Boerne

[Michael MASINTER]

On Wed, 25 Jun 1997, Rick Hills wrote:

> Professor Masinter writes:
>
> "Boerne puts Title Two of the Americans With Disabilities Act in
> immediate peril; it may also imperil the Age Discrimination In Employment
> Act as applied to states.  I would think Title VII disparate impact law
> survives, but I agree the issue inevitably will arise."
>
>         How so?  Can't ADEA be affirmed under the commerce clause a la
> McClung/Heart of Atlanta Motel?  Employment of the elderly is as commercial
> as spare ribs at Ollie's Barbecue, no?  Likewise, with ADA?  It seems to me
> that Boerne will be practically irrelevant to all but two narrow category
> of statutes:

        The two statutes raise related, but not identical problems.  First
Title Two of the ADA, which requires states to make state agencies, their
buildings, and programs, accessible to persons with disabilities.  The
operation of a court system, like many other aspects of the operation of a
state government, does not seem to be a matter congress can regulate
through the commerce claues.  How, for instance, does congress have the
power to dictate the architectural design of a courthouse, or to insist
that prisoners be given special accommodations to facilitate their use of
prison programs?  Though employment of state employees more clearly can be
reached through the commerce clause, most of what state governments do
does not come within its reach.  Therefore, it strikes me that most
applications of Title Two rise or fall on section five power.

        Though Congress can through its power to enforce the equal
protection clause (construed in Washington v. Davis only to forbid
intentional discrimination) reach disparate treatment of persons with
disabilities by states, how can it impose affirmative duties to modify
buildings and programs to accommodate this or that person with a
disability?

        Until now, challenges to Title Two have failed, most recently in
the Seventh Circuit, where Judge Posner wrote that the measure of section
five power is McCullough v. Maryland.  I don't see in Boerne any reference
to McCullogh.  I think it puts the statute in grave peril,

        The ADEA ties Boerne together with Seminole Tribe; whatever the
current reach of commerce clause powers is after the National League of
Cities trilogy, that reach is insufficient to subject states to liability
in federal courts unless the statute in question is an exercise of section
five power.  Thus, even if Congress can regulate the employment of the
elderly by the state, it cannot provide a meaningful remedy absent power
under section five.  And if the ADEA is reconceived as a section five
statute (the Court ducked that in EEOC v. Wyoming), then Boerne comes into
play; Massachusetts v. Murgia establishes a rational basis test, but the
ADEA forbids age discrimination unless age is a bona fide occupational
qualification.  Examples of rational age discrimination in employment
abound, as Murgia was quick to point out.  But it is very hard to prove
age is a BFOQ.


Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at law.acast.nova.edu