Barnes v. Gorman, 536 U.S. 181, 12 (2002)

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Stevens, J., concurring in judgment

on the theory that petitioners are immune from punitive damages under Newport. There is, however, no justification for the Court's decision to reach out and decide the case on a broader ground that was not argued below. The Court's reliance on, and extension of, Pennhurst—a case that was not even cited in petitioners' briefs in the Court of Appeals— is particularly inappropriate.

In Pennhurst we were faced with the question whether the Developmentally Disabled Assistance and Bill of Rights Act, 42 U. S. C. 6010, had imposed affirmative obligations on participating States. Relying in part on the important distinction between statutory provisions that "simply prohibited certain kinds of state conduct" and those that "impose affirmative obligations on the States to fund certain services," 451 U. S., at 16-17, we first held that 6010 was enacted pursuant to the Spending Clause. We then concluded that the "affirmative obligations" that the Court of Appeals had found in 6010 could "hardly be considered a 'condition' of the grant of federal funds." Id., at 23. "When Congress does impose affirmative obligations on the States, it usually makes a far more substantial contribution to defray costs. . . . It defies common sense, in short, to suppose that Congress implicitly imposed this massive obligation on participating States." Id., at 24.

The case before us today involves a municipality's breach of a condition that simply prohibits certain discriminatory conduct. The prohibition is set forth in two statutes, one of which, Title II of the ADA, was not enacted pursuant to the Spending Clause. Our opinion in Pennhurst says nothing about the remedy that might be appropriate for such a breach. Nor do I believe that the rules of contract law on which the Court relies are necessarily relevant to the tortious conduct described in this record. Moreover, the Court's novel reliance on what has been, at most, a useful analogy to contract law has potentially far-reaching consequences that go well beyond the issues briefed and argued

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