enforcement clause of the 14th amendment

Another Arrow in the Bag for Plaintiffs when it Comes to Disability Discrimination by Governmental Entities

December 5, 2018 by William Goren 2 Comments

Before getting started on the blog of the week, I want to express my condolences to the Bush family on the passing of George H.W. Bush. He signed the Americans With Disabilities Act on June 26 of 1990. His son also has a powerful legacy in that regards as he signed the ADAAA. Simply put, for my ability to participate in the mainstream world as well as the specialty I have carved out for my legal career, I owe a great debt to both of them. In keeping with their legacy, I was incredibly moved that H.W.’s service dog was front and center in the papers. G-D speed H.W. May H.W. rest in peace.

Today’s case will revolutionize the consequences for what happens when a nonfederal governmental entity, and possibly a federal governmental entity as well, discriminates on the basis of disability. As I have mentioned before, at least once a month, I get a call about a court system somewhere around the country discriminating against a person with a disability before it. Previously, I have written about two different cases involving suing court systems successfully for disability discrimination. A discussion of those cases can be found here and here.

The case of the day is a case from the Sixth Circuit decided September 25, 2018, Bullington v. Bedford County, Tennessee, which can be found here. As usual, the blog entry is divided into categories and they are: facts; opinion for the court; concurring opinion; and takeaways/thoughts. The reader is free to focus on any or all of the categories.

Facts

Bullington worked as a dispatcher at the Bedford County Sheriff’s Department for eight years. Sometime during that period, she developed Hodgkin’s lymphoma that was treated with chemotherapy. However, the chemotherapy caused neuropathy and scar tissue in her lungs so that she needed additional treatment. As a result of that diagnosis and treatment, she asserted the department treated her differently than the other employees. She filed suit alleging: violation of her constitutional rights under the 14^th amendment to be free from discrimination and retaliation; violation of her constitutional rights because the County did not provide adequate supervision and training; violation of the Tennessee human rights act; and violation of the ADA. The defendant moved for judgment on the pleadings, which was granted by the District Court, and Bullington appealed.

Opinion for the Court

Plaintiff admitted that she did not file a charge with the EEOC. Accordingly, she did not exhaust administrative remedies. Further, while she may have followed prior counsel’s advice on whether to file a charge with the EEOC, which was mistaken, that is not enough to allow for equitable tolling. Accordingly, the ADA claim has to be dismissed.
Determining whether Congress precluded a remedy under §1983 turns on congressional intent.
A distinction exists between §1983 claims premised on constitutional violations and those based on statutory violations in determining whether a §1983 claim is precluded.
Where the contours of rights between the statutory claim and the constitutional protection diverge in significant ways, it is not likely that Congress intended to displace §1983 suits involving important constitutional rights.
Both the Third and the Eighth Circuits have held that the ADA does preclude §1983 claims for violations of the ADA. Even so, that is not what is going on here. Rather, plaintiff alleges constitutional violations and not violations of the ADA itself. So, her claims are being brought under the 14^th amendment’s equal protection clause and not under the ADA.
Several Circuits have allowed constitutional claims to be brought under §1983 even where the plaintiff’s constitutional claims run parallel to claims brought under analogous statutes. Further, other courts have allowed plaintiffs to pursue claims under §1983 for disability discrimination even when they run parallel to ADA violations.
The court looked to a Supreme Court case, Fitzgerald v. Barnstable School Committee 555 U.S. 246 (2009), holding that a §1983 claim for an equal protection violation was allowed to run parallel to a title IX claim. In reaching that decision, the Supreme Court look to title IX’s enforcement mechanism, the scope of title IX rights and 14^th amendment rights, and to the context and history of title IX.
Based upon Fitzgerald, there are three things to consider when examining congressional intent to preclude a constitutional claim, and they are the statute’s: text and history; remedial scheme; and the contours of its rights and protections.
The burden of proving preclusion of a §1983 claim lies with the defendant.
Neither the statutory text nor the legislative history of the ADA contains a clear indication of congressional intent to preclude simultaneous constitutional claims.
42 U.S.C. §12201(b) expressly provides that nothing in the ADA shall be construed to invalidate or limit remedies, rights, and procedures of any federal law or law of any State or political subdivision of any State or jurisdiction providing greater equal protection for the rights of individuals with disabilities than afforded by the ADA. Such language is strong evidence that Congress did not intend to preclude remedies under §1983 for constitutional violations.
The Committee on Education and Labor’s report as well as the Committee on the Judiciary’s report both make clear that the ADA was not intended to preclude other remedies, including those of constitutional law.
The ADA’s relation to title VII of the civil rights act also suggests that Congress did not intend to include alternative remedies for disability discrimination as the ADA uses the procedures set forth in title VII. That relationship is important because at the time Congress passed the ADA in 1990, courts frequently held that the comprehensive scheme provided in title VII does not preempt §1983, and that discrimination claims may be brought under either statute, or both.
At the time Congress enacted the ADA, the Sixth Circuit had already allowed plaintiffs to bring parallel concurrent title VII and §1983 constitutional claims.
Congress’s presumed familiarity with title VII case law and the numerous references to title VII within the ADA suggest that Congress could not have intended for the ADA to preclude a §1983 claim.
With respect to title II of the ADA, it’s remedies are tied into title VI of the Civil Rights Act. Title VI of the Civil Rights Act as far back as 1967 was routinely interpreted to allow for parallel and concurrent §1983 claims.
Where an employee establishes employer conduct violating both title VII and rights derived from another source, whether it be the Constitution or federal statutes existing at the time of the enactment of title VII, the claim based on the other sources are independent of the title VII claim.
In 2012, the Sixth Circuit held that a §1983 claim regarding a constitutional violation could survive despite title VII.
Where the contours of such rights and protections between the two laws diverge in significant ways, it is not likely that Congress intended to displace §1983 suits enforcing constitutional rights even where there is some overlap in coverage.
Rights created by the ADA are strikingly different from those already protected by the equal protection clause as the stated purpose of the ADA as found in 42 U.S.C. §12101(b)(1)-(3) is: providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities; to provide clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities; and to ensure that the federal government plays a central role in enforcing standards set forth in the ADA on behalf of individuals with disabilities.
In addition to invoking its power under §5 of the 14^th amendment, Congress also invoked a broad power under the commerce clause.
The protections available under the ADA and the equal protection clause are critically different from each other. For a person to prove an ADA claim, the plaintiff has to show: that she was in a class of persons protected by the ADA; that she was otherwise qualified for the position; that she suffered an adverse employment action; that the employer knew or had reason to know of her disability; and that the adverse employment action occurred under circumstances raising a reasonable inference of unlawful discrimination.
The equal protection clause requires a very different showing than the ADA. With respect to the equal protection clause, citing to Heller v. Doe, 509 U.S. 312 (1993), and to Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), a plaintiff has to show that there was no rational basis for the State action to treat her differently because of her disability.
Given the different requirements for proving the claim under the ADA and the equal protection clause, it makes sense that even if the comprehensive remedial scheme of the ADA somehow precluded utilizing §1983 to assert an ADA violation, the plaintiff still gets to assert a violation of the equal protection clause based on alleged disability discrimination through 1983.
Since both the rights created by the ADA and the equal protection clause very significantly as do the elements required to prove both of those claims, that evidences a lack of congressional intent that the ADA precluded separate enforcement of individuals with disabilities constitutional rights.

III

Concurring Opinion of Judge Kethledge

Extrinsic materials like legislative history have a role in statutory interpretation only to the extent they shed a reliable light on the enacting legislature’s understanding of otherwise ambiguous terms.
Legislative history by itself has zero significance in statutory construction. Legislative history only matters to the extent it clarifies a specific ambiguity in the statutory text.
Nothing in the text or structure of the ADA supports preclusion of a parallel constitutional claim. Accordingly, that is reason enough to hold that the ADA and constitutional claims can parallel each other. Therefore, referring to legislative history to justify that conclusion is completely unnecessary.

Takeaway/Thoughts

This case is absolutely huge with respect to the consequences of what happens when a State court engages in disability discrimination. Now, under this decision, a person with a disability has parallel tracks they can pursue (the ADA as well as procedural and substantive due process).
Very interesting that the court cites to Heller and Board of Trustees of the University of Alabama for two reasons. First, as I have written in all of the Editions of my book, Understanding the ADA, which can be found here, in Heller, the United States Supreme Court assumed that persons with disabilities were in the rational basis class since both parties didn’t contest that. It is true that Board of Trustees of the University of Alabama said that persons with disabilities with respect to employment are in the rational basis class. However, Board of Trustees of the University of Alabama relied upon Heller, where a rational basis classification was assumed without argument, and upon Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432 (1985), which would be more appropriately classified as a rational basis plus classification. So, putting persons with disabilities in the rational basis class with respect to employment does not follow squarely from precedent.
Regardless of persons with disabilities being classified in the rational basis class when it comes to employment not squarely following from precedent, it is now settled that persons with disabilities are in the rational basis class with respect to employment. However, that is simply not the case with respect to title II of the ADA. Under Tennessee v. Lane, 541 U.S. 509 (2004), which we discussed here, when it comes to accessing the courts, persons with disabilities are in a much higher classification than rational basis. Accordingly, that means rebutting an equal protection violation or a substantive due process violation under title II of the ADA means the State showing it had a compelling interest in the discrimination. Considering the ADA, that is going to be an almost impossible bar for the State to jump over.
Since the equal protection clause and the substantive due process clause mirror each other, one wonders whether this decision cannot be used to address disability discrimination by a federal court, where it happens, even though the federal courts are not subject to the ADA.
Will the courts split on this thereby leading to a U.S. Supreme Court decision? Hard to tell. However, the concurring opinion provides a way for the courts to avoid splitting, as any split would likely come from judges that frown on legislative history. It is possible, even if it is very unlikely, that the United States Supreme Court could decide to hear a matter without a split among the Circuits.
Title I of the ADA requires exhaustion of administrative remedies, but keep in mind, that title II and title III of the ADA do not. When exhaustion is required is absolutely something the attorney has to know unless they want to be contacting their malpractice carrier.
The concurring opinion believes that it was so clear that the ADA does not preclude equal protection claims that you don’t even have to look at legislative history. That is important because many people on the U.S. Supreme Court don’t like to look at legislative history unless they have to. That said, it is concerning that this is a title I case as persons with disabilities have not fared well at the Supreme Court level when it comes to disability discrimination in employment. I would feel more comfortable about a person with a disability chances at the Supreme Court over the issue of constitutional law and the ADA running in parallel to each other if this was a title II case.
Failure to provide training on the ADA possibly could violate a person with a disability equal protection rights under this decision.
The burden of showing preclusion is on the defense.

I am figuring on one more blog entry before our annual greatest hits issue. I have an entry in mind, but you never know what will come up.

Sovereign Immunity in the Absence of Constitutional Violations

November 15, 2017 by William Goren 3 Comments

The capitol Building — Legislative Branch

After a two-month period, where my computer was completely on the fritz, I may have finally fixed it. It turns out that Windows itself had become corrupted and that it needed to reinstall Windows. Once I did, that fixed the problem. You wouldn’t believe what I went through before I finally got to that point. Nevertheless, things are good to go, and I couldn’t be more excited. Next week is Thanksgiving week, and I will be in Chicago doing the family thing. So, I will be taking the week off. Accordingly, this is going to be my last blog entry for the next couple of weeks until the week after Thanksgiving. I do want to wish everybody a happy Thanksgiving and safe travels if you are traveling.

Today’s case came to me from Larry Berger, a member of the deaf and hard of hearing Bar Association. If you are a deaf/Deaf/hard of hearing attorney, I highly recommend the Association. It turns out that the attorney for the plaintiff is someone that I know and am quite familiar with her work, Mary Vargas of Stein and Vargas. She was kind enough to send me the decision since I could not find it on Lexis or Google scholar. Congratulations to Mary! The case is Reininger v. State of Oklahoma (CIV-16-1241-D) decided by the Western District of Oklahoma on November 9, 2017. As is usual, the blog entry is divided into categories, and they are: facts; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories.

Facts:

The facts are pretty straightforward. The plaintiff is deaf and tracks the status of state legislative bills, particularly ones affecting persons with disabilities. The Oklahoma State Senate, the Oklahoma House of Representatives, and their respective leaders maintain Internet websites showing live feeds of legislative hearings and proceedings. Plaintiff claimed that he did not have meaningful access to this information because the audio content of the online broadcasts is not captioned, and so he cannot understand what is being said. He contacted both legislative bodies about the lack of captioning and asked them to bring the websites into compliance with federal disability discrimination laws. While apparently noncompliance was admitted, captioning was not provided due to budgetary constraints. Allegedly captioning would be cost prohibitive and technologically difficult. As an alternative, interpretive services were offered to the plaintiff if the plaintiff were to give advance notice that he wanted to attend a proceeding. Plaintiff then brought suit alleging violations of title II of the ADA and §504 to Rehabilitation Act and sought declaratory judgment, compensatory damages, and injunctive relief. Defendants defended on the grounds of sovereign immunity under the 11^th amendment and also defended under the 10^th amendment as well.

Court’s Reasoning

In rejecting the defendants 11^th and 10^th amendment claims, the court reasoned as follows:

No doubt exists that Congress intended to waive sovereign immunity of the States regardless of their consent when it came to the ADA. So, the only question is whether that waiver is consistent with the enforcement clause of the 14^th
When it comes to title II and sovereign immunity, three questions must be addressed at the outset: 1) what aspect of the State’s alleged conduct violated title II; 2) to what extent such misconduct also violated the 14^th amendment; and 3) if the misconduct violated title II but not the 14^th amendment, whether Congress’s purported abrogation of sovereign immunity with respect to that class of conduct is nevertheless valid.
The particular conduct alleged in the complaint was failure to caption streaming video of legislative sessions.
Plaintiff did not allege a violation of the 14^th amendment in his complaint.
Once the initial questions with respect to sovereign immunity, mentioned above, are addressed, three other questions have to be considered in order to assess whether the legislation is consistent with the enforcement clause of the 14^th amendment and they are: 1) the nature of the constitutional right at issue; 2) the extent to which Congress’s remedial statute was passed in response to a document history of relevant constitutional violations; and 3) whether the Congressional statute is congruent and proportional to the specific class of violations at issue given the nature of the relevant constitutional right and the identified history of violations.
The overarching issue here is the citizen’s right to participate in the political process and to have meaningful access to the tools necessary for such participation.
The fundamental right of access to the courts and participation in court services is analogous to the right to participate in the political process impaired by a lack of access to legislative statements by elected representatives. Physical access to a public forum doesn’t mean anything if the person with the disability is denied access to publicly available information that allows equal participation in the political process.
The right to engage in the political process equally to others is encompassed in the First Amendment right to petition the government for redress of grievances. If a citizen cannot access information about the legislative positions of his or her representative, then the citizen’s ability to adequately petition the government and participate in the political process is severely impaired.
The United States Supreme Court has recognized a First Amendment right of the public to receive suitable access to social, political, aesthetic, moral, and other ideas and experiences through broadcast media. Any restrictions on the broadcasting industry has been for the purpose of securing the public’s First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. By analogy, the same thing applies to the Oklahoma legislature when they are engaged in Internet broadcasting of proceedings to the public, thereby, creating an analogous right of access to the information about state legislative matters.
The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process is a fundamental right and therefore, subject to heightened scrutiny.
A historical record and pattern of constitutional violations existed when it came to enacting title II of the ADA. In particular, discrimination against individuals with hearing loss was explicitly mentioned in a variety of different contexts.
While the ADA does not have a requirement for legislative proceeding to be broadcasted, it does require that a qualified individual with a disability be afforded equal participation and benefits of the services, programs, or activities of a public entity. That was necessary because of discrimination against persons with disabilities persisting in such areas of public accommodation, education, transportation, communication, recreation, voting and access to public services. Here, plaintiff is clearly a qualified person with a disability and legislative proceedings are activities of a public entity with the Internet broadcast of those proceedings being a public service.
In a footnote, the court noted that public accommodations may not be limited to buildings and physical structures, but also noted that courts have gone both ways on the matter.
Since a fundamental right is involved, title II of the ADA is a proportional response to the harm being redressed, and especially so, since title II allows public entity to assert affirmative defenses of undue burden and fundamental alteration so that required accommodations are not overly burdensome.
In a footnote, the court said that even if a citizen’s right to meaningful participation in the political process and to access publicly available information needed to participate in that process was not a fundamental right, sovereign immunity was still properly waived because of pervasive unconstitutional state conduct. That is, you also have here: 1) a persistent pattern of exclusion and irrational treatment of persons with disabilities; 2) gravity of harm from such discrimination; and 3) limited compliance costs.
Finally, the court found that any 10^th amendment claim was premature as that went to the relief to be granted rather than whether the case could go forward.

Takeaways:

I have seen over and over again defendants claim that sovereign immunity applies unless a constitutional violation is alleged. That is simply not the law, and this case makes that point clear.
This court does a nice job of laying out the analytical framework for dealing with sovereign immunity questions. It is a two-step process with six different questions.
The right to meaningful participation in the political process and the right of access to publicly available information needed to participate in that process are fundamental rights.
The way sovereign immunity works, as we have discussed previously, is once the equal protection category is determined, the rest of the analysis follows without difficulty. Here, since a fundamental right was found, that means a law could require just about anything and it will be a proportionate response to the harm being redressed.
Very interesting that the court in a footnote saw fit to mention that places of public accommodations very well may extend beyond buildings and physical structures, a point which we have discussed extensively in the blog.
The court also left itself an out if somehow a fundamental right was not found to be by saying that the plaintiff could also win under the pervasive unconstitutional state conduct theory.
I have never seen a 10th amendment claim before. The court doesn’t rule it out, but says that it is premature at the pleading stage.
This case should be a wake-up call for public and even private entities using live video, but not captioning them. It’s a real problem. Just within the last month, I have run into this issue with respect to three webinars that I either eventually attended or wanted to attend. No, I didn’t do anything legally but I could have….

HAPPY THANKSGIVING!

Sovereign immunity and persons with disabilities

September 25, 2012 by William Goren 6 Comments

Sovereign immunity is enormously complicated. What it is, is a principle from which the founding fathers took from England that says a sovereign cannot be sued for damages without its consent. This principal goes way back, and also can be found in the 11th amendment to the United States Constitution. The language of the 11th amendment is rather arcane. That said, it has been interpreted by the courts over the years to mean that a sovereign cannot be sued for money damages without its consent. Why would a sovereign consent? It is a matter of simple politics actually. If a sovereign cannot be sued for money damages under any circumstances, governmental accountability would go out the window. Therefore, what government will do is that they will consent to be sued for money damages under certain circumstances. For example, at the federal level, there is the Federal Tort Claims Act. At the state level, many states will consent to be sued for variety of mistakes. Those state laws can differ from state to state, and if you are thinking about suing a state entity, you definitely want to check into those particular laws, especially since those laws may allow suits against the state entity for some purposes but not others. For example, Illinois has waived its sovereign immunity with respect to Americans with Disabilities Act claims in so far as it pertains to employment. However, they have not waived their sovereign immunity with respect to other matters.

The next question that arises is whether the federal government can force the state to waive its sovereign immunity even if it doesn’t want to. The answer to that question is that it depends. First, Congress must have an explicit statement in that law it has created saying that it intends to force the state to waive its sovereign immunity. Board of Trustees of the University of Alabama v. Garrett 531 U.S. 356, 364 (2001). However, that isn’t good enough by itself anymore. A further requirement is that the law has to be properly enforcing the equal protection clause of the 14th amendment to the U.S. Constitution. Id. Whether that law is properly enforcing the equal protection clause of the 14th amendment will depend upon whether the law is proportional to the harm being addressed against the affected class. Tennessee v. Lane 541 U.S. 509, 520 (2004). Then, the question arises as to how are people classified. Depending upon the class a person is in, that law has a greater or lesser chance of being upheld. That is, if a law is extremely comprehensive and the person is in a class of persons where discriminatory laws affecting that class are given very close scrutiny, then that comprehensive law is likely to be upheld as a proper enforcement of the 14th amendment. If that person is in a class of persons where a discriminatory law would be given wide berth, then a comprehensive law would likely to be not upheld as a proper enforcement of the 14th amendment. To put it in sovereign immunity terms, a forced waiver of sovereign immunity would not be upheld if the class of persons involved is a class that allows for wide berth for discriminatory laws. A forced waiver of sovereign immunity would be upheld if the class of persons involved is a class that does not allow for wide berth for discriminatory laws. Keep in mind, all laws discriminate in some ways.

Since this blog is all about the Americans with Disabilities Act, the question becomes what equal protection class are persons with disabilities in. Persons with disabilities are treated in a way unlike any other class of people for purposes of equal protection. That is, with respect to everybody else, regardless of the fact situation, a person is in a certain class or not. For example, racial classifications are a classification that receive strict scrutiny. That is, a law that discriminates on the basis of race would have a very high probability of being thrown out. In the sovereign immunity context, that would mean that a law addressing racial discrimination could be very comprehensive and be a proper enforcement of the 14th amendment. With respect to gender, that classification receives intermediate scrutiny. That is, a law that discriminates on the basis of gender, would have a good chance of being thrown out under the 14th amendment. In the sovereign immunity context, that would mean that a law addressing gender discrimination could be rather comprehensive and be a proper enforcement of the 14th amendment. With respect to everyone else, with one exception, they are in what is called the rational basis class. That is, a law that discriminates against that class of persons would be given a very wide berth and likely to be upheld. In the sovereign immunity context, that means it would be very unlikely that a force waiver of sovereign immunity would be allowed.

As noted above, there is one exception to how people are classified under the equal protection jurisprudence. That exception are persons with disabilities. People with disabilities, as far as I know, are the only class of people whose classification under equal protection jurisprudence varies with the facts. That is, with respect to employment, persons with disabilities are in the rational basis class (the lowest class for equal protection jurisprudence). That means, with respect to sovereign immunity the Americans with Disabilities Act was deemed too comprehensive to address the harms affected by the class of people involved, i.e. persons with disabilities. In other words, the Supreme Court in Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), held that a forced waiver of sovereign immunity was not going to work with respect to employment claims filed against the sovereign (state entities). What this means, is that if you are filing an employment discrimination claim against a state entity, you must check your state statute to see if the state has waived its sovereign immunity with respect to such claims.

What about other claims? Often times, a claim against a state or governmental entity has nothing to do with employment at all. Rather, under title II of the Americans with Disabilities Act, as we have discussed in various places in this blog, a governmental entity must have its programs and activities accessible to persons with disabilities. What if they screw up? Can they be sued for damages even if they are a state entity and they have not consented to being sued? The answer to this question is that it depends on the facts. That is, in Tennessee v. Lane, 541 U.S. 509 (2004), the U.S. Supreme Court held that sovereign immunity was properly waived with respect to the fundamental right of accessing the courts. Id. at 533-534. A reading of that case also reveals that an argument can be made for forced waiver of sovereign immunity with respect to other rights as well, such as rights involving basic constitutional guarantees, basic rights, or other fundamental rights. Therefore, if you are thinking about suing a state entity for damages for disability discrimination with respect to their programs and activities under title II of the Americans with Disabilities Act, you have to ask yourself two questions. First, is a right involving basic constitutional guarantees ( Id. at 522) basic rights ( Id. at 529), or other fundamental rights ( Id. at 524, 534), involved? Second, if not, has the state waived its sovereign immunity?

How do you know if a fundamental right, a right affecting basic constitutional guarantees, or a basic right is involved? You don’t. That said, the Supreme Court in Tennessee v. Lane did mention that some of the fundamental rights that states have limited for people with disabilities included the right to vote, the right to marry, and the right to serve as jurors ( Id. at 524). They also noted the unconstitutional treatment of persons with disabilities in a variety of other settings such as unjustified commitment, abuse neglect of persons with disabilities committed to the state mental health hospitals, and irrational discrimination in zoning decisions Id. at 524-25). They also noted a pattern of unequal treatment in the administration of many kinds of public services, programs, and activities including such things as the penal system, public education, and voting ( Id. at 525).

Before proceeding further, it needs to be noted that a sovereign can most certainly be sued regardless of whether they consent to a waiver of sovereign immunity if the relief being sought is injunctive relief ( See Board of Trustees of the University of Alabama 531 U.S. at 376 (Justice Kennedy and Justice O’Connor concurring). Also, municipalities are not sovereign and therefore they can be sued for money damages regardless of their consent (see Id.).

What about a County? The answer to that question, is not so simple. The answer is going to depend upon whether the county is an arm of the state. If the county is an arm of the state, then the principles of sovereign immunity as discussed above are going to apply to it as if it was a state entity. If it is not an arm of the state, then since it is not a sovereign, it, like municipalities, could be sued for money damages for violating federal law, such as the Americans with Disabilities Act.

How do you know when an entity may be an arm of the state? A case that answers this question is Ross v. Jefferson County Department of Health _ F.3d _, 2012 WL 4054460 (11th Cir. September 17, 2012). In this case, a former employee brought an employment discrimination suit against the Jefferson County Department of Health alleging violations of the Americans with Disabilities Act. The Jefferson County Department of public health defended on the grounds that they were entitled to sovereign immunity. The District Court agreed and the plaintiff appealed. The 11th Circuit affirmed the ruling of the district court. In the 11th circuit, whether a governmental entity is an arm of the state depends on four factors: 1) how does state law define the entity?; 2) what degree of control does that state maintain over the entity?; 3) where does the entity get its funds from?; and 4) who is responsible for judgments against the entity? With respect to the Jefferson County Health Department, it had a unique set up. In Alabama, the authority of the Jefferson County Health Department was derived directly from the state in law gave it its marching orders as to what it was supposed to do. Also, the state board of health supervised and controlled the County board of health, County health officers and all public health work. In fact, the state health officer in Alabama approved and could remove the County health officer. There were other factors as well, many of which would probably be found in any County. Finally, the Jefferson County Board of Health historically has been treated as an arm of the state.

A couple of things to keep in mind. First, counties may be set up very differently from state to state. Having lived in Illinois for many years prior to having moved to Georgia, it does not seem that Cook County, Illinois for example, would have a similar set of facts as to those faced by the Jefferson County Board of Health. Cook County, for example, has its own code, its own elected leaders, a budget of considerable size and considerable autonomy. This is not to say of course, that Cook County is not an arm of the state (that would have to be researched), because it is going to depend upon how the Seventh Circuit evaluates when an entity is an arm of the state. It is also going to depend upon very specific statutes pertaining to Cook County that the state of Illinois has. Finally, it is also going to depend upon the autonomy that the entity has. For example,Cook County pays damages out of its own budget. Again, the purpose is not to pick on Cook County and there are most certainly a bunch of facts out there that would influence the thinking whether they are an arm of the state one-way or the other. My only purpose is by way of illustration to show that different counties in different states may have very different situations.

In short, sovereign immunity is terribly complicated. Competent legal counsel is essential. Whether it applies is going to depend on very specific facts as well as upon state statutes and what rights are involved.

enforcement clause of the 14th amendment

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