Kimel v. Florida Board of Regents (2000) is a landmark U.S. Supreme Court case dealing with congressional ability to abrogate the sovereign immunity of states from lawsuits charging violation of the Age Discrimination in Employment Act (ADEA), a federal statute that protects workers over the age of 40 from discrimination. The Eleventh Amendment gives states sovereign immunity from suits, but this immunity is not absolute. For instance, when exercising its power to enforce the Fourteenth Amendment, Congress may abrogate the states’ immunity. In Kimel, the Court held that Congress did not have the power to abolish state immunity to ADEA claims and thereby enable individuals to sue states and state agencies in federal court for age discrimination. Because most public institutions of higher education are considered to be arms of their states for the purposes of the Eleventh Amendment, Kimel meant that public colleges and universities were immune from lawsuits filed under the ADEA.
Congress has the power to abrogate sovereign immunity to enforce claims of discrimination brought under the Fourteenth Amendment. Also, when ongoing violations of federal law are present, according to Supreme Court precedent in Ex Parte Young (1908), a dispute involving criminal proceedings, federal courts may generally enjoin state officials from continuing to break the law. Moreover, states may voluntarily waive their immunity. The question in Kimel was whether claims under the ADEA could be considered further exceptions to the Eleventh Amendment prohibition of lawsuits in federal court against the states.
Facts of the Case
Kimel arose out of a dispute between the Florida Board of Regents and faculty members who sued for age discrimination in federal court. Although the governing board ordinarily would have been immune from liability as an arm of the state, Congress had enacted a provision in the ADEA purporting to abrogate sovereign immunity. The board contended that this purported abrogation was unconstitutional, but a federal trial court rejected its argument and ruled against the board. However, after the Eleventh Circuit reversed in favor of the board on the basis that the ADEA did not abrogate Eleventh Amendment immunity, the Supreme Court agreed to hear an appeal.
The Supreme Court’s Ruling
On further review, in a judgment written by Justice O’Connor wherein the justices reached divergent opinions, the Supreme Court affirmed both that Congress had expressed its intention to abrogate sovereign immunity for ADEA claims and that the attempted abrogation was unconstitutional. The first holding, that Congress expressed its intention to abrogate, received the support of all justices except Kennedy and Thomas. The second holding, that the attempt to abrogate was unconstitutional, was joined by Chief Justice Rehnquist as well as Justices Scalia, Kennedy, and Thomas.
Insofar as Congress may only abrogate sovereign immunity when it expresses its intention in a clear and unambiguous manner, the first issue was whether Congress had done so in the ADEA. The Supreme Court observed that, unlike other statutes, the ADEA did not explicitly mention a desire to abrogate sovereign immunity. Nevertheless, seven justices agreed that the generalized language referring to suits and enforcement along with the inclusion of the states in certain definitions meant that Congress intended to abrogate the states’ sovereign immunity.
Having determined that Congress had intended to abrogate states’ immunity, the Supreme Court turned to the more critical question of whether its attempt to do so was successful. The Court began by reaffirming a basic point, namely that Congress may not use its general Article I powers to abrogate sovereign immunity, because any abrogation must come from the power to enforce the Fourteenth Amendment. In evaluating whether Congress acted properly to enforce the Fourteenth Amendment, the Court applied the test articulated in City of Boerne v. Flores (1997), wherein it explained that Congress exceeded its enforcement powers in enacting the Religious Freedom Restoration Act. Under this test, Congress must establish a pattern of actual constitutional violations by the states and must demonstrate that its remedy of abrogating sovereign immunity is proportionate to the pattern of constitutional violations.
The Supreme Court ruled that Congress failed in both tasks. First, the Court decided that Congress had not identified a pattern of unconstitutional violations of the ADEA by the states. The Court noted that violations of the ADEA are not necessarily violations of the Constitution. The Court also indicated that what evidence Congress did have of age discrimination by the states was anecdotal and limited to a few jurisdictions. Further, the Court did not think that discrimination by the private sector could form the basis for a finding of discrimination by the states. Because the findings were inadequate, the Court viewed the remedy, namely the abrogation of sovereign immunity, as also clearly inadequate. Thus, the Court invalidated the statutory attempt to abrogate the board’s sovereign immunity.
Justice Stevens, joined by Justices Souter, Ginsburg, and Breyer, vigorously dissented. In their view, the Court’s current sovereign immunity jurisprudence was fundamentally flawed and imposed unnecessary restrictions on the powers of Congress. The dissent criticized the Court’s decision in Seminole Tribe of Florida v. Florida (1996), wherein it maintained that Congress lacked the authority under the Indian Commerce clause to abrogate the states’ Eleventh Amendment immunity.
Justice Thomas, joined by Justice Kennedy, dissented on the issue of whether Congress clearly and unambiguously had expressed its intention to abrogate.
A decade after the case was resolved, the Supreme Court has yet to limit Kimel. If anything, the Court subsequently expanded the scope of Kimel in substantive areas of the law, such as in Federal Maritime Commission v. South Carolina State Ports Authority (2002), wherein it concluded that sovereign immunity forbade the commission from adjudicating a dispute over whether a private cruise ship could berth at a state-run port. For state universities that are considered arms of the state, Kimel remains a foundational case.
William E. Thro
See also Central Virginia Community College v. Katz; Florida Prepaid v. College Savings Bank
Alden v. Maine, 527 U.S. 706, 713 (1999).
Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).
Central Virginia Community College v. Katz, 546 U.S. 356 (2006).
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999).
Noonan, J. T., Jr. (2002). Narrowing the nation’s power: The Supreme Court sides with the states. Berkeley: University of California Press.
Thro, W. E. (1999). The Eleventh Amendment revolution in the lower federal courts. Journal of College & University Law, 25, 501–526.
Thro, W. E. (2000). The education lawyer’s guide to the sovereign immunity revolution. Education Law Reporter, 146, 951–981.
Thro, W. E. (2007). The future of sovereign immunity. Education Law Reporter, 215, 1–31.
United States v. Georgia, 546 U.S. 151 (2006).
Age Discrimination in Employment Act, Pub. L. No. 90-202 (1967).
City of Boerne v. Flores, 521 U.S. 507 (1997).
Ex Parte Young, 209 U.S. 123 (1908)
Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002).
Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).
Religious Freedom Restoration Act, Pub. L. No. 103-141 (1993).
Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).