The Aftermath of Garrett: Minnesota Takes the Lead in Waiving State Immunity

Readers will remember the Supreme Court’s decision in University of Alabama Board of Trustees vs. Garrett discussed in an article […]

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Readers will remember the Supreme Court’s decision in University of Alabama Board of Trustees vs. Garrett discussed in an article in the March 2001 Access Press. In that decision, the Supreme Court said that states were immune from private lawsuits by state employees for monetary damages. This decision followed a line of decisions limiting rights under other Civil Rights and Labor Statutes.

Legislators and activists in various states have tried to come up with ways to restore some of the rights removed by these decisions. Remember that these decisions were interpreting more conservatively than previous decisions had the 11th Amendment of the United States Constitution barring suit in federal court against states. Generally, in order for states to be said to have waived their immunity they must meet one of three tests.

The first way for states to have waived immunity to be sued would be that the Congress must have expressly intended by the legislation to waive states’ immunity to a federal lawsuit, and the Congress must have had the authority to waive such immunity. In Garrett and other recent decisions involving Civil Rights Statutes, the Supreme Court said that Congress intended to waive immunity to lawsuits against the states, but that Congress didn’t have the authority to
waive such immunity.

The second way states could waive immunity was to implicitly waive immunity by accepting funding under federal statutes. For example, states which accepted federal funding for public education might have waived their right to claim immunity to suits under the Individuals with Disabilities Education Act (IDEA).

Minnesota Only State to Waive Immunity

The third way states could waive immunity to be sued is by expressly stating in legislation that they consented to be sued under specifically-stated federal statutes. Several states have introduced bills which, if passed, would waive this immunity. Minnesota is the only state which has passed legislation this term which may alleviate some of the problem. This bill was one of the few actually signed by the Governor during the 2001 legislative session. Minnesota’s legislative approach differed from that of the other three states that got bills before their legislature for a vote. I will discuss the bills in the other states first.

Rhode Island

The most sweeping legislation was introduced by Rhode Island. Apparently, their approach was to try to fix all the problems which could occur with any civil rights statute even before the Supreme Court reduced any of those rights further. Their legislation stated, in part, “The state consents to be sued in state or federal court by its employees and any other proper parties seeking to enforce rights and obtain remedies afforded by the following federal statutes and their regulations when the United State Congress has indicated its intent that such statutes be
applicable to the states:…” [This was followed by a comprehensive list of civil rights statutes, including: the Fair Labor Standards Act, the Equal Pay Act, Title VII of the Civil Rights Act, Title IX of the Civil Rights Act, Title VI of the Civil Rights Act, Sections 1981 through 1988 of
the Civil Rights Act, the Age Discrimination in Employment Act, the Fair Housing Act, the Rehabilitation Act, the Americans with Disabilities Act, the Religious Lands Use and Institutionalized Persons Act, the Family and Medical Leave Act, and various whistle-blower remedies under environmental protection statutes.]

The bill went on to include another section whereby the state would agree to be sued in federal court regarding all of their state civil rights statutes. This was a wonderful bill from a plaintiff’s point of view, but it probably scared legislators to death, and it didn’t pass. However, with such inclusive language, Rhode Island (and some other states) have started the process of creating coalitions among various groups affected by civil rights statutes which may lead to passage of some portion of that legislation at some future time.


California’s approach to this legislation was similar to Rhode Island’s, but not nearly as broad in scope. California seems to have paid special attention to the possibility of eroding Title II of the Americans with Disabilities Act. The bill read, in part, “(a) The state of California consents to be sued in state or federal court by any person seeking to enforce rights or obtain remedies afforded by the following federal laws and their implementing regulations…” [The following statutes are then listed: Fair Labor Standards Act, Title VII of the Civil Rights Act, Age Discrimination in Employment Act, Family and Medical Leave Act, and the Americans with Disabilities Act.]

“(b) In any action brought pursuant to the federal laws described in Subdivision (a), no immunity from suit may be asserted by any public agency pursuant to the 11th Amendment of the United States Constitution, and any immunity is hereby waived.

“(c) For purposes of this section, ‘public agency’ means the state, its agents, officers, and employees, and its political subdivisions including, but not limited to, charter cities and instrumentalities.” This bill was clearly intended to include any immunity claimed by cities or counties and therefore goes beyond the state waiver of immunity set forth in the Rhode Island statute. This bill also did not pass. However, some form of it may pass at another time with continued work by coalitions of advocates.


Missouri’s approach to legislation was both more conservative and more novel. Missouri introduced “emergency” legislation which, if passed, would have become effective retroactively. “This section shall apply to all actions pending or initiated on or after February 21, 2001.”
Missouri’s legislation only targeted the Americans with Disabilities Act. The bill did not waive Missouri’s immunity from lawsuits under the ADA against the state filed in federal court. Instead, Missouri’s legislation, if passed, would have meant that Missouri expressly consented to
be sued  in State Court but under the provisions set forth in the federal ADA legislation. This might have had the effect of implicitly incorporating the ADA into the state civil rights statutes. Depending upon how limited Missouri’s state statute regarding disability  iscrimination is, this might have been a big victory for disability advocates. The damages were fairly conservative however, capping monetary damages at whatever caps exist in the state’s current law and prohibiting punitive damages. It will be interesting to watch Missouri in the next few years to see whether this strategy is tried again.


Minnesota’s legislation was crafted mostly by legislators and followed, in many ways, California’s bill. However, it focused solely on remedying erosions to the ADA caused by the Supreme Court. Therefore, it focused solely on returning to state employees the right to sue the state in federal courts. It is unfortunate, in the view of disability advocates, that the legislation was not broadened to include consent to be sued under Title II of the Americans with Disabilities Act as well, since our Appellate Circuit has limited the right to such suits already. But, had the legislation been broader, it might not have passed at all.

Amazingly, there was little discussion about this legislation in committees or on the floor of either house. Advocates and coalitions did not lobby for the bill. In fact, they were told that the low-key approach was a better one for getting this bill passed. It worked. The bill passed and was signed into law. The bill waives immunity by Minnesota from federal lawsuits by state employees under the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and the employment provisions of the Americans with Disabilities Act.

What Will This Law Accomplish?

At this point, we await the filing of federal lawsuits under these statutes against the state by a state employee. It will be interesting to see if Minnesota’s state courts, or the federal courts, uphold this statute or limit its provisions in any way. Also, of course, while the current Attorney  General of Minnesota supported this waiver of immunity legislation as did the Governor and the legislature future lawmakers may seek to repeal this law.

Advocates will probably be considering the wisdom of leaving the current law alone or trying to expand it to include coverage for persons who wish to sue the state because they have been denied public services by state agencies. An example of the kind of coverage Minnesota currently
lacks in federal court is that students who are discriminated against by a state college or university may not sue the state in federal court for money damages. Such students could still file charges with the Human Rights Department or file lawsuits in state court under the Minnesota
Human Rights Act. Also, plaintiffs can still sue in federal court for injunctive relief such as change of policies. Advocates will need to monitor lawsuits and future legislation on this issue as well as monitoring the status of this current law.
“Readers who want to keep up with the ongoing efforts to stop the appointment of Appellate and Supreme Court justices who would further erode civil rights statutes can search for the latest information on and

Kathleen R. Hagen is a staff attorney with the Minnesota Disability Law Center

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