Showdown over states' authority

When a group of longtime college professors accused the state university system in Florida of age discrimination, they had their pick of antidiscrimination laws to support their claims.

Among them: federal laws passed by Congress in Washington, and state laws passed by the legislature in Tallahassee.

The professors chose to take their case to federal court. It is a move that has set the stage this week for yet another major constitutional showdown at the US Supreme Court over the balance of power between the states and the federal government.

At issue in the case, set to be argued here Oct. 13, is whether state employers can be held accountable in federal court for alleged violations of federal age-discrimination laws.

The case is the latest in a string of federal-state disputes to reach the high court in the 1990s. Virtually all of them have been decided in favor of the states by the same 5-to-4 majority of conservative justices who are seeking to restore what they view as a constitutionally mandated government of dual sovereigns. What that means is 50 sovereign state governments each on equal footing with the federal government.

According to the Constitution, the federal government's powers are to be strictly limited to areas of national concern, such as foreign affairs, national defense, and interstate commerce. All other powers - including regional and local issues - are to be left to the states.

Testing limits of Constitution

It sounds easy in theory, but in practice the federal government has greatly expanded its authority since the 1930s into many areas that had traditionally been reserved to the states.

As a result, in some areas, such as enactment and enforcement of age-discrimination laws, it is unclear who should have primary jurisdiction, the states or the federal government.

"This is another in a series of decisions the court is making that deals with the boundaries between congressional power and state power," says Jeffrey Sutton, a lawyer arguing the case for the Florida Board of Regents, which was sued by the professors. "It is a very important case in clarifying those lines for when Congress can tell the states how to regulate their own employees."

The Supreme Court's decision in the case is expected to spell out exactly what steps Congress must take to extend national jurisdiction over the states in civil rights laws.

Some analysts in the civil rights community are concerned that the court might significantly limit Congress's authority to impose jurisdiction on the states. Such action would call into question the scope of a wide range of existing federal antidiscrimination laws, including the Americans with Disabilities Act.

At the heart of the Florida case is whether Congress followed the proper procedure to supersede state sovereign immunity from federal laws. In part, Congress invoked the Equal Protection Clause of the 14th Amendment to justify the broad reach of the federal age-discrimination law.

The Equal Protection Clause basically mandates that the states must treat everyone equally. But there are important differences between this constitutional mandate and the much broader legal standards required in the law Congress passed.

Critics say the federal age-discrimination law was out of proportion to any national need for such legislation when the law was extended to cover the states in 1974.

Roughly 30 states had already passed their own age-discrimination laws and there were no reports of widespread age discrimination against state employees in states that had not yet adopted their own laws, they say.

But supporters of the federal law say it reflects the spirit of the 14th Amendment.

"The essence of equal-protection law is that every individual is entitled to be judged and evaluated on their ability, and not on what their age is," says Laurie McCann, a lawyer with the American Association of Retired Persons.

State vs. federal laws

Ms. McCann says that Congress was aware in 1974 that 30 states had already adopted their own age-discrimination laws, and felt it was a good start but did not go far enough.

"They determined that given the seriousness and pervasiveness of age discrimination in the country they needed a national law," she says.

Today, all 50 states have their own age-discrimination statutes, and some analysts insist that the states are in a better position than the federal government to fight age discrimination against state employees and others.

"Nobody is suggesting that age discrimination is anything but odious," says David Fine, a Harrisburg, Pa., lawyer who filed a friend-of-the-court brief in the case on behalf of the Republican Caucus of the Pennsylvania House of Representatives. But "it is not necessary to have federal legislation. The states are doing it."

He adds, "Pennsylvania law is probably stronger than federal law."

McCann of AARP agrees that some state laws are excellent weapons against discrimination. But she says not all state laws are written to the same standards, nor are they aggressively enforced.

"Alabama didn't have a law until two years ago," she says. And the new statute is mere "words on paper," she adds, because there is no agency or enforcement procedure in place to carry out the intent of the law.

Under such circumstances, she says, having joint federal and state jurisdiction is a good idea to ensure that no state workers fall between the cracks.

Mr. Sutton disagrees. "I would listen to that argument the day the federal government waives its sovereign immunity from state claims in state court," he says.

(c) Copyright 1999. The Christian Science Publishing Society