Cite as: 538 U. S. 721 (2003)
Kennedy, J., dissenting
vided leave only through administrative regulations or personnel policies"). The Court does not argue the States intended to enable employers to discriminate in the provision of family leave; nor, as already noted, is there evidence state employers discriminated in the administration of leave benefits. See supra, at 749-750. Under the Court's reasoning, Congress seems justified in abrogating state immunity from private suits whenever the State's social benefits program is not enshrined in the statutory code and provides employers with discretion.
Stripped of the conduct which exhibits no constitutional infirmity, the Court's "exten[sive] and specifi[c] . . . record of unconstitutional state conduct," ante, at 735, n. 11, boils down to the fact that three States, Massachusetts, Kansas, and Tennessee, provided parenting leave only to their female employees, and had no program for granting their employees (male or female) family leave. See ante, at 733-734, nn. 6 and 7 (citing Mass. Gen. Laws, ch. 149, § 105D (West 1997); Kan. Admin. Regs. 21-32-6(d) (2003); Tenn. Code Ann. § 4- 21-408(a) (1998)). As already explained, supra, at 748-749, the evidence related to the parenting leave is simply too attenuated to support a charge of unconstitutional discrimination in the provision of family leave. Nor, as the Court seems to acknowledge, does the Constitution require States to provide their employees with any family leave at all. Ante, at 738. A State's failure to devise a family leave program is not, then, evidence of unconstitutional behavior.
Considered in its entirety, the evidence fails to document a pattern of unconstitutional conduct sufficient to justify the abrogation of States' sovereign immunity. The few incidents identified by the Court "fall far short of even suggesting the pattern of unconstitutional discrimination on which § 5 legislation must be based." Garrett, 531 U. S., at 370; see also Kimel, 528 U. S., at 89-91; City of Boerne, 521 U. S., at 530-531. Juxtaposed to this evidence is the States' record of addressing gender-based discrimination in the provi-
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