ABSTRACT

From: Review of Public Personnel Administration 23:1 (March 2003): 3-22. Abridged. In the past few decades, we have witnessed an accelerated devolution of

powers from the federal government to the states, not only by the executive branch but by the judicial branch of government as well. The issue of federalism-or more appropriately, the new federalism-as it pertains to the courts refers to the distribution of power between state and federal courts. At its core is the concept of “state sovereignty,” which, through a number of constitutional provisions, seeks to preserve the “immunity”1

rights of states, protecting them from unnecessary or unwarranted intrusion by the federal government. Recently, the U.S. Supreme Court has brought the new federalism to the forefront of constitutional law. This article examines the U.S. Supreme Court’s role in the new federalism, particularly around two pieces of antidiscrimination legislation: The Americans with Disabilities Act (ADA) of 1990 and the Age Discrimination in Employment Act (ADEA) of 1967 as amended. It begins with a brief examination of the legal framework under which the Supreme Court has been applying and justifying its federalism policy. It then examines the Supreme Court’s decisions in two cases involving antidiscrimination laws: Kimel v. Florida Board of Regents (2000) and Garrett v. the University of Alabama (2001). The implications of these decisions and viable legal responses to them are also addressed. It should be noted at the outset that the analysis presented here does not

address the official or personal immunity doctrines as they pertain to individual government employees (see Rosenbloom, 1994, 1997). These immunity doctrines address whether federal, state, and local government officials or employees who violate an individual’s statutory or constitutional rights can be sued and held liable for their actions. However, as will be discussed later in the text, reliance on these doctrines may provide alternative relief to state employees alleging they have been discriminated against based on age or disability.