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Larry & United States V. Board of Trustees of the University of Alabama

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Larry & United States V. Board of Trustees of the University of Alabama No. 98-6532 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ________________ ETHEL LOIS LARRY; DENESE POUNDS, Plaintiffs-Appellants UNITED STATES OF AMERICA, Intervenor v. BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA AND THE UNIVERSITY OF ALABAMA AT BIRMINGHAM, Defendants-Appellees _____________________ ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA ________________ SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS INTERVENOR ________________ BILL LANN LEE Acting Assistant Attorney General JESSICA DUNSAY SILVER SETH M. GALANTER Attorneys Department of Justice P.O. Box 66078 Washington, D.C. 20035-6078 (202) 307-9994 C-1 of 2 CERTIFICATE OF INTERESTED PARTIES AND CORPORATE DISCLOSURE STATEMENT CASE NO.98-6532 Board of Trustees of the University of Alabama Thurbert E. Baker, Esq. John F. Beasley, Esq. Dianne Belch The Board of Regents of the University System of Georgia, Appellant The Board of Trustees of the University of Alabama, Appellee Frank Bromberg, Jr., Esq. Jean Cleveland Annette M. Cowart, Esq. O. H. Delchamps, Jr., Esq. Juliette Dinkins Garry Neil Drummond Dennis R. Dunn Jack Edwards Judge John H. England, Board of Trustees of the University of Alabama Joseph Fine Honorable Duross Fitzpatrick, United States District Court Judge, Middle District of Georgia; Seth M. Galanter, Esq. Gordon, Silberman, Wiggins & Childs The Honorable James H. Hancock, United States District Court Judge, Northern District of Alabama C-2 of 2 Laura M. Hitt, Esq. Judge Richard L. Holmes, Board of Trustees of the University of Alabama Denise Horton Lisa Huggins, Esq. Dr. Sandral Hullett Rita McWhorter Jackson Governor Fob James, Board of Trustees of the University of Alabama G. Douglas Jones, Esq. Ethel Lois Larry Bill Lann Lee, Esq. Ina B. Leonard Peter Lowe, Esq. Sidney McDonald, Esq. Christopher A. McGraw Marybeth Martin, Esq. John T. Oliver, Jr. Denese Pounds C. Glenn Powell Martha Simms Rambo Ann C. Robertson, Esq. Susan L. Rutherford, Esq. Sharon A. Seeley, Esq. George Shirley Jessica Dunsay Silver, Esq. C-2 of 3 Cleophus Thomas, Jr. John Russell Thomas Maury S. Weiner, Esq. United States Department of Justice, Civil Rights Division TABLE OF CONTENTS PAGE ARGUMENT I. CONGRESS CLEARLY ABROGATED IMMUNITY IN 29 U.S.C. 216(b) ............1 II. CONGRESS HAD THE POWER TO ENACT THE EQUAL PAY ACT UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT ................1 A. The Court's Conclusion That Women Have Been Subject To A History Of Discriminatory Treatment By The States Pretermits The Need For Further Inquiry Into The “Evil” ............2 B. The Relevant Legislative History Reflects Widespread Discrimination Against Women By States ............4 C. The Equal Pay Act's Coverage And Standards Are Proportionate To The “Evil” .................... 13 CONCLUSION ......................... 15 TABLE OF AUTHORITIES CASES: Alden v. Maine, 119 S. Ct. 2240 (1999) ........... 1 -i- CASES (continued): PAGE Alewine v. City Council of Augusta, 699 F.2d 1060 (11th Cir. 1983), cert. denied, 470 U.S. 1027 (1985) ... 1 Brooklyn Sav. Bank v. O'Neil, 324 U.S. 697 (1945) ..... 15 City of Boerne v. Flores, 521 U.S. 507 (1997) ..... 2, 15 City of Rome v. United States, 446 U.S. 156 (1980) ..... 14 College Sav. Bank v. Florida Prepaid Postsecondary Educ., 119 S. Ct. 2219 (1999) ............... 2 Corning Glass Works v. Brennan, 417 U.S. 188 (1974) .... 13 Ensley Branch, NAACP v. Seibels, 31 F.3d 1548 (11th Cir. 1994) ..................... 13 Florida Prepaid Postsecondary Educ. v. College Sav. Bank, 119 S. Ct. 2199 (1999) .... 1, 2, 13, 15 Fullilove v. Klutznick, 448 U.S. 448 (1980) ..... 4, 5, 14 Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197 (1991) ................... 1 J.E.B. v. Alabama, 511 U.S. 127 (1994) ........... 3 Kimel v. Board of Regents, 139 F.3d 1426 (11th Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3364 (Nov. 16, 1998) (No. 98-829) .... 2, 14 Oregon v. Mitchell, 400 U.S. 112 (1970) .......... 14 Overnight Motor Transp. Co. v. Missel, 316 U.S. 572 (1942) ................... 15 Pearce v. Wichita County, 590 F.2d 128 (5th Cir. 1979) ..................... 1 -ii- CASES (continued): PAGE Shuford v. Alabama State Bd. of Educ., 897 F. Supp. 1535 (M.D. Ala. 1995) .................. 13 United States v. Raines, 362 U.S. 17 (1960) ........ 3 United States v. Virginia, 518 U.S. 515 (1996) ....... 3 UNITED STATES CONSTITUTION: Eleventh Amendment ......................1 Fourteenth Amendment .................... 10 Due Process .......................2 Equal Protection Clause ............1, 3, 8, 14 Section 5 ......................1, 14 STATUTES: Education Amendments of 1972, Pub. L. No. 92-318, 86 Stat. 373 (1972) .........4 Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86 Stat. 103 (1972) .........4 Equal Pay Act: 29 U.S.C. 206(d)(1) .................. 14 29 U.S.C. 206(d)(1)(iv) ................ 14 Fair Labor Standards Act: 29 U.S.C. 216(b) ..................1, 15 29 U.S.C. 219 ......................1 29 U.S.C. 260 ..................... 15 -iii- LEGISLATIVE HISTORY: PAGE 117 Cong. Rec. 39,250 (1971) ................ 9 118 Cong. Rec. 274 (1972) ................. 10 118 Cong. Rec. 1412 (1972) ................. 11 118 Cong. Rec. 1840 (1972) ................. 10 118 Cong. Rec. 1992 (1972) ................. 10 118 Cong. Rec. 3936 (1972) ................. 11 118 Cong. Rec. 4817-4818 (1972) ............. 9, 11 118 Cong. Rec. 4931-4932 (1972) ............... 10 118 Cong. Rec. 5804 (1972) ............. 9, 11, 12 118 Cong. Rec. 5805 (1972) ................. 9 118 Cong. Rec. 5982 (1972) ................. 11 H.R. Rep. No. 238, 92d Cong., 1st Sess. (1971) ...... 8, 9 H.R. Rep. No. 359, 92d Cong., 1st Sess. (1971) ....... 9 H.R. Rep. No. 554, 92d Cong., 1st Sess. (1971) ....... 8 S. Rep. No. 450, 93d Cong., 1st Sess. (1973) ........ 4 S. Rep. No. 689, 92d Cong., 2d Sess. (1972) ........ 8 Discrimination Against Women: Hearings Before the Special Subcomm. on Educ. of the Comm. on Educ. & Labor, 91st Cong., 2d Sess. (1970) ...... passim Economic Problems of Women: Hearings Before the Joint Economic Comm., 93d Cong., 1st Sess. (1973) .. 5, 6, 11 Equal Employment Opportunities Enforcement Act: Hearings Before the Subcomm. on Labor of the Senate Comm. on Labor & Public Welfare, 91st Cong., 1st Sess. (1969) .................... 5, 8 -iv- LEGISLATIVE HISTORY (continued): PAGE Equal Employment Opportunities Enforcement Act of 1971: Hearings Before the Subcomm. on Labor of the Senate Comm. on Labor & Public Welfare. 92d Cong., 1st Sess. (1971) ....................... 5, 13 Equal Employment Opportunity Enforcement Procedures: Hearings Before the General Subcomm. on Labor of the House Comm. on Educ. & Labor, 91st Cong., 1st and 2d Sess. (1969-1970) .... 5, 8 Equal Employment Opportunity Enforcement Procedures: Hearings Before the General Subcomm. on Labor of the House Comm. on Educ. & Labor, 92d Cong., 1st Sess. (1971) ........ 5, 6, 7 Equal Rights for Men and Women 1971: Hearings Before Subcomm. No. 4 of the House Comm. on the Judiciary, 92d Cong., 1st Sess. (1971) ....................... passim Fair Labor Standards Amendments of 1971: Hearings Before the Subcomm. on Labor of the Senate Comm. on Labor & Public Welfare, 92d Cong., 1st Sess. (1971) ....................... 12, 13 Fair Labor Standards Amendments of 1973: Hearings Before the Subcomm. on Labor of the Senate Comm. on Labor & Public Welfare, 93d Cong., 1st Sess., (1973) ......................... 12 -v- LEGISLATIVE HISTORY (continued): PAGE Higher Education Amendments of 1971: Hearings Before the Special Subcomm. on Educ. of the House Comm. on Educ. & Labor, 92d Cong., 1st Sess. (1971) .................. 5, 7, 8 To Amend the Fair Labor Standards Act: Hearings Before the General Subcomm. on labor of the House Comm. on Educ. & Labor, 91st Cong., 1st Sess. (1970) ..................... 12 MISCELLANEOUS: EEOC, Minorities and Women in State and Local Government 1974 (1977) .............. 11 President's Task Force on Women's Rights and Responsibilities, A Matter of Simple Justice (Apr. 1970) ........................ 5 U.S. Department of Labor, Women's Bureau, Fact Sheet on the Earnings Gap (Feb. 1970) ....... 5, 9 -vi- I. CONGRESS CLEARLY ABROGATED IMMUNITY IN 29 U.S.C. 216(b) In Alden v. Maine, 119 S. Ct. 2240 (1999), the Court held that Congress did not have the power to validly abrogate state sovereign immunity in state court for claims under the Fair Labor Standards Act. Before deciding that question, the Court first held that 29 U.S.C. 216(b), the same enforcement provision at issue in this case, "purport[s] to authorize private actions against States in their own courts." Id. at 2246; see also id. at 2261 (Act "purport[s] in express terms to subject nonconsenting States to private suits"). Since the same clear- statement rule is employed in deciding whether Congress intended to permit States to be sued in state or federal court, see Hilton v. South Carolina Pub. Rys. Comm'n, 502 U.S. 197, 205-206 (1991), Alden necessarily holds that Section 216(b) clearly abrogates States' Eleventh Amendment immunity to Equal Pay Act suits.1 II. CONGRESS HAD THE POWER TO ENACT THE EQUAL PAY ACT UNDER SECTION 5 OF THE FOURTEENTH AMENDMENT In Florida Prepaid Postsecondary Education v. College Savings Bank, 119 S. Ct. 2199 (1999), the Supreme Court held that Congress' attempt to abrogate Eleventh Amendment immunity for State violations of the Patent Act was in excess of its Section 5 authority to enact "appropriate" legislation. The Court specifically reaffirmed, though, that "'[l]egislation
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