A CASE FOR THE AGES

	October 13 ,1999
	After this brief background report, Gwen Ifill discusses the age-discrimination cases currently under consideration by the Supreme Court with Jan Crawford Greenburg, national legal affairs correspondent for the Chicago Tribune.

GWEN IFILL: Jan, the Court has generally ruled that when there's a conflict between the states and the federal government, that the states win. How did that play out today? JAN CRAWFORD GREENBURG: Well, the Justices picked up right where they left off last term with a theme they've become increasingly passionate about -- and suggested that once again perhaps Congress went a little too far in imposing its will on the states and authorizing private citizens to sue states under federal law. GWEN IFILL: In this case, how does that apply? Is it age discrimination law? JAN CRAWFORD GREENBURG: That's right. At issue is a federal age discrimination law, the Age Discrimination in Employment Act. And as the piece mentioned, several professors and faculty members sued under that law, maintaining that the state had discriminated against them. Now, the states responded in the lower Courts that they were immune from these kind of suits under the Constitution's 11th Amendment. GWEN IFILL: What is the 11th Amendment? JAN CRAWFORD GREENBURG: The 11th Amendment once was thought to be a pretty obscure amendment that protected suits... states from lawsuits in federal Court. And Congress had been able to get around it and impose laws on the states. But the Court, the Supreme Court has in recent years made it more difficult for Congress to get around the 11th Amendment. And in this case, the lower Courts said the 11th amendment prohibited these private lawsuits under the federal Age Discrimination Act. And that's what the Court, the Supreme Court took up Tuesday. GWEN IFILL: So the real question here is who has the power to make these laws and to enforce these laws, the federal government or the states? JAN CRAWFORD GREENBURG: Well, right. I mean, at bottom this is a case about power: Congress's power over the states, Congress's power to interpret the Constitution, perhaps in ways that the Supreme Court would not. GWEN IFILL: This is not the only example of that this term. We have heard the 5-4 conservative, liberal, however you want to split it up, members of the Court have always sided with the states. This is not the only case where we'll see this played out. JAN CRAWFORD GREENBURG: No. This is the first of four cases that the Court already has scheduled this term. And the other cases raise even or as important questions about the scope of Congress's authority to get involved in areas that the states have traditionally been concerned with. For example, one of the laws that the Court will review later this term involves the federal Violence Against Women Act. The states argue that that's... the law prohibits or allows victims of gender-based discrimination to sue their attackers, and the states say, look, this is an area of the law that we should have responsibility for, and Congress should just butt out. So the Court will take up some of those issues, and today's just the first. GWEN IFILL: The Court almost seems to have a little bit of disdain towards the way Congress has acted in a lot of these case, but what is the practical effect if say the Court were to decide that you cannot sue your state government under federal statutes on something like age discrimination? What would happen? JAN CRAWFORD GREENBURG: In the short term, the immediate impact is it answers a pretty simple question. And that's will the three million or so older state employees across the country be able to turn to federal law and sue if they believe the state has discriminated against them based on their age. But as you said, I mean, the impact of today's case could be much broader. And it touches on a host of complex issues that get to issues of congressional power. And it could affect numerous other federal discrimination statutes, fair housing laws, the Americans with Disabilities Act, the Equal Pay Act. So the stakes are incredibly high. GWEN IFILL: As a result, was it a vigorous argument today, or a lot of questioning? JAN CRAWFORD GREENBURG: It was. I mean, the Justices were very engaged. But it was a very intellectual argument because these are, as I said, very complex issues, though as today's case shows, with very real, real-life consequences. And I think that some of the splits became evident at the argument today. Some of the more conservative Justices, Justice Scalia, the chief justice, expressed concern that the Congress had gone too far, that they lacked the power to impose these private lawsuits on states. GWEN IFILL: We always watch Justices O'Connell and Kennedy to see where they're going to go. Where did they seem to be leaning? JAN CRAWFORD GREENBURG: They, as well, raised questions about the authority of Congress to pass this law. Justice O'Connor made the point, don't states have these laws? I thought that states had their own anti-discrimination laws? Isn't that true? And the lawyers were forced to concede, yes, states have their own discrimination laws that they are bound by. But a lawyer for the Justice Department today said that sometimes those laws are very weak. GWEN IFILL: Now this would have never reached the Court if it had been about race or sex discrimination because they're explicitly protected in the Constitution. JAN CRAWFORD GREENBURG: Some people would say, and that's why they're so closely watching this case, that they're just not sure how far the Court is going to take this issue, but yes, Justice Scalia today said, look, race is really not what we're talking about here. We have always said that race is entitled to heightened protection under the Constitution, and therefore Congress is justified when it comes in and tries to enforce anti-discrimination provisions under the Constitution's 14th Amendment and hold the states accountable. So right. I mean, race seems to be off the table. Sex, the Court has never put on the same level as race. It's maybe a little lower than race. But the lawyers...the lawyer for the states today suggested that sex would not be affected, as well. GWEN IFILL: Speaking of accountability, if you are a state employer who feels that you have a grievance under age discrimination law and the Court were to say, no, you can't take...get any kind of relief was a of the federal law, where do you go? JAN CRAWFORD GREENBURG: Well, that's... the lawyers today, particularly the lawyer for the states, were careful to stress that you could still sue under your own state law, that all 50 states prohibit age discrimination and they include themselves in those prohibitions. And you still could also look to this federal law. For example, you could sue the state official in charge of, you know, your department to stop the discriminatory behavior or the federal government could step in and sue on behalf of the workers and maybe in terms of a class action. Lawyers for the employees say those remedies just aren't enough. The AARP, which has filed a brief in this case, emphasizes that some of the laws are very weak. For example, the federal law gives you the right to a jury trial that might be a more favorable reception for your claims, whereas state laws don't always do that. GWEN IFILL: As it stands, are there state laws which apply to this in all 50 states? JAN CRAWFORD GREENBURG: Yes. There are. The lawyers - the lawyer for the state said yes, and he made that point very clear today. In fact, he said, "look, states when Congress amended this Act in 1974, presumably to include the states, half the states had those laws in place at that time." He said that was evidence that Congress should not be doing this, that it needed to stay out of it because states could handle it and there was no evidence that states were going out and discriminating against its employees anyway. A lawyer for the Justice Department today said, no, the fact that states have these laws on the books shows congressional action is necessary. Private citizens should be able to turn to federal law to sue the states. GWEN IFILL: Thanks a lot, Jan.