Section Five Overbreadth: The Facial Approach to Adjudicating Challenges Under Section Five of the Fourteenth Amendment

In February 1996, the New York State Department of Transportation fired Joseph Kilcullen from his position as a snowplow driver in the Department’s Highway Maintenance training program. Alleging that the state discharged him because of his epilepsy and learning disability, Kilcullen sued his former employer under the Americans with Disabilities Act (“ADA”), which abrogated states’ sovereign immunity and permitted private suits for damages against states in a federal court. Kilcullen asserted only that he was not treated the same as similarly situated non-disabled employees; his claim did not implicate the ADA’s requirement that employers provide “reasonable accommodation” to disabled employees. Nevertheless, the federal district court from the Northern District of New York concluded that to determine the validity of the ADA’s abrogation of state sovereign immunity in Kilcullen’s case, it had to consider whether the ADA as a whole – including the reasonable accommodation provisions – was a valid exercise of Congress’s power under section 5 of the Fourteenth Amendment. By discussing the proprietary of a facial analysis of the ADA’s abrogation of sovereign immunity, the district court in Kilcullen v. New York State Department of Transportation addressed an important procedural issue that the Supreme Court has failed to acknowledge in any of its section 5 cases since City of Boerne v. Flores. The Court’s silence on this point does not indicate inaction; in its recent cases, the Court has tacitly applied a new approach to adjudicating challenges to legislation enacted pursuant to Congress’s power under section 5 of the Fourteenth Amendment. This new approach not only permits facial challenges where previously they have been disfavored, but also assesses those challenges under a test that replaces the traditional standard with a version of overbreadth analysis typically reserved to the First Amendment context.