Varner v. U.S.A.

• Decision Date: 06 September 2000
• Docket Number: No. 97-3253,97-3253
• Parties: (7th Cir. 2000) Dr. Iris I. Varner, et al., Plaintiffs-Appellees, and United States of America, Intervening Appellee, v. Illinois State University, et al., Defendants-Appellants
• Court: U.S. Court of Appeals — Seventh Circuit

Page 927

226 F.3d 927 (7th Cir. 2000)

Dr. Iris I. Varner, et al., Plaintiffs-Appellees, and United States of America, Intervening Appellee, v. Illinois State University, et al., Defendants-Appellants.

No. 97-3253

In the United States Court of Appeals For the Seventh Circuit

Argued May 31, 2000

Decided September 6, 2000

Appeal from the United States District Court for the Central District of Illinois, Peoria Division. No. 95 C 1355--Michael M. Mihm, Judge. On Remand from the United States Supreme Court No. 98-1117

Before Flaum, Chief Judge, and Bauer and Harlington Wood, Jr., Circuit Judges.

Flaum, Chief Judge.

The plaintiffs comprise a class of tenured and tenure-track female faculty members at Illinois State University (the "University") who contend that the University pays female professors less money than their male counterparts. In 1995, the plaintiffs filed suit seeking both monetary and injunctive relief against the University and various of its officers and agents (collectively the "defendants"), alleging violations of the Equal Pay Act, 29 U.S.C. sec. 206(d), and Title VII, 42 U.S.C. sec. 2000e et seq. The University, which the plaintiffs concede is a state entity, moved to dismiss the Equal Pay Act claim, as well as the claim for compensatory relief under Title VII, arguing that the Eleventh Amendment bars federal jurisdiction over these claims. The district court denied the defendants' Eleventh Amendment defense, and the defendants appealed that decision to this Court under the collateral order doctrine, see Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 145 (1993) (holding that the collateral order doctrine allows for immediate appellate review of the denial of an Eleventh Amendment immunity claim).

In our initial consideration of this case, we affirmed the district court in all respects, finding that Congress clearly intended to abrogate the States' Eleventh Amendment immunity through its passage of the Equal Pay Act, and that this abrogation was a valid exercise of congressional authority under sec. 5 of the Fourteenth Amendment. See Varner v. Illinois St. Univ., 150 F.3d 706, 717 (7th Cir. 1998), vacated, 120 S.Ct. 928 (2000). Although we further determined that Title VII contained an explicit abrogation of the States' Eleventh Amendment immunity, we did not consider whether that abrogation was a valid exercise of congressional authority because we held that the defendants had waived that issue by failing to present it sufficiently to the district court. See id. at 717 n.14. The defendants appealed our rejection of their Eleventh Amendment defense to the United States Supreme Court.

On writ of certiorari to the Supreme Court, our original opinion affirming the district court was vacated and remanded, see Illinois St. Univ. v. Varner, 120 S.Ct. 928 (2000), for further consideration in light of the Court's intervening decision in Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000) (holding that the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. sec. 621 et seq., was not a valid abrogation of the States' sovereign immunity). After considering the defendants' assertion of Eleventh Amendment immunity against the backdrop of the Supreme Court's decision in Kimel, it remains our conclusion that the district court properly rejected the defendants' claim of sovereign immunity and denied their motion to dismiss. Consequently, we affirm the decision of the district court.

Analysis

The Eleventh Amendment provides that, "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 of Subjects of any Foreign State." U.S. Const. amend. XI. While the Eleventh Amendment appears to restrict only the federal courts' Article III diversity jurisdiction, the Amendment has long been understood "to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991). Under the Eleventh Amendment, each State in our federal system remains a sovereign entity and may not be sued by an individual without its consent, see Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996) (citing Hans v. Louisiana, 134 U.S. 1, 13 (1890)).

Although the Eleventh Amendment grants unconsenting States immunity from suit in federal court, that immunity is not absolute. See College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense Bd., 119 S.Ct. 2219, 2223 (1999); see also Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) ("[T]he Eleventh Amendment, and the principles of state sovereignty which it embodies, . . . are necessarily limited by the enforcement provisions of sec. 5 of the Fourteenth Amendment."). Congress may constitutionally abrogate the States' Eleventh Amendment immunity if two criteria are satisfied: (1) Congress must unequivocally express its intent to abrogate the States' sovereign immunity; and (2) in abrogating that immunity, Congress must act pursuant to a valid exercise of power. See Seminole Tribe, 517 U.S. at 55. Because the defendants no longer contest Congress' intent to abrogate the States' Eleventh Amendment immunity in this case, we need only consider the question of whether the abrogations of sovereign immunity contained in the statutes at issue are valid exercises of congressional power under sec. 5 of the Fourteenth Amendment.¹

In City of Boerne v. Flores, 521 U.S. 507 (1997), the Supreme Court explained that "[l]egislation which deters or 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." Id. at 518; see also Kimel, 120 S.Ct. at 644 ("Congress' power 'to enforce' the [Fourteenth] Amendment includes the authority both to remedy and to deter violation of rights guaranteed thereunder by prohibiting a somewhat broader swath of conduct, including that which is not itself forbidden by the Amendment's text."). At the same time, the City of Boerne decision made clear that this affirmative grant of congressional power is limited to "enforcing" the Amendment's restrictions on the States and does not extend to determining what constitutes a constitutional violation. City of Boerne, 521 U.S. at 519. Recognizing that Congress must have latitude in determining where the line lies between appropriate remedial legislation and a substantive redefinition of a constitutional right, the Court held that "[t]here must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at 520.

Because the requirements of congruence and proportionality mark the boundaries of Congress' Fourteenth Amendment enforcement power, and because Congress lacks the power to abrogate the States' sovereign immunity under Article I of the Constitution,² see Seminole Tribe, 517 U.S. at 72-73, congressional legislation that creates a cause of action against the States must satisfy the congruence and proportionality test. In Kimel, 120 S.Ct. 631, the Supreme Court used the congruence and proportionality test to determine whether the ADEA validly abrogated the States' sovereign immunity. The ADEA makes it unlawful for an employer, including a State, "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual . . . because of such individual's age," 29 U.S.C. sec. 623(a)(1). The Kimel Court held that, although the ADEA contained a clear statement of Congress' intent to abrogate the States' Eleventh Amendment immunity, that abrogation exceeded Congress' Fourteenth Amendment enforcement power. Kimel, 120 S.Ct. at 640-50.

Applying the congruence and proportionality test, the Kimel Court relied on a number of factors in concluding that Congress exceeded its authority in creating an individual cause of action for money damages against the States under the ADEA. Because age is not a suspect classification under the Equal Protection Clause, States may discriminate on the basis of age without offending the Fourteenth Amendment if the challenged age classification is rationally related to a legitimate state interest. The Court found that the ADEA, "through its broad restriction on the use of age as a discriminating factor, prohibits substantially more state employment decisions and practices than would likely be held unconstitutional under the applicable [constitutional] standard." Id. at 647. Furthermore, the Court found little in the ADEA's legislative record to confirm that age discrimination by the States was a widespread problem that demanded a strong remedy. See id. at 648-49. "In light of the indiscriminate scope of the Act's substantive requirements, and the lack of evidence of widespread and unconstitutional age discrimination by the States," the Court held that the ADEA's abrogation of the States' Eleventh Amendment immunity was not a valid exercise of Congress' enforcement power under sec. 5 of the Fourteenth Amendment. Id. at 650.

This Court has recently applied the congruence and proportionality test in the context of individual suits against the States under the Americans With Disabilities Act ("ADA"), 42 U.S.C. sec. 12111 et seq. In Erickson v. Board of Governors of State Colleges and Universities for Northeastern Ill. Univ., 207 F.3d 945 (7th Cir. 2000), we held that Title I of the ADA, 42 U.S.C. sec.sec. 12111-12117, which prohibits discrimination in employment based on disability and requires employers to reasonably accommodate disabled individuals, was an invalid exercise of congressional authority under sec. 5 of the Fourteenth Amendment. See also Stevens v. Illinois Dep't of Transp., 210 F.3d 732 (7th Cir. 2000). In reaching this conclusion, we determined that "the disparate-impact and...