High court leans toward states in its hearing on age-bias case; Justices discuss Congress' extension of federal law to government employees


WASHINGTON -- State government workers at risk of losing out on the job to younger co-workers may no longer be able to sue their agencies for violating the federal law against age bias if the Supreme Court rules the way it hinted it would yesterday.

In an hourlong hearing, justices who have led a trend toward shielding states from far-reaching federal laws seemed unpersuaded that Congress was justified 25 years ago in applying age discrimination law to state employees.

If the court rules that states have constitutional immunity to lawsuits filed by their workers for such discrimination, the law would remain on the books, but those workers would have to depend on the Justice Department's willingness to file every case that workers across the country wanted pursued to enforce the law. That is an unlikely prospect.

A decision against individual workers' lawsuits would not bar lawsuits by the federal government.

Justice Sandra Day O'Connor, whose vote could be crucial to the decision in the case from Florida, said she saw in Congress' discussion of the law "very little indication of a need to reach state" employees.

Midway through the hearing, Justice Anthony M. Kennedy said that "Congress did not have the debate we're having here" over its legislative powers when it extended age bias laws to the states in 1974. As a result, Kennedy seemed to be suggesting, the court might be unwilling to ratify a legislative decision that Congress spent little time trying to justify.

"It didn't even come close" to the inquiry the justices were making about the need for the law, said Kennedy, whose vote is also likely to be a key one.

O'Connor, along with Chief Justice William H. Rehnquist and Justice Antonin Scalia, noted that Congress sought to give older workers more protection under the age-bias statute than the court has been willing to provide under the Constitution. The court ruled as long ago as 1976 that discrimination based on age does not violate the Constitution's guarantee of legal equality.

The justices' remarks yesterday indicated that they were skeptical that Congress had authority to require states to carry out obligations that the Constitution did not impose on them.

Scalia was particularly sharp in criticizing the congressional effort, saying that "Congress went ahead on its own, acting against constitutional discrimination the existence of which is not reflected in any decision of this court."

Those four justices, along with Justice Clarence Thomas, who remained silent at yesterday's hearing, have formed a five-member majority that in recent years has provided greater protection for state governments against federal laws.

The Florida case was combined with age discrimination cases involving a prison guard in Florida and university professors in Alabama.

It provides the first clear-cut test of whether the trend toward protection of state governments will continue when the justices take up a civil rights law such as the age-bias statute.

The case involves 36 current and former faculty members and librarians at two state universities in Florida who say they were discriminated against on the basis of age. They argued that the universities failed to adjust their salaries to keep up with the academic market and said that policy had a discriminatory effect on workers older than age 40.

The state countered that Congress did not have authority to let private individuals sue the state in federal court to enforce the age law.

The law was defended by a Washington attorney for the faculty members, Jeremiah A. Collins, and by a deputy U.S. solicitor general, Barbara D. Underwood. Both withstood aggressive questioning from the court's conservative members.

They drew support from Justices Stephen G. Breyer, Ruth Bader Ginsburg, David Souter and John Paul Stevens. Ginsburg, in particular, expressed concern about the vulnerability of other federal civil rights laws if Florida is immunized to lawsuits intended to enforce age-discrimination law.

Those four justices have been dissenters in the court's more significant recent rulings on states' rights.

In another hearing yesterday, the court examined the scope of the government's power to decide how information it releases from its files may be used by those who receive that information.

At issue is a California law, struck down by a lower federal court, that gives the public access to police arrest reports but bars anyone other than news organizations from using the information for commercial purposes.

Though some justices seemed skeptical about the law, the hearing produced no clear sign of the final decision.

Both of the cases heard yesterday will be decided early next year.

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