2 In Erickson, Melinda Erickson worked at Northeastern Illinois University rising from a secretary to a program associate.3 Erickson alleged that the University failed to accommodate her efforts to have children due to the University’s refusal to tolerate tardiness and absences resulting from her infertility treatments.4 Northeastern defended on the grounds of sovereign immunity.5 The court agreed with Northeastern and held that Congress unequivocally expressed its intent to waive sovereign immunity, but such waiver was not carried out pursuant to Congress’ power to enforce the 14th amendment to the U.S. Constitution.6

Since, as the Erickson court mentioned, the ADA explicitly waives sovereign immunity, the only question in these cases is whether the ADA is a valid exercise of Congress’ ability to enforce the 14th amendment to the U.S. Constitution. However, to answer this question, it first must be determined what equal protection class persons with disabilities fall under. If the reader harks back to his or her days of constitutional law in law school, the reader will recall that there are three levels of scrutiny in equal protection jurisprudence: rational basis, heightened scrutiny and strict scrutiny.7 What makes an Erickson type case different from the typical equal protection case is that here the higher the classification of the class, the more likely a comprehensive statutory scheme will be upheld as a valid exercise of Congress’ power to enforce the 14th Amendment.

Just how are persons with disabilities classified in equal protection jurisprudence? The Erickson majority presumes that persons with disabilities are in the "rational basis" category.8 However, Erickson presumes far too much, as is revealed by a close reading of the two cases Erickson cites by for this proposition: City of Cleburne, mentioned above, and Heller v. Doe.9 In Heller, the United States Supreme Court stated that whether persons with mental retardation should receive some form of review higher than "rational basis" was not properly presented to the Court.10 The Heller court went on to say that even assuming that heightened scrutiny applied, it was inappropriate to apply that standard because both parties had been litigating the case for years on a rational basis theory.11 Thus, Heller did not hold that persons with disabilities were subject to a "rational basis", classification as the question was not properly before the Court; rather, the Court discussed the matter on the assumption that rational basis review applied due to a de facto agreement between the litigants.

Similarly, a close reading of City of Cleburne reveals that it is far from certain that "rational basis" review, in the traditional constitutional sense, is the equal protection tier applicable to persons with disabilities. There are several reasons for the uncertainty. First, despite seeming to apply a "rational basis" test in City of Cleburne, the United States Supreme Court nevertheless invalidated a law requiring a group home for persons with mental retardation to obtain a special permit from the city before it could operate.12 Second, as Justice Marshall noted in his opinion, concurring in part and dissenting in part, if "rational basis" were truly the standard applied in City of Cleburne, the Cleburne ordinance would have prevailed under the "rational basis" test applicable to economic and commercial regulation.13 Third, Justice Marshall also noted that the majority’s throwing out of the law even though it seemed to apply "rational basis" review, was peculiar because a "rational basis"review does not typically involve the sort of probing inquiry approach utilized by the City of Cleburne majority.14 Thus, in the view of Justice Marshall, the test imposed by the majority in City of Cleburne might more appropriately be labeled "second order rational basis review rather than heightened scrutiny."15

Fourth, there is various language in the City of Cleburne majority opinion suggesting that the enforcement of the ADA conceivably changes the peculiar type of "rational basis" review used in City of Cleburne to a higher classification. For example, when referring to the equal protection classification for persons with mental retardation, the Court said:

While the treatment of the aged in the Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a ‘history of purposeful unequal treatment’ or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.16

The language indicating that persons with disabilities have a "‘history of purposeful unequal treatment’ or [have] been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities," is extremely critical with regards to the ADA for several reasons. First, the ADA contains a preamble specifically stating that persons with disabilities "are a discrete and insular minority who have been faced with restrictions and limitations and subjected to a history of purposeful unequal treatment, and relegated to a position of political powerlessness in our society."17 Second, stereotypes play a huge role in discrimination against persons with disabilities. So much so, that the ADA prohibits discrimination against a person who is perceived as suffering from a physical or mental impairment that substantially limits a major life activity.18 Third, both Justice Marshall and the various opinions in Olmstead v. L.C.,19 talk about the history of unequal treatment suffered by persons with disabilities and the attendant consequences.20 Fifth, one of the reasons the City of Cleburne Court rejected heightened scrutiny in favor of the City of Cleburne version of "rational basis" was that it could not foresee "a principled way to distinguish a variety of other groups who have perhaps immutable disabilities setting them off from others, who cannot themselves mandate the desired legislative responses, and who can claim some degree of prejudice from at least the public at large."21 The ADA alleviates this concern because it defines, "a person with a disability"22 thereby providing a principled way to make such distinctions.

In short, a close review of City of Cleburne reveals the Court was far from certain in its assessment of the equal protection classification under which persons with disabilities fall. As seen in this discussion, a strong argument can be made that at a minimum the City of Cleburne Court adopted "second order rational basis review."23 It is also quite possible under City of Cleburne that a standard of review even higher than "second order rational basis" is called for.

The aforementioned discussion, while very technical, is fraught with huge public policy implications. Simply put, the higher the standard of review, the easier a comprehensive scheme like the ADA is to justify. The lower the standard of review, the harder a comprehensive scheme such as the ADA is to justify unless you can show that the statutory scheme is such that a defendant can reasonably work with the law.24

The next part of this article assumes, strictly for the sake of argument, that the lowest standard of equal protection scrutiny applies to classifications involving persons with disabilities. A case can nevertheless be made that the ADA statutory scheme proportionately redresses the harm meant to be redressed. Two different approaches lead to this conclusion: Justice Stevens’ concurrence in City of Cleburne and what this author refers to as "the escape hatch approach."

Justice Stevens has always been skeptical about the three tiered approach to equal protection jurisprudence.25 In Justice Stevens’ view, there must be:

a correlation between the classification and either the actual purpose of the statute or a legitimate purpose that we may reasonably presume to have motivated an impartial legislator. If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect. If, however, the adverse impact may reasonably be viewed as an acceptable cost of achieving a larger goal, an impartial lawmaker could rationally decide that that cost should be incurred.26

Thus, the question becomes what is the larger goal of the ADA. The ADA statute itself states many goals, of which two are particularly relevant with regards to Justice Stevens’ approach to "rational basis." First, the ADA preamble states that "[t]he nation’s proper goals, regarding individuals with disabilities are to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals."27 Second, the ADA preamble also states that "[t]he continuing existence of unfair and unnecessary discrimination and prejudice denies people with disabilities the opportunity to compete on an equal basis and to pursue those opportunities for which our free society is justifiably famous, and costs the United States billions of dollars in unnecessary expenses resulting from dependency and nonproductivity."28 Considering these lofty goals, it would be logical to conclude that the ADA statutory scheme could reasonably be viewed, per Justice Stevens, as an acceptable cost of achieving these goals.

The other approach is what this author refers to as the "escape hatch approach," because there are many ways a defendant to an ADA claim can successfully defend a suit. In fact, recent data indicates that over 80% of ADA claims are won by defendants. It is these "escape hatches" that allow the argument to be made that the ADA statutory scheme is a proportional response29 to redressing discrimination assuming, again strictly for the sake of argument, that persons with disabilities are in the rational basis class. These escape hatches can be found in the cases discussed here. They are also discussed extensively in my book.30

With respect to case law, an escape hatch mentioned by Judge Diane P. Wood in her dissent in Erickson is the concept of reasonable accommodations. That is, an employer does not have to make all accommodations to the disabled employee, just those that are reasonable.31 While "reasonable accommodation" is a term of art, nevertheless the obligations of an employer to a person with a disability are not, as we will shortly see, absolute. Second, under the ADA, it is not enough to have a disability, the person must also be "otherwise qualified."32

Finally, in this author’s book, Understanding the Americans With Disabilities Act: An Overview for Lawyers, supra, numerous other escape hatches available to a defendant in contesting an ADA claim are also discussed.33 The escape hatches available to an ADA defendant include but are not limited to: 1) showing that a person is not substantially limited in a major life activity;34 2) showing that the disability is only temporary;35 3) showing that an employer did not perceive both a physical or mental impairment and a substantial limitation in a major life activity;36 4) showing that an otherwise qualified person with a disability is nevertheless a "direct threat";37 5) showing that the person drinks or does drugs on the job;38 6) with respect to governmental entities, showing that the program as a whole is accessible or that the accommodation fundamentally alters the nature of the program;39 7) with respect to places of public accommodations, showing that: a) structural changes in the facility are not "readily achievable";40 or b) showing that providing an auxiliary aid or service would result in a fundamental alteration in the activity;41 8) showing that a governmental program’s budget cannot handle the financial costs or bureaucratic revolution the accommodations would demand;42 9) showing that the terms of a collective bargaining agreement prohibit the requested accommodation;43 and 10) remembering the ADA is all about getting the person with a disability to the same starting line and not about entitlement or affirmative action.44


When this author set out to determine whether a model could be constructed to argue that the ADA properly waives sovereign immunity, the author underestimated the complexity of the endeavor. Nevertheless, as this discussion has shown, there does exist a model for arguing that the ADA properly waives the states’ sovereign immunity. Such a model consists of a two-tiered argument. First, an assessment must be made as to what equal protection tier persons with disabilities fall in. It is simply not a foregone conclusion, based on the case law, that persons with disabilities fall in the lowest tier. Based on this discussion, an argument can be made that persons with disabilities can fall into many of the higher tiers of equal protection jurisprudence, particularly once the passage of the ADA and its provisions are factored in. Second, assuming for the sake of argument only, that persons with disabilities fall in the rational basis category, which is the lowest tier, the next step is either to adopt Justice Stevens’ approach in Cleburne or to adopt what this author refers to as the "escape hatch" approach. Either approach justifies the ADA statutory scheme under a rational basis classification.

1 Garrett v. University of Alabama at Birmingham Board of Trustees, 193 F.3d 1214 (11th Cir. 1999), cert. granted, 120 S.Ct. 1669, 146 L.Ed.2d 479, 68 USLW 3491, Docket #99-1240)).

2 Erickson v. Board of Governors, 207 F.3d 945 (7th Cir. 2000).

3 Erickson, 207 F.3d at 947.

4 Id.

5 Id.

6 Id. at 948-952.

7 See City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439-443, 105 S.Ct. 3249, 87 l.Ed.2d 313 (1985).

8 Erickson 207 F.3d at 949.

9 Heller v. Doe, 509 U.S. 312, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993).

10 Id. at 318-319.

11 Id. at 319.

12 City of Cleburne, 473 U.S. at 450.

13 Id. at 456 (Marshall J., concurring in part and dissenting in part).

14 Id. at 458 (Marshall J., concurring and dissenting in part).

15 Id.

16 Id. at 441 (quoting Massachusetts Board of Retirement v. Murgia, 427 U.S. 307,313, 96 S.Ct. 2562,2567, 49 L.Ed.2d 520 (1976)).

17 42 U.S.C. § 12101(a)(7).

18 42 U.S.C. § 12102(2)(c).

19 See generally Olmstead v. L.C., 572 U.S. 581, 119 S.Ct. 2176, 144 L.Ed.2d 540 (1999).

20 See City of Cleburne 473 U.S. at 461-464

21 City of Cleburne, 473 U.S. at 445

22 42 U.S.C. § 12102(2).

23 City of Cleburne, 473 U.S. at 458 (Marshall, J., concurring in part and dissenting in part).

24 See Davis v. Utah State Tax Comm’n, 96 F.Supp.2d 1271, 2000 WL 566897, at *7.

25 City of Cleburne, 473 U.S. at 452 (Stevens J., concurring).

26 Id. (Stevens J., concurring (quoting from his concurrence in United States Railroad Retirement Bd. v. Fritz, 449 U.S. 166, 180-81, 101 S.Ct. 453, 462-63, 66 L.Ed.2d 368 (1980)).

27 42 U.S.C. § 12101(a)(8).

28 42 U.S.C. § 12101(a)(9).

29 (Davis, 2000 WL 566897, at *7)

30 Goren, William D., Understanding the Americans With Disabilities Act: An Overview for Lawyers, American Bar Association, (January, 2000).

31 Erickson, 207 F.3d at p.957 (Wood J., dissenting).

32 Davis, 2000WL566897, at *13; See also, Goren, William D., Understanding the Americans With Disabilities Act: An Overview for Lawyers, supra, at 12-13, 19-22.

33 See generally, Goren, William D. Understanding the Americans With Disabilities Act: An Overview for Lawyers, supra.

34 Id. at 2-9.

35 Id. at 9-10.

36 Id. at 11-12.

37 Id. at 13-16.

38 Id. at 27.

39 Id. at 45-50.

40 Id. at 57.

41 Id. at 57, 109-115.

42 Id. at 121-124.

43 Id. at 76-80.

44 Id. at 1.

William D. Goren is an Assistant Professor and Chair of the Paralegal Studies program at MacCormac College in Chicago. Mr. Goren received his A.B. from Vassar College, his J.D. from the University of San Diego, and his LL.M. in Health Law from DePaul University. Mr. Goren is licensed in Illinois and Texas.

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