PUBLISH



              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT

                 _____________________________________

                               No. 96-2788
                 _____________________________________
                      D. C. Docket No. 95-40194-MP


J. DANIEL KIMEL, JR., RALPH C. DOUGHERTY,
BURTON H. ALTMAN, ROBERT W. BEARD, VALDALL K.
BROCK, et al.,

                                          Plaintiffs-Appellees,

DORIS C. BAKER, et al.,

                                          Plaintiffs,

     versus


STATE OF FLORIDA BOARD OF REGENTS,

                                          Defendant-Appellant.




                _____________________________________
                              No. 96-3773
                _____________________________________

                      D. C. Docket No. 5:96-CV-207-RH


WELLINGTON N. DICKSON, a.k.a. Duke,

                                                     Plaintiff-Appellee,

     versus


FLORIDA DEPARTMENT OF CORRECTIONS, Jackson
County,

                                                     Defendant-Appellant,


JACKSON CORRECTIONAL INSTITUTION, JIM FOLSOM,
and JAMES EDWARD CHILDS, a.k.a. J. E. CHILDS,
Major,

                                                     Defendants.


                 ______________________________________

                Appeals from the United States District Court
                    for the Northern District of Florida
                _______________________________________




              *********************************************************



                _____________________________________



                                         2
                             No. 96-6947
               _____________________________________

                   D. C. Docket No. CV-94-AR-2962-S


RODERICK MACPHERSON, MARVIN NARZ,

                                             Plaintiffs-Appellants,

     versus

UNIVERSITY OF MONTEVALLO,

                                             Defendant-Appellee,


NATIONAL EMPLOYMENT LAWYERS ASSOCIATION,

                                             Amicus,

UNITED STATES OF AMERICA,

                                             Intervenor-Appellant.

                ______________________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                _______________________________________

                          (April 30, 1998)


Before HATCHETT, Chief Judge, EDMONDSON and COX, Circuit Judges.

                                                 1
EDMONDSON, Circuit Judge:


 1
  Judge Edmondson announces the judgment for the Court in this
                                   3
     Three cases presenting the same or


similar issues of Eleventh Amendment


immunity             were      consolidated          and       are


addressed in this appeal. In all three cases,


the States, or their agencies, submitted


motions         to    dismiss        based     on    Eleventh


Amendment immunity. The issues in this


appeal      are      whether         Congress        abrogated


States’ Eleventh Amendment immunity



case. Judge Cox concurs in the result in Part I of Judge
Edmondson’s opinion but decides the issue on a different basis.
Chief Judge Hatchett dissents in Part I. Chief Judge Hatchett
concurs in the result in Part II of Judge Edmondson’s opinion but
also writes separately on the issue. Judge Cox dissents in Part II of
the opinion.
                                 4
for suits under the Age Discrimination in


Employment Act (“ADEA”) and under the

                                                         2
Americans with Disabilities Act (“ADA”).


      Two   district       courts,    the    Northern


District of Florida, Tallahassee Division, in


State of Florida, Board of Regents v. Kimel


(“Kimel”)    and     the    Northern        District     of


Florida, Panama City Division, in Florida


Department          of     Corrections      v.   Dickson


(“Dickson”), held that Congress effectively




  2
   Only case number 96-3773, Florida Dep’t of Corrections v.
Dickson, presents the Eleventh Amendment issue for the ADA.
                             5
abrogated       States’   sovereign       immunity


with its enactment of the ADEA (and for


Dickson the ADA) and denied the motions to


dismiss.    But, the Northern District of


Alabama     in       MacPherson     and     Narz   v.


University of Montevallo (“MacPherson”)


granted the State’s motion to dismiss on


Eleventh Amendment grounds.                 We agree


with the Northern District of Alabama


that   suits    by    private     parties     against


States     in     federal       court   for    ADEA




                            6
violations are prohibited by the Eleventh


Amendment.


      The cases were appealed for us to decide


whether          Congress      abrogated          sovereign


immunity when it enacted the relevant

             3
statutes.         Because this appeal presents


only questions of law, not dependent upon




  3
   Plaintiff Wellington Dickson claims we lacked jurisdiction to
hear the State of Florida’s appeal of the denial of its motion to
dismiss. This appeal is properly before this Court under the
collateral order doctrine. Like qualified immunity, a decision on
this issue after trial would defeat the State’s right to be immune
from trial. The Eleventh Amendment provides the States with
immunity from suit, not just immunity from damages. See
Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc.,

, 688 (1993).
                                7
factual determinations, the facts of each


Plaintiff’s claim will not be discussed.




                     Discussion




   A    district   court’s   order     denying   or


granting      a      motion       to   dismiss   a


complaint against a State based on the


Eleventh       Amendment’s             grant     of


sovereign immunity is reviewed by this


court   de   novo.     See   Seminole    Tribe   of




                         

. Florida, 

, 1021 (11th Cir.


1994), aff’d, 

(1996).


    The Eleventh Amendment states:


        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.


U.S. Const. amend. XI.          This provision not


only   prohibits      suits     against     States   in


federal court by citizens of other States,


but also prohibits suits brought against a




                            9
State in federal court by its own citizens.

                                                4
Hans v. Louisiana, 

(1890).


       In Seminole Tribe of Florida v. Florida,

(1996), the Supreme Court recently


considered the issue of when Congress can


properly         abrogate          States’       Eleventh


Amendment             immunity.              The     Court’s


decision          in       Seminole            overruled


Pennsylvania v. Union Gas Co., 

(1989), which held that acts taken by




   4
    The Eleventh Amendment only prohibits suits by private
parties against unconsenting States in federal court. See Maine
v. Thiboutot, 

, 2507 n.7 (1980) (Eleventh
Amendment principles are not applicable to suits in state
court.).
                              10
Congress pursuant to the Commerce Clause


could,    if     sufficiently         clear,      abrogate


Eleventh        Amendment            immunity.            In


Seminole, the Court specifically held that


Congress       had   no     authority        to   abrogate


State     sovereign         immunity           under      the


Eleventh Amendment when Congress acted


pursuant to the Commerce Clause; the power


to abrogate only exists under Section 5 of

                                         5
the Fourteenth Amendment.                    In addition,



  5
   The enforcement provision of the Fourteenth Amendment
provides:
          Section 5. The Congress shall have power to enforce,
          by appropriate legislation, the provisions of this
          article.
U.S. Const. amend. XIV, § 5.
                              11
the Court set out precisely what Congress


must do to abrogate the States’ immunity.


   Two     requirements          must        be    satisfied


before Eleventh Amendment immunity


can be successfully abrogated by Congress.

.           First, Congress


must     have       intended     to    abrogate          that


immunity by providing “a clear legislative


statement” of its intent -- “making its


intention           unmistakably           clear    in    the

                                       6
language       of    the   statute.”          

         For    me,    “unmistakably”              strongly
intensifies the implications of “clear;” and
I take that message to heart.

                            12
Blatchford v. Native Village of Noatak and


Circle Village, 

, 2584 [1991], and


Dellmuth v. Muth, 

, 2399-2400


[1989]).      Second,      Congress         must     have


attempted        to   abrogate       this    immunity


under proper constitutional authority. In


other words, Congress must have enacted


the statute at issue using its Fourteenth


Amendment,            Section      5,   enforcement

                                                        7
powers.     See 

.




 7
  The Eleventh Amendment can also be abrogated by a State’s
waiver -- actual consent -- but no one claims that a waiver
occurred in these cases.
                            13
I.       Age Discrimination in Employment


Act of 1967




         Although I believe good reason exists to


doubt that the ADEA was (or could have


been properly) enacted pursuant to the


Fourteenth Amendment, I will not decide

                                   8
that        question     today;           questions        of

     8
    This doubt is suggested by a variety of considerations, to
state briefly a few: (1) where the Supreme Court has held that
Congress enacted a statute pursuant to its Commerce Clause
powers, we must be cautious about deciding that Congress
could have acted pursuant to a different power. See League of
United Latin Amer. Citizens, Council No. 4434 v. Clements, 

, 758-59 (5th Cir. 1993) (“Although there was some
argument that Congress acted pursuant to its enforcement
powers under the Fourteenth Amendment in passing the ADEA,
the [Supreme] Court in Gregory[ v. Ashcroft] ultimately
concluded that Congress had acted only pursuant to its
Commerce Clause powers.”) (emphasis added); (2) where two
statutes are enacted together in the same bill, like the ADEA
                              14
constitutional power should be decided only


as a last resort.            Instead, I focus on the


ADEA’s words and rest my decision on the


lack    of     unmistakably             clear      legislative


intent.


     In      searching          the      ADEA         for     an


unequivocal          statement            of     intent         to




and the Fair Labor Standards Act (“FLSA”), it seems reasonable
that Congress enacted the bill -- all portions of it -- pursuant to
the same authority. See 120 Cong. Rec. 7337 (1974) (FLSA
enacted only pursuant to Congress’s Commerce Clause power,
especially considering that the FLSA [like the ADEA] initially
only applied to private employers, who are not the proper
subjects of Fourteenth Amendment enforcement); (3) when
addressing a characteristic, such as age, that is not the kind of
immutable characteristic as race, gender, or national origin, it
is questionable that Congress could lawfully be acting to
enforce the Fourteenth Amendment. See Massachusetts Bd. of
Retirement v. Murgia, 

, 2566 (1976) (Age does not
rise to the level of a suspect or quasi-suspect class: it is a
stage of life through which all persons go.).
                                15
abrogate, courts look only to the language of


the statute itself. 

(“[E]vidence of congressional intent must


be    both   unequivocal         and    textual     .   .    .


[l]egislative     history        generally     will         be


irrelevant” because if the intent is clear


in the language of the statute, “recourse to


legislative history will be unnecessary.”)


(emphasis added).       A court’s guess about


Congress’s      political    will      and   subjective


intentions -- past, present, or future -- is


without consequence; only the statute and


its   language    are   to       be   considered.       As

                            16
directed by the Supreme Court, I do not go


beyond the text of the ADEA in deciding


whether         it     contains          the     requisite,


unmistakably clear statement of intent


to abrogate.         

-- that the intent to


abrogate        be   found   in     an    unmistakably


clear statement in the language of the


statute    --    necessitates        a    high   level   of


clarity by Congress.              But, as the Supreme


Court has observed, such a requirement of


Congress is not too high when considering


the important interests protected by the

                             17
Eleventh    Amendment.            The     Eleventh


Amendment recognizes that States, as a


matter of constitutional law, are special


entities -- still possessing attributes of


sovereignty.    The Amendment strikes a


balance between the federal government


and the States.     To alter that balance,


Congress must be unmistakably clear in its


intent.    See Dellmuth v. 

.


   No     unequivocal        expression    of   an


intent     to   abrogate         immunity       is


unmistakably    clear    in     the   ADEA.     No

                        18
reference to the Eleventh Amendment or


to States’ sovereign immunity is included.


Nor      is    there,      in     one      place,     a    plain,


declaratory statement that States can be


sued by individuals in federal court. To me,


an intent on the part of Congress to


abrogate the States’ constitutional right to


immunity is not sufficiently clear to be


effective        under        Eleventh          Amendment

                      9
jurisprudence.


   9
     The ADEA presents a different situation from the one in
Seminole, where the Court held that Congress clearly
expressed its intent to abrogate immunity when Congress said,
among other things, that jurisdiction was vested in “[t]he
United States district courts . . . over any cause of action . . .
arising from the failure of a State to enter into negotiations . . .
or to conduct such negotiations in good faith . . . .” Indian
                                 19
     In one section, 29 U.S.C. § 630, the ADEA


defines employers to include States.                       In a


different section, 29 U.S.C. § 626(b), which


never        mentions           employers          much       less


mentions States as defendants, the ADEA


Gaming Regulatory Act, 25 U.S.C. § 2710(d)(7)(A)(I) (emphasis
added). This section, along with the remedial scheme available
to a tribe that files suit under section 2710, leaves no doubt “as
to the identity of the defendant in an action under [this
section].” 

.
      Unlike the ADEA, the Indian Gaming Regulatory Act at
issue in Seminole creates a scheme of federal regulation of
Indian-tribe gambling. Other than the suits authorized against
States for their lack of good faith negotiations for Tribal-State
compacts, the only enforcement provision of the Act is a civil
fine that can be imposed by the Commission created by the Act.
Thus, the only suits available to an entity other than the
Commission are available to Indian tribes. And the only entities
that the tribes can sue under the Act are States: no other
means of enforcement are established.
      The single-mindedness of the Act adds much clarity to its
words. The ADEA, on the other hand, is more complicated. As
a general proposition, it doubtlessly permits suits against a
wide range of employers (public and private) and for various
remedies (legal and equitable) and in different forums (state
and federal courts). But this fact sheds little light on the narrow
question of suits by individuals against States in federal court.
                                20
separately provides for enforcement by


means of suits for legal or equitable relief


in courts of competent jurisdiction.         This


statutory structure does not provide the


clarity     needed   to      abrogate   States’


constitutional       right     to   sovereign


immunity.        For      abrogation    to    be


unmistakably clear, it should not first be


necessary to fit together various sections


of the statute to create an expression


from which one might infer an intent to


abrogate.    Although we make no definite


rule about it, the need to construe one

                       21
section with another, by its very nature,


hints that no unmistakable or unequivocal


declaration is present.               More important,


when we do construe the various ADEA


sections        together,           abrogation         never

                                                               10
becomes “as clear as is the summer’s sun.”


       “A general authorization for suit in


federal court is not the kind of unequivocal


statutory language sufficient to abrogate


the Eleventh Amendment.”                    See 

(citing Atascadero State



  10
    For background, see William Shakespeare, King Henry the
Fifth act 1, sc. 2 (speech of Canterbury outlining Henry’s claim
to the French throne).
                               22
Hosp. v. Scanlon, 

, 3149 (1985)).


“[T]hat Congress grants jurisdiction to hear


a claim does not suffice to show Congress


has abrogated all defenses to that claim.”

n.4.


   Still,   Plaintiffs   argue,    and       all   three


district    courts     seemed     to    agree,     that


Congress’s amendments to the ADEA in


1974 -- adding States, their agencies, and


political subdivisions to the definition of


“employer”      (along    with         the    original


portions of the ADEA providing that the


statute     may   be   enforced        in    courts   of

                         23
competent jurisdiction) -- represents the


unmistakably clear legislative statement


required   to   abrogate         the     Eleventh


Amendment. This view (which is opposed by


the State in Dickson) seems to clash with


the Supreme Court’s precedents.


   In    Employees   of    the   Dep’t   of    Public


Health and Welfare v. Missouri, 

(1973), the Supreme Court held that the Fair


Labor    Standards   Act    (“FLSA”)     did    not


provide a sufficiently clear statement of


intent     to   abrogate         the     Eleventh


Amendment. As initially enacted, the FLSA

                     24
(like the ADEA) did not apply at all to


States.   In 1966, the FLSA was amended to


include   certain    State    agencies   in   the


definition of employer.       This amendment,


the Court held, did not provide the clear


statement       of   intent      to   abrogate


immunity, despite the provisions allowing


suits in courts of “competent jurisdiction”


against employers who violated the FLSA.

  “The history and tradition of


the Eleventh Amendment indicate that by


reason of that barrier a federal court is


not   competent       to     render   judgment

                       25
against a nonconsenting State.” 

ADEA, there was no dispute that the


FLSA applied to the State agencies set out


in the FLSA; the dispute was only about what


kinds of enforcement were available when


dealing        with       States        as      defendant-

               11
employers.

    11
      The ADEA’s 29 U.S.C. § 626(b) refers to sections of a
different Act, the FLSA, particularly to some of the FLSA
enforcement provisions at issue in Employees. This statutory
structure is hardly straightforward. In 1974, after Employees,
Congress amended the FLSA. Those amendments changed the
FLSA’s enforcement provision to provide that suits could be
brought against “employers (including a public agency)” in
“any Federal or State court of competent jurisdiction.” 29
U.S.C. § 216. (The FLSA as amended is similar to 29 U.S.C. §
626[c][1] in the ADEA itself.) Still, a federal court lacks
“competent jurisdiction” if the Eleventh Amendment prohibits
the suits against the State. 

. So,
making it specific that suits can be brought in federal court
does not make it more clear that suits against States by private
parties in federal court are in order. Other, private employers
could be the intended defendants in such suits. And equitable
                               26
      In a later decision, Dellmuth v. Muth, the


Supreme Court held that the Education of


the Handicapped Act (EHA) did not abrogate


Eleventh Amendment immunity despite


provisions allowing suit in federal district


court and many provisions referring to


the     States        as      parties          in    suits       of


enforcement.               See 

. That the pertinent statute (like


the ADEA) never mentioned either “the


Eleventh          Amendment               or     the     States’




relief might be available against state officials in federal courts.
See Edelman v. Jordan, 

, 1356-57 (1974).
                                 27
sovereign immunity” was given weight.

          Abrogation          was      not


sufficiently clear.          

the States as employers under


the ADEA, as in the FLSA, does not show an


intent that the States be sued by private


citizens in federal court -- the kind of suit


prohibited               under       the       Eleventh

                    12
Amendment.                The ADEA is enforceable


against       the        States,   despite      sovereign



  12
    Plaintiffs’ argument in this appeal mistakenly frames this
issue as one of the constitutionality of the relevant statutes.
The statutes’ basic constitutionality is not in jeopardy. This
appeal only addresses whether the ADEA and ADA can be
enforced through suits by private parties in federal court
against offending States.
                              28
immunity, through forms of relief other


than direct suits by citizens in federal

         13
court.        Congress may have had these other


forms of enforcement in mind when it


amended the statute to include States as


employers. Thus, the general application of


the law to the States does not make the


requisite clear statement that Congress


also intended the ADEA to abrogate the


Eleventh Amendment specifically.




   13
      For examples of other methods of ensuring the States’
compliance with federal law, see 

n.14.
                             29
   I do not dispute that some provisions


of the ADEA make States look like possible


defendants in suits alleging violations of


the ADEA.    I accept that these provisions


could support an “inference that the States


were intended to be subject to damages


actions   for   violations     of    the   [ADEA].”

.          But, as the


Supreme     Court   stressed   in     Dellmuth,   a


permissible     inference       is     not     “the


unequivocal declaration” that is required to




                       30
show     Congress’s         intent          to   exercise       its

                                            14
powers of abrogation.                 

that nothing in the ADEA


indicates a truly clear intent by Congress

  14
     Some circuits have held that Congress did clearly express
its intent to abrogate States’ immunity in the ADEA. See, e.g.,
Hurd v. Pittsburg State Univ., 

(10th Cir. 1997);
Blanciak v. Allegheny Ludlum Corp., 

(3d Cir. 1996);
Davidson v. Board of Governors of State Colleges and Univs.,

(7th Cir. 1990); Ramirez v. Puerto Rico Fire Serv.,

(1st Cir. 1983). I respect their views. These courts
determined that the amendments adding States to the definition
of “employer,” read in connection with enforcement provisions
permitting suits against violators of the ADEA, made it
sufficiently clear that Congress intended to abrogate Eleventh
Amendment immunity: Compare 29 U.S.C. § 623 (describing
what conduct is unlawful) with 626 (b), ( c) (permitting civil suits
“in any court of competent jurisdiction” for legal or equitable
relief as may be appropriate to effectuate the purposes of the
Act) and 630 (including States in the definition of “employer”).
Although, to me, these courts are drawing a permissible
inference from the statute, I cannot agree that the ADEA’s
language includes an unequivocal declaration of abrogation of
States’ immunity as required by the Constitution and the
Supreme Court. It is just not “unmistakably clear” to me. See
generally Humenansky v. Board of Regents of the Univ. of
Minnesota, 

(D. Minn. 1997) (also concluding
the ADEA lacks the necessary “unequivocal declaration” of
intent to abrogate).
                                 31
to    abrogate    Eleventh    Amendment


immunity and, thus, States are entitled to


immunity from suits by private citizens


in federal court under the ADEA.




II. Americans With Disabilities Act




     In sharp contrast to the ADEA, the ADA


does include a clear statement of intent to


abrogate Eleventh Amendment immunity:


“A State shall not be immune under the




                     32
eleventh        amendment            .   .   .”    42   U.S.C.   §

           15
12202.


     Thus, the only argument that Eleventh


Amendment immunity still exists is that


the ADA was not enacted pursuant to the


Fourteenth         Amendment.                     We   are   not


persuaded by this argument.




    15
      I do not say that certain magic words must be used to
abrogate immunity. I accept that Congress could unmistakably
signal abrogation of immunity in a variety of ways, and we write
no general rules today. See 42 U.S.C. § 2000e-5(f)(1) (where
Title VII speaks of suits by aggrieved persons against “a
government, governmental agency, or political subdivision”
while discussing suits in federal district courts) and Fitzpatrick
v. Bitzer, 

, 2670 (1976) (concluding that Title VII
abrogates Eleventh Amendment immunity).               But when
considering abrogation in both the ADEA and the ADA, I cannot
help but see the clarity with which Congress addressed
sovereign immunity in the ADA. Comparing the language of
these two statutes further spotlights the ambiguous nature of
the ADEA’s treatment of Eleventh Amendment immunity.
                                33
   Unlike      the    ADEA,       it   is    plain   that


Congress     was      invoking         its   Fourteenth


Amendment enforcement powers when it


enacted the ADA. See 42 U.S.C. § 12101(b) (“It


is the purpose of this chapter . . . (4) to


invoke      the      sweep        of    congressional


authority, including the power to enforce


the fourteenth amendment . . . .”). Congress


specifically    found      that    “individuals      with


disabilities    are    a   discrete         and   insular


minority       who     have       been       faced   with


restrictions and limitations, subjected to


a history of purposeful unequal treatment.”

                            34
                           16
42 U.S.C. § 12101(a)(7).         We accept Congress’s


analysis of the situation addressed by the


ADA and agree with the courts that have


addressed the issue: the ADA was properly


enacted     under     Congress’s          Fourteenth


Amendment enforcement powers. See, e.g.,


Amos v. Maryland Dep’t of Pub. Safety and




   By the way, an express invocation of
  16


Fourteenth    Amendment              powers   is   not
present in the ADEA.               Nor did Congress
make findings in the ADEA that persons
of a particular age constitute a discrete
and insular minority.

                            35
Correctional Servs., 

, 603 (4th

               17
Cir. 1997).


                          Conclusion




      The     Eleventh           Amendment           is    an


important part of the Constitution.                         It



        17
             In Kimel, the State presents one
further issue: That should we determine the
ADEA suit cannot be maintained against
the     State,       we         should    remand          with
instructions             to   the     district    court     to
dismiss the supplemental state claim under
the Florida Human Rights Act.                    That is the
proper         decision,        and      that     claim     is
remanded            to    the     district      court     with
instructions that it be dismissed.                         See
Eubanks v. Gerwen, 

, 1161-62 (11th
Cir. 1994).

                                 36
stands    for   the   constitutional       principle


that State sovereign immunity limits the


federal courts’ jurisdiction under Article


III.     As such, Congress must make an


unmistakably      clear        statement     of    its


intent    before a federal court can accept


that States have been stripped of their


constitutionally          granted      sovereign


immunity. For me, the ADEA contains no


unequivocally     clear     statement       of    such


intent.    The ADA does.        And the ADA was


enacted    under      the      authority    of    the


Fourteenth Amendment.

                          37
     For the reasons stated in our combined


opinions, we hold that the ADEA does not


abrogate         States’      Eleventh      Amendment


immunity but that the ADA does do so.


Therefore,            in   Kimel,    we   REVERSE    and


REMAND for dismissal.                     In Dickson, we


AFFIRM in part and REVERSE in part and


REMAND            for      further    proceedings.   In


MacPherson, we AFFIRM the district court’s


decision.




HATCHETT, Chief Judge, concurring in judgment in part,

dissenting in part:
      I would hold that Congress effectively abrogated the states’

sovereign immunity under the Eleventh Amendment of the United

States Constitution in both the Age Discrimination in Employment

Act (ADEA), 29 U.S.C. §§ 621-634, and the Americans with

Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213.                    I therefore

respectfully dissent from Part I of the Discussion in Judge

Edmondson’s opinion, holding that because states are entitled to

sovereign immunity under the Eleventh Amendment, private

citizens are precluded from bringing lawsuits against such

entities in federal court under the ADEA.1 I concur, however, in

the result of Part II of Judge Edmondson’s Discussion,

concluding     that   the    states    are    not   entitled    to     Eleventh

Amendment immunity from federal lawsuits under the ADA.                           I

disagree with Judge Cox’s analysis in its entirety and feel

compelled to address, in particular, his assertion that the ADEA

and the ADA are not “valid enforcement” legislation pursuant to




 1
   For the sake of brevity, I will use the term “states” to refer to states and
their agencies and instrumentalities.

                                      39
Congress’s      power      under     Section     5    of   the    Fourteenth

Amendment.2

      Congress may exercise its power to abrogate the states’

Eleventh Amendment immunity if (1) it “has ‘unequivocally

expresse[d] its intent to abrogate the immunity’”; and (2) it “has

acted ‘pursuant to a valid exercise of power.’” Seminole Tribe of

Florida v. Florida, 

, 266 (1996) (quoting Green

v. Mansour, 

, 68 (1985)) (alteration in original).

Congress must make its intent “unmistakably clear in the

language of the statute.” Seminole 

(quoting Dellmuth v. Muth, 

, 228 (1989)).                   If the

court finds that Congress clearly expressed its intent to abrogate

the states’ immunity, the next inquiry is whether Congress

enacted the legislation in question “pursuant to a constitutional

provision granting [it] the power to abrogate[.]” Seminole Tribe,



 2
    Because Judge Cox provides the determining vote that states are entitled
to sovereign immunity under the ADEA -- albeit for a reason different from that
of Judge Edmondson -- my opinion with respect to the court’s ADEA analysis
is a dissent. With regard to the ADA, however, I merely write separately to
uphold the applicability of that statute to the states, as did Judge Edmondson.

                                      

.3 A statute is “appropriate legislation” to

enforce   the   Equal    Protection    Clause    of   the   Fourteenth

Amendment if it “may be regarded as an enactment to enforce

the Equal Protection Clause, [if] it is ‘plainly adapted to that end’

and [if] it is not prohibited by but is consistent with ‘the letter and

spirit of the constitution.’”   Clark v. California, 

,

1270 (9th Cir.) (quoting Katzenbach v. Morgan, 

,

651 (1966)) (alterations in original), petition for cert. filed, 

(U.S. Oct. 20, 1997) (No. 97-686).

     I. Congress’s Intent to Abrogate the States’ Immunity

A.   The ADEA

     The ADEA makes it unlawful for an “employer” “to fail or

refuse to hire or to discharge any individual or otherwise

discriminate against any individual with respect to his [or her]

compensation, terms, conditions, or privileges of employment,

because of such individual’s age[.]”         29 U.S.C. § 623(a)(1)

 3
   In Seminole Tribe, the Supreme Court overruled Pennsylvania v. Union
Gas Co., 

(1989), and held that Congress has no authority to
abrogate the states’ sovereign immunity when acting pursuant to the
Commerce Clause, but can abrogate their immunity under Section 5 of the
Fourteenth 

, 273.

                                  41
(1994). In 1974, Congress amended the definition of “employer”

to include “a State or political subdivision of a State and any

agency or instrumentality of a State or a political subdivision of

a State,” and deleted text explicitly excluding such entities from

that definition. 29 U.S.C. § 630(b)(2) & note (1994).4 The ADEA

explicitly provides that employers who violate the statute are

subject to liability for legal and equitable relief. See 29 U.S.C. §

626(b) (1994) (“In any action brought to enforce this chapter the

court shall have jurisdiction to grant such legal or equitable relief

as may be appropriate to effectuate the purposes of this chapter

. . . .”); 29 U.S.C. § 626(c)(1) (1994).

      I agree with the parties in Kimel -- including the Florida

Board of Regents -- and with virtually every other court that has

addressed the question, including all three district courts in the

underlying cases, that Congress made an “unmistakably clear”

statement of its intent to abrogate the states’ sovereign immunity


  4
   As a result, “employee” under the ADEA includes those persons who
work for states and their agencies. See 29 U.S.C. § 630(f) (1994) (with some
exceptions, “[t]he term ‘employee’ means an individual employed by any
employer . . . .”).

                                     42
in the ADEA. See Hurd v. Pittsburg State Univ., 

,

1544 (10th Cir. 1997); Blanciak v. Allegheny Ludlum Corp., 

, 695 (3d Cir. 1996); Davidson v. Board of Governors of

State Colleges & Univs. for W. Ill. Univ., 

, 443 (7th

Cir. 1990). “Unless Congress had said in so many words that it

was   abrogating   the   states’        sovereign   immunity   in   age

discrimination cases -- and that degree of explicitness is not

required -- it could not have made its desire to override the

states’ sovereign immunity clearer.” 

(internal citations omitted); see also Edmondson, J., at 21 n.15

(“I do not say that certain magic words must be used to abrogate

immunity.   I accept that Congress could unmistakably signal

abrogation of immunity in a variety of ways, and we write no

general rules today.”). As the Third Circuit persuasively pointed

out, “[t]he statute simply leaves no room to dispute whether

states and state agencies are included among the class of

potential defendants when sued under the ADEA for their actions

as ‘employers.’”   

; see also Seminole


                                   43


-67 (relying on the references to the

“State” in the text of the statute in question to conclude that such

references “[made] it indubitable that Congress intended through

the Act to abrogate the States’ sovereign immunity from suit”).5

       I take issue with my colleague’s reliance on the facts that

“[n]o reference to the Eleventh Amendment or to States’

sovereign immunity is included [in the ADEA,]” “[n]or is there, in


   5
     I disagree that Employees of the Dep’t of Public Health & Welfare v.
Department of Public Health & Welfare, 

(1973), concluding that
Congress did not clearly express its intent to abrogate the states’ immunity in
enacting the 1966 amendments to the Fair Labor Standards Act (FLSA), calls
into question Congress’s intent to abrogate the states’ immunity under the
ADEA. In 1974, Congress specifically amended the FLSA to address the
concerns of the Employees Court and to authorize lawsuits against the states
in federal court. See Mills v. Maine, 

, 42 (1st Cir. 1997) (stating that
“we agree with the other courts of appeals that have examined the FLSA’s
provisions and have concluded that the Act contains the necessary clear
statement of congressional intent to abrogate state sovereign immunity”);

n.3; Reich v. New York, 

, 590, 591 (2d Cir.
1993) (stating that “Congress amended [the FLSA] with the intent that states
and their political subdivisions would thereafter be subject to suit in federal
court for violations of the FLSA[,]” and finding that “Congress has made its
intent to abrogate the states’ sovereign immunity abundantly clear in the
language of the FLSA, as amended in 1974 and 1985”), cert. denied, 

(1994), overruled on other grounds, Close v. New York, 

, 38
(2d Cir. 1997) (“[W]e can no longer justify congressional abrogation under the
Interstate Commerce Clause, and to the extent that Reich permits such
abrogation, we hold Reich is no longer good law.”); Hale v. Arizona, 

, 1391 (9th Cir.) (en banc) (stating that Congress clearly intended to
abrogate the states’ sovereign immunity in the 1974 amendments to the FLSA),
cert. denied, 

(1993).

                                        44
one place, a plain, declaratory statement that States can be sued

by individuals in federal court.” Edmondson, J., at 12. Although

Judge Edmondson states that we do not require Congress to use

any “magic words” to abrogate effectively the states’ sovereign

immunity,   and   that   Congress    may    “unmistakably   signal

abrogation of immunity in a variety of ways,” I believe that his

opinion, in essence, is requiring exactly that. Edmondson, J., at

21 n.15. If Congress has not sufficiently expressed its intent to

abrogate the states’ immunity through including “States” in the

definition of “employer” in the ADEA, after this decision, I cannot

imagine in what other “variety of ways” Congress can signal the

abrogation of the states’ immunity, other than through the use of

“magic words.” The Court in Seminole Tribe did not require that

Congress use any talismanic language to express its intent to

abrogate, and could easily have done so. As I do not believe

that Seminole Tribe requires Congress to use any particular

words to express effectively its intent to abrogate the states’

immunity, and because I believe that Congress’s intent is clear


                                45
in the language of the ADEA, I conclude that the first criterion of

Seminole Tribe is satisfied.    See EEOC v. Wyoming, 

, 243 n.18 (1983) (“[T]here is no doubt what the intent of

Congress was:      to extend the application of the ADEA to the

States.”); Gregory v. Ashcroft, 

, 467 (1991) (“[The]

ADEA plainly covers all state employees except those excluded

by one of the exceptions.”); Fitzpatrick v. Bitzer, 

,

452 (1976) (concluding that Congress’s designation of states as

parties in Title VII was sufficient to abrogate the states’

immunity).

B.   The ADA

     The ADA presents an easier case under Seminole Tribe’s

“clear statement” standard, as both Judges Edmondson and Cox

agree. See Edmondson, J., at 21 n.15; Cox, J., at 2-3. Within

the statute’s text, Congress explicitly provided:

     A State shall not be immune under the eleventh
     amendment to the Constitution of the United States
     from an action in [a] Federal or State court of
     competent jurisdiction for a violation of this chapter. In
     any action against a State for a violation of the
     requirements of this chapter, remedies (including

                                  46
       remedies both at law and in equity) are available for
       such a violation to the same extent as such remedies
       are available for such a violation in an action against
       any public or private entity other than a State.

42 U.S.C. § 12202 (1994).            Accordingly, I find that Congress

“unequivocally expressed” its intent to abrogate the states’

sovereign immunity in section 12202 of the ADA. See Autio v.

AFSCME, Local 3139, No. 97-3145 (8th Cir. Apr. 9, 1998);

Coolbaugh v. Louisiana, 

, 433 (5th Cir. 1998)

(finding Congress’s intent to abrogate the states’ immunity under

the ADA “patently clear”); 

.6

       II. Congress’s Power to Abrogate the States’ Immunity

       In addition to clearly expressing its intent, Congress also

must have acted pursuant to its authority under Section 5 of the

Fourteenth Amendment to abrogate successfully the states’

Eleventh Amendment immunity. See Seminole Tribe, 

at 268.       Judge Cox asserts that, regardless of whether



   6
     I must emphasize, however, that I do not conclude, or imply, that
Congress is required to use any “magic words” to express effectively its intent
to abrogate the states’ immunity. I conclude only that Congress’s intent under
the ADA is clear.

                                      47
Congress clearly expressed its intent to abrogate the states’

immunity from lawsuits in federal court under both the ADEA and

the ADA, Congress lacks the constitutional authority to do so

under these statutes, relying on the Supreme Court’s recent

decision in City of Boerne v. Flores, 

(1997).

In Boerne, the Supreme Court held that Congress exceeded its

Section     5    authority    in    enacting     the    Religious      Freedom

Restoration Act (RFRA), 42 U.S.C. §§ 2000bb to 2000bb-4,

through which Congress sought to reinstate a previous, more

stringent standard of review for free exercise of religion claims.7

The Court found that Congress was not enforcing rights under


  7
    In Employment Division, Dep’t of Human Resources v. Smith, 

,
883-87 (1990), the Supreme Court declined to apply the balancing test for
analyzing free exercise claims set forth in Sherbert v. Verner, 

(1963), and held that “neutral, generally applicable laws may be applied to
religious practices even when not supported by a compelling governmental
interest.” 

. Congress then enacted the RFRA,
seeking “to restore the compelling interest test as set forth in Sherbert[,] . . .
and to guarantee its application in all cases where free exercise of religion is
substantially burdened . . . .” 42 U.S.C. § 2000bb(b)(1) (1994). Thus, “[the]
RFRA prohibit[ed] ‘[g]overnment’ from ‘substantially burden[ing]’ a person’s
exercise of religion even if the burden result[ed] from a rule of general
applicability unless the government [could] demonstrate the burden ‘(1) [was]
in furtherance of a compelling governmental interest; and (2) [was] the least
restrictive means of furthering that compelling governmental interest.’”

(quoting 42 U.S.C. § 2000bb-1).

                                        48
the Fourteenth Amendment, which it undeniably has the power

to do, but was attempting to create rights that the Constitution did

not guarantee.   See 

.         In other

words,   Congress    had   impermissibly    enacted   “substantive”

legislation. Judge Cox states that “Boerne and the Voting Rights

Act cases teach us [that] [o]nly by respecting Supreme Court

interpretations of the Fourteenth Amendment can Congress

avoid impermissibly interpreting the Amendment itself.” Cox, J.,

at 7. I interpret his analysis to limit, in an unallowable manner,

the power of Congress and thus, disagree.

A.   The ADEA

     Judge Cox asserts that the ADEA was not a proper exercise

of Congress’s Section 5 power under the Boerne analysis for two

main reasons.    First, he alleges that the statute confers more

extensive rights to individuals than does the Equal Protection

Clause of the Fourteenth Amendment. In essence, Judge Cox

alleges that the ADEA puts “mandatory retirement ages” and

“mandatory age limits” to a much more rigorous test than the


                                49
Equal Protection Clause requires. Cox, J., at 11-12. In addition,

Judge Cox asserts that “Congress did not enact the ADEA as a

proportional response to any widespread violation of the elderly’s

constitutional rights[,]” because, among other reasons, the

legislative history accompanying the 1974 amendment to the

ADEA     did   not   mention   the       Constitution   or   constitutional

violations. Cox, J., at 8, 13-14.

     To the contrary, like many other circuit courts, I conclude

that the ADEA falls squarely within the enforcement power that

Section 5 of the Fourteenth Amendment confers on Congress.

See 

; Ramirez v. Puerto Rico Fire

Serv., 

, 699-700 (1st Cir. 1983); EEOC v. Elrod, 

, 608-09 (7th Cir. 1982); Arritt v. Grisell, 

,

1270-71 (4th Cir. 1977). Congress enacted the ADEA to remedy

and prevent what it found to be a pervasive problem of arbitrary

discrimination against older workers.         Such protection is at the

core of the Fourteenth Amendment’s guarantee of equal

protection under the law. Even though Congress arguably has


                                    50
gone further in proscribing government employment practices

that discriminate on the basis of age than have the courts in

adjudicating claims under the Fourteenth Amendment, this

merely reflects the differing roles of Congress and the courts.

     1.   Congress enacted the ADEA to “enforce” rights under the
          Equal Protection Clause of the Fourteenth Amendment.

     In Boerne, Congress legislated a constitutional standard of

review for the judiciary. Contrary to Judge Cox’s assertions, I do

not find this to be the case under the ADEA.        In general, the

Equal Protection Clause proscribes states from treating similarly

situated persons within their jurisdictions differently and assures

that governments will differentiate between their citizens only

upon reasonable grounds that have a relationship to the desired

goals. See, e.g., Romer v. Evans, 

855, 865-67

(1996); Nordlinger v. Hahn, 

, 10 (1992); City of

Cleburne v. Cleburne Living Ctr., Inc., 

, 446 (1985)

(“The State may not rely on a classification whose relationship to

an asserted goal is so attenuated as to render the distinction

arbitrary or irrational.”). Although age is not a “suspect” or quasi-

                                 51
suspect classification deserving of close judicial scrutiny under

the Equal Protection Clause, the Fourteenth Amendment’s equal

protection guarantees are not limited solely to members of a few

protected groups.8 See, e.g., 

(“[T]he

[disabled],    like   others,     have        and   retain   their   substantive

constitutional rights in addition to the right to be treated equally

by the law.”).         Every person has a right to be free from

government classifications based on arbitrary or irrational criteria,

and Congress’s power is not limited to “the protection of those

classes found by the Court to deserve ‘special protection’ under

the Constitution.’” 

. But cf. Wilson-

Jones v. Caviness, 

, 210 (6th Cir. 1996) (stating that

the court will not “regard” a legislation that does not affect a

judicially-recognized “specially protected” class, as an enactment

“to enforce the Equal Protection Clause” unless Congress




  8
   Under the Equal Protection Clause, arbitrary state action can burden the
rights of older individuals on the basis of age if the action passes the rational
basis test, i.e., it is rationally related to a legitimate government interest. See

.

                                         52
explicitly stated that it is enforcing that clause), amended on

other grounds, 

(1997).

     Additionally, Congress has not exceeded its authority to

enforce the Equal Protection Clause simply because the ADEA

may impose liability involving distinctions based on age that a

court would not find to be “irrational” under that clause.        It is

undisputed that Congress’s power to enforce the rights to equal

protection of the law under Section 5 is not unlimited. Congress

cannot “decree the substance of the Fourteenth Amendment’s

restrictions on the States[,]” or alter “what the right[s] [are].”

.            It has long been established,

however,    that   “[l]egislation   which     deters   and   remedies

constitutional violations can fall within the sweep of Congress’

enforcement power even if in the process it prohibits conduct

which is not itself unconstitutional and intrudes into ‘legislative

spheres of autonomy previously reserved to the States.’”

(quoting 

) (emphasis added). The Boerne Court cited, as an example,


                                    53
its upholding the suspension of various voting requirements,

such as literacy tests, under Congress’s parallel power to enforce

the Fifteenth Amendment to combat racial discrimination in

voting “despite the facial constitutionality of the tests under

Lassiter v. Northampton County Bd. of Elections, 

(1959).” 

; see also Scott v. City of

Anniston, 

, 899, 900 (5th Cir. 1979) (“The fourteenth

amendment empowers Congress to enact appropriate legislation

establishing more exacting requirements than those minimum

safeguards provided in the amendment[,]” as long as Congress

does so “to carry out the purpose of [the] amendment[].”), cert.

denied, 

(1980) .        Courts must accord Congress

“wide latitude” in determining where to draw the line between

measures that prevent or remedy unconstitutional actions and

those that make substantive changes in the governing law.

.

     Thus, it is clear that Congress does not merely have to

“rubber stamp” the constitutional violations that the Supreme


                                54
Court has already found to exist; nor does it have to legislate to

remedy       only   that    conduct     that    the    Court     would     find

unconstitutional, even though the Court has not yet so ruled.

See Massachusetts Bd. of Retirement v. Murgia, 

,

314 (1976) (stating in dicta that the rational-basis inquiry

“reflect[s] the Court’s awareness that the drawing of lines that

create distinctions is peculiarly a legislative task and an

unavoidable one”).9        Such an interpretation would essentially

render meaningless Congress’s power to enforce the Fourteenth

Amendment, which is separate and distinct from the power of the

judiciary to interpret the Constitution. See 

.

      In Katzenbach v. Morgan, the Supreme Court rejected the

state’s argument that section 4(e) of the Voting Rights Act could

not be sustained as appropriate legislation to enforce the Equal

Protection Clause unless the courts decided that the clause



 9
   At issue in Murgia was the constitutionality under the Equal Protection
Clause of a state statute mandating a retirement age for state police officers.

.

                                      55
forbade that section’s English literacy 

. The Court stated:

    A construction of § 5 that would require a judicial
    determination that the enforcement of the state law
    precluded by Congress violated the [Fourteenth]
    Amendment, as a condition of sustaining the
    congressional enactment, would depreciate both
    congressional resourcefulness and congressional
    responsibility for implementing the Amendment.         It
    would confine the legislative power in this context to
    the insignificant role of abrogating only those state
    laws that the judicial branch was prepared to adjudge
    unconstitutional, or of merely informing the judgment of
    the judiciary by particularizing the ‘majestic
    generalities’ of § 1 of the Amendment.

(footnote omitted). I decline to

read such a limitation of Congress’s power into the Boerne

decision, and find any assertion that the ADEA may not reach

practices that are not themselves unconstitutional simply to be

wrong.

    2.   The ADEA is an appropriate, proportional remedial
         measure to address age discrimination.

    In order for the courts to consider legislation to be

“remedial,” and not substantive, in nature, “a congruence and

proportionality between the injury to be prevented or remedied

                               56
and the means adopted to that end” must exist. Boerne, 138 L.

Ed. 2d at 638. After reviewing the text and legislative history of

the ADEA and its amendments, I conclude that Congress, in

addressing arbitrary age discrimination in employment, satisfied

this requirement.   See generally 

(discussing the ADEA’s legislative history); 

(same).

     The preamble to the ADEA provides Congress’s findings

regarding, among other things, “arbitrary age limits regardless of

potential for job performance [that] has become a common

practice,” and “arbitrary discrimination in employment because

of age,” and states that one of the Act’s purposes is to prohibit

such discrimination.         29 U.S.C. § 621 (1994).      In the 1950s,

Congress    began      its    endeavors   to   prohibit   arbitrary   age

discrimination.   See 

.             During floor

debates concerning the enactment of Title VII of the Civil Rights

Act of 1964, amendments to include age along with Title VII’s

protected classes were rejected “in part on the basis that


                                    57
Congress did not yet have enough information to make a

considered judgment about the nature of age discrimination[.]”

(citing 110 Cong. Rec. 2596-99, 9911-

13, 13490-92 (1964)). Congress thus directed the Secretary of

Labor (Secretary) to conduct a “full and complete” study on age

discrimination in employment. 

. The

Secretary issued the report about a year later, finding, among

other things, that (1) employment age discrimination was

generally based on unsupported stereotypes and was often

defended on pretextual grounds; and (2) the empirical evidence

showed that arbitrary age limits were unfounded overall, as older

workers, on average, performed as well as younger workers.

-31.        Thereafter, committees in the

Senate and the House of Representatives conducted extensive

hearings on proposed legislation prohibiting such discrimination,

and the Secretary’s findings “were confirmed throughout the

extensive factfinding undertaken by the Executive Branch and

Congress.” 

-31.


                               58
     In March 1972, around the same time that Congress

considered and passed amendments under Section 5 extending

Title VII’s application to state and local government employees,

Senator Bentsen first introduced legislation to extend the ADEA

to government employees. 

(citing 118

Cong. Rec. 7745 (1972), and Equal Employment Opportunity Act

of 1972, Pub. L. No. 92-261, 86 Stat. 103).         After Senator

Bentsen again presented the proposed amendment in May 1972,

arguing that Title VII’s underlying principles were “directly

applicable” to the ADEA, the Senate voted unanimously in favor

of the ADEA amendment. 

(citing 118

Cong. Rec. 15894, 15895 (1972)).      The amendment, however,

initially failed to pass House-Senate conference committees.

. Although little legislative history exists

concerning the 1974 amendment to the ADEA, and Congress

made no mention of a specific constitutional provision, both the

House and the Senate cited President Nixon’s remarks in 1972

to indicate the congressional purpose of the amendment:


                                59
      Discrimination based on age -- what some people call
      “age-ism” -- can be as great an evil in our society as
      discrimination based on race or religion or any other
      characteristic which ignores a person’s unique status
      as an individual and treats him or her as a member of
      some arbitrarily-defined group.      Especially in the
      employment field, discrimination based on age is cruel
      and self-defeating; it destroys the spirit of those who
      want to work and it denies the Nation[] the contribution
      they could make if they were working.

(quoting S. Rep. No. 93-690, 93d Cong.,

2d Sess. 55 (1974), and H.R. Rep. No. 93-913, 93d Cong., 2d

Sess., reprinted in [1974] U.S.C.C.A.N. 2811, 2849).10                        In

addition, Senator Bentsen commented that “[t]he passage of [the

 10
     The amendments to the FLSA that, among other things, extended that
statute to federal, state and local government employees -- and with which
Congress passed the 1974 ADEA amendment -- overshadowed the ADEA. The
House and Senate considered the ADEA amendment to be “a logical extension
of the Committee’s decision to extend FLSA coverage to Federal, State, and
local government employees.” 

(internal quotation marks
omitted). Even in light of this and the Supreme Court’s concluding that
Congress passed the ADEA pursuant to its power under the Commerce
Clause, my determination that Congress also was exercising its power under
Section 5 of the Fourteenth Amendment in enacting the ADEA is not
precluded. See 

(“The extension of the ADEA to
cover state and local governments, both on its face and as applied in this case,
was a valid exercise of Congress’ powers under the Commerce Clause. We
need not decide whether it could also be upheld as an exercise of Congress’
powers under § 5 of the Fourteenth Amendment.”) (emphasis added); 

(concluding, after Wyoming, that “Congress acted pursuant
to its powers under the Fourteenth Amendment when it applied the ADEA to
the states”); 

(holding post-Wyoming that Congress
adopted the 1974 ADEA amendment pursuant to its Section 5 power).

                                       60
ADEA amendment] insures that Government employees will be

subject to the same protections against arbitrary employment

[discrimination] based on age as are employees in the private

sector.” 

(quoting 120 Cong. Rec. 8768

(1974)).11

         In light of the above, I conclude that the ADEA qualifies as

a valid enforcement provision under Congress’s Section 5 power.

The text and history of the ADEA demonstrate a congressional

focus,      including   extensive      factfinding     on    arbitrary     age

discrimination, and its resulting harm, in the employment

practices of private and public employers -- discrimination that

had become a “common practice” and was often unrelated to

legitimate employment goals. See 29 U.S.C. § 621 (1994). “[I]t

is clear that the purpose of the [1974 amendment to the ADEA]

    11
      In addition, included in the legislative history of the 1978 ADEA
amendments is a statement from Representative Paul Findley further
supporting the view that Congress’s legislation in the ADEA was part of its
general policy to ensure equal employment opportunities. Representative
Findley stated that “depriving older and still capable Americans of jobs [does
not] make any more sense than discriminating in employment against blacks,
women, or religious or ethnic minorities.” 

(quoting H.R.
Rep. No. 95-527, Part I, 95th Cong., 1st Sess., reprinted in [1978] 753 Gov’t
Empl. Rel. Rep. (BNA) 101, 103).

                                      61
was to prohibit arbitrary, discriminatory government conduct that

is the very essence of the guarantee of ‘equal protection of the

laws’ of the Fourteenth Amendment.”             

;

see also 

(stating that Congress

extended ADEA coverage “to shield public employees from the

invidious effects of age-based discrimination.                  The 1974

amendment, like the ADEA itself, ‘is aimed at irrational,

unjustified employment decisions based upon assumptions about

the relationship between age and ability which classify older

workers as incapable of effective job performance.’”) (quoting

).12

B.    The ADA




 12
    The fact that employers can defend their age-based classifications on the
grounds that such classifications are related to a “bona fide occupational
qualification reasonably necessary to the normal operation of the particular
business” or are “based on reasonable factors other than age,” supports the
proposition that the ADEA only targets arbitrary age discrimination, rather
than every employment decision that is based on or related to age. 29 U.S.C.
§ 623(f)(1) (1994). Even age-based employment distinctions under disparate
impact claims generally do not violate the ADEA if the distinctions serve the
“legitimate employment goals of the employer.” MacPherson v. University of
Montevallo, 

, 771 (11th Cir. 1991) (quoting Wards Cove Packing
Co. v. Atonio, 

, 659 (1989)).

                                     62
     With respect to the ADA, Judge Cox states that the statute

is not valid enforcement legislation for the same reasons that he

rejected the ADEA. First, he asserts that because the disabled

are not a suspect or quasi-suspect class, and thus enjoy no

special rights under the Equal Protection Clause, the ADA

provides them with greater protection than does the Equal

Protection Clause.      His second reason is that the ADA “was

unaccompanied by any finding that widespread violation of the

disabled’s     constitutional   rights    required       the   creation    of

prophylactic     remedies[,]”   and      states   that    “[a]ltruistic   and

economic concerns motivated [the ADA] -- not defense of the

Constitution.”    Cox, J., at 16-17.       For reasons similar to my

analysis of the ADEA, I disagree.

     As an initial matter, I acknowledge that, unlike in the ADEA,

Congress explicitly invoked its enforcement power under the

Fourteenth Amendment in the ADA.                     See 42 U.S.C. §

12101(b)(4) (1994) (“It is the purpose of [the ADA] . . . to invoke

the sweep of congressional authority, including the power to


                                   63
enforce the fourteenth amendment and to regulate commerce, in

order to address the major areas of discrimination faced day-to-

day by people with disabilities.”).    I emphasize, however, that,

similar to Congress’s expression of its intent, Congress is not

required to use any magic words to invoke its authority to enforce

the Fourteenth Amendment under Section 5 before abrogating

the states’ immunity.    See supra pp. 5-6; see also 

(“Although ‘the constitutionality of action taken by

Congress does not depend on recitals of power which it

undertakes    to   exercise,’   we    give    great   deference     to

congressional statements.”) (quoting Woods v. Cloyd W. Miller

Co., 

, 144 (1948)).        In EEOC v. Wyoming, the

Supreme Court rejected that very suggestion, and stated:

     It is in the nature of our review of congressional
     legislation defended on the basis of Congress’ powers
     under § 5 of the Fourteenth Amendment that we be
     able to discern some legislative purpose or factual
     predicate that supports the exercise of that power.
     That does not mean, however, that Congress need
     anywhere recite the words “section 5” or “Fourteenth
     Amendment” or “equal protection,” see, e.g., Fullilove
     v. Klutznick, 

, 476-78 (1980) (Burger,
     C.J.), for “[t]he . . . constitutionality of action taken by

                                 64
     Congress does not depend on recitals of the power
     which it undertakes to exercise.” Wood v. Cloyd W.
     Miller Co., 

, 144 

n.18.     The question, therefore, is not whether

Congress explicitly relied on the Fourteenth Amendment when

it enacted the ADA, but whether the statute is within Congress’s

authority under that amendment. See 

(“The omission of any ritualistic incantation of powers by the

Congress is not determinative, for there is no requirement that

the statute incorporate buzz words . . .”); 

(“[T]he test of whether legislation is enacted pursuant to § 5 of

the Fourteenth Amendment requires no talismanic intoning of the

amendment. Rather, the inquiry is whether the objectives of the

legislation are within Congress’ power under the amendment.”)

(internal citation and footnote omitted). That being said, I now

turn to the substantive analysis of the ADA.

     First, I do not agree with Judge Cox’s equal protection

argument concerning the ADA for the same reasons I declined

to accept this argument with respect to the ADEA. Although, like


                                 65
older individuals, the disabled are not a suspect or quasi-suspect

class -- and therefore are not entitled to the higher level of

judicial scrutiny under the Equal Protection Clause that courts

accord state action affecting such classes -- the disabled are still

entitled to the equal protection of the law against arbitrary

discrimination, as is every person.     See 

(“Our refusal to recognize the [disabled] as a quasi-suspect

class does not leave them entirely unprotected from invidious

discrimination.”). Like the Ninth Circuit, I find no authority for the

idea that “the Court’s choice of a level of scrutiny for purposes of

judicial review should be the boundary of the legislative power

under the Fourteenth Amendment[.]”        

.

I therefore conclude -- especially in light of the congressional

history of the ADA as discussed below -- that Congress did not

exceed its authority in enacting that statute simply because the

ADA may impose liability in situations that the courts would not

find to violate judicial standards under the Equal Protection

Clause. I consider the ADA to be legislation that falls within the


                                 66
sweep of Congress’ enforcement power to “prohibit[] conduct

which is not itself unconstitutional.”   

.

       Additionally, I disagree with the assertion that Congress was

not concerned with constitutional violations when it enacted the

ADA, and thus that the statute is not valid enforcement

legislation under its Section 5 power. The ADA is “appropriate

legislation” to enforce the Equal Protection Clause, as it may be

regarded as an enactment to enforce that clause, is plainly

adapted to that end and “is not prohibited by but is consistent

with the letter and spirit of the [C]onstitution.” 

(internal quotation marks omitted); see also Autio v.

AFSCME, Local 3139, No. 97-3145 (8th Cir. Apr. 9, 1998)

(concluding that Congress validly enacted the ADA to enforce the

Equal Protection Clause through the exercise of its Section 5

power); 

(“[T]he ADA represents

Congress’ considered efforts to remedy and prevent what it




                                 67
perceived as serious, widespread discrimination against the

disabled.”).

     Congress considered an abundance of evidence and made

extensive findings in the ADA concerning the extent of the

discrimination against, and resulting harm to, the disabled to

support the statute’s enactment.     See 

(stating that both the House and the Senate cited seven

substantive studies or reports and “a wealth of testimonial and

anecdotal evidence from a spectrum of parties to support the

finding of serious and pervasive discrimination”). In particular, it

found that:

     (1) some 43,000,000 Americans have one or more
     physical or mental disabilities, and this number is
     increasing as the population as a whole is growing
     older;

     (2) historically, society has tended to isolate and
     segregate individuals with disabilities, and, despite
     some improvements, such forms of discrimination
     against individuals with disabilities continue to be a
     serious and pervasive social problem;

     (3) discrimination against individuals with disabilities
     persists in such critical areas as employment, housing,
     public accommodations, education, transportation,

                                68
    communication, recreation, institutionalization, health
    services, voting, and access to public services;

    (4) unlike individuals who have experienced
    discrimination on the basis of race, color, sex, national
    origin, religion, or age, individuals who have
    experienced discrimination on the basis of disability
    have often had no legal recourse to redress such
    discrimination;

    (5) individuals with disabilities continually encounter
    various forms of discrimination, including outright
    intentional exclusion, the discriminatory effects of
    architectural, transportation, and communication
    barriers, overprotective rules and policies, failure to
    make modifications to existing facilities and practices,
    exclusionary qualification standards and criteria,
    segregation, and relegation to lesser services,
    programs, activities, benefits, jobs, or other
    opportunities; [and]

    (6) census data, national polls, and other studies have
    documented that people with disabilities, as a group,
    occupy an inferior status in our society, and are
    severely disadvantaged socially, vocationally,
    economically, and educationally[.]

42 U.S.C. § 12101(a) (1994); 

.

Congress also observed that:

    (7) individuals with disabilities are a discrete and
    insular minority who have been faced with restrictions
    and limitations, subjected to a history of purposeful
    unequal treatment, and relegated to a position of
    political powerlessness in our society, based on

                               69
       characteristics that are beyond the control of such
       individuals and resulting from stereotypic assumptions
       not truly indicative of the individual ability of such
       individuals to participate in, and contribute to, society;

       (8) the 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; and

       (9) the 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.

42 U.S.C. § 12101(a) (1994); 

n.3.13

As the Supreme Court has stated, “It is for Congress in the first

instance to ‘determin[e] whether and what legislation is needed

to secure the guarantees of the Fourteenth Amendment,’ and its


  13
     Congress’s detailed findings in the ADA are one ground on which to
distinguish the underlying Dickson case from Boerne, in which the Court
noted that Congress made no findings concerning widespread
unconstitutional discrimination against religious persons to support the RFRA.
See 

; see also 

. The
Court, however, went on to state that “[j]udicial deference, in most cases, is
based not on the state of the legislative record Congress compiles but ‘on due
regard for the decision of the body constitutionally appointed to decide.’”

(quoting Oregon v. Mitchell, 

, 207
(1970) (Harlan, J.)).

                                      70
conclusions are entitled to much deference.” Boerne, 

at 649 (quoting 

) (alteration in

original); 

(“Deference to the

judgment of Congress is particularly appropriate in this case,

because in Cleburne, the Court identified Congress as the ideal

governmental branch to make findings and decisions regarding

the legal treatment of the disabled.”) 

);

(“How this large and diversified

group is to be treated under the law is a difficult and often a

technical matter, very much a task for legislators guided by

qualified professionals and not by the perhaps ill-informed

opinions of the judiciary.”). In light of these explicit congressional

findings, I find it abundantly clear that Congress was concerned

about the “defense of the Constitution” in enacting the ADA.

     Overall, viewing the remedial measures in light of the evils

presented, both the ADEA and the ADA were valid enactments

of Congress to redress discrimination pursuant to its enforcement

power    under   Section    5   of    the   Fourteenth   Amendment.


                                 71
Additionally, because the dangers that the Court found inherent

in the RFRA are not present in the ADEA and the ADA, I find

Boerne distinguishable.       Boerne, 

at 647 (stating

that “[t]he reach and scope of [the] RFRA distinguish it from other

measures passed under Congress’ enforcement power . . . .”).

First, the ADEA and the ADA did not pose the same threat as the

RFRA to the separation of powers principles, because “Congress

included no language attempting to upset the balance of powers

and usurp the Court’s function of establishing a standard of

review by establishing a standard different from the one

previously established by the Supreme Court.” 

.14 Second, unlike the ADEA and the ADA, the RFRA

“prohibit[ed] official actions of almost every description and

regardless of subject matter.”         

.

Neither the ADEA nor the ADA “is so out of proportion to a

supposed remedial or preventive object that it cannot be

understood      as    responsive      to,   or   designed      to   prevent,

 14
    Although the Coolbaugh court was specifically referring to the ADA, I find
the same to be true of the ADEA.

                                      72
unconstitutional behavior.”    

; see

also 

(“Congress’ scheme in the ADA

to provide a remedy to the disabled who suffer discrimination and

to prevent such discrimination is not so draconian or overly

sweeping to be considered disproportionate to the serious threat

of discrimination Congress perceived.”); 

.

Finally, the standard of review set forth in the RFRA was “the

most demanding test known to constitutional law[,]” and imposed

an additional requirement on state action that the previous

judicial standard that Congress attempted to reinstate, i.e., that

the state action be the least restrictive means of fulfilling the

state’s interest, had not imposed. See Boerne, 

at

648.    The same simply cannot be said for analysis of claims

under the ADEA and ADA.

       In general,

       [t]he extension of the ADEA [and the ADA] to the
       states insures uniformity and greater compliance with
       [those statutes]. It also eliminates the anomaly that
       government is not bound by public policy. As Justice
       Brennan remarked in a related context: “How ‘uniquely
       amiss’ it would be, therefore, if the government itself --

                                  73
     ‘the social organ to which all in our society look for the
     promotion of liberty, justice, fair and equal treatment,
     and the setting of worthy norms and goals for social
     conduct’ -- were permitted to disavow liability for the
     injury it has begotten.”

(quoting Owen v. City of Independence,

, 651 (1980)).

                        III. CONCLUSION

     For the foregoing reasons, I would hold that Congress

effectively abrogated the states’ sovereign immunity in enacting

the ADEA as well as the ADA.         Therefore, I would affirm the

district courts’ decisions in Kimel and Dickson, and would

reverse the district court’s decision in MacPherson. Accordingly,

I concur only in the judgment of Part II of Judge Edmondson’s

opinion and otherwise respectfully dissent.




                                74
COX, Circuit Judge, concurring in part and dissenting in part:

     Congress lacks the constitutional authority to abrogate the

states’ Eleventh Amendment immunity to suit in federal court on

claims under either the Age Discrimination in Employment Act or

the Americans with Disabilities Act. For that reason, I concur in

Judge Edmondson’s conclusion that the states are immune to

ADEA suits. I respectfully dissent, however, from the holding that

the states do not enjoy the same immunity from ADA suits.

                           I. Background

     Each of the plaintiffs in these three consolidated appeals

sued a state instrumentality, asserting claims under the ADEA or

ADA.    In each case, the state raised a defense of Eleventh

Amendment immunity to suit on such claims. In MacPherson v.

University of Montevallo, the district court granted the University’s

motion to dismiss, concluding that Congress has not, by enacting

the ADEA, abrogated the states’ Eleventh Amendment immunity.

The district court hearing Kimel v. Florida Board of Regents, on the

other hand, denied a similar motion by the Florida Board of


                                 75
Regents.    And the Florida Department of Corrections likewise

unsuccessfully sought dismissal of ADA and ADEA claims

against it in Dickson v. Florida Department of Corrections.

     McPherson and the state entities in Dickson and Kimel have

appealed the respective rulings. The appeals present two related

issues: has Congress abrogated the states’ Eleventh Amendment

immunity to suits under (1) the ADEA or (2) the ADA?           This

court’s review of such issues of law is de novo. See Seminole

Tribe v. Florida, 

, 1021 (11th Cir. 1994), aff’d, 116 S.

Ct. 1114 (1996).

                           II. Discussion

                           A. Abrogation

     The judicial power of the United States does not extend to

any suit in law or equity commenced or prosecuted against one

of the United States by citizens of that or another state. See U.S.

Const. amend. XI; Hans v. Louisiana, 

, 14-15, 

, 507 (1890). Congress may abrogate the states’ immunity if

first it “unequivocally expresse[s] its intent to abrogate the


                                 76
immunity,” and second it acts “pursuant to a valid exercise of

power.”   See Seminole Tribe v. Florida, 

, 1123

(1996) (quoting Green v. Mansour, 

, 68, 

, 426 (1985)).

    Congress has provided a clear statement of intent to

abrogate in the ADA. The Act provides that “[a] State shall not be

immune under the eleventh amendment . . . .”         42 U.S.C. §

12202. As Judge Edmondson points out, the ADEA presents a

harder question.       On one hand, Congress identified state

employees as potential plaintiffs and the states as potential

defendants. On the other hand, Congress never uses the words

“Eleventh Amendment” or “immunity.” See [Judge Edmondson’s

Opinion at ___-___].      Notwithstanding the omission of these

words, the explicit designation of states as potential defendants

has led four circuit courts to conclude that Congress did clearly

intend to abrogate the states’ immunity to ADEA suits. Hurd v.

Pittsburg State Univ., 

, 1544 (10th Cir. 1997);

Blanciak v. Allegheny Ludlum Corp., 

, 695 (3d Cir.


                                77
1996) (dictum); Davidson v. Board of Governors of State Colleges &

Univs., 

, 443 (7th Cir. 1990); Ramirez v. Puerto Rico

Fire Serv., 

, 698 (1st Cir. 1983). The Supreme Court

has agreed with this reasoning in other contexts. See Seminole

(Indian Gaming Act’s designation of

states as parties sufficient); Dellmuth v. Muth, 

, 233,

, 2403 (1989) (Scalia, J., concurring) (“I join the

opinion    of   [four   other   Justices   of]   the   Court,   with   the

understanding that its reasoning does not preclude congressional

elimination of sovereign immunity in statutory text that clearly

subjects States to suit for monetary damages, though without

explicit reference to state sovereign immunity or the Eleventh

Amendment.”); Fitzpatrick v. Bitzer, 

, 452, 

, 2670 (1976) (Title VII’s designation of states as parties

enough).

     Fortunately, the thorny issue of Congress’s intent need not

be resolved here. Whether or not Congress clearly expressed its

intent, it lacks the power to abrogate the states’ immunity to suit


                                    78
in federal court in actions under the ADEA or the ADA.             The

Supreme Court has identified only one constitutional grant of

power, § 5 of the Fourteenth Amendment, under which Congress

may defeat the states’ immunity. See Seminole 

.   The Court has recently revisited the limits on that

power.

          B. Power to Abrogate: City of Boerne v. Flores

     In City of Boerne v. Flores, 

(1997), the Court

struck down the Religious Freedom Restoration Act of 1993

(RFRA), 42 U.S.C. § 2000bb to 2000bb-4. The RFRA prohibited

all governmental entities from “substantially burdening” the

exercise of religion unless they had a compelling interest for

doing so and had employed the “least restrictive means” for

furthering that interest. 

(b).   With the RFRA’s

stringent rule, Congress sought to resurrect the First and

Fourteenth    Amendment     rights    that   Congress   believed   the

Supreme Court had extinguished in Employment Division v. Smith,

, 

(1990). A Roman Catholic church


                                 79
in Boerne, Texas, invoked the Act when the town denied the

church a permit to add additional worship space. Boerne, 117 S.

Ct. at 2160. The district court held that the RFRA was beyond

Congress's Fourteenth Amendment powers, and the Supreme

Court agreed.

     The Court rested this conclusion on a basic principle: The

Court is the unique, ultimate authority on the scope of Fourteenth

Amendment rights.       See 

Thus, Congress may not

define or declare these rights.          See 

may

only enforce the Fourteenth Amendment rights the Supreme

Court has recognized. See 

            Enforcement can include

creating some rights beyond those clearly guaranteed by the

Constitution.    See 

       But, the Court concluded, such

extensions of rights must be proportional to an unconstitutional

injury that Congress is seeking to remedy. See 

     The RFRA was not such a proportional response to any

injury   to   constitutional   rights.       The     Court   identified   two

circumstances that showed the RFRA to be “substantive”


                                     80
legislation, as the Court called it, rather than enforcement of

Fourteenth Amendment guarantees. First, Congress enacted the

RFRA without findings (or even hearings) on the existence of

widespread violations of any constitutional right that the Supreme

Court has recognized. 

Second, rather than simply

remedying any constitutional violations, the RFRA created rights

that far exceeded any the Supreme Court has read the First

Amendment to provide. See 

Under Smith, generally

applicable     statutes    that   incidentally   burden    religion   are

permissible, 

, 110 S. Ct. at 1600; the

RFRA     could    not     be   enforcing   any   First   and   Fourteenth

Amendment right to be free from incidental burdens on religious

practice. See 

. Therefore, Congress

did not have power under the Fourteenth Amendment to enact

the statute.

     Boerne thus sets the RFRA outside § 5’s boundary.                Two

earlier cases, both concerning the Voting Rights Act of 1965,

exemplify proper exercise of Congress’s § 5 power.              The first


                                     81
case is South Carolina v. Katzenbach, 

, 

(1966),   which   rejected   a   broad   attack   on   most   of   the

geographically restricted provisions of the Voting Rights Act. The

second is Katzenbach v. Morgan, 

, 

(1966), which upheld a provision of the Act that invalidated New

York’s English-literacy voter-qualification rule. Of the two cases,

Morgan appears to attribute the broadest powers to Congress,

arguably recognizing a congressional power not only to effectuate

Supreme Court-identified rights but also to find Fourteenth

Amendment rights not yet identified by the Supreme Court. See

, 86 S. Ct. at 1723-24.

     The Boerne Court dismissed the language in Morgan that

suggests that Congress has broad powers both to interpret the

Fourteenth Amendment and effectuate Fourteenth Amendment

rights, 

, but the Court reaffirmed its

holdings in these Voting Rights Act cases. 

The

differences between the circumstances underlying the Voting

Rights Act and those leading to the RFRA are, after all, striking.


                                  82
Before passing the Voting Rights Act, Congress thoroughly

documented a history of obvious Fifteenth Amendment violations,

and the legislative history indicates that the Act’s primary purpose

was to vindicate the Fifteenth Amendment rights that Southern

voting laws and practices were defeating. 

, 86 S. Ct. at 1722; South 

, 

, 818-19.      Congress took measures tailored to

remedy the constitutional violations: the measures were limited to

prohibiting patently unconstitutional conduct and establishing

policing mechanisms for future violations; they applied only to

states where Congress found constitutional violations were the

most common; and the Act contained “bailout” provisions to

relieve jurisdictions that complied with the Constitution from the

Act’s restraints.   See 

.     The Voting

Rights Act effectuated established constitutional guarantees.

     Boerne and the Voting Rights Act cases teach us these

lessons: Only by respecting Supreme Court interpretations of the

Fourteenth    Amendment     can    Congress   avoid   impermissibly


                                  83
interpreting the Amendment itself.                    See 

.        Congress nonetheless may, if circumstances warrant,

tweak procedures, find certain facts to be presumptively true, and

deem certain conduct presumptively unconstitutional in light of

Supreme Court interpretation. See South 

, 333, 

, 821-22. Thus, legislation enacted

pursuant to § 5 must hew to the contours of Supreme Court-

defined Fourteenth Amendment rights unless the legislation is a

proportional response to a documented pattern of constitutional

violation.

                 C. Is the ADEA Enforcement Legislation?

      The ADEA does not qualify under Boerne’s rule as a proper

exercise of Congress’s § 5 power.1 First, the ADEA confers rights

far more extensive than those the Fourteenth Amendment

provides.       Second, Congress did not enact the ADEA as a

  1
       There is pre-Boerne law in other circuits finding the exercise to be proper. See
Ramirez v. Puerto Rico Fire Serv., 

, 699 (1st Cir. 1983); E.E.O.C. v. Elrod, 

, 605 (7th Cir. 1982); Arritt v. Grisell, 

, 1271 (4th Cir. 1977). They share
a similar analysis, which has two flaws. First, it rests on broad language in Katzenbach v.

, 86 S. Ct. at 1723-24, that Boerne has since 

. Second, it treats all “discrimination” as equally impermissible under the Equal
Protection Clause and therefore within Congress’s power to remedy. That is simply not true.
Race and age discrimination, for example, are subject to very different degrees of scrutiny.

                                              84
proportional response to any widespread violation of the elderly’s

constitutional rights.

     The Fourteenth Amendment right that the ADEA arguably

guards is that of equal protection. The Equal Protection Clause

generally prohibits states from treating similarly situated citizens

differently. See Romer v. Evans, 

, 1623 (1996).

But the degree of protection varies according to the class of

person discriminated against or the interest that the classification

compromises. See City of Cleburne, Tex. v. Cleburne Living Ctr.,

, 440-42, 

, 3254-55 (1985). State

action that confers different rights, or imposes different duties, on

persons belonging to nonsuspect classes is permissible if the

action has a rational relation to a legitimate governmental interest.

See 

.

     The elderly are not a suspect class, and state action that

disadvantages them is constitutional if it passes this rational basis

test. See Gregory v. Ashcroft, 

, 470, 

,

2406 (1991); Massachusetts Bd. of Retirement v. Murgia, 

307, 313-14, 

, 2567 (1976). Under this test, the

Supreme Court will not overturn a state measure “unless the

varying treatment of different groups or persons is so unrelated

to the achievement of any combination of legitimate purposes that

we can only conclude that the [people’s] actions were irrational.”

, 111 S. Ct. at 2406 (quoting Vance v.

Bradley, 

, 97, 

, 942-43 (1979))

(alterations in original). And a state does not violate the Equal

Protection Clause “merely because the classifications made by

the laws are imperfect.” 

111 S. Ct. at 2407 (quoting

, 96 S. Ct. at 2568). Moreover, “those

challenging the legislative judgment must convince the court that

the legislative facts on which the classification is apparently

based could not reasonably be conceived to be true by the

governmental decisionmaker.” 

, 99 S. Ct.

at 949.

     The Supreme Court has put three mandatory retirement age

policies to this test, and all have passed. 

(policy required judges to retire at 70);

, 99 S. Ct. at 939 (policy required foreign

service officers to retire at 60); 

, 96 S. Ct.

at 2562 (policy required police officers to retire at 50). In each

case, the policymaker’s perception that mental acuity and

physical stamina decline with age was rational basis enough to

support the line between those under the retirement age and

those over it.   

, 111 S. Ct. at 2407;

, 99 S. Ct. at 943-49; 

, 96 S. Ct. at 2567-68.        Thus, it is clear that the

Supreme Court does not deem all arbitrary treatment offensive to

the Fourteenth Amendment. To a spry octogenarian, of course,

a mandatory retirement age is arbitrary: it does not permit an

assessment of his or her individual capacities.      To violate the

Equal Protection Clause, however, the arbitrary line itself must

have no rational basis. See 

, 111 S. Ct.

at 2407.   In short, the Equal Protection Clause permits state




                                 87
action — if it has a rational basis — that may look like

arbitrariness.

     By   contrast,   the   ADEA        was   enacted   to   combat    all

arbitrariness, unconstitutional or not. Its legislative history shows

that Congress particularly deplored, and wished to ban, arbitrary

age limits that overlooked some individuals’ abilities.               See

E.E.O.C. v. Wyoming, 

, 231, 

, 1057-

58 (1983); see also 29 U.S.C. § 621(a)(2) (statement of findings

and purpose) (“the setting of arbitrary age limits regardless of

potential for job performance has become a common practice”).

Not surprisingly, the Supreme Court has read the ADEA to

prohibit arbitrary line-drawing — even line-drawing that has a

rational basis. “It is the very essence of age discrimination for an

older employee to be fired because the employer believes that

productivity and competence decline with old age.” Hazen Paper

Co. v. Biggins, 

, 610, 

, 1706 (1993).

“Thus the ADEA commands that              ‘employers are to evaluate

[older] employees . . . on their merits and not their age.’ . . . The


                                   88
employer cannot rely on age as a proxy for an employee’s

remaining characteristics, such as productivity, but must instead

focus on those factors directly.” 

113 S. Ct. at 1706

(quoting Western Air Lines, Inc. v. Criswell, 

, 422, 

, 2756 (1985)).

     The ADEA accordingly puts mandatory retirement ages to a

much more rigorous test than the Equal Protection Clause.         A

rational basis does not suffice. 

, 105 S.

Ct. at 2755.    Rather, “[u]nless an employer can establish a

substantial basis for believing that all or nearly all employees

above an age lack the qualifications required for the position, the

age selected for mandatory retirement less than 70 must be an

age at which it is highly impractical for the employer to [e]nsure

by individual testing that its employees will have the necessary

qualifications for the job.” 

105 S. Ct. at 2756; see

also Arritt v. Grisell, 

, 1271 (4th Cir. 1977) (finding

a mandatory maximum hiring age violative of ADEA, but not of

the Equal Protection Clause).


                                 89
     Mandatory age limits are not the only illustration of the gulf

between the elderly’s rights under the Equal Protection Clause

and the elderly’s rights under the ADEA. State action that has a

disparate impact on old workers probably does not violate the

Equal Protection Clause, but it can violate the ADEA. Compare

Washington v. Davis, 

, 239-40, 

, 2047-

48 (1976) (rejecting a disparate-impact theory of violation of the

Equal Protection Clause even for suspect classifications), with

MacPherson v. University of Montevallo, 

, 770-73 (11th

Cir. 1991) (recognizing a disparate-impact claim theory under the

ADEA).     Some courts have held that the ADEA so far

overshadows    equal    protection    rights   that   the   ADEA   has

completely displaced 18 U.S.C. § 1983 as a vehicle for an age

discrimination claim.   See LaFleur v. Texas Dep’t of Health, 

, 760 (5th Cir. 1997); Zombro v. Baltimore City Police

Dep’t, 

, 1366-67 (4th Cir. 1989). Even where such

a § 1983 claim is recognized, the Fourteenth Amendment has

been held to permit demotion of a worker for the proffered rational


                                 90
reason that new, young, and attractive faces were needed in her

stead — practically a paradigmatic ADEA violation. See Izquierdo

Prieto v. Mercado Rosa, 

, 469, 472 (1st Cir. 1990).

And one court has gone so far as to question the existence of any

constitutional right against age-motivated individual employment

actions. See Whitacre v. Davey, 

, 1169 n.3 (D.C.

Cir. 1989).

     As one might expect after considering these differences,

Congress’s reasons for amending the ADEA to subject states to

its restraints did not lie in concern for the Constitution.    The

reports accompanying the 1974 amendments do not mention the

Constitution at all. See H.R. Rep. No. 93-913 (1974), reprinted in

1974 U.S.C.C.A.N. 2811, 2849-50.        Congressional debate over

the amendments, which were included in the Fair Labor

Standards Act of 1974, was silent on constitutional violations. See

120 Cong. Rec. 7306-49, 8759-69 (1974).           The supporters

simply thought it was a good idea, not that it furthered

enforcement of constitutional rights.   See 1974 U.S.C.C.A.N. at


                                91
2849 (“Discrimination based on age — what some people call

‘age-ism’ — can be as great an evil in our society as

discrimination based on race or religion or any other characteristic

which ignores a person’s unique status as an individual and treats

him or her as a member of some arbitrarily-defined group.”)

(quoting Richard M. Nixon Address (March 23, 1972)).

      In sum, the ADEA has created a new class of rights, but not

in response to any threat to constitutional rights. The ADEA thus

fails Boerne’s standard for enforcement legislation. Because the

ADEA is not a valid exercise of Congress’s § 5 authority,

Congress could not have abrogated the states’ Eleventh

Amendment immunity to suit.

                  D. Is the ADA Enforcement Legislation?

      The ADA is not a valid enforcement statute for the same two

reasons the ADEA is not. First, like the aged, the disabled enjoy

no special rights under the Equal Protection Clause.2                                    The

  2
        Here I respectfully part company with Chief Judge Hatchett and the Ninth, Eighth, and
Fifth Circuits. I agree in general with those circuits’ analyses of the scope of Congress’s §
5 power. See Autio v. AFSCME, Local 3139, No. 97-3145 (8th Cir. Apr. 9, 1998);
Coolbaugh v. Louisiana, 

, 432 (5th Cir. 1998); Clark v. California, 

, 1270 (9th Cir.), pet. for cert. filed, 

(1997). The Clark court concludes

                                             92
Supreme Court has never found the disabled to be a suspect or

even quasi-suspect class. City of Cleburne, Tex. v. Cleburne Living

Ctr., 

, 445-46, 

, 3257 (1985)

(declining to “set out on [the] course” leading to quasi-suspect

status for the disabled and infirm); see also Heller v. Doe by Doe,

, 321, 

, 2643 (1993) (confirming this

position).      State action discriminating against the mentally

retarded, a subset of the disabled, is subject to only rational basis

review. City of 

, 105 S. Ct. at 3258.

The lower courts have interpreted these holdings to require only

rational basis review for all discrimination against the disabled.

See, e.g., Lussier v. Dugger, 

, 670-71 (11th Cir.

1990).    And this review is not searching: “courts are compelled

under      rational-basis         review        to   accept       a     legislature’s

generalizations even when there is an imperfect fit between

means and ends.” 

, 113 S. Ct. at 2643.


that the ADA lies within Congress’s enforcement power because the Constitution prohibits
discrimination against disabled people. See 

does not go far enough; it
matters what kind of discrimination the Constitution prohibits, and whether the ADA was
aimed at that kind of discrimination. The Coolbaugh and Autio courts make essentially the
same mistake. See 

(Smith, J., dissenting).

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     By   contrast,   the   ADA    prohibits   distinctions   built   on

generalizations — even if rational. It prohibits discrimination for

practically any reason that does not reflect a business necessity.

See 42 U.S.C. § 12112(a); see also Pritchard v. Southern Co.

Servs., Inc., 

, 1132 (11th Cir.) (listing elements of

prima facie ADA claim), amended on reh’g in other part, 

(11th Cir. 1996), cert. denied, 

(1997). It

requires assessment of each employee’s abilities and reasonable

accommodation to the point of undue hardship. See 42 U.S.C. §

12111(8) (defining “qualified individual with a disability” as one

who can perform essential functions of job with reasonable

accommodation); 

(defining discrimination as

failure   to   make    reasonable      accommodations,          unless

accommodation would create undue hardship for the employer);

H.R. Rep. No. 101-485, at 58, reprinted in 1990 U.S.C.C.A.N. 303,

340 (“[C]overed entities are required to make employment

decisions based on facts applicable to individual applicants or

employees, and not on the basis of presumptions as to what a


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class of individuals with disabilities can or cannot do.”). Thus, the

ADA provides much greater protection for the disabled than does

the Equal Protection Clause.

     The second reason the ADA is not enforcement legislation

is that it was unaccompanied by any finding that widespread

violation of the disabled’s constitutional rights required the

creation of prophylactic remedies.       In the legislative history,

Congress did not even mention that the ADA was meant to

remedy Fourteenth Amendment violations.              The committee

reports that accompany the Act emphasize the discouraging

effect of employment discrimination on the disabled and the costs

to society of caring for those who could care for themselves,

absent discrimination. See, e.g., H.R. Rep. No. 101-485, at 41-47,

reprinted in 1990 U.S.C.C.A.N. 303, 323-29.       Far from implying

that this state of affairs resulted from violations of any

constitutional rights, the legislative history and the Act itself show

that Congress was dismayed by the lack of rights the disabled

enjoyed before the Act’s passage. See 42 U.S.C. § 12101(a)(4)


                                  95
(“[I]ndividuals who have experienced discrimination on the basis

of disability have often had no legal recourse to redress such

discrimination[.]”); see, e.g., 

1990 U.S.C.C.A.N. at

329-30. Altruistic and economic concerns motivated this Act —

not defense of the Constitution.       The laudability of Congress’s

goals provides no exception to the limits on Congress’s

Fourteenth Amendment power.

     Like the ADEA, the ADA was not enforcement legislation

under Boerne’s rule. Congress therefore could not abrogate the

states’ immunity.

                            III. Conclusion

     For the foregoing reasons, I would: affirm the dismissal in

MacPherson; and reverse the denials of the motions to dismiss

in Kimel and Dickson, and remand with instructions to dismiss

for want of jurisdiction.




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