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October 13, 1999
Web posted at: 10:42 p.m. EDT (0242 GMT)

From staff and wire reports

WASHINGTON (CNN) -- The Supreme Court heard oral arguments Wednesday in a case that could determine whether state workers are covered by a federal law barring age discrimination.

At issue is whether the 11th Amendment, which gives states immunity from being sued in federal courts, prevents state workers from making use of a 1967 law banning age-related job bias.

Florida State University professor Daniel Kimel and several other faculty members sued Florida's Board of Regents in federal court, claiming they were being discriminated against in salary when compared to younger workers. They claimed the board had reneged on an agreement to bring their pay up to competitive levels.

"These were all people that were 20 years in service," Kimel said. "The average age was 54. There were people who had been here for a long time."

But Wendy Morris, of the Florida Board of Regents, said, "Congress didn't enunciate a specific clear intent to make the state of Florida or any other state liable to individual damages."

A federal appeals court ruled that the Florida professors, and plaintiffs in a related case in Alabama, can't invoke the age discrimination protections because Congress, in writing the law, didn't specifically nullify the states' constitutionally guaranteed immunity.

In arguments before the high court Wednesday, several justices indicated that they, too, believe Congress didn't waive the states' immunity.

"Congress did not have the debate we are having here," said Justice Anthony M. Kennedy. "It didn't come close to it."

Justice Sandra Day O'Connor said, "Could not these very plaintiffs have pursued state laws?"

Court recently broadens 11th Amendment

Lawyer Jeremiah Collins, representing the state workers, argued that Congress intended to wipe out state employers' immunity against federal lawsuits even if it did not specifically say so. He said Congress intended to address "a pervasive problem in our society of how people look at older workers."

But Jeffrey Sutton, representing the state employers, said Congress needed to show the defendants were engaged in "pervasive and systematic discrimination" before it could abridge the 11th Amendment and invoke its remedial powers.

In a series of 5-4 rulings in recent years, the court has ignited a states' rights revolution by using the 11th Amendment to restrict the federal government's power over states.

In cases involving copyrights, patents and payrolls, the justices ruled Congress must have good reason to trump states' rights.

A ruling in favor of the states in this case could undermine -- or even invalidate -- federal laws banning public or private discrimination based on age or physical disabilities. A decision is expected in June.

The court has previously held that the 14th Amendment's equal-protection guarantees trump the 11th Amendment's immunity when it comes to discrimination based on race, national origin and religion.

But in comments and questions from the bench Wednesday, several justices indicated that they think the 14th Amendment's protections are limited to those categories and could perhaps extend to gender.

"We're all going to be old," Justice Antonin Scalia said. "It's unlike other personal characteristics such as race and sex."

California limits on police records debated

In another closely watched case, the court heard arguments in a dispute over whether California can withhold police records from people who want to use the information for commercial purposes.

The purpose of the law, struck down by a federal appeals court, is to protect those people from mail solicitations by lawyers, insurance companies and others.

The law limits the release of the addresses of crime victims and criminal suspects to private investigators and those with "a scholarly, journalistic, political or government purpose."

Thomas C. Goldstein, a lawyer for the Los Angeles Police Department, told justices that without the limits, "there are massive, wholesale invasions of privacy.

Argument raised that limits stifle free speech

But the United Reporting Publishing Corp., which had sold lists of names and addresses of arrested people, contends the law unconstitutionally stifles commercial speech.

"The desire to suppress commercial solicitation is not a legitimate purpose," said Bruce J. Ennis, the company's lawyer.

Once the government decides to release information, it cannot discriminate against those who would use it for commercial purposes, Ennis said.

Much of Wednesday's debate centered on what might be considered a journalistic purpose.

"Could (United Reporting) just publish this in a little newspaper format" and meet that standard? asked O'Connor.

Scalia added, "A journalistic purpose could be someone with a Xerox machine in a basement."

Justices Anthony M. Kennedy and David H. Souter wondered aloud if a newspaper would violate the law if it published arrested suspects' addresses every day, knowing that commercial enterprises were using the information to solicit clients.

No, Goldstein said, because the newspaper itself would not be using the addresses for commercial reasons. But Ennis said United Reporting was "selling information" much the same as newspapers do.

Justice Department lawyer Edward C. DuMont argued in support of the California law, saying governments can limit the release of information and need not "disclose it completely to the winds."

The court's ruling, expected by late June, could turn on whether the justices view the law as a permissible restriction on access to government information, as Goldstein and DuMont contended, or a content-based limit on commercial speech, as lower courts ruled.

The Associated Press contributed to this report.

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