College
Savings Bank v. Florida Postsecondary
Education Expense Board, 527
U.S. 666 (1999), reaffirmed
that Congress, in exercise
of its spending powers, may
condition its grant of funds
to the States upon their taking
certain actions that Congress
could not require them to
take, and that acceptance
of the funds may entail an
agreement to the actions.
Consent to suit in the federal
court is one such condition
that Congress may impose.
Congress has expressly
abrogated state immunity for
claims arising under four
important federal laws enacted
under the Spending Clause.
42 U.S.C. § 2000d-7 abrogates
state immunity for suits under
Title VI of the Civil
Rights Act of 1962
(discrimination based on race,
religion and ethnicity), the
Age Discrimination
Act, Title IX
of the Education
Amendments of 1972 (gender
discrimination in education),
and Section 504 of the Rehabilitation
Act of 1974 (discrimination
based on disability).
Other federal statutes contain
abrogation provisions, so
each statute should be examined
to determine whether they
contain language which can
be construed to impose a consent
to suit against the state
as a condition of accepting
federal money.
The language may not need
to be expressly in terms of
waiver or abrogation of immunity.
See Illinois Bell Telephone
Co. v. WorldCom Technologies,
Inc., 179 F. 3d 566 (7th
Cir. 1999), cert. grantedsub
nom Mathias v. WorldCom Technologies,
Inc, 2001 WL 208723 (March
5, 2001).
Laws enacted under
the Spending Clause which
expressly waive
state immunity have a wide
applicability to state governments.
Although the four laws covered
by abrogation in § 2000d-7
apply only to programs that
are recipients of federal
funds, almost all state agencies
receiving federal funds should
be covered by these laws.
At least five Circuit Courts
of Appeal have held that Section
504 of the Rehabilitation
Act constitutionally abrogates
state 11th Amendment immunity.
See Stanley
v. Litscher, 213 F. 3d 340
(7th Cir. 2000),
and cases cited therein.
Other cases upholding waivers
under the Spending Clause
include:
- Litman v. George
Mason University, 186 F.
3d 544 (4th Cir.
1999), cert. den. 120 S.Ct.
1220 (2000), upholding waiver
of immunity in Title IX
of the Education Amendments
of 1972, banning discrimination
based on gender in education.
- Sandoval v. Hagan,
197 F. 3d 484 (11th
Cir. 1999), reh. den. 211
F. 3d 133 (11th
Cir. 2000), reversed on
other grounds sub nom Alexander
v. Sandoval, 121 S. Ct.
1511 (2001), upholding waiver
of immunity for Title VI
of the Civil Rights Act,
banning discrimination based
on race.
- Bradley v. Arkansas
Department of Education,
189 F. 3d 745 (8th
Cir. 1999),rev'd on other
grounds sub nom Jim C. v.
United States, 235 F. 3d
1079 (8th Cir.
2000), cert. petition pending,
holding that the waiver
of immunity provision in
the Individual with Disabilities
Education Act is valid under
the spending powers of Congress.
If sovereign
immunity is waived under statutes
enacted as part of the Spending
Power, a private plaintiff
could sue the state as a defendant
and could recover damages
to the extent they are allowed
by the underlying statute,
as well as obtain injunctive
and other relief.
PROSPECTIVE
RELIEF UNDER EX PARTE YOUNG
Even absent a valid
Congressional abrogation of
state immunity, since Ex parte
Young, 209 U.S.
123 (1908), prospective relief
in federal courts has been
available to enforce federal
rights by suing a state official,
usually the official in charge
of the agency responsible
for the violation. Even
if a federal statute was not
authorized by the 14th
Amendment, its substantive
provisions may be valid under
other Congressional authority,
such as the Commerce Clause,
Maryland v. Wirtz, 392 U.S.
183 (1968), and enforceable
prospectively against the
States under Young.
The Supreme Court reaffirmed
Ex parte Young in Seminole,
supra and in its subsequent
state immunity decisions.
Indeed, the availability of
the Young remedy is the majority's
answer to the argument that
states will be free to disregard
federal law. In Seminole,
the majority states that '[t]his
argument wholly disregards
other methods of ensuring
the States' compliance with
federal law; . . . an individual
can bring suit against a state
officer in order to ensure
that the officer's conduct
is in compliance with federal
law, see, e.g., Ex parte Young
. . ." 517 U.S. at 71,
n. 14.
In the case barring
recovery of damages against
states under Title I of the
ADA, the Court expressly approves
use of Young in enforcing
Title I for injunctive relief
against states engaging in
employment discrimination.
Our holding here that Congress
did not validly abrogate the
State's sovereign immunity
from suit by private individuals
for money damages under Title
I does not mean that persons
with disabilities have no
federal recourse against discrimination.
Title I of the ADA still prescribes
standards applicable to the
States. Those standards
can be enforced by the United
States in actions for money
damages, as well as by private
individuals in actions for
injunctive relief under Ex
parte Young . . ." Board
of Trustees of the University
of Alabama v. Garrett. 121
S,.Ct. 955, 968, n. 9 (2001).
Cases under the Young
procedure may be brought in
two basic formats. First,
suits for prospective relief
may be brought directly under
a federal statute which creates
a private cause of action,
The Cone Corporation v. Florida
Dept. Transportation, 921
F. 2d 1190, 1201 (11th
Cir.), cert. den. 500 U.S.
942(1991). Second, suits
for prospective relief are
brought under 42 U.S.C. §
1983, which creates a federal
cause of action for violation
of "rights" secured
by the federal laws and Constitution.
Rosado v. Wyman, 397 U.S.
397 (1970); see R. Capistrano,
Enforcing Federal Rights:
The Law of Section 1983, 33
Clearinghouse Rev. 217 (1999).
PRESUMPTION THAT A
FIT PARENT ACTS IN THEIR
CHILDREN’S BEST INTERESTS
There is a presumption
that a fit parent acts in
his or her children's best
interests. As the United
States Supreme Court has stated:
"There is a presumption
that fit parents act in their
children's best interests,
Parham v. J. R., 442 U. S.
584, 602; there is normally
no reason or compelling interest
for the State to inject itself
into the private realm of
the family to further question
fit parents' ability to make
the best decisions regarding
their children. Reno
v. Flores, 507 U. S. 292,
304. The state may not
interfere in child rearing
decisions when a fit parent
is available. Troxel v. Granville,
530 U.S. 57
(2000).
Consequently, the
State of Connecticut or any
state can not use the “best
interest of the child” standard
to substitute its judgment
for a fit parent and parroting
that term is “legally insufficient”
to use the court to force
parents to follow some arbitrary
standard or case plan.
The State cannot usurp a fit
parent’s decision making related
to parental spending for their
children, i.e. child support
without either a demonstration
the parent is unfit or there
is proven harm to the child.
In other words, the state
and Child Protective Services
can not impose a standard
of living dealing with the
rearing of children.
When they violate this fundamental
right, they would be intruding
on the family’s life and liberty
interest. The 1st
Amendment bars such action
because the rearing of children
and the best interest of children
is often based on ones religious
beliefs, i.e. the separation
of church and state.
By the state imposing any
standard of living or the
rearing of children, they
are putting forth a religious
standard by their actions
i.e. how you act, what to
feed the child, how to dress
the child, whether or not
to home school and so on.
The courts and the state lack
jurisdiction on what goes
on in the house even though
they disagree with the choices
made by parents, the Plaintiffs
term this “parental immunity.”
It’s none of the state’s business
on how you are to raise your
children. In other words,
they can not falsely accuse
parents of abuse or neglect
just because they disagree
with the method of child rearing
or the standard in which they
live.
State Law provisions
mandate that the State invade
the family, through the judiciary,
to examine, evaluate, determine
and conclude the terms and
nature of the interpersonal
relationship, spousal roles,
spousal conduct, parental
decision making, parenting
conduct, parental spending,
economic standard of living,
occupations, education, savings,
assets, charitable contributions
and most importantly the intimate
emotional, psychological and
physical details of the parties
and family during their marriage
granting the judiciary a broad
range of discretion to apply
a property stripping statute
with a standard of equity.
This would be an abuse of
the judicial power and the
judicial system to intrude
into U.S. citizen’s lives
and violate their privacy
rights. It is not the
state’s right or jurisdiction
to examine the day to day
decisions and choices of citizens
and then sit there in judgment
and then force parents to
follow conflicting standards
with threat of harm for noncompliance
i.e. abduction of children.
The United States Constitution’s
Fourteenth Amendment contains
a recognized Right to Privacy.
This fundamental Right to
Privacy encompasses the Privacy
Protected Zone of Parenting.
The Plaintiff asserts that
DCF policy and Connecticut
General Statutes impermissibly
infringe the Federal Right
to Privacy to the extent they
mandate the parent to support
his or her children beyond
a standard to prevent harm
to them. They substitute
the State s judgment for the
parent’s judgment as to the
best interest of his or her
children. The challenged
statutes do not mandate a
review to determine if demonstrable
harm exists to the children
in determining the amount
of support that the parent
must provide.
The State is not permitted
and lacks jurisdiction to
determine care and maintenance,
i.e. spending, i.e. child
discipline, decisions of a
fit parent based on his or
her income in an intact marriage
other than to prevent harm
to a child. There is
no basis for the State to
have a statute that mandates
a fit divorced parent should
support their child to a different
standard, i.e. the standard
of the best interests of a
child. Furthermore,
the State must not so mandate
absent a demonstration that
the choice of support provided
by the parent has resulted
in harm to his or her children.
The U.S. Supreme Court
has mandated that the standard
for the State to intrude in
parenting decisions relating
to grandparent visitation
is no longer best interests
of the child. Troxel v. Granville,
530 U.S. 57;
120 S.Ct. 2054 (2000).
This court should recognize
the changed standard of State
intrusion in parenting should
also apply to the context
of parents care, control,
and maintenance, i.e. spending,
i.e. child discipline decisions,
on behalf of his or her children.
P.S. Check
out our web site for the FREE
handbook on parental and children's
rights. It cites over
100 cases dealing with unlawful
removals and 4th and 14th Amendment
violations. There is also
a manual on Title IV-E dealing
with "reasonable efforts".
