Attorney's Working Files Vol. 1 of 5 (Redacted)

    IN THE

Supreme Court of tfje Umteb S tates
October Term, 1975 

No. 75-251

Garland M. Fitzpatrick, et al.,
Petitioners,

v.

Frederick Bitzer, et al.

BRIEF FOR THE LAWYERS COMMITTEE FOR CIVIL 
RIGHTS UNDER LAW, THE NATIONAL 

ASSOCIATION FOR THE ADVANCEMENT OF 
COLORED PEOPLE, THE MEXICAN AMERICAN 

LEGAL DEFENSE AND EDUCATIONAL FUND, AND 
THE AMERICAN CIVIL LIBERTIES UNION,

AS AMICI CURIAE

Nathaniel R. J ones 
General Counsel, NAACP 
1790 Broadway 
New York, N.Y. 10019

V ilma Martinez 
J oel Contreras 
Morris J. Baller 

Mexican-American Legal Defense 
and Educational Fund 

145 Ninth Street 
San Francisco, California

M elvin L. Wulf 
E. R ichard Larson 

American Civil Liberties Union 
22 East 40th Street 
New York, N.Y. 10016

M ichael H. Gottesman 
R obert M. Weinberg 

Bredhoff, Cushman, Gottesman 
and Cohen

1000 Connecticut Avenue, N.W. 
Washington, D. C. 20036

Albert E. J enner 
Paul R. D imond 

Lawyers Committee for 
Civil Rights under Law 

733 15th Street, N.W. 
Washington, D. C. 20005

Attorneys for Amici Curiae



TABLE OF CONTENTS
Page

INTEREST OF AM ICI C U R IA E ....................................................  1

INTROD UCTION AND SUMMARY OF A R G U M E N T ..........  2

ARGUMENT: IN ESTABLISHING FEDERAL JU RIS­
DICTION OVER EMPLOYEE ACTIONS 
AGAINST STATES FOR COMPLETE RE­
LIEF, INCLUDING BACKPAY, FOR V IO ­
LATIONS OF TITLE V II, CONGRESS PRO­
CEEDED IN FULL CONFORM ITY W ITH
THE CONSTITUTION .......................................  9

A. Congress Has Power To Confer Federal Jurisdiction Over In­
dividual “Federal Question” Suits Against S ta tes ....................... 10

1. Article III, as originally adopted, conferred federal judicial 
power over federal question claims against the states, and 
the Eleventh Amendment did not withdraw that power . . . .  11

2. Whatever the correctness of the decision in Hans v. Louisi­
ana, its broad declaration that Congress lacks power to con­
fer federal jurisdiction over federal question suits against 
states is unfaithful to the historical and judicial precedents. . 19

3. This Court has recognized the inapplicability of Hans where 
Congress has expressly conferred jurisdiction to entertain
federal question suits against s ta te s .......................................... 23

B. Congress Clearly Decided to Confer Federal Jurisdiction Over
Employee Actions Against States for Complete Relief, Includ­
ing Backpay, for Violations of Title V I I ..................................... 28

C. The Foregoing Analysis Gains Additional Strength in This Case
Because the Cause of Action Was Created Pursuant to the 
Fourteenth Am endm ent.....................................   31

1. The question whether the later enactment of the Fourteenth
Amendment brings it outside the scope of the Eleventh has 
been recognized, but not decided, in prior cases.....................  31

2. The later enactment of the Fourteenth Amendment would,
indeed, bring it outside the reach of the Eleventh, even if the 
Eleventh otherwise precluded federal question actions against 
states .................................    33

CONCLUSION .....................................................................................  37



11

TABLE OF CITATIONS
Cases

Page
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ..........  5, 11, 36
Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240 (1975) 11
Brennan v. Iowa, 494 F.2d 100 (8th Cir. 1974), cert, denied

421 U.S. 1015 (1975) ................................................................  3
Burt v. Board of Trustees of Edgefield Cty. Sch. D., 521 F.2d

1201 (4th Cir. 1975) .......................................... ' . . . . . ......... .. . 4
Cheramie v. Tucker, 493 F.2d 586 (5th Cir. 1974) ................... 33
Chisholm v. Georgia, 2 U.S. 41,9 (1793) ............ .. 7, 14-16, 20-22
City of Kenosha v. Bruno, 412 U.S. 507 (1973) .......................  33
Civil Rights Cases, 109 U.S. 3 (1883) ..................................... .. 34-35
Cohens v. Virginia, 19 U.S. 264 (1821) ..................... 8, 12, 17-19, 22
County of Lincoln v. Liming, 133 U.S. 529 (1 8 9 0 )........................ 4
Dean Hill Country Club, Inc. v. City of Knoxville, 379 F.2d 

321 (6th Cir. 1967), cert, denied 389 U.S. 975 (1967) . . . .  33
Dunlop v. State of New Jersey, 522 F.2d 504 (3rd Cir. 1975) . . 3
Edelman v. Jordan, 415 U.S. 651 (1974) 3, 4, 26, 28, 29, 30-31, 32-33 
Employees v. Department of Public Health, 411 U.S. 279

(1973) .......................................................... ........................  3, 8, 26-30
Ex parte Virginia, 100 U.S. 339 (1880) .............................  10, 28, 35
Ex parte Young, 209 U.S. 123 (1908) ...................................  31-32, 33
Fitzpatrick v. Bitzer, 519 F.2d 559 (2nd Cir. 1975) ............  3, 4, 32
Fletcher v. Peck, 10 U.S. 87 (1810) ............................................ 20
Gibbons v. Ogden, 22 U.S. 1 (1824) ...........................................  25
Hander v. San Jacinto Junior College, 519 F.2d 273 (5th Cir.

1975) ........................................................................................   4
Hans v. Louisiana, 134 U.S. 1 (1890) ...............................  8, 20-24, 27
Hopkins v. Clemson Agricultural College, 221 U.S. 636 (1911) 4
Hostrop v. Bd. of Jr. College Dist. No. 515, 523 F.2d 569 (7th

Cir. 1975) ........................................................................ . . . . .  4
Hutchison v. Lake Oswego School District, — F.2d —, 11 FEP ‘ ■
■ Cases 161 (9th Cir. 1975) .......................................................... i 4

Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281
: (6th Cir. 1974) .....................................................................   4

Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974) .................. 32
Kawanakoa v. Polyblank, 205 U.S. 349 (1907) .........................  10
Kennecott Copper Corp. v. State Tax Commission, 327 U.S.

573 (1946) ..........    4
Larson v. Domestic & Foreign Corp., 337 U.S. 682 (1949) . . .  16
Maryland v. Wirtz, 392 U.S. 183 (1968) ....................... ' 26
Meyer v. State of New York, 344 F.Supp. 1377 (S.D. N.Y.

1971), affirmed 463 F,2d 424 (2nd Cir. 1972) ..................... 33
Monroe v. Pape, 365 U.S. 167 (1961) .......................................  28, 33
New Jersey v. Wilson, 11 U.S. 164 (1812) .................................  ' 20



Ill

Page
North Carolina v. Temple, 134 U.S. 22 (1890) .........................  20
Parden v. Terminal R. Co., 377 U.S. 184 (1963) ..........  8, 23-30, 33
Petty v. Tennessee-Missouri Bridge Commission, 359 U.S. 275

(1959) ...........................................................................................  12
Powell v. McCormack, 395 U.S. 486 (1969) .............................. 19
Shapiro v. Thompson, 394 U.S. 618 (1969), affirming 270 F.

Supp. 331 (D. Conn. 1967) ......................... ...........................  32
Singer v. Mahoning County Board of Mental Retard., 519 F.2d

748 (6th Cir. 1975) ........................................ ................ ............  4
Sires v. Cole, 320 F.2d 877 (9th Cir. 1963) ...............................  33
Skehan v. Board of Trustees of Blaomsburg State Col., 501 F.2d

31 (3rd Cir. 1974) .................................................................. .... 32
Slaughter-House Cases, 83 U.S. 36 (1873) ..................................  34
State Depart, of Health and Rehabilitation Services v. Zarate,

407 U.S. 918 (1972), affirming 347 F.Supp. 1004 (S.D. Fla.
1971) ...................................................    32

Strauder v. West Virginia, 100 U.S. 303 (1880) ....................... 34
Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) ..............  36
United States v. Mississippi, 380 U.S. 128 (1965) ..................... 3
United States v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir.

1973) ....................................................................................   5
United States v. Texas, 143 U.S. 621 (1892) .............................  3
United States ex rel. Lee v. State of Illinois, 343 F.2d 120 (7th

Cir. 1965) .....................................................................................  33
Virginia v. Rives, 100 U.S. 313 (1880) .........................................  35
Wyman v. Bowens, 397 U.S. 49 (1970), affirming 304 F.Supp.

717 (S.D. N.Y. 1969) .........................................................   32

Constitutional Provisions

Article III, Section 2 . .
Article VI ...................
Eleventh Amendment ,
Fourteenth Amendment

Section 1 ...................
Section 5 ...................

Statutory Provisions

Civil Rights Act of 1871, 42 U.S.C. §1983 ...............................  26, 33
Civil Rights Act of 1964, Title VII, as amended by the Equal

Employment Opportunity Act of 1972 ...................................  2-37
Section 706 (f) (1), 42 U.S.C. §2000e-5 (f) (1) ................... 3
Section 706 (g), 42 U.S.C. §2000e-5(g) ............................... .. 3

...............6-7, 11-22

...................  10, 11
..................... 2-37
2, 8-9, 27-28, 31-36
........ .. 34
. .  3, 8, 31, 34, 35



Fair Labor Standards A c t ........................................................  3,
Federal Employers Liability A c t ....................................................

M iscellaneous

Federalist No. 32 (Hamilton) ......................................................
Federalist No. 81 (Hamilton) ............................................ 12-14.
Flack, “The Adoption of the Fourteenth Amendment” (John

Hopkins Press, 1907; Peter Smith, 1965) ...............................
Hart and Wechsler, “The Federal Courts and the Federal Sys­

tem” (2nd Ed. 1973) ................................................................
H. Rep. No. 92-899, 92d Cong. 2d Sess. (1972) .......................
“Legislative History of the Equal Employment Opportunity Act 

of 1972,” published by the Senate Committee on Labor and
Public Welfare (1972) ................................................ 3, 4, 5,

S. Rep. No. 92-681, 92d Cong. 2d Sess. (1972) .........................
U.S. Commission on Civil Rights, “For All the People . . .  By 

All the People” (1969) ..................................... ........................

Page 
26, 30 
23, 26

14
20-21

34

4
29

29, 30 
29

5



IN THE

Supreme Court of tfje Hmteb S tates
October Term, 1975

No. 75-251

Garland M. Fitzpatrick, et al.,
Petitioners,

v.

Frederick Bitzer, et al.

B R IE F  FO R  T H E  LA W Y E R S C O M M IT T E E  FO R CIVIL  
R IG H T S U N D E R  LAW , T H E  N A T IO N A L  

A SSO C IA T IO N  FO R  T H E  A D V A N C E M E N T  O F  
C O L O R ED  PE O PLE , T H E  M E X IC A N  A M E R IC A N  

L EG A L  D E F E N S E  A N D  E D U C A T IO N A L  F U N D , A N D  
T H E  A M E R IC A N  C IV IL L IBE R T IE S U N IO N ,

A S A M IC I C U R IA E

IN T E R E ST  O F A M IC I CURIAE*
The Lawyers Committee for Civil Rights Under Law is 

a non-profit corporation organized in 1963 at the request of 
President Kennedy: its Board of Trustees includes thirteen 
past presidents of the American Bar Association, three 
former Attorneys General, and two former Solicitors Gen­
eral of the United States. The Committee’s primary mission 
is to involve private lawyers throughout the country in the 
quest of all citizens to secure their civil rights through the 
legal process.

The National Association for the Advancement of Col­

* This brief is filed, pursuant to Rule 42(2), with the consent of the 
parties.



2

ored People (NAACP) is a non-profit membership associa­
tion representing the interests of approximately 500,000 
members in 1800 branches throughout the United States. 
Since 1909, the NAACP has sought through the courts to 
establish and protect the civil rights of minority citizens.

The Mexican American Legal Defense and Educational 
Fund was established in 1968. Its primary objective is to 
secure the civil rights of Mexican Americans through litiga­
tion and education.

The American Civil Liberties Union is a nation-wide, 
non-partisan organization of over 250,000 members dedi­
cated to protecting the civil liberties of all persons includ­
ing, inter alia, the right of all persons to equal treatment 
under the law.

The issue in this case is whether, consistent with the 
Eleventh Amendment, state employees may secure monetary 
relief in private actions when they have suffered discrimina­
tion in violation of Title VII of the Civil Rights Act of 1964. 
Each of the amici has a vital interest in the resolution of 
this issue.

This brief is filed to provide the Court with the views of 
amici, refined through extensive litigation under Title VII 
and the Fourteenth Amendment, that the Eleventh Amend­
ment is not a barrier to the private cause of action against 
states for complete relief from prior discrimination, includ­
ing backpay, created by Congress in the 1972 amendments 
to Title VII.

IN T R O D U C T IO N  A N D  SU M M A RY  O F 
A R G U M EN T

In 1972, Congress amended Title VII to extend its pro­
tections against discrimination to employees of state and 
local governments. With unmistakable clarity, Congress 
evinced an intention to create two separate mechanisms for



3

enforcement of these protections: (1) a suit by the Attorney 
General to recover injunctive relief and backpay for em­
ployees who have suffered unlawful discrimination; and (2) 
a suit by the injured employees themselves, if the Attorney 
General does not act within 180 days of the filing of a 
charge, to recover that same relief for their own benefit.1

No one disputes Congress’ power to impose the substan­
tive prohibitions of Title VII upon the states. The 1972 
amendments, as Congress explained in enacting them, were 
an exercise of the power conferred by Section 5 of the Four­
teenth Amendment “to enforce, by appropriate legislation, 
the provisions of this article.”2

Nor does anyone dispute Congress’ authority to authorize 
suits in federal court by the Attorney General to recover 
backpay on behalf of discriminatees. “ [Sjui'ts by the United 
States against a State are not barred by the Constitution.” 
Employees v. Missouri Public Health Dept., 411 U.S. 279, 
285-286 (1973) (recognizing Congress’ power to authorize 
suits by the Secretary of Labor to recover unpaid minimum 
wages and unpaid overtime compensation withheld by states 
from hospital and school employees in violation of the Fair 
Labor Standards Act) .3

1 Sections 706(f)(1) and (g), 42 U.S.C. §2000e-5(f) (1) and (g). 
See also “Legislative History of the Equal Employment Opportunity 
Act of 1972,” published by the Senate Committee on Labor and Public 
Welfare (hereinafter “Leg. Hist.” ), pp. 1815-16, 1847. Congress addi­
tionally provided that if the employees themselves bring the suit, and 
are successful, they may be awarded attorneys fees. Section 706(g). 42 
U.S.C. §2000e-5(g).

2 Leg. Hist. 79, 420, 1173-74.
3 See also Edelman v. Jordan, 415 U.S. 651, 669 (1974); United 

States v. Mississippi, 380 U.S. 128, 140-141 (1965); United States v. 
Texas, 143 U.S. 621, 643-646 (1892); Brennan v. Iowa, 494 F.2d 100, 
103 (8th Cir. 1974), cert, denied 421 U.S. 1015 (1975); Dunlop v. 
State of New Jersey, 522 F.2d 504, 515-516 (3rd Cir. 1975). And see 
the decision below, Fitzpatrick v. Bitzer, 519 F.2d 559, 570 (2nd Cir. 
1975).



4

But the Eleventh Amendment has been invoked, and con­
strued by the court below, to invalidate that portion of the 
1972 amendments by which Congress created a private 
cause of action for backpay against state governments (al­
beit not, presumably, against local governments which do 
not enjoy the protection of the Eleventh Amendment4). 
The practical consequences of that ruling, if upheld, are 
awesome.

There are millions of state employees,5 and Congress 
found that employment discrimination against them is

4 It is hornbook law that a “suit against a county, a municipality, or
other lesser governmental unit is not regarded as a suit against a state 
within the meaning of the Eleventh Amendment.” H art and Wechsler, 
The Federal Courts and the Federal System, 690 (2nd Ed. 1973). See, 
e.g., County of Lincoln v. Luning, 133 U.S. 529, 530 (1890); Flopkins 
v. Clemson Agricultural College, 221 U.S. 636 (1911); Kennecott Cop­
per Corp. v. State Tax Commission, 327 U.S. 573, 579 (1946); Edel- 
man v. Jordan, 415 U.S. 651, 667 n. 12 (1974); Incarcerated Men of 
Allen County Jail v. Fair, 507 F.2d 281, 287 (6th Cir. 1974); Hander 
v. San Jacinto Junior College, 519 F.2d 273, 279 (5th Cir. 1975); 
Singer v. Mahoning County Board of Mental Retard., 519 F.2d 748, 
749 (6th Cir. 1975); Burt v. Board of Trustees of Edgefield Cty. Sch. 
D., 521 F.2d 1201, 1205 (4th Cir. 1975); Hostrop v. Bd. of Jr. College 
Dist. No. 515, 523 F.2d 569, 577 n. 3 (7th Cir. 1975); Hutchison v. 
Lake Oswego School District, F.2d , 11 FEP Cases 161, 165
(9th Cir. 1975). In the instant case, the court below concluded that 
the State Employees’ Retirement Commission is the “alter ego” of 
the State, and thus enjoys whatever immunity the Eleventh Amend­
ment provides the State of Connecticut (519 F.2d at 564-565). Peti­
tioners have not sought review of that holding, and accordingly our 
brief assumes arguendo that respondents are “the state” for Eleventh 
Amendment purposes.

5 Congress found that there are more than ten million employees of 
state and local governments. Leg. Hist. 77, 418. The congressional data 
does not indicate how much of the total represents employees of the 
states, or of agencies which are the “alter ego” of the states and thus 
share the states’ Eleventh Amendment immunity, but the figure surely 
is in the millions.



5

“more pervasive than in the private sector.”6 It is a central 
purpose of Title VII “to make persons whole for injuries 
suffered on account of unlawful employment discrimina­
tion,” Albemarle Paper Co. v. Moody>, 422 U.S. 405, 418 
(1975), a purpose which in most cases cannot be achieved 
without backpay, Id. at 418-421. It is also the purpose of 
Title VII to prompt employers to discard their discrimina­
tory practices, a purpose with which backpay has “an ob­
vious connection,” Id. at 417.7

Congress, deeming these considerations equally applicable 
to state employers, made backpay available against the 
states. Congress also made the judgment, given the multi­
tude of potential claims by state employees, not to make 
the Attorney General the sole prosecutor of Title VII claims 
on behalf of such employees. Declaring that preservation 
of the discriminatee’s cause of action was “paramount,”73

6 Leg. Hist. 77-78, 418-419. Congress relied in part upon a report of 
the U.S. Commission on Civil Rights, For All the People . . . By All 
the People (1969). The report “examined equal employment oppor­
tunity in public employment in seven urban areas located throughout 
the country—North as well as South” (Leg. Hist. 77). The House 
Committee summarized the report’s findings as follows (ibid.) :

The report’s findings indicate that widespread discrimination 
against minorities exists in State and local government employ­
ment, and that the existence of this discrimination is perpetuated 
by the presence of both institutional and overt discriminatory prac­
tices. The report cites widespread perpetuation of past discrimina­
tory practices through de facto segregated job ladders, invalid 
selection techniques, and stereotyped misconceptions by supervisors 
regarding minority group capabilities.

7 “If employers faced only the prospect of an injunctive order, they 
would have little incentive to shun practices of dubious legality. It is 
the reasonably certain prospect of a backpay award that ‘pr°vicle[s] the 
spur or catalyst which causes employers and unions to self-examine and 
to self-evaluate their employment practices and to endeavor to elim­
inate, so far as possible, the last vestiges of an unfortunate and ignomi­
nious page in this country’s history’.” Id. at 417-418, quoting United 
States v. N.L. Industries, Inc., 479 F.2d 354, 379 (8th Gir. 1973).

7a Leg. Hist. 1847.



6

Congress expressly conferred a private cause of action when­
ever the Attorney General has not sued within 180 days 
of the filing of an employee’s charge.

Invalidation of the private cause of action for backpay 
would mean either that Title V II’s objectives would go 
partially unfulfilled, or that Congress would have to appro­
priate the additional sums necessary to enable the Attorney 
General to institute actions wherever a valid claim of dis­
crimination existed. Whether the Eleventh Amendment 
subjects Congress to this Hobson’s choice is the issue posed 
by this case.

We show in this brief that Title V II’s private cause of 
action for backpay does not contravene the Eleventh 
Amendment. Our showing proceeds upon the following 
analysis:

Immunity from suit is an attribute of sovereignty. While 
the states retained their sovereignty over most matters upon 
entering the Union, they yielded their sovereignty to the 
extent that the Constitution conferred powers upon the na­
tional government—powers which were declared to be “su­
preme”.

As originally adopted, however, Article III, Section 2 of 
the Constitution—which defined the federal judicial power 
—encroached upon state sovereignty in greater respects than 
did the remainder of the document. For in addition to creat­
ing judicial power over all federal questions—a power 
which was understood to embrace federal question claims 
against the states, and which excited no controversy as it 
was wholly consistent with the cession of sovereignty made 
by the states in joining the Union—it also created judicial 
power over state law “controversies . . . between a State and 
citizens of another State . . . and between a State . . . and 
foreign states, citizens or subjects.” This provision did excite 
controversy, for read literally it trespassed upon the sover­
eignty retained by the states: the states would become sua­



7

ble in federal court upon “state law” claims which they had 
not consented to entertain in their own courts.

In urging ratification of the Constitution, supporters as­
sured the states that the “diversity” clause was not to be 
read literally: it was not intended to depart from the gen­
eral principle that a sovereign is immune from suit absent 
consent, and thus it would allow “state law” suits against 
states only where not inconsistent with their sovereignty, i.e., 
where they had consented to suit. That promise proved 
short-lived, however, for in Chisholm v. Georgia, 2 U.S. 419 
(1793), four of the Court’s five justices construed the di­
versity clause literally, to confer federal judicial power 
over any claim against a state by a non-citizen of that state. 
Only the lone dissenter, Justice Iredell, would have confined 
the diversity clause to state-law claims upon which the 
States had consented to suit. (Significantly, Justice Iredell 
recognized and approved Congress’ power to create federal 
jurisdiction over federal question claims against the states).

The Eleventh Amendment was a reaction to Chisholm. 
It was designed to reinstate the original understanding of 
the diversity clause, to which only Justice Iredell had ad­
hered in Chisholm. The wording of the Amendment— 
which speaks in diversity terms—is no accident; it defines 
the metes and bounds of the alteration which its framers 
sought to accomplish. There is no historical evidence 
that the Amendment was intended to withdraw federal ju­
dicial power over federal question claims against states, 
and indeed such a withdrawal would have been wholly in­
consistent with the Amendment’s objective: to restore the 
states’ “sovereign” immunity from suit. The framers of the 
Amendment would surely have chosen different words if 
their intention had been to preclude all suits against states, 
for they were aware that all who had articulated the “origi­
nal understanding” which they sought to reinstate—includ­
ing Justice Iredell—had approved the existence of federal



8

judicial power over federal question claims against the 
states.

In Cohens v. Virginia, 19 U.S. 264 (1821), Chief Justice 
Marshall confirmed that the Eleventh Amendment had not 
withdrawn federal judicial power over federal question 
claims against states. But 69 years later, in Hans v. Louisi­
ana, 134 U.S. 1 (1890), the Court declared otherwise. Al­
though the Hans Court might have decided the case before 
it on narrower grounds, it announced that states could never 
be sued in federal court without their consent. This conclu­
sion was premised upon a wholly erroneous reading of the 
historical and judicial precedents. This Court has subse­
quently recognized that, whatever the correctness of the 
holding in Hans on the narrow issue presented there, its 
broad declaration of universal immunity will not be fol­
lowed when it collides with an express decision by Congress, 
in exercising the sovereign powers of the national govern­
ment, to confer federal jurisdiction over individual causes 
of action against the states. Par den v. Terminal R. Co., 
377 U.S. 184 (1963); Employees v. Department of Public 
Health, 411 U.S. 279 (1973).

Parden and Employees involved the Commerce Clause. 
That clause does not authorize Congress to regulate states 
per se, but only to regulate interstate commerce. Accord­
ingly, this Court recognized that Congress could make the 
states susceptible to suits under the Commerce Clause only 
as the states voluntarily brought themselves within the ambit 
of the commerce power by engaging in interstate commerce. 
The instant case, by contrast, involves an exercise of con­
gressional power pursuant to Section 5 of the fourteenth 
Amendment. As that Amendment empowers Congress to 
regulate the states directly, there is no need here, as there 
was in the commerce cases, to find a subsequent waiver of 
immunity by the states’ electing to bring themselves within 
the ambit of congressional power: the states are by defini­
tion within the ambit of Congress’ power to enforce the



9

Fourteenth Amendment. Their sovereignty in this area was 
yielded up to the national government when the Amend­
ment was adopted, and with it the sovereign’s right to im­
munity from suit.

Of course, that the states have ceded Congress the power 
to confer federal jurisdiction over federal question claims 
against them does not mean that the federal courts auto­
matically have jurisdiction to entertain such claims. The 
lower federal courts have only such jurisdiction as Congress 
opts to confer upon them. Congress, sensitive to the ex­
traordinary cession of state sovereignty implicit in our fed­
eral scheme, has treaded warily in conferring jurisdiction 
over individual causes of action against states, and this 
Court has demanded clear evidence of Congressional intent 
before concluding that the states have been made suable.

Such evidence exists in the case of the 1972 Amendments 
to Title VII. Congress decided that employee actions 
against states should be available, in which employees could 
recover all appropriate relief, including backpay.

The foregoing analysis, although valid for Congress’ exer­
cise of any of its enumerated powers, gains additional 
strength in this case because the cause of action was created 
pursuant to the Fourteenth Amendment. Even if the 
Eleventh Amendment had withdrawn federal judicial power 
over all claims against states under the Constitution as it 
then existed, the Fourteenth Amendment, adopted 70 years 
later, mandated Congress to fashion remedial schemes “ap­
propriate” to enforce the obligations which that Amend­
ment imposed directly upon the states.

ARGUMENT
IN  E ST A B L ISH IN G  F E D E R A L  JU R ISD IC T IO N  O V E R  
E M PL O Y E E  A C T IO N S A G A IN ST  ST A T E S FO R  CO M ­
P L E T E  R E L IE F , IN C L U D IN G  BA C K PA Y , FO R  V IO ­
L A T IO N S O F T IT L E  VII, C O N G R ESS P R O C E E D E D  
IN  F U L L  C O N F O R M IT Y  W IT H  T H E  C O N ST IT U T IO N .



10

A . Congress H as Power To Confer Federal Jurisdiction over 
Individual “Federal Question” Suits Against States.

In 1907, Mr. Justice Holmes, writing for the Court, suc­
cinctly stated the source of the sovereign’s immunity from 
suit. Kawanakoa v. Polyblank, 205 U.S. 349, 353 (1907) :

Some doubts have been expressed as to the source 
of the immunity of a sovereign power from suit without 
its own permission, but the answer has been public 
property since before the days of Hobbes. Leviathan, 
chap. 26, 2. A sovereign is exempt from suit, not be­
cause of any formal conception or obsolete theory, but 
on the logical and practical ground that there can be 
no right as against the authority that makes the law 
on which the right depends.

In the instant case, the State of Connecticut asserts that 
it is immune from a suit which Congress has authorized. 
That assertion of immunity obviously does not fit traditional 
notions of sovereign immunity, for here the state is not “the 
authority that [made] the law on which the right depends.” 
Congress made the law; it acted within its power in doing 
so; and the Constitution declares that Congress’ decision is 
“the supreme law of the land; . . . anything in the constitu­
tion or laws of any state to the contrary notwithstanding.” 
Art. VI, cl. 2.

Connecticut’s lack of “sovereignty” with respect to the 
subject matter of this suit is an outgrowth of our federal 
system, which creates bifurcated sovereignties. While the 
states of course remain sovereign with respect to all matters 
not committed to the control of the national government, 
they are not and cannot be “sovereign” in those areas where 
the federal power is “supreme.” By entering the Union, and 
accepting the Constitution, the states yielded up their sover­
eignty to this extent. “[E]very addition of power to the 
General Government involves a corresponding diminution 
of the governmental powers of the States. It is carved out 
of them.” Ex parte Virginia, 100 U.S. 339, 346 (1880).



11

The decision below thus does not vindicate Connecticut’s 
“sovereignty,” but rather deprives the federal government 
of a portion of its sovereignty. What the court below has 
done, in the name of the Constitution, is to reverse the 
Supremacy Clause. It has hamstrung Congress in the choice 
of means for implementing powers which Congress indis­
putably possesses, and conditioned Congress’ ability to utilize 
the means Which it prefers—and prefers for good reasons8 
—upon the states’ consenting to that use.

Of course, a constitution could be written which com­
manded such incongruous results. But as we show in this 
brief, nothing in our Constitution commands them.
1. A rtic le  III, as originally adopted, conferred federal judicial 

pow er over federal question claims against the states, and the 
Eleventh A m endm ent did  not w ithdraw  that power.

Article III, Section 2 of the Constitution—which defines 
the federal judicial power—differs in an important respect 
from all other provisions of the Constitution. The other pro­
visions delineate clear lines between those matters which 
remain the states’ domain, and those which are ceded up 
to the federal government. But Article III, Section 2, ob­
literates those lines to some extent; in addition to conferring 
federal judicial power over “federal” questions, it confers 
such power over “state law” questions where there is diver­
sity of citizenship. And its literal language appears to au­
thorize suits against states by non-citizens without exception,9 
thus wholly eradicating the states’ immunity from suit in 
areas of “state law” where their sovereignty is retained.

8 Not only does Congress’ allowance of employee suits lessen the 
sums which must be appropriated for the Attorney General, but it also 
reflects Congress’ judgment that employee enforcement is critical to the 
accomplishment of Title V II’s objectives. Albemarle Paper Co. v. 
Moody, 422 U.S. 405, 415 (1975). See also Alyeska Pipeline Co. v. 
Wilderness Society, 421 U.S. 240, 263 (1975).

9 Article III, Section 2 extends the judicial power to “controversies 
. . . between a State and citizens of another State . . . and between a 
State, and foreign states, citizens, or subjects.”



12

It is thus not suprising that while the “federal question” 
portion of the Article excited no concern among the state 
legislatures during the ratification process, the “diversity” 
portion—particularly that relating to the suability of states 
—was a subject of great discussion. The concern was not 
merely a theoretical one about the nature of the states’ re­
tained sovereignty, but a very practical one as well.10 The 
war of revolution had drained the resources of the colonies. 
In order to finance the war, the colonies had borrowed 
heavily. They entered the Union with debts they knew 
they could not meet. So long as they remained independent 
entities this was not a problem, for they retained the power 
to deny access to their courts to disappointed creditors. But 
the diversity jurisdiction in the proposed Constitution, they 
feared, would enable foreign creditors, and creditors from 
other states, to secure judicial awards compelling payment.

It was to quiet these fears that Alexander Hamilton, in 
Federalist No. 81, “digressfed]” to discuss “a supposition 
which has excited some alarm upon very mistaken 
grounds” :

It has been suggested that an assignment of the pub­
lic securities of one State to the citizens of another, 
would enable them to prosecute that State in the fed­
eral courts for the amount of those securities; a sugges­
tion which the following considerations prove to be 
without foundation.

It is inherent in the nature of sovereignty not to be 
amenable to the suit of an individual without its con­
sent. This is the general sense, and the general prac­
tice of mankind; and the exemption, as one of the at­
tributes of sovereignty, is now enjoyed by the govern­
ment of every State in the Union. Unless, therefore, 
there is a surrender of this immunity in the plan of the

10 This concern is described in Cohens v. Virginia, 19 U.S. 264, 406- 
407 (1821); Petty v. Tennessee-Missouri Bridge Comm’n., 359 U.S. 
275, 276, n. 1 (1959).



13

convention, it will remain with the States, and the dan­
ger intimated must be merely ideal. The circumstances 
which are necessary to produce an alienation of State 
sovereignty were discussed in considering the article of 
taxation, and need not be repeated here. A recurrence 
to the principles there established will satisfy us, that 
there is no color to pretend that the State governments 
would, by the adoption of that plan, be divested of the 
privilege of paying their own debts in their own way, 
free from every constraint but that which flows from 
the obligations of good faith. The contracts between 
a nation and individuals are only binding on the con­
science of the sovereign, and have no pretensions to a 
compulsive force. They confer no right Of action, in­
dependent of the sovereign will.

To what purpose would it be to authorize suits 
against States for the debts they owe? How could re­
coveries be enforced? It is evident, it could not be done 
without waging war against the contracting State; and 
to ascribe to the federal courts, by mere implication, 
and in destruction of a pre-existing right of the State 
governments, a power which would involve such a con­
sequence, would be altogether forced and unwarrant­
able.11

As is apparent, Hamilton was not saying that the states 
could never be sued in the federal courts. He was saying 
that immunity from suit was “in the nature of sovereignty,” 
and thus except as to those matters upon which the Consti­
tution “produce [d] an alienation of State sovereignty” the 
states remained immune. Because the Constitution did not 
take from the states “the privilege of paying their own debts 
in their own way,” they retained their sovereignty on this

11 Federalist No. 81 (Hamilton), in The Federalist (Modern Library 
Ed.), pp. 529-530 (emphasis in original).



14

matter, and the fear that they could be sued in federal court 
to compel payment of their debts was unwarranted.

In the text quoted above, Hamilton indicated that the 
“circumstances which are necessary to produce an alienation 
of State sovereignty”—and Which, implicitly, would with­
draw the states’ immunity from suit—had been “discussed 
in considering the article of taxation.” The reference was 
to Federalist No. 32, where he had said:

But as the plan of the convention aims only at a 
partial union or consolidation, the State governments 
would clearly retain all the rights of sovereignty which 
they before had, and which were not, by that act, ex­
clusively delegated to the United States. This exclusive 
delegation, or rather this alienation, of State sovereign­
ty, would only exist in three cases: where the Constitu­
tion in express terms granted an exclusive authority to 
the Union; where it granted in one instance an authori­
ty to the Union, and in another prohibited the States 
from exercising the like authority; and where it granted 
an authority to the Union, to which a similar authority 
in the States would be absolutely and totally contradic­
tory and repugnant. (Id. at 194; emphasis in original)

Hamilton’s promise that the states could not be sued on 
their debts proved short-lived. In Chisholm v. Georgia, 2 
U.S. 419 (1793), four of the Court’s five justices declared 
that a state law assumpsit action by a creditor seeking to 
compel the state’s payment of a debt was indeed within the 
federal jurisdiction, a holding which they premised upon 
the literal language of the diversity clause. Justice Iredell 
dissented, and his dissent is important to an understanding 
of what the Eleventh Amendment was later adopted to 
accomplish.

Justice Iredell fully recognized that Congress could make 
the states amenable to suits in federal court on federal ques­
tion claims, a power which he deemed relevant “to the



15

execution of the other authorities of the general government 
(which it must be admitted are full and discretionary, with­
in the restrictions of the constitution itself),” id. at 432. 
These “special objects of authority of the general govern­
ment, wherein the separate sovereignties of the states are 
blended in one common mass of supremacy,” id. at 435, 
were not the cause of his concern. As to them, he observed 
only that he believed an act of Congress was necessary to 
confer jurisdiction to entertain such suits, a course which 
he did not understand Congress to have yet taken, id. at 
448-449.

Rather, Justice Iredell’s concern was with the intrusion 
upon state sovereignty which the majority drew from the 
“peculiar” feature of Article III, Section 2: that after con­
ferring federal question jurisdiction it “also goes further” 
and confers diversity jurisdiction as well, id. at 435-436. In 
his view, analysis of the extent to which states were suable 
under the diversity jurisdiction had to begin with an under­
standing of the respective sovereignties of the national and 
state governments, id. at 435:

Every state in the union in every instance where its 
sovereignty has not been delegated to the United States, 
I consider to be completely sovereign, as the United 
States are in respect to the powers surrendered. The 
United States are sovereign as to all the powers of gov­
ernment actually surrendered. Each state in the union 
is sovereign as to all the powers reserved. It must be 
so, because the United States have no claim to any 
authority but such as the states have surrendered to 
them. Of course, the part not surrendered must remain 
as it did before.

But here was the rub: if under the diversity jurisdiction 
a state could be sued in federal court on state law grounds, 
it would lose the sovereign’s immunity from suit in those 
very areas where the Constitution left the states sovereign.



16

Could this have been the framers’ intention? Justice Iredell 
thought not. He believed that the diversity clause made 
the states suable only where, under the common law, the 
sovereign could be sued (i.e., by its consent) (id. at 436- 
446). By this construction, Justice Iredell believed that the 
language of the diversity clause could be given effect with­
out abrogating the states’ retained sovereignty.

The majority’s holding in Chisholm sent shock tremors 
through the state legislatures. The Eleventh Amendment 
was proposed by an overwhelming vote at the next session 
of Congress, and was ratified by the states with “vehement 
speed.”12 Its wording is the strongest evidence that its pur­
pose was narrow: to reinstate the framers’ original intent 
with respect to the diversity clause (i.e., to maintain the 
states’ immunity with respect to matters within their re­
tained sovereignty), and not to withdraw federal judicial 
power over federal claims against states:

The judicial power of the United States shall not be 
construed to extend to any suit in law or equity, com­
menced or prosecuted against one of the United States 
by citizens of another state, or by citizens or subjects 
of any foreign state.

This language, of course, tracks the diversity clause of Arti­
cle III, Section 2, and it defines the metes and bounds of 
the alteration which its authors sought to accomplish. The 
failure to prohibit all suits against states cannot be deemed 
an oversight. Its authors surely knew that both Hamilton 
and Justice Iredell had recognized the availability of federal 
question suits against states, and there is no evidence that 
the Amendment was intended to make the states immune 
from suit where they were not sovereign. Had its authors 
indeed had such an intention, it is difficult to believe that 
they would have chosen words so ill-suited to the task.

12 Larson v. Domestic & Foreign Corp., 337 U.S. 682, 708 (1949) 
(dissenting opinion of Mr. Justice Frankfurter).



17

That the purpose of the Eleventh Amendment was con­
fined to the diversity clause was soon confirmed by Chief 
Justice Marshall. In Cohens v. Virginia, 19 U.S. 264, 380- 
383 (1821), he described the original intention of the draf­
ters of Article III, Section 2, an intention which he did not 
find overturned by the Eleventh Amendment:

“The counsel for the [state] . . . have laid down the 
general proposition, that a sovereign independent state 
is not suable except by its own consent.

This general proposition will not be controverted. 
But its consent is not requisite in each particular case. 
It may be given in a general law. And if a state has 
surrendered any portion of its sovereignty, the question 
whether a liability to suit be a part of this portion, de­
pends on the instrument by which the surrender is 
made. If, upon a just construction of that instrument, 
it shall appear that the state has submitted to be sued, 
then it has parted with this sovereign right of judging 
in every case on the justice of its own pretensions, and 
has entrusted that power to a tribunal in whose impar­
tiality it confides.

The American States, as well as the American peo­
ple, have believed a close and firm Union to be essential 
to their liberty and to their happiness. They have been 
taught by experience, that this Union cannot exist with­
out a government for the whole; and they have been 
taught by the same experience that this government 
would be a mere shadow, that must disappoint all their 
hopes, unless invested with large portions of that sover­
eignty which belongs to independent states. Under the 
influence of this opinion, and thus instructed by experi­
ence, the American people, in the conventions of their 
respective states, adopted the present constitution.

If it could be doubted, whether from its nature, it 
were not supreme in all cases where it is empowered to



18

act, that doubt would be removed by the declaration, 
that “this constitution, and the laws of the United 
States, which shall be made in pursuance thereof, and 
all treaties made, or which shall be made, under the 
authority of the United States, shall be the supreme 
law of the land; and the judges in every state shall be 
bound thereby; anything in the constitution or laws of 
any state to the contrary notwithstanding.”

This is the authoritative language of the American 
people; and, if gentlemen please, of the American 
States. It marks, with lines too strong to be mistaken, 
the characteristic distinction between the government 
of the Union and those of the states. The general gov­
ernment, though limited as to its dbjects, is supreme 
with respect to those objects. This principle is a part 
of the constitution; and if there be any Who deny its 
necessity, none can deny its authority.

To this supreme government ample powers are con­
fided; and if it were possible to doubt the great pur­
poses for which they were so confided, the people of 
the United States have declared, that they are given 
“in order to form a more perfect union, establish jus­
tice, ensure domestic tranquility, provide for the com­
mon defense, promote the general welfare, and secure 
the blessings of liberty to themselves and their posteri­
ty.”

With the ample powers confided to this supreme gov­
ernment, for these interesting purposes, are connected 
many express and important limitations on the sover­
eignty of the states, which are made for the same pur­
poses. The powers of the Union, on the great subjects 
of war, peace, and commerce, and on many others, are 
in themselves limitations of the sovereignty of the 
states; but in addition to these the sovereignty of the 
states is surrendered in many instances where the sur­



19

render can only operate to the benefit of the people, 
and where, perhaps, no other power is conferred on 
Congress than a conservative power to maintain the 
principles established in the constitution. The main­
tenance of these principles in their purity, is certainly 
among the great duties of the government. One of the 
instruments by which this duty may be peaceably per­
formed, is the judicial department. It is authorized to 
decide all cases of every description, arising under the 
constitution or laws of the United States. From this 
general grant of jurisdiction, no exception is made of 
those cases in which a state may be a party. When we 
consider the situation of the government of the Union 
and of a state, in relation to each other; the nature of 
our Constitution; the subordination of the state govern­
ments to that constitution; the great purpose for which 
jurisdiction over all cases arising under the constitution 
and laws of the United States is confided to the ju­
dicial department, are we at liberty to insert in this 
general grant, an exception of those cases in which a 
state may be a party? Will the spirit of the constitution 
justify this attempt to control its words? We think it will 
not. We think a case arising under the constitution or 
laws of the United States, is cognizable in the courts 
of the Union, whoever may be the parties to that case.

See also, id . at 412.

2. W hatever the correctness of the decision in H ans V. Louis­
iana, its broad declaration that Congress lacks pow er to con­
fer  federal jurisdiction over federal question suits against 
states is unfaithful to the historical and judicial precedents.

Congress first conferred general federal question jurisdic­
tion upon the lower federal courts in 1875.1S It was inevita­
ble that cases would soon come to the Court involving fed­
eral claims against states. What was not inevitable—indeed, 13

13 Powell v. McCormack, 395 U.S. 486, 515-516 (1969).



20

what was an extraordinary coincidence—was that the first 
cases to arrive would look so much like Chisholm.

Hans v. Louisiana, 134 U.S. 1 (1890), and its compan­
ion case, North Carolina v. Temple, 134 U.S. 22 (1890), 
were (like Chisholm) suits to compel states to honor their 
debt obligations. But, unlike Chisholm, they were federal 
question suits, the creditors contending that the states had 
impaired the obligation of their contracts by legislating 
exemption from their debts. The similarity to Chisholm 
clearly impressed the Hans Court, which repeatedly referred 
to the historical evidence that resistance to the enforceability 
of state debts was the immediate objective of the Eleventh 
Amendment, 134 U.S. at 12-13, 16.14

The Court recognized that the Eleventh Amendment 
could not preclude the suit, for the creditor was a citizen 
of Louisiana, id. at 10:

In the present case the plaintiff in error contends 
that he, being a citizen of Louisiana, is not embarrassed 
by the obstacle of the 11th Amendment, inasmuch as 
that Amendment only prohibits suits against a State 
which are brought by the citizens of another State, or 
by citizens or subjects of a foreign state. It is true, the 
Amendment does so read; and if there were no other 
reason or ground for abating his suit, it might be main­
tainable. . . . (emphasis added).

But the Court found two “other reasons.” One, which 
would have been entirely sufficient to dispose of the case, 
was that Congress had not conferred jurisdiction upon the

14 It was not until a decade after adoption of the Eleventh Amend­
ment that the Court ruled that the impairment of obligation of contract 
clause “extends to contracts to which a state is a party, as well as to 
contracts between individuals.” Fletcher v. Peck, 10 U.S. 87 (1810), 
as characterized in New Jersey v. Wilson, 11 U.S. 164, 166 (1812). 
Thus, the authors of the Eleventh Amendment probably did not antici­
pate that state debts might still be. reachable under the federal ques­
tion clause of Article III.



21

lower federal courts to entertain the suit, id. at 18.15 16 But 
the Court did not rest with that. It flatly declared that 
Congress was without power to create such a cause of ac­
tion, for Article III, Section 2, as originally adopted did 
not include, within the federal judicial power, federal ques­
tion claims against states, id., at 10-18.

This declaration proceeded from a misunderstanding of 
the relevant historical and judicial precedents. The Court 
quoted Hamilton’s discussion in Federalist No. 81, and Jus­
tice Iredell’s analysis in Chisholm, and drew from these 
the erroneous lesson that all suits against states were for­
bidden—a result which the Hans court presumed to have 
been intended by the framers of the original Constitution, 
frustrated by Chisholm, and restored in spirit by the Elev­
enth Amendment, id. at 13-14:

The obnoxious clause to which Hamilton’s argument 
was directed, and which was the ground of the objec­
tions which he so forcibly met, was that which declared 
that ‘the judicial power shall extend to all . . . contro­
versies between a State and citizens of another State, 
. . . and between a State and foreign states, citizens or 
subjects.’ It was argued by the opponents of the Con­
stitution that this clause would authorize jurisdiction 
to be given to the Federal courts to entertain suits 
against a State brought by citizens of another State, or 
of a foreign state. Adhering to the mere letter, it might 
be so; and so, in fact, the supreme court held in Chis­
holm v. Georgia; but looking at the subject as Hamilton 
did, and as Mr. Justice Iredell did, in the light of his­
tory and experience and the established order of things,

15 The Court reasoned that as the statute conferring federal question 
jurisdiction invested the federal courts with jurisdiction “concurrent
with the courts of the several States,” and as the “state courts have no 
power to entertain suits by individuals against a State without its con­
sent,” Congress had not intended to confer jurisdiction over actions 
against states, id. a t 18.



22

the views of the latter were clearly right-—as the people 
of the United States in their sovereign capacity subse­
quently decided (emphasis added).

This passage, on its face, discloses the slip in the Court’s 
analysis. The Court recognized that the “obnoxious clause” 
was the diversity clause, that it was this clause which 
Chisholm had misconstrued by adherence to the “mere 
letter,” and that the Eleventh Amendment was adopted to 
reverse Chisholm. Yet from these correct premises the 
Court drew the non-sequitur that that Amendment nar­
rowed the scope of the federal question clause as well.

The Court appears to have overlooked entirely that both 
Hamilton and Justice Iredell recognized and approved the 
suability of states on federal question grounds. The Court 
did not overlook, however, that Chief Justice Marshall had 
said the same in Cohens. The latter observation was “con­
ceded” to support the plaintiff in Hans, but “the observation 
was unnecessary to the decision, and in that sense extra­
judicial, and, though made by one who seldom used words 
without due reflection, ought not to outweigh the important 
considerations referred to which lead to a different conclu­
sion,” id. at 20.

In sum, the Hans court construed the Constitution to pre­
clude federal question claims against the states only by 
misreading the relevant historical and judicial sources, and 
by expressly disagreeing with Chief Justice Marshall’s more 
contemporaneous reading of the framers’ intent. Moreover, 
the Hans opinion, which contains extensive passages about 
state sovereignty, takes no account of the fact that on fed­
eral questions, where the states have ceded power to the 
“supreme” federal government, the states are not sovereign. 
Considering the weakness of Hans’ foundations, It is not 
surprising that Hans’ broad declaration collapsed upon first 
impact with a federal question suit against a state brought 
pursuant to a congressional conferral of jurisdiction to enter­
tain such suits.



23

3. This C ourt has recognized the inapplicability of H ans where
Congress has expressly conferred jurisdiction to entertain
federal question suits against states.

It was not until 1963 that the collision came. Par den v.
Terminal R. Co., 377 U.S. 184 (1963), was a suit brought 
under the Federal Employers’ Liability Act, a statute giving 
railroad employees a federal cause of action for damages 
suffered in the course of their employment. Following the 
passage of the FELA, the State of Alabama acquired own­
ership of a small railroad. An employee of that railroad, 
injured in the course of his employment, brought suit for 
damages under the FELA. The State of Alabama asserted 
that the railroad was “an agency of the State and the State 
had not waived its sovereign immunity from suit.” 377 U.S. 
at 185.

The Court noted the legal issues, and their novelty, in 
these words (id. at 187):

Here, for the first time in this Court a State’s claim 
of immunity against suit by an individual meets a suit 
brought upon a cause of action expressly created by 
Congress. Two questions are thus presented: (1) Did 
Congress in enacting the FELA intend to subject a 
state to suit in these circumstances? (2) Did it have 
the power to do so, as against the state’s claim of im­
munity?

Answering the first question, the Court concluded that Con­
gress in enacting the FELA intended its provisions to be 
applicable to all railroads, “whether they are state owned 
or privately owned.” (id. at 188).

The Court then turned to the second issue: whether 
Congress has power, consistent with the Eleventh Amend­
ment, to create a federal cause of action for damages against 
a state. The Court began by rejecting Hans as controlling 
authority, explaining that, however broadly worded the 
Hans opinion, it must be understood in the context in which







26

gage in the interstate transportation business on a waiver of 
the State’s sovereign immunity from suits arising out of 
such business.” Id. at 198. The disagreement of the dis­
senters was with the Court’s conclusion that Congress in 
enacting the Federal Employers’ Liability Act had intended 
to subject states so engaged to such suits.

That Congress may pursuant to its commerce power sub­
ject states to suits in federal courts was again the founda­
tion of this Court’s analysis in Employees v. Department 
of Public Health, 411 U.S. 279 (1973). The Court dealt 
there with the 1966 amendments to the Fair Labor Stand­
ards Act, by Which Congress made the substantive provi­
sions of the FLSA applicable to state hospital and educa­
tional employees. The Court had already upheld the con­
stitutionality of the substantive coverage, Maryland v. Wirtz, 
392 U.S. 183 (1968), but had reserved the question whether 
individuals could sue to recover unpaid wages, id. at 199- 
200.

In Employees, the Court stated the issue as “whether 
Congress has brought the States to heel, in the sense of lift­
ing their immunity from suit in a federal court.” 411 U.S. 
at 283. The Court concluded “that Congress did not lift the 
sovereignty immunity of the States under the FLSA,” id. 
at 285, because “we have found not a word in the history 
of the 1966 amendments to indicate a purpose of Congress 
to make it possible for a citizen of that state or another 
state to sue the state in the federal courts,” and it “would 
be . . . surprising . . .  to infer that Congress deprived Mis­
souri of her constitutional immunity without . . . indicating 
in Some way by clear language that the constitutional im­
munity was swept away,” ibid.18

18 This was also the conclusion in Edelman v. Jordan, 415 U.S. 651 
(1974), an action under 42 U.S.C. §1983, the Court finding that “the 
threshold fact of congressional authorization to sue a class of defend­
ants which literally include States is wholly absent,” id. at 672.



27

But the Court recognized in Employees that Congress has 
power to lift the states’ immunity, id. at 286-287:

The Solicitor General, as amicus curiae, argues that 
Hans v. Louisiana, 134 U.S. 1, should not be construed 
to apply to the present cause, his theory being that in 
Hans the suit was one to collect on coupons attaching 
to state bonds, while in the instant case the suit is a 
cause of action created by Congress and contained in 
§16(b) of the Act. It is true that, as the Court said in 
Parden, ‘the states surrendered a portion of their sov­
ereignty when they granted Congress the power to reg­
ulate commerce’. 377 U.S., at 191. But we decline to 
extend Parden to cover every exercise by Congress of its 
commerce power, where the purpose of Congress to give 
force to the Supremacy Clause by lifting the sovereignty 
of the states and putting the states on the same footing 
as other employers is not clear (emphasis added).

We show in the next section that here the congressional 
purpose to put the states “on the same footing as other em­
ployers” is unmistakable. Thus, while the states are in gen­
eral “sovereign” in their dealings with their own employees, 
here Congress has “lifted their sovereignty” to the extent that 
Title VII imposes obligations which must be met, and, as 
part of that “lifting”, has made the states suable by ag­
grieved employees for violations of those obligations. Before 
turning to the evidence of that congressional decision, how­
ever, it is important to note a significant difference in the 
analysis required here from that in Parden and Employees. 
The source of the congressional power here is the Fourteenth 
Amendment. Whereas the Commerce Clause does not au­
thorize Congress to regulate states per se, but only to regu­
late interstate commerce, the Fourteenth Amendment does 
authorize Congress to regulate the states directly. Only as 
a state might elect to engage in interstate commerce would 
it come within the ambit of the congressional power to cre­
ate private “commerce” causes of action against it. But the



28

Fourteenth Amendment is different, for the states brought 
themselves within its ambit, “consented” to Congress’ creat­
ing a private cause of action against them pursuant to that 
Amendment, when the Amendment was added to the Con­
stitution. As the Court explained in Ex Parte Virginia, 100 
U.S. at 346:

“The prohibitions of the 14th Amendment are di­
rected to the States, and they are to a degree restric­
tions of state power. It is these which Congress is em­
powered to enforce, and to enforce against state action, 
however put forth, whether that action be executive, 
legislative or judicial. Such enforcement is no invasion 
of state sovereignty. No law can be, which the people 
of the States have, by the Constitution of the United 
States, empowered Congress to enact.”

It is thus not necessary here, as it was in Parden, to find a 
subsequent waiver of immunity by the states’ electing to 
bring themselves within the ambit of congressional power. 
The states are by definition within the sphere of Congress’ 
power to enforce the Fourteenth Amendment.

B. Congress Clearly D ecided to Confer Federal Jurisdiction 
Over Employee Actions Against States for Complete R e­
lief, Including Backpay, for Violations of T itle VII.

Of course, that the states have ceded to Congress the 
power to create private causes of action against them does 
not mean that the federal courts may take jurisdiction of all 
“federal question” actions against states. The lower federal 
courts have only such jurisdiction as Congress opts to confer 
upon them. Congress, sensitive to the extraordinary cession 
of state sovereignty implicit in our federal scheme, has 
treaded warily in conferring federal court jurisdiction over 
private actions against states. See, e.g., Monroe v. Pape, 
365 U.S. 187-192 (1961); Edelman v. Jordan, 415 U.S. 
651, 675-677 (1974). This Court accordingly has demand­
ed clear evidence of a congressional decision to authorize 
private suits against states before concluding that Congress



29

has made the fateful judgment to “lift” the states’ immu­
nity. Employees, supra, 411 U.S. at 285-286; Edelman, 
supra, 415 U.S. at 674-677. See also Parden, supra, 377 
U.S. at 198-199 (dissenting opinion).

Such clear evidence exists in the case of the 1972 amend­
ments to Title VII. Congress not only amended the defini­
tion of “employer” to add states and local governments, but 
also amended the enforcement provisions, expressly making 
governmental employers suable by the Attorney General or, 
if he does not act within 180 days of the filing of a charge, 
by aggrieved employees.19 In a section-by-section analysis 
of the bill, the floor managers in the Senate (Senators Wil­
liams and Javits) explained that the conferees had not 
stopped with empowering the Attorney General to sue, but 
had also allowed “the person aggrieved to elect to pursue 
his or her own remedy under this title in the courts where 
there is agency inaction, dalliance or dismissal of the charge, 
or unsatisfactory resolution,” because “the individual’s 
rights to redress are paramount under the provisions of 
Title V II” and thus “it is necessary that all avenues be left 
open for quick and effective relief.”20

19 As the Conference Report explained (S. Rep. No. 92-681, 92d 
Cong. 2d Sess. 17-18 (1972); H. Rep. No. 92-899, 92d Cong. 2d Sess. 
17-18 (1972)):

The conferees adopted a provision allowing the [Equal Employ­
ment Opportunity] Commission, or the Attorney General in a case 
against a state or local government agency, to bring an action in 
Federal district courts if the Commission is unable to secure from 
the respondent ‘a conciliation agreement acceptable to the Com­
mission.’ Aggrieved parties are permitted to intervene. They may 
bring a private action if the Commission or Attorney General has 
not brought suit within 180 days or the Commission has entered 
into a conciliation agreement to which such aggrieved party is not 
a signatory. The Commission, or the Attorney General in a case 
involving state and local governments, may intervene in such pri­
vate action.

20 Section-By-Section Analysis of H.R. 1746, reprinted in Legislative 
History of the Equal Employment Opportunity Act of 1972, published 
by the Senate Committee on Labor and Public Welfare, p. 1847.



3 0

The evidence of Congressional intent here is, of course, 
markedly different from that found insufficient in Employees. 
Although Congress in the 1966 amendments to FLSA had 
amended the definition of “employer” to include state gov­
ernments, it had not changed the enforcement provisions of 
the statute. The Court, noting that there was “not a word in 
the history of the 1966 amendments to indicate a purpose 
of Congress” to permit private actions against states, was 
unwilling to infer that Congress had “silently” lifted the 
states’ immunity from suit. 411 U.S. at 285. Here, by con­
trast, the evidence of congressional intent to permit private 
actions is explicit. Furthermore, this Court relied in Em­
ployees upon two additional considerations not present here: 
(1) that “private enforcement of the Act was not a para­
mount objective,” id. at 28621; and (2) that private actions 
under the FLSA could yield twice the recovery of suits by 
the Secretary of Labor: “it is one thing, as in Par den, to 
make a state employee whole; it is quite another to let him 
recover double against a state . . . .  [W]e are reluctant to 
believe that Congress in pursuit of a harmonious federalism 
desired to treat the States so harshly,” id. at 286.22

Similarly, this case is altogether different from Edelman v. 
Jordan {supra, n. 18), where the Court found “wholly 
absent” the “threshold fact of congressional authorization to

21 In contrast, Congress created under Title V II a private cause of 
action precisely because the private rights were deemed “paramount,” 
Leg. Hist. 1847.

22 Under Title V II, by contrast, the remedies are the same whether 
suit is brought by the Attorney General or by aggrieved employees, ex­
cept that the latter may recover attorneys fees. Whether attorneys fees 
are even a concern of the Eleventh Amendment is a question on which 
a conflict of circuits exist (the court below holding that they are not) 
and is the subject of the cross-petition in this case, No. 75-283. We 
intend to file an amici curiae brief in No. 75-283, arguing that awards 
of attorneys fees are never precluded by the Eleventh Amendment. 
Rather than incorporating that argument into the instant brief, we 
have opted to await the filing of the cross-petitioner’s brief, so that our 
discussion can be responsive to the cross-petitioner’s contentions.



31

sue a class of defendants which literally includes States,” 
415 U.S. at 672.

In sum, the Eleventh Amendment imposes no barrier to 
private actions for backpay where, as here, (1) Congress has 
acted within its enumerated powers in imposing a substan­
tive obligation, (2) Congress has unmistakably created a 
private cause of action in the federal courts to recover reme­
dies from the states for violating that obligation, and (3) the 
states are within the ambit of the congressional regulatory 
power (either directly, as under the Fourteenth Amendment, 
or by voluntarily bringing themselves within it, as in the 
commerce cases).
G. The Foregoing Analysis Gains Additional Strength in This 

Case Because the Cause of Action Was Created Pursuant 
to the Fourteenth Amendment.

If we are right that Congress is empowered to create a 
private cause of action against states in effectuation of any 
of Congress’ enumerated powers, there is no need to examine 
the special considerations which arise from the fact that the 
Fourteenth Amendment was adopted after the Eleventh, and 
that the cause of action involved here was created by Con­
gress in the exercise of the authority conferred upon it by 
Section 5 of the Fourteenth Amendment. But these special 
considerations would compel the conclusion that the Elev­
enth Amendment is inapplicable here, even if the Court dis­
agreed with our broader contention.
1. The question whether the later enactment of the Fourteenth  

A m endm ent brings it outside the scope of the Eleventh has 
been recognized, but not decided, in prior cases.

The question whether the Eleventh Amendment is ap­
plicable to suits for vindication of the Fourteenth was first 
presented in Ex Parte Young, 209 U.S. 123 (1908). The 
Court noted the question, but expressly refrained from de­
ciding it {Id. at 150) :

“We think that, whatever the rights of complainants 
may be, they are largely founded upon that [the Four­



32

teenth] Amendment, but a decision in this case does not 
require an examination or decision of the question 
whether its adoption in any way altered or limited the 
effect of the earlier [Eleventh] Amendment.”

Instead, the Court accorded complainants the relief they 
sought by holding the Eleventh Amendment inapplicable to 
suits for injunctive relief against state officers.

Remarkably, neither this Court nor any lower court had 
occasion to discuss the question which Ex parte Young left 
open until Edelman v. Jordan, 415 U.S. 651 (1974). In 
Edelman, Mr. Justice Marshall observed, in dissent, id. at 
694, n. 2:

“It should be noted that there has been no determi­
nation in this case that state action is unconstitutional 
under the Fourteenth Amendment. Thus, the Court 
necessarily does not decide whether the States’ Elev­
enth Amendment sovereign immunity may have been 
limited by the later enactment of the Fourtenth 
Amendment to the extent that such a limitation is 
necessary to effectuate the purposes of that Amend­
ment, an argument advanced by an amicus in this 
case.”

However, some lower courts, including the court below 
(519 F.2d at 571), have construed the Court’s opinion in 
Edelman as indeed determining the issue.23 They point to 
the Court’s disapproval24 of three prior decisions25 in which

23 Jordan v. Gilligan, 500 F.2d 701, 709 (6th Cir. 1974); Skehan v. 
Board of Trustees of Bloomsburg State Col, 501 F.2d 31, 42-43, n. 7 
(3rd Cir. 1974).

24 415 U.S. at 670-671, and n. 13 thereat.
25 Shapiro v. Thompson, 394 U.S. 618 (1969), affirming 270 F. 

Supp. 331, 338, n. 5 (D. Conn. 1967) ; State Depart, of Health and 
Rehabilitation Services v. Zarate, 407 U.S. 918 (1972), affirming 347 
F. Supp. 1004 (S.D. Fla. 1971); Wyman v. Bowens, 397 U.S. 49 
(1970), affirming, 304 F. Supp. 717 (S.D. N.Y. 1969) (order at CCH 
Poverty Law Rep. 1(10,506 [1968-1971 Transfer Binder]).



33

the Court had, without discussion of the sovereign immu­
nity question, affirmed monetary awards against states for 
violating the Fourteenth Amendment. But the cases dis­
approved, although involving substantive violations of the 
Fourteenth Amendment, did not arise under a statute where­
in Congress had conferred jurisdiction over actions for 
monetary relief against the states. On the contrary, each 
arose under 42 U.S.C. §1983, a statute which does not 
authorize suits against the states themselves.26 The Court in 
Edelman declared the Par den analysis inapplicable to §1983 
actions precisely because “the threshold fact of congressional 
authorization to sue a class of defendants which literally in­
cludes States is wholly absent.” 415 U.S. at 672: see also 
id. at 675-677.

2. The later enactment of the Fourteenth A m endm ent would, 
indeed, bring it outside the reach of the Eleventh, even if the 
Eleventh otherwise precluded federal question actions 
against states.

This case is thus the first to present squarely the issue left 
open in Ex parte Young as to the relationship between the 
Eleventh and Fourteenth Amendments. Here, Congress de­
cided that a private cause of action against the states should 
be created to implement the Fourteenth Amendment. Even 
if the Eleventh Amendment deprives Congress of the power 
to authorize such causes of action to effectuate those pro­
visions of the Constitution which antedated that Amend­
ment, that Amendment cannot restrict Congress’ power to

26 Cheramie v. Tucker, 493 F.2d 586, 587-588 (5th Cir. 1974); 
Meyer v. State of New York, 344 F. Supp. 1377, 1379 (S.D. N.Y. 
1971), affirmed, 463 F.2d 424 (2nd Cir. 1972) ; Dean Hill Country 
Club, Inc. v. City of Knoxville, 379 F.2d 321, 324 (6th Cir. 1967), 
cert, denied, 389 U.S. 975 (1967); United States ex rel. Lee v. State 
of Illinois, 343 F.2d 120 (7th Cir. 1965) ; Sires v. Cole, 320 F.2d 877, 
879 (9th Cir. 1963). See also Monroe v. Pape, 365 U.S. 187-192 
(1961); City of Kenosha v. Bruno, 412 U.S. 507, 511-513 (1973); 
Edelman v. Jordan, supra, 415 U.S. at 676-677.



3 4

create private causes of action against states to implement 
the later-enacted Fourteenth Amendment, as we now show.

“The true spirit and meaning of the [Reconstruction] 
Amendments . . . cannot be understood without keeping in 
view the history of the times when they were adopted. . . .” 
Strauder v. West Virginia, 100 U.S. 303, 306 (1880). The 
nation had just emerged from a civil war, and several states 
were under military occupation. The “statesmen who had 
conducted the Federal government in safety through the 
crisis of the Rebellion . . . passed through Congress the 
proposition for the 14th Amendment, and they declined to 
treat as restored to their full participation in the govern­
ment of the Union the states which had been in insurrection, 
until they ratified that article by a formal vote of their legis­
lative bodies.” Slaughter-House Cases, 83 U.S. 36, 70-71 
(1873).

The Fourteenth Amendment was addressed specifically to 
the states, and placed limitations upon their freedom to act. 
Section 1 declared that “no State shall” engage in enumer­
ated acts. Section 5 invested Congress with “power to en­
force, by appropriate legislation, the provisions of this arti­
cle.” The Amendment reflected a national judgment that 
states could be wrongdoers, and that the state courts could 
not be relied upon to right such wrongs.27

In the Civil Rights Cases, 109 U.S. 3, 17-18 (1883), the 
Court described the authority conferred upon Congress by 
this Amendment:

This abrogation and denial of rights, for which the 
States alone were or could he responsible, was the great 
seminal and fundamental wrong which was intended to 
be remedied. And the remedy to be provided must 
necessarily be predicated upon that wrong . . .

27 See generally, Flack, The Adoption of the Fourteenth Amendment 
(Johns Hopkins Press, 1907; Peter Smith, 1965).



35

. . . [A]ny legislation by Congress in the matter must 
necessarily be corrective in its character, adapted to 
counteract and redress the operation of such prohibited 
state laws or proceedings of state officers (emphasis 
added).

In Ex parte Virginia:, 100 U.S. 339, 347-348 (1880), the 
Court recognized the breadth of the remedial power con­
ferred upon Congress by Section 5 of the Amendment:

Were it not for the 5th section of that Amendment, 
there might be room for argument that the 1st section 
is only declaratory of the moral duty of the State . . . 
But the Constitution now expressly gives authority for 
congressional interference and compulsion in the cases 
embraced within the 14th Amendment. It is but a lim­
ited authority, true, extending only to a single class of 
cases; but within its limits it is complete (emphasis 
added).

Similiarly, in Virginia v. Rives, 100 U.S. 313, 318 (1880), 
the Court observed:

Congress, by virtue of the 5th section of the 14th 
Amendment, may enforce the prohibitions whenever 
they are disregarded by either the Legislative, the Ex­
ecutive or the Judicial Department of the State. The 
mode of enforcement is left to its discretion (emphasis 
added).

The Court recognized that Section 5 of the Amendment 
transferred from the states to Congress a measure of the 
sovereignty which the states previously had enjoyed, Ex 
parte Virginia, supra, 100 U.S. at 345:

[The Reconstruction Amendments] were intended to 
be, what they really are, limitations on the power of 
the States and enlargements of the power of Congress.
. . . [T]his protection and this guaranty, as the 5 th sec­
tion of the Amendment expressly ordains, may be en­
forced by Congress by means of appropriate legislation.



36

This Court has long recognized that monetary relief in 
private causes of action may be essential to cure violations 
of the Fourteenth Amendment, see, e.g., Sullivan v. Little 
Hunting Park, 396 U.S. 229, 238-240 (1969), and it has 
specifically recognized that backpay is critical to the vindi­
cation of Title VIFs objectives of ending employment dis­
crimination and making whole the victims of such discrimi­
nation. Albemarle Paper Co. v. Moody, 422 U.S. 405, 417- 
421 (1975).

In light of the foregoing, it is apparent that the 
states may not invoke sovereign immunity to resist 
Congress’ creation of private causes of action for com- 
ple relief, including back pay, for violations of the Four­
teenth Amendment. If Congress’ power to enforce the 
Amendment is to be “complete” ; if the “State” is to be 
made responsible for actions which the Amendment forbids 
the “State” from performing; if recognition is to be given 
to the national judgment that federal remedies in federal 
courts were essential to vindicating the Amendment’s objec­
tives, then the conclusion is inevitable that, whatever limita­
tions the Eleventh Amendment may impose upon Congress’ 
power to create causes of action for other constitutional 
violations, those limitations are wholly inapplicable to the 
power conferred upon Congress by the later-enacted Four­
teenth Amendment.



37

CONCLUSION

For the reasons set forth above, the decision below, inso­
far as it found the Eleventh Amendment a barrier to award­
ing monetary relief, should be reversed.

Respectfully submitted,
Nathaniel R. J ones 

General Counsel, NAACP 
1790 Broadway 
New York, N.Y. 10019

Vilma M artinez 
Joel Contreras 
Morris J. Baller

Mexican-American Legal Defense 
and Educational Fund 

145 Ninth Street 
San Francisco, California,

M elvin L. Wulf 
E. R ichard Larson

American Civil Liberties Union 
22 East 40th Street 
New York, N.Y. 10016

M ichael H. Gottesman 
Robert M. Weinberg

Bredhoff, Cushman, Gottesman 
and Cohen

1000 Connecticut Avenue, N.W. 
Washington, D. C. 20036

Albert E. J enner 
Paul R. D imond 

Lawyers Committee for 
Civil Rights under Law 

733 15th Street, N.W. 
Washington, D. C. 20005

Attorneys for Amici Curiae