Enforcing Federal Civil Rights Against Public Entities After Garrett

Abstract

In this article, I focus on the Section 5 branch of the federalism revival, the branch that was at issue in Board of Trustees of the University of Alabama v. Garrett, and the one that is most likely to arise when litigating on behalf of or against an arm of state government. In order to position Garrett doctrinally, I first describe the conceptual framework that determines the validity of Congress' effort to abrogate state judicial sovereignty. This is an abridged version since more complete histories have been reported widely, both recently in these pages, and in many other journals. I then turn to Garrett's holding and the Court's reasoning to demonstrate that Garrett raised the bar, making it more problematic than ever that Congress will be able to deploy Section 5 to abrogate state judicial immunity. I shall argue that the outcome in Garrett was dictated neither by precedent nor by the rational basis standard of judicial review accorded disability-based discrimination. After evaluating the Court's decision, I evaluate some options for enforcing federal rights that have survived Garrett. I finish with a discussion of some likely repercussions we might expect from Garrett.