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Don't let states discriminate

The U.S. Supreme Court's decision this month in an age discrimination case involving current and former faculty at Florida's state universities indicates just how far the Rehnquist court is willing to recalibrate the relationship between Congress and the states.

The case of Kimel vs. Florida Board of Regents is another in a series of federalism cases in which a razor-thin 5-to-4 majority of justices has constrained federal law vis-a-vis the states on the basis that Congress exceeded its constitutional authority. But what makes this case particularly worrisome is that the court is limiting what Congress may do to advance civil rights _ an area Congress has a historic duty to police.

In Kimel, which consolidated three age discrimination cases, a group of university professors, librarians and an employee of the Florida Department of Corrections sued their state employers, including Florida State University and Florida International University, under the Age Discrimination in Employment Act of 1967, saying that they were disadvantaged in their conditions of employment due to age. However, the question before the court was not whether the professors and others had a valid claim of age discrimination but whether Congress had the power to subject states to the law's reach.

The majority opinion, written by Justice Sandra Day O'Connor, said Congress did not have that power. Her opinion was grounded in a distinction between discrimination in race and gender and other types of bias.

Because the court has allowed laws to distinguish among citizens of different ages in, for example, various mandatory retirement laws and other contexts, O'Connor argued that the 14th Amendment's guarantee of equal protection of law isn't as concerned with age distinctions as with classifications based on race or gender. Therefore, O'Connor said, the 14th Amendment doesn't give Congress the power to pass an age discrimination statute that overrides states' 11th Amendment sovereign immunity protections. The 11th Amendment has been interpreted to shield states from lawsuits by private parties, but traditionally that protection could be overridden when Congress passed laws to keep states from discriminating against their citizens. The Kimel case changes that formulation by greatly constricting Congress' power to legislate expanded notions of civil rights. The court is now saying that Congress may prevent states from discriminating against their citizens and employees only if they fall into certain select groups, primarily racial minorities and women. This logic puts at risk all sorts of federal civil rights statutes as they apply to the states, including the Americans with Disabilities Act, a law that is before the court this term also on 11th Amendment grounds. The ruling may also hamstring Congress in the future. As a national consensus emerges that additional groups of people have been unfairly dealt with by states, such as gays and lesbians, Congress may be constrained from legislating relief.

The Rehnquist court has already marked its place in history as a court determined to circumscribe the power of Congress. In addition to suits alleging age discrimination, the court has protected states from private lawsuits for violations of the federal Fair Labor Standards Act, the False Claims Act and patent law.

While it could be legitimately argued that Congress has overstepped its constitutional authority in some areas, such as when it federalizes street-level drug crimes, the federal government has a special historic role in protecting citizens from the entrenched prejudices and bias of states. It is sadly ironic that 132 years after the passage of the 14th Amendment _ an amendment passed following the Civil War to end state-sponsored discrimination _ the notion of a state's right to discriminate is making a comeback.

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