The New Federalism and the ADA: State Sovereign Immunity from Private Damage Suits after Boerne


State sanctioned disability-based discrimination comes in two basic flavors: prejudice and thoughtlessness. The former takes disability into consideration, while the latter ignores it. The Fourteenth Amendment’s Equal Protection Clause prohibits the prejudice but not the thoughtlessness, at least when the latter is unassociated with irrational assumptions based on myths, fears and stereotypes. Unlike most other civil rights statutes, the Americans With Disabilities Act (hereinafter “ADA” or “Act”) prohibits both prejudice and thoughtlessness7and aptly has been characterized as a “second-generation civil rights statute.” Unfortunately, theADA’s claim to innovation might yet prove to be its constitutional Achillesheel. Across the United States, state governments are challenging Congress’s constitutional power under Section 5 of the Fourteenth Amendment to prohibit any state-sponsored disability-based discrimination other than prejudice-based differential treatment. The spear point of this constitutional attack is the ADA’s requirement that the states as employers sometimes must provide a reasonable accommodation. This article explores theissues raised by this constitutional assault on the ADA.

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