Tug of War Over States' Powers Has Lawyers Watching Closely
There was nothing extraordinary about the 1997 dispute between an Arkansas couple and a school district over the special education plan for their autistic son.
The parents, identified in court papers as Jim and Susan C., wanted their 8-year-old to be taught using an approach known as the Lovaas program. The Atkins school district and a special education cooperative said no. So the parents sued the districts and the Arkansas Department of Education in federal court under the Individuals with Disabilities Education Act and Section 504 of the Rehabilitation Act.
Thousands of parents sue their school districts and states every year while citing those laws, which are the cornerstones of the federal government's efforts to improve the education of children with disabilities.
But the Arkansas case has taken an unusual twist that has landed it smack in the middle of a judicial debate over federalism—the balance of power between Washington and the states.
The state of Arkansas has argued in federal court that it cannot be sued by private parties under the IDEA or Section 504. Its lawyers maintain that the federal government cannot use the distribution of funds to coerce the states to give up their immunity from private lawsuits.
"Recent decisions of the Supreme Court have all made clear that the sovereign status of the states in our federal system must be given full effect and fair deference by both Congress and the federal courts," the state argues in court papers.
If this legal theory prevails, it could mean that states, and perhaps even individual school districts, would be immune from private federal lawsuits under several important federal education statutes. That might be good news for state and local governments, but bad news for parents upset over special education services for their children or for victims of sex discrimination in schools.
Arkansas is taking its cues from a thin majority on the U.S. Supreme Court that over the past five years has scaled back the power of Congress to apply federal legislation to the states.
In 1995, for example, the high court struck down a federal statute that made it a crime to possess a gun near schools, saying state criminal laws were sufficient to handle the problem. Last year, the court ruled that the states may not be sued by their own employees over violations of the federal Fair Labor Standards Act of 1938. This term, it has ruled that the states can't be sued over the Age Discrimination in Employment Act of 1967. And it is weighing a case that asks whether states can be sued under the employment provisions of the Americans with Disabilities Act.
These and other recent cases have all been decided by the same 5-4 lineup of the justices and have provoked vigorous philosophical debate about the concept of federalism. The justices' opinions are rife with references to Greek political philosophers, English monarchs, and the Founding Fathers.
The court's most conservative members—Chief Justice William H. Rehnquist and Associate Justices Sandra Day O'Connor, Antonin Scalia, Anthony M. Kennedy, and Clarence Thomas— have consistently voted in recent federalism cases to restore the balance of power to the states.
"Congress has vast power but not all power," Justice Kennedy wrote for the majority last year in Alden v. Maine, the case concerning the Fair Labor Standards Act. "When Congress legislates in matters affecting the states, it may not treat these sovereign entities as mere prefectures or corporations."
The court's more liberal members—John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer— have tended to view the majority's concern for state power as something of a folly that will be overturned in time.
For ordinary citizens, debates over such concepts as federalism and sovereign immunity might seem esoteric. "I don't think the general public studied a lot about 11th Amendment sovereign immunity in civics class," said Julie Underwood, the general counsel of the National School Boards Association.
But she and other school law experts have been closely monitoring the Supreme Court's federalism debate for its potential effects on public education.
For at least two states—California and Maryland—federal courts have ruled that local school districts are arms of the state for purposes of immunity from federal lawsuits. That means they can assert the same immunity from private federal lawsuits as the state government.
In at least 22 other states, courts have ruled that school districts are not entitled to state sovereign immunity; no clear status has been established in the remainder of the states, said Michael Simpson, a lawyer with the National Education Association. The distinction has been made based on such factors as how a state constitution defines the role of districts and whether court judgments are paid out of the state treasury.
Thinking About Federalism
Justice Kennedy recently tried to stir excitement over the topic of federalism with a group of high school students visiting the court.
Asked about how the court might handle a case involving violence in the schools, Justice Kennedy responded with a short lesson about the court's 1995 ruling in U.S. v. Lopez, which struck down the Gun-Free School Zones Act.
In Lopez, "our court held that the federal government had just overreached its powers," the justice said during a Dec. 14 session that was carried live on C-SPAN.
"Federalism is something our students, our people at large, don't think about often enough," he continued, with obvious enthusiasm. "The federal government, believe it or not, is a government of limited powers. The school gun case was a way for this court to teach ... the people to be careful about thinking that the government in Washington solves everybody's problems. That's not the design of the Constitution."
At the heart of most of the court's recent federalism cases is the 11th Amendment, the first constitutional amendment designed to overturn a Supreme Court decision. In 1793, the court held that a South Carolina citizen could sue Georgia over Revolutionary War debts without Georgia's consent. The new nation was shocked over this blow to state sovereignty, and Congress quickly adopted the amendment. It was ratified in 1795.
The amendment provides that states cannot be sued by citizens of other states or by foreigners without their consent. But for more than a century, the Supreme Court has interpreted the amendment as also barring federal lawsuits against a state by its own citizens.
The high court's recent rulings on federalism have prompted states to raise 11th Amendment immunity claims in all kinds of lawsuits, including those that led to the Supreme Court's rulings limiting fair-labor-standards and age-discrimination laws from being applied to the states.
There has long been an assumption, however, that Congress could abrogate the states' sovereign immunity through legislation based on the spending clause in Article I of the Constitution. In other words, Congress could require states to give up their immunity in exchange for federal funds.
But now, that notion is under attack in the latest round of federalism cases making their way through the courts.
In Arkansas, state officials acknowledge that the recent legal trend in favor of state power played a role in their decision to argue that the federal special education law and Section 504 of the Rehabilitation Act don't apply to the states.
"Obviously, the Supreme Court's renewed attention to 11th Amendment immunity reminded us of the arguments that were available," said Dennis R. Hansen, an assistant state attorney general.
Last year, a three-judge panel of the U.S. Court of Appeals for the 8th Circuit, based in St. Louis, rejected the state's argument that it couldn't be sued under the IDEA. The court held that Arkansas waived its 11th Amendment immunity by accepting federal funds under the special education law.
But the court reached a different conclusion regarding Section 504, which prohibits discrimination based on disability in any program receiving federal funds.
Congress engaged in "impermissible coercion" by requiring the states to waive their immunity for suits under Section 504 because the waiver applies if the state receives any federal funding, regardless of whether it is related to combating disability discrimination, the court said.
"That was news to us" that Congress doesn't have the power to attach strings to federal spending programs, said Seth M. Galanter, a lawyer in the U.S. Department of Justice.
The panel's ruling "was wrong and literally unprecedented," the Justice Department said in court papers asking the full 8th Circuit court to rehear the case. The full court vacated the panel's opinion and heard new arguments in the case last month.
The department argues that "Congress has an interest that none of its funds are used to support, directly or indirectly, programs that discriminate."
Arkansas responds in a court brief that Section 504 is overly coercive "because the statute is so broad that states are denied a meaningful choice whether to accept or reject federal financial assistance."
The disability laws are not the only ones under attack by the states. Virginia argues in a case involving one of its universities that states are immune from private lawsuits under Title IX of the Education Amendments of 1972, which prohibits sex discrimination in educational programs receiving federal funds.
The case involves a student at George Mason University in Fairfax, Va., who sued the university under Title IX, alleging that she was sexually harassed by one of her professors. Title IX lawsuits over sexual harassment and gender bias in athletics programs have been pursued against state universities for years. It would be a radical shift if Virginia's argument that states could no longer be sued under the act was accepted.
Both a federal district court and the U.S. Court of Appeals for the 4th Circuit, in Richmond, rejected the state's arguments. The state has asked the Supreme Court to take up the case.
Michael P. Farris, a home schooling advocate and a former candidate for lieutenant governor of Virginia, filed a friend-of-the- court brief in support of the state. He argues that the Founding Fathers would not have ratified the Constitution if they believed that state sovereignty could be infringed by federal spending.
"Did James Madison and the others have in mind a Congress that controlled education through its purse strings? I don't think so," said Mr. Farris, who also runs the Center for the Original Intent of the Constitution at Patrick Henry College in Purcellville, Va.
The Justice Department takes a different view.
"There can be no doubt that Congress, under the spending clause, can require a university that elects to receive federal financial assistance to promise not to discriminate on the basis of sex in any of its operations," the department says in a brief. "Waiver of sovereign immunity is the price a university must pay if it elects to remain federally funded."
The justices could decide by this month whether to add the Title IX case to their continuing debate over federalism.
Vol. 19, Issue 24, Pages 1, 30Published in Print: February 23, 2000, as Tug of War Over States' Powers Has Lawyers Watching Closely