Washington Watch: The Sleeper Amendment

It never made the top ten, but it may shake up the country even so.

By Ruth Flower

The Eleventh Amendment—the one that shields states from at least some kinds of suits—is rising to prominence again. Since its adoption in 1793, the amendment’s meaning and application have been stretched, reshaped, and perforated many times. Its language provides that the citizens of one state may not sue another state in federal court. But more than a hundred years ago, the Supreme Court ruled that the words of this particular amendment were unimportant—what it meant to say was that "federal jurisdiction does not extend to making defendants of unwilling states," no matter who is suing, and no matter what the issue is.

But states can consent to be sued in federal court, and in some instances, Congress can override states’ immunity with legislation. Until fairly recently, for example, individuals could sue states in federal court for monetary damages for actions that hindered commerce in violation of the commerce clause of the U.S. Constitution or that infringed on patent or copyright laws, as well as for violation of the equal-protection or due-process clauses of the Fourteenth Amendment.

New Ball Game

Now, in a recent series of cases, the Supreme Court has begun to define a different balance between states’ rights and federal legislative power, narrowing the reach of certain major civil rights laws, and potentially redefining the intellectual property rights of faculty in relation to public institutions. So far, the Supreme Court has said that states are immune from suits invoking the Indian Gaming Regulatory Act, the Patent Remedy Act, the Trademark Remedy Clarification Act, the Religious Freedom Restoration Act, and the Age Discrimination in Employment Act.

New Rules

In 1996 the Supreme Court ruled in Seminole Tribe of Florida v. Florida that Congress can override states’ immunity from suit only when it enacts a law under the Fourteenth Amendment to enforce a constitutional right to equal protection, due process, or the voting rights specifically described in the Fourteenth Amendment. In addition, Congress must make "unmistakably clear" its intention to abrogate states’ rights under the Eleventh Amendment; the legislation must be responsive to a widespread record of "unconstitutional behavior" by states; and the legislative requirements must be "congruent and proportional" to the injury that is being remedied or prevented.

Prognosis?

Other federal laws enacted before the Supreme Court’s new rules were laid down will undoubtedly be reviewed, and some will be found wanting. For example, two equal-pay cases wait in the wings. The Supreme Court has agreed to hear a sovereign immunity case based on the Americans with Disabilities Act next term. Copyright cases are being decided at the Court of Appeals level now. In January, in a case called Chavez v. Arte Publico, the Court of Appeals for the Fifth Circuit held that federal copyright laws do not prevail against states’ immunity from federal suit.

Order amid Chaos

These recent cases create chaos in the enforcement of federal laws, some of which are based on constitutional authority that predates the Eleventh Amendment itself. The commerce clause, for example, including the specific powers of Congress to legislate on matters pertaining to patents and copyrights, has virtually no meaning if it is not meant to apply to states. The Supreme Court’s peculiar brand of judicial activism will force states into unexpected roles on issues that were once thought to be matters of constitutional right.

Fortunately, four other avenues are still open: (1) injunctive relief remains available. For example, a faculty member could sue to enjoin the sale without her permission of a work that she authored. (2) State laws cover some employment and discrimination issues, and may need to be strengthened if they are to be adequate guardians of individual rights without the support of federal law. (3) Contracts (individual or collective bargaining) and faculty handbooks may need to offer clearer protection and enforcement processes on issues such as ownership of copyright and appropriate nondiscriminatory processes and criteria for reviews, promotions, and the like. (4) University policy and faculty governance processes may need to be improved and strengthened with regard to matters that have formerly relied on the enforcement of federal or constitutional law.

Ruth Flower is director of AAUP government relations.

Printer-Friendly Page