                               In the
 United States Court of Appeals
                  For the Seventh Circuit
                          ____________

No. 01-3448
NAVREET NANDA,
                                                    Plaintiff-Appellee,
                                  v.

BOARD OF TRUSTEES OF THE
UNIVERSITY OF ILLINOIS, BELLUR
PRABHAKAR, GERALD MOSS, et al.,
                                              Defendants-Appellants.
                          ____________
             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
             No. 00 C 4757—Rebecca R. Pallmeyer, Judge.
                          ____________
     ARGUED APRIL 4, 2002—DECIDED SEPTEMBER 17, 2002
                          ____________


 Before RIPPLE, KANNE and EVANS, Circuit Judges.
  RIPPLE, Circuit Judge. Navreet Nanda, Ph.D., brought this
discrimination action against her former employer, the
Board of Trustees of the University of Illinois, as well as
her former supervisors and colleagues at the University
(collectively “the University”). The University moved to
dismiss Dr. Nanda’s complaint, principally on the basis
that Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq. (“Title VII”), did not validly
abrogate the State’s sovereign immunity under the Elev-
2                                               No. 01-3448

enth Amendment. The district court rejected this argument
and held that Congress validly abrogated Eleventh Amend-
ment immunity when it extended Title VII to the States.
For the reasons set forth in the following opinion, we affirm
the judgment of the district court.


                             I
                     BACKGROUND
A. Facts
  Dr. Nanda was employed as an assistant professor in the
Department of Microbiology at the University’s Chicago
campus. In July 1998, Bellur Prabhakar, the Chairman of
the Department of Microbiology and Immunology, recom-
mended to the University that Dr. Nanda be issued a
terminal contract that would end, at its expiration, her
employment with the University. The University accepted
Dr. Prabhakar’s recommendation and issued Dr. Nanda a
terminal contract ending on August 31, 1999. Dr. Nanda’s
efforts to reverse the decision through the University’s
grievance process were unsuccessful. After exhausting her
administrative remedies, Dr. Nanda filed this action in
district court.
  Dr. Nanda’s complaint included three counts. In Count I,
Dr. Nanda alleged that she had suffered harassment and
that her employment had been terminated on the basis
of her sex, race and national origin in violation of Title
VII. Count II of Dr. Nanda’s complaint set forth a parallel
claim under 42 U.S.C. §§ 1983 and 1988 for violations of
her equal protection rights and sought injunctive relief,
compensatory damages and punitive damages against
the University as an institution and also her supervisors
for violations of her equal protection rights. Finally, Count
No. 01-3448                                                 3

III, a state tort law claim, alleged that Dr. Prabhakar had
interfered intentionally with Dr. Nanda’s employment
relationship with the University.
   The University timely moved to dismiss Dr. Nanda’s
complaint. With respect to Count I, the University main-
tained that Congress did not abrogate properly the States’
sovereign immunity under the Eleventh Amendment when
it enacted the Equal Employment Act of 1972 (the “1972
Act”) which extended Title VII’s coverage to the States. The
individual defendants and the University moved to dis-
miss Count II on the ground that the named administra-
tors were not “persons” within the meaning of 42 U.S.C.
§ 1983. Finally, Dr. Prabhakar moved to dismiss Count III
on the ground that the pleaded state cause of action was
preempted by a state statutory cause of action.
  In her response, Dr. Nanda submitted that Congress had
the authority to extend Title VII to the States pursuant to
§ 5 of the Fourteenth Amendment. Specifically, Dr. Nanda
claimed that Title VII passed the “congruence and propor-
tionality” test articulated in City of Boerne v. Flores, 521
U.S. 507 (1997), and its progeny. According to Dr. Nanda,
“Title VII does not raise the level of scrutiny given to race,
national origin and gender classifications beyond that
granted in the Equal Protection Clause and, therefore, Title
VII is congruent with the Equal Protection Clause.” R.58
at 5. Furthermore, Dr. Nanda pointed to the historical prob-
lems of race and gender discrimination, and to specific
evidence of discrimination against women in institutions
of higher education, to establish that Congress’ response
to the problem of gender discrimination was proportion-
ate. See id. at 6-8.
   With respect to Count II, Dr. Nanda contended that Count
II of her complaint stated a claim under § 1983 because
it alleged deliberate conduct for which she sought puni-
4                                               No. 01-3448

tive damages and because she sought injunctive relief
which “may be granted under § 1983 without violating
the Eleventh Amendment.” Id. at 10. Finally, Dr. Nanda
maintained that her allegations against Dr. Prabhakar
in Count III were distinguishable from her allegations of
civil rights violations made in the first two counts, and,
therefore, that count should be considered independent
of those violations under Illinois tort law.


B. District Court Opinion
   After considering the arguments of the parties, the dis-
trict court granted in part and denied in part the Univer-
sity’s motion. The district court acknowledged that, in
several recent cases, the Supreme Court had held that
Congress had encroached on the States’ Eleventh Amend-
ment immunity. However, with respect to whether Con-
gress had abrogated properly the States’ Eleventh Amend-
ment immunity in enacting the 1972 Act, the court de-
termined that it was not “writ[ing] on a clean slate.” R.79
at 3.
  The district court began its analysis by stating that “[i]n
Fitzpatrick v. Bitzer, 427 U.S. 445, 447 (1976), the Supreme
Court concluded that in the 1972 Amendment to Title
VII of the Civil Rights Act of 1964, ‘Congress, acting un-
der § 5 of the Fourteenth Amendment, authorized federal
courts to award money damages . . . against a state
government . . . .’ ” R.79 at 3. Since that time, the court
continued, numerous courts of appeals had permitted Title
VII claims for damages against the States. The district
court specifically mentioned and followed the decision of
the Eighth Circuit in Okruhlik v. University of Arkansas
ex rel. May, 255 F.3d 615 (8th Cir. 2001). In that case, the
Eighth Circuit concluded that Congress validly had abro-
gated the States’ Eleventh Amendment immunity when it
No. 01-3448                                                    5

extended Title VII to the States. The district court, “per-
suaded by Okruhlik and the authorities cited therein, con-
clude[d] that it may, consistent with the Constitution,
exercise jurisdiction over Professor Nanda’s Title VII
claims.” R.79 at 6. It therefore denied the University’s mo-
tion to dismiss Count I.
  With respect to Count II, the district court held that,
by virtue of the Supreme Court’s decision in Will v. Michi-
gan Department of State Police, 491 U.S. 58, 71 (1989), “a
lawsuit under § 1983 against state officials constitutes a
suit against the State itself, and that neither a State nor its
officials acting in their official capacities are ‘persons’ under
§ 1983 for purposes of damage awards.” R.79 at 7. Con-
sequently, the district court dismissed Dr. Nanda’s claims
for damages. However, because “the Court acknowledged
in Will that a claim for injunctive relief may properly be
brought against state officials,” the district court allowed
Dr. Nanda’s claim for injunctive relief to go forward. Id.
  Finally, the district court determined that Dr. Nanda’s
claim for intentional interference with contract contained
in Count III was linked inextricably with the allegations
that Dr. Prabhakar’s actions were motived by sex, race
and national origin. Therefore, the Illinois Human Rights
Act provided the exclusive remedy for the alleged con-
duct and preempted Dr. Nanda’s state tort claim. The
court therefore granted Dr. Prabhakar’s motion to dis-
miss Count III.
  The University timely appealed the district court’s denial
                                          1
of its motion to dismiss Counts I and II.



1
  Dr. Nanda did not cross-appeal the district court’s dismissal
of Count III, and no arguments concerning Count III are before
this court.
6                                                  No. 01-3448

                               II
                        DISCUSSION
A. Eleventh Amendment Immunity
  Under 28 U.S.C. § 1291, this court has jurisdiction only
from “final decisions” of the district courts. See 28 U.S.C.
§ 1291; Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d
541, 546 (7th Cir. 2001). This court has held that a district
court’s denial of a motion to dismiss is not a final decision.
See United States v. Michelle’s Lounge, 39 F.3d 684, 702 (7th
Cir. 1994) (“Ordinarily, of course, a denial of a motion
to dismiss is not a final order.”). However, the collateral
order doctrine provides a “narrow” exception to the final-
ity rule. This doctrine permits an appeal from a non-final
judgment, such as the denial of a motion to dismiss, when
the following criteria are met: (1) the order “conclusively
determine[s] a disputed question”; (2) the order “resolve[s]
an important issue completely separate from the merits
of the action”; and (3) the order is “effectively unreview-
able on appeal from a final judgment.” Coopers & Lybrand
v. Livesay, 437 U.S. 463, 468 (1978). It is well-settled that the
issue of Eleventh Amendment immunity, which encom-
passes both immunity from liability as well as immu-
nity from suit, is “irretrievably lost” if not immediately ap-
pealable and therefore is properly raised in a collateral
appeal. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 147 (1993) (“We hold that
States and state entities that claim to be ‘arms of the State’
may take advantage of the collateral order doctrine to ap-
peal a district court order denying a claim of Eleventh
Amendment immunity.”). Thus, we have jurisdiction to
review the district court’s denial of Eleventh Amendment
immunity.
No. 01-3448                                                 7

   We review a district court’s decision to dismiss a claim
on Eleventh Amendment immunity grounds de novo.
See Cherry, 265 F.3d at 547. The University urges us to re-
verse the district court’s decision on the Eleventh Amend-
ment issue and reiterates many of the arguments that
it made in support of its motion to dismiss. Specifically,
the University contends that, when the Supreme Court
handed down its most recent Eleventh Amendment case,
Board of Trustees of the University of Alabama v. Garrett, 531
U.S. 356 (2001), the Court established a higher bar for
congressional abrogation of the States’ Eleventh Amend-
ment immunity. In the University’s view, in order to abro-
gate properly Eleventh Amendment immunity, a Con-
gressional enactment must not only pass the “congruence
and proportionality” test, but also must be supported
by clear evidence of past constitutional violations set forth
in the legislative record. The district court, continues
the University, paid only lip service to this second re-
quirement. The University contends that, because the
legislative record does not reveal a pattern of past con-
stitutional wrongs to support the extension of Title VII to
the States, Title VII cannot survive an Eleventh Amendment
challenge.
   Dr. Nanda, and the United States as intervenor, argue the
opposite. According to these parties, federal courts only
have to look for a legislative record of constitutional
violations if the congressional action fails the “congruence
and proportionality” test. In their view, because Title
VII proscribes only unconstitutional behavior, the dis-
trict court did not have to examine the legislative record
for a history of constitutional violations. In the alterna-
tive, Dr. Nanda and the United States maintain that, if
courts have to examine the legislative record to assess
the need for congressional action, there is ample evidence
8                                                     No. 01-3448

in the record to justify the extension of Title VII to the
        2
States.
  The Eleventh Amendment states: “The Judicial power of
the United States shall not be construed to extend to any
suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const.



2
   The United States argues that Fitzpatrick v. Bitzer, 427 U.S. 445
(1976), disposes of the issue currently before this court. In
Fitzpatrick, the Court determined that Congress, as part of its
powers under § 5 of the Fourteenth Amendment, may “provide
for private suits against States or state officials which are
constitutionally impermissible in other contexts.” Id. at 456.
Although many courts, including our own, see Merhab v. Ill. State
Toll Highway Auth., 267 F.3d 710, 711 (7th Cir. 2001) (citing
Fitzpatrick for proposition that “there is no Eleventh Amend-
ment immunity to suits under Title VII”); Love v. Waukesha Joint
Sch. Dist. #1, Bd. of Educ., 560 F.2d 285 (7th Cir. 1977), took
Fitzpatrick to resolve all Eleventh Amendment challenges to
Title VII, the decision did hold open the possibility of an Elev-
enth Amendment challenge to Title VII based on Congress’
authority under § 5 of the Fourteenth Amendment; it stated:
“Apart from their claim that the Eleventh Amendment bars
enforcement of the remedy established by Title VII in this
case, respondent state officials do not contend that the substan-
tive provisions of Title VII as applied here are not a proper ex-
ercise of congressional authority under § 5 of the Fourteenth
Amendment.” Fitzpatrick, 427 U.S. at 456 n.11. The combination
of this possibility with the detailed Eleventh Amendment anal-
ysis the Court has employed in recent cases suggests to us
that the most prudent course is to assume that neither Fitz-
patrick nor our earlier summary treatment of the issue through
reliance on Fitzpatrick necessarily disposes of the issue currently
before us.
No. 01-3448                                                        9
            3
amend. XI. A state’s immunity, however, is not absolute;
“Congress may abrogate the State’s Eleventh Amendment
immunity when it both unequivocally intends to do so
and acts pursuant to a valid grant of constitutional au-
thority.” Garrett, 531 U.S. at 363 (internal quotation marks
                          4
and citations omitted). The Supreme Court has recog-
nized that “the Eleventh Amendment, and the principle of
state sovereignty which it embodies, are necessarily lim-
ited by the enforcement provisions of § 5 of the Fourteenth
Amendment.” Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976)
(internal citations omitted). Congress, therefore, “may sub-
ject nonconsenting States to suit in federal court when it
does so pursuant to a valid exercise of its § 5 power.”
Garrett, 531 U.S. at 364. We must ascertain, therefore, what
constitutes a valid exercise of § 5 power to determine
if Congress’ extension of Title VII to the States falls with-
in that grant of authority.
    The Fourteenth Amendment states, in relevant part:
     Section 1. . . . No State shall make or enforce any law
     which shall abridge the privileges or immunities of
     citizens of the United States; nor shall any State deprive


3
   Although the text of the Amendment does not forbid suits
against a State by its own citizens, “the sovereign immunity
enjoyed by the States extends beyond the literal text of the
Eleventh Amendment.” Fed. Mar. Comm’n v. South Carolina State
Ports Auth., 122 S. Ct. 1864, 1871 (2002). Specifically, the Su-
preme Court “has consistently held that an unconsenting State
is immune from suits brought in federal courts by her own
citizens as well as by citizens of another State.” Edelman v. Jordan,
415 U.S. 651, 662-63 (1974) (citing cases).
4
  The University does not dispute that Congress unequivocally
intended to abrogate the States’ Eleventh Amendment immu-
nity when it passed the 1972 Act.
10                                               No. 01-3448

     any person of life, liberty, or property, without due
     process of law; nor deny to any person within its
     jurisdiction the equal protection of the law.
     ....
     Section 5. The Congress shall have the power to en-
     force, by appropriate legislation, the provisions of this
     article.
U.S. Const. amend. XIV. Section 5 of the Fourteenth Amend-
ment gives to Congress the right to “enforce the substan-
tive guarantees contained in § 1 by enacting ‘appropriate
legislation.’ ” Garrett, 531 U.S. at 365. This Congressional
determination of necessity and propriety is “entitled to
much deference.” City of Boerne v. Flores, 521 U.S. 507, 536
(1997). Nevertheless, Congress’ power is limited to en-
forcement; the Fourteenth Amendment does not give
Congress the power “to determine what constitutes a
constitutional violation,” City of Boerne, 521 U.S. at 519, a
responsibility reserved to the Court, see Garrett, 531 U.S.
at 365.
  A review of the Supreme Court’s § 5 jurisprudence and
our own court’s implementation of these principles is
helpful in drawing this distinction between enforcing
and redefining the protections of the Fourteenth Amend-
ment.


  1. Supreme Court Precedent
  Through a recent line of cases, the Court has articulated
what constitutes a proper exercise of the Fourteenth
Amendment enforcement power vis a vis the Eleventh
Amendment. We begin our review with City of Boerne v.
Flores.
No. 01-3448                                                 11

    a. City of Boerne
   In City of Boerne, the Court considered the constitution-
ality of the Religious Freedom Recovery Act (“RFRA”),
specifically whether Congress, in enacting RFRA, properly
had exercised its enforcement power under § 5 of the
Fourteenth Amendment. The Court first “acknowledge[d]
that § 5 is a ‘positive grant of legislative power to Con-
gress.’ ” Id. at 517 (quoting Katzenbach v. Morgan, 384 U.S.
641, 651 (1966)). “Legislation which deters or remedies
constitutional violations can fall within the sweep of Con-
gress’ enforcement power even if in the process it prohib-
its conduct which is not itself unconstitutional and in-
trudes into ‘legislative spheres of autonomy previously
reserved to the states.’ ” Id. at 518. However broad Con-
gress’ power under § 5, the Court continued, it is not
unlimited. The Court explained that “[t]he design of the
Amendment and the text of § 5 are inconsistent with the
suggestion that Congress has the power to decree the
substance of the Fourteenth Amendment’s restrictions on
the States.” Id. at 519. Congress is limited to “enforcing” the
rights guaranteed by the Amendment. Id. The Court recog-
nized that
    [w]hile the line between measures that remedy or
    prevent unconstitutional actions and measures that
    make a substantive change in the governing law is
    not easy to discern, and Congress must have wide
    latitude in determining where it lies, the distinction
    exists and must be observed. There must be a congru-
    ence and proportionality between the injury to be
    prevented or remedied and the means adopted to that
    end.
Id. at 519-20.
  The Court then examined the provisions of RFRA to
determine if it was a valid exercise of Congress’ § 5 powers.
12                                               No. 01-3448

The parties presented RFRA as a measure to “prevent[]
and remed[y] laws which are enacted with the unconsti-
tutional object of targeting religious beliefs and practices.”
Id. at 529. The Court stated that “[t]he appropriateness
of remedial measures must be considered in light of the
evil presented. Strong measures appropriate to address
one harm may be an unwarranted response to another,
lesser one.” Id. at 530 (citing South Carolina v. Katzenbach,
383 U.S. 301, 308 (1966)). According to the Court, RFRA’s
legislative record lacked examples of instances in which
laws of general applicability were enacted by the States
for the purpose of inflicting religious discrimination.
Rather, congressional hearings had focused on laws of
general applicability that placed only incidental burdens
on religion. The lack of a legislative record, however,
was not dispositive. The Court stated that
     [r]egardless of the state of the legislative record, RFRA
     cannot be considered remedial, preventive legisla-
     tion, if those terms are to have any meaning. RFRA is
     so out of proportion to a supposed remedial or preven-
     tive object that it cannot be understood as responsive
     to, or designed to prevent, unconstitutional behavior.
Id. at 532. Consequently, RFRA could not stand in the face
of the Eleventh Amendment challenge.


     b. Florida Prepaid
  The Court next addressed the interplay of the Eleventh
and Fourteenth Amendments in Florida Prepaid Post Second-
ary Education Examination Board v. College Savings Bank,
527 U.S. 627 (1999). In that case, the Court addressed an
Eleventh Amendment challenge to the Patent and Plant
Variety Protection Remedy Clarification Act (the “Patent
Remedy Act”), which allowed patent holders to pursue
No. 01-3448                                               13

infringement actions against the States. In assessing the
validity of the congressional action, the Court reiterated
the requirements of congruence and proportionality estab-
lished in City of Boerne:
    We . . . held that for Congress to invoke § 5, it must
    identify conduct transgressing the Fourteenth Amend-
    ment’s substantive provisions, and must tailor its
    legislative scheme to remedying or preventing such
    conduct.
      RFRA failed to meet this test because there was little
    support in the record for the concerns that animated
    the law.
Id. at 639.
  Following this course, the Court first identified the
Fourteenth Amendment “evil” or “wrong” that Congress
intended to remedy “ ‘with reference to the historical ex-
perience . . . it reflects.’ ” Id. at 639-40 (quoting City of
Boerne, 521 U.S. at 525). In Florida Prepaid, as in City of
Boerne, the Court was unable to identify a pattern of con-
stitutional wrongs by the States against patent holders. The
Court went on to state that, although the “lack of support
in the legislative record is not determinative,” id. at 646,
identifying and assessing “the wrong or evil is still a crit-
ical part of our § 5 calculus because ‘[s]trong measures
appropriate to address one harm may be an unwarranted
response to another, lesser one,’ ” id. (quoting City of
Boerne, 521 U.S. at 530). When there is little evidence of
constitutional harm in the legislative record, the means of
combatting the feared unconstitutional action must be
tailored to address clear constitutional violations. Because
the Patent Remedy Act offended this principle of propor-
tionality, the Court held that it was not a valid exercise
of Congress’ § 5 powers.
14                                               No. 01-3448

     c. Kimel
   The Age Discrimination in Employment Act was the
next Congressional enactment to meet with an Eleventh
Amendment challenge. In Kimel v. Florida Board of Regents,
528 U.S. 62 (2000), the Court addressed the issue of wheth-
er Congress validly abrogated Eleventh Amendment im-
munity in the ADEA. The Court reiterated the breadth of
congressional power pursuant to the Fourteenth Amend-
ment: “Congress’ power ‘to enforce’ the Amendment in-
cludes the authority both to remedy and to deter viola-
tion of rights guaranteed thereunder by prohibiting a
somewhat broader swath of conduct, including that which
is not itself forbidden by the Amendment’s text.” Id. at 81.
However, applying its now-established congruence and
proportionality requirements, see id. at 82, the Court held
that “the ADEA is not ‘appropriate legislation’ under § 5
of the Fourteenth Amendment.” Id. at 82-83. Initially, the
Court observed that, because age discrimination is sub-
ject only to rational basis review under the Equal Protec-
tion Clause, only irrational age classifications violate the
Constitution. “Judged against the backdrop of our equal
protection jurisprudence [on age discrimination],” the Court
stated, “it is clear that the ADEA is ‘so out of proportion
to a supposed remedial or preventive object that it cannot
be understood as responsive to, or designed to prevent un-
constitutional behavior.’ ” Id. at 86 (quoting City of Boerne,
521 U.S. at 532). However, “[t]hat the ADEA prohibits
very little conduct likely to be held unconstitutional, while
significant, d[id] not alone provide the answer to [the] § 5
inquiry.” Id. at 88. The Court’s task was to discern whether
the ADEA was proper prophylactic legislation or an at-
tempt by Congress “to substantively redefine the States’
legal obligations with respect to age discrimination,” and
one means to make such a determination was to examine
the legislative record. Id. To the Court, this review con-
No. 01-3448                                               15

firmed that Congress’ extension of the ADEA to the
States “was an unwarranted response to a perhaps inconse-
quential problem.” Id. at 89. According to the Court,
    Congress never identified any pattern of age discrim-
    ination by the States, much less any discrimination
    whatsoever that rose to the level of constitutional
    violation. The evidence compiled by petitioners to
    demonstrate such attention by Congress to age dis-
    crimination by the States falls well short of the mark.
    That evidence consists almost entirely of isolated sen-
    tences clipped from floor debates and legislative re-
    ports.
Id. Looking back to its decision in City of Boerne, the Court
held that, although this lack of support in the legisla-
tive record was not determinative, “Congress’ failure to
uncover any significant pattern of unconstitutional discrimi-
nation here confirms that Congress had no reason to be-
lieve that broad prophylactic legislation was necessary in
this field.” Id. at 91. The Court then concluded that, “[i]n
light of the indiscriminate scope of the Act’s substan-
tive requirements, and the lack of evidence of widespread
and unconstitutional age discrimination by the States, we
hold that the ADEA is not a valid exercise of Congress’
power under § 5 of the Fourteenth Amendment.” Id.


    d. Garrett
   Finally, in Board of Trustees of the University of Alabama
v. Garrett, 531 U.S. 356 (2001), the Court considered an
Eleventh Amendment challenge to the Americans with
Disabilities Act (“ADA”). Again, the Court’s task was to
determine whether the ADA was proper enforcement leg-
islation, as opposed to a usurpation of the Court’s respon-
sibility “to define the substance of constitutional guaran-
16                                              No. 01-3448

tees.” Id. at 365. “Accordingly,” stated the Court, “§ 5
legislation reaching beyond the scope of § 1’s actual guaran-
tees must exhibit ‘congruence and proportionality between
the injury to be prevented or remedied and the means
adopted to that end.’ ” Id. (quoting City of Boerne, 521 U.S.
at 520). The Court’s first step in this analysis was to iden-
tify the scope of the constitutional right at issue. It noted
that the Equal Protection clause affords only rational
basis review for disability discrimination. Once the Court
determined “the metes and bounds of the constitutional
right in question, [it] examine[d] whether Congress identi-
fied a history and pattern of unconstitutional employment
discrimination by the States against the disabled.” Id. at
368. It noted that “Congress’ § 5 authority is appropriately
exercised only in response to state transgressions.” Id.
However, the legislative record of the ADA, the Court
noted, focused heavily on the private sector. Few ex-
amples from the record involved the States, and the Court
found it “debatable” whether these incidents evidenced
“irrational” state action or merely “an unwillingness on
the part of state officials to make the sort of accommoda-
tions for the disabled required by the ADA.” Id. at 370.
However, the Court held that, even if each incident
showed unconstitutional action on the part of the State,
“these incidents taken together fall far short of even sug-
gesting the pattern of unconstitutional discrimination on
which § 5 legislation must be based,” id., and thus the
ADA “raise[d] the same sort of concerns as to congruence
and proportionality as were found in City of Boerne,” id. at
372. “[I]n order to authorize private individuals to recover
money damages against the States,” the Court stated, “there
must be a pattern of discrimination by the States which
violates the Fourteenth Amendment, and the remedy im-
posed by Congress must be congruent and proportional
to the targeted violation.” Id. at 374. With respect to the
ADA, those requirements had not been met. See id.
No. 01-3448                                                 17

   Although articulated and ordered slightly differently
within each case, we believe that these cases identify sev-
eral guiding principles that must inform our Eleventh
Amendment analysis. First, congressional action taken
pursuant to § 5 of the Fourteenth Amendment is not lim-
ited to parroting the language of § 1. Section 5 is a positive
grant of power, and Congress may enact reasonable pro-
phylactic legislation in the face of constitutional violations.
  However, Congress’ enforcement power must stop
short of redefining the States’ substantive obligations
under the Fourteenth Amendment. Whether a particular
congressional response enforces, as opposed to defines,
the States’ obligations under § 1 of the Fourteenth Amend-
ment is determined by looking at the scope of the enact-
ment compared with the constitutional right being pro-
tected. If the scope of the remedy is broad, it must be
justified by a proportionately pressing need. Finally, al-
though legislative history is not determinative of this
inquiry, it is one means—and perhaps the most telling
means—of assessing the depth of the constitutional prob-
lem and the consequent need for a congressional remedy.


  2. Circuit Precedent
   This court has applied the principles set forth above in
considering two Eleventh Amendment challenges to the
Equal Pay Act. In Varner v. Illinois State University, 226
F.3d 927 (7th Cir. 2000), cert. denied, 533 U.S. 902 (2001),
this court followed the analysis set forth by the Supreme
Court in City of Boerne and its progeny, and first looked
at the conduct targeted by the Equal Pay Act. We acknowl-
edged that, in light of the burden-shifting provisions of the
Equal Pay Act, “an employer is potentially subject to
liability without a showing of discriminatory intent”—a
18                                              No. 01-3448

prerequisite for a constitutional violation. Id. at 932. How-
ever, we noted, based on the Court’s rulings, the fact
that the Equal Pay Act prohibited some constitutional
conduct did not end the inquiry: “The question before us,
therefore, is not whether the remedial provisions of the
Equal Pay Act prohibit some constitutional conduct.
Instead, we must consider whether the Act can be char-
acterized as a proportional and congruent response to
the problem of unconstitutional wage discrimination
based on gender.” Id. at 933.
  In applying the principles of congruence and propor-
tionality, we noted three distinctions between the Equal Pay
Act and the legislative provisions that the Court had
struck down. First, the Equal Pay Act was “less indis-
criminate in scope” than those acts, id.; it contained ex-
emptions from liability for employers “who can provide
a neutral explanation for a disparity in pay,” id. at 934.
Furthermore, the Equal Pay Act addressed a problem—
gender discrimination—which was subject to heightened
scrutiny under the Constitution. Finally, Congress had
gained an historical understanding of the problem of gen-
der discrimination through other legislation. All of these
considerations militated against a finding that Congress
had acted to redefine the States’ obligations under the
Equal Protection Clause as opposed to simply enforcing
the already stringent requirements on the States.
  In upholding the Equal Pay Act against the Eleventh
Amendment challenge, we rejected the view that explicit
legislative findings were a necessary element of the § 5
inquiry. In Varner, the University had urged that, because
“the legislative findings underlying the Equal Pay Act
address only the problem of discrimination in private
industry,” there was no record to justify extension of
the Equal Pay Act to public employers. Id. at 935. We stated:
No. 01-3448                                                  19

    Although we recognize that a review of the legislative
    record can be an instructive means of distinguish-
    ing appropriate remedial action from an impermis-
    sible substantive change in legal rights, we want to
    emphasize that a “lack of support [in the legislative
    record] is not determinative of the § 5 inquiry.” This
    observation is particularly relevant in the context of
    the Equal Pay Act, where the value of congressional
    findings is greatly diminished by the fact that the Act
    prohibits very little constitutional conduct and where
    the historical record clearly demonstrates that gender
    discrimination is a problem that is national in scope.
Id. (quoting Kimel, 528 U.S. at 91; internal citations omitted).
Consequently, we determined that subjecting state enti-
ties to liability under the Equal Pay Act did not violate the
Eleventh Amendment.
  Shortly thereafter, we revisited our decision in Varner
in light of the Supreme Court’s decision in Garrett. See
Cherry v. Univ. of Wis. Sys. Bd. of Regents, 265 F.3d 541 (7th
Cir. 2001). We restated the governing standard as follows:
    Congress can enact legislation to remedy or prevent
    conduct that violates the Fourteenth Amendment, but
    Congress cannot redefine or expand the substance of
    the Fourteenth Amendment itself. Thus there must be
    a congruence and proportionality between the injury to
    be prevented or remedied and the means adopted to
    that end. This means that Congress must carefully
    tailor its legislation so that it enforces the Fourteenth
    Amendment without altering the Amendment’s mean-
    ing.
Id. at 549 (internal quotation marks and citations omitted).
We then examined the scope of the Equal Pay Act to
determine whether it was consistent and compatible with
20                                                 No. 01-3448

the Fourteenth Amendment or whether it expanded the
substantive prohibitions of the Amendment by prohibit-
ing more state action than would be unconstitutional.
As part of this analysis, we examined the legislative rec-
ord to assess whether Congress had identified a pattern of
unconstitutional conduct by the States. Noting that the
Court had advised that this evidence “is not determinative
of the § 5 inquiry,” we stated that “[s]uch evidence tends to
ensure that Congress’ means are appropriate under § 5
when the statute in question pervasively prohibits consti-
tutional State action.” Id. at 549 (internal quotation marks
and citations omitted). We dismissed the argument that
Garrett
     established a new, bright-line rule that Congress’
     attempt to abrogate immunity from a federal statute
     is invalid if the statute lacks specific findings that
     the States had engaged in a pattern of unconstitu-
     tional conduct of the type prohibited by the statute. . . .
     All Garrett does is further demonstrate that the legisla-
     tive record is an important factor when the statute in
     question pervasively prohibits constitutional State
     action.
Id. at 553. Consequently, again we sustained the Equal Pay
Act as it applied to the States.


  3. Application
  As detailed above, in determining whether Congress
overstepped its constitutional authority in applying Title VII
to the States, we must “identify with some precision the
scope of the constitutional right at issue,” here the limita-
tions that § 1 of the Fourteenth Amendment places upon
States’ treatment of women and of ethnic and racial minori-
No. 01-3448                                                      21

ties. Garrett, 531 U.S. at 365. We explained this level of
protection in Varner:
    Under the Constitution, gender-based classifications
    are afforded heightened scrutiny. Once an individual is
    able to establish the existence of a gender-based dis-
    tinction, “[p]arties who seek to defend gender-based
    government action must demonstrate an ‘exceedingly
    persuasive justification’ for that action.”
226 F.3d at 934 (quoting United States v. Virginia, 518 U.S.
                                              5
515, 531 (1996); internal citations omitted). In the em-
ployment context, courts have given effect to this consti-
tutional prohibition by allowing plaintiffs to prove their
case using the familiar construct of a prima facie case; this
court has stated:
      Although as an original matter it seems odd that the
    pleading and proof of liability in a case under the
    Constitution would be the same as in a case under a
    statute passed in 1964, this is indeed the teaching of an
    unbroken phalanx of decisions by this and other courts.
    These cases hold that the issue of liability and the
    method of proving liability are the same, though only
    in a disparate-treatment case . . . .
Riordan v. Kempiners, 831 F.2d 690, 695-96 (7th Cir. 1987).
Thus, “all that is required to establish prima facie liability,
and thus allow the plaintiff to get to the jury, is evidence




5
  Racial classifications are subject to strict scrutiny—they must
promote a compelling state interest and be narrowly tailored
to serve that interest. See Billings v. Madison Met. Sch. Dist., 259
F.3d 807, 815 (7th Cir. 2001).
22                                                 No. 01-3448
                               [6]
of a disparity in treatment between equally qualified
workers of different sexes, from which discriminatory intent
can be inferred.” Id. at 695; see also Johnson v. Chapel Hill
Indep. Sch. Dist., 853 F.2d 375, 381 (5th Cir. 1988) (“A plain-
tiff proceeding on a disparate treatment theory of employ-
ment discrimination must show disparate treatment and
discriminatory motive. A plaintiff can establish a prima
facie case, however, by producing evidence of disparate
treatment alone.” (internal citations omitted)).
  The Supreme Court also has instructed us to evaluate
the scope of the congressional action at issue to determine
to what extent, if any, the act prohibits conduct allowed
by the Constitution. At issue here is the disparate treat-
ment prohibition of Title VII. It states in relevant part:
     It shall be an unlawful employment practice for an
     employer—
        (1) to fail or refuse to hire or to discharge any
        individual, or otherwise to discriminate against
        any individual with respect to his compensation,
        terms, conditions, or privileges of employment,
        because of such individual’s race, color, religion,
        sex, or national origin; or


6
  The allegations in Dr. Nanda’s complaint are limited to claims
of intentional discrimination, i.e., disparate treatment. Because
Dr. Nanda’s claims are disparate treatment claims, and because
the University does not contend that Title VII’s disparate im-
pact provisions should factor into the Eleventh Amendment
calculus, we limit our review to Title VII’s disparate treatment
provisions. Cf. In re: Employment Discrimination Litig. Against
the State of Ala., 198 F.3d 1305 (11th Cir. 1999) (considering
Eleventh Amendment challenge to disparate impact provision of
Title VII without consideration of the disparate treatment pro-
vision).
No. 01-3448                                                   23

        (2) to limit, segregate, or classify his employees
        or applicants for employment in any way which
        would deprive or tend to deprive any individual
        of employment opportunities or otherwise ad-
        versely affect his status as an employee, because
        of such individual’s race, color, religion, sex or
        national origin.
42 U.S.C. § 2000e-2(a). Like the prohibition of the Equal
Protection Clause, this language is aimed at intentional
discrimination, and “[t]o prove a violation of this provi-
sion, a plaintiff must proffer either direct or indirect evi-
dence of the employer’s discriminatory intent.” Bennett v.
Roberts, 295 F.3d 687, 694 (7th Cir. 2002). When using
the indirect method, the plaintiff establishes a prima facie
case of discriminatory intent by showing: (1) that she
belongs to a protected category; (2) that she suffered an
adverse employment action; (3) that she was meeting
her employer’s legitimate expectations; and (4) similarly
situated individuals not in a protected category were treated
more favorably by the employer. See, e.g., Maarouf v. Walker
Mfg. Co., 210 F.3d 750, 752 (7th Cir. 2000). Thus, both the
aim of Title VII, as well as the method for proving viola-
tions of Title VII, are the same as those of the Equal Protec-
             7
tion Clause.


7
   Both Dr. Nanda and the Government argue that Title VII does
not prohibit any constitutional conduct because the burdens of
proof on employers is the same under both the Equal Protec-
tion Clause and Title VII. The University responds to this argu-
ment accordingly:
    The substantive provisions of Title VII were enacted in 1964,
    not in 1972, and the States at that time were expressly
    excluded from coverage because of sovereign immunity. If
                                                   (continued...)
24                                                    No. 01-3448

  A review of the standards of the Equal Protection Clause
and of Title VII reveals that Title VII “enforces the Four-
teenth Amendment without altering its meaning.” Cherry,
265 F.3d at 549. The fact that Congress was not attempt-
ing to “redefine” the Fourteenth Amendment in extend-
ing Title VII to the States is also clear from the legislative
record. In undertaking a review of the legislative record,
we are cognizant of the Court’s instruction that “lack of
support [in the legislative record] is not determinative of
the § 5 inquiry,” Kimel, 528 U.S. at 91, and we recognize
that “the value of congressional findings is greatly dimin-
ished” by the fact that the disparate treatment provisions
of Title VII prohibit little, if any, constitutional conduct,
Varner, 226 F.3d at 935.



7
    (...continued)
       the court were to accept the argument of Nanda and the
       United States, the court would be required to conclude
       that since, in 1964, the Title VII protections were identical
       to the protections of § 1 of the Fourteenth Amendment
       they were at that time, by definition, congruent and propor-
       tional and that, abrogation, without more, occurred. The
       court would then have to conclude that in 1964, Congress,
       when it enacted Title VII, abrogated the States’ immunity
       and at the same time expressly excluded the States from Title
       VII’s coverage, an absurd conclusion.
Reply Br. at 1-2. This response, we believe, lacks both logic and
persuasiveness. The substantive provisions of Title VII did not
change between 1964 and 1972; the 1972 amendment mere-
ly extended Title VII to the States. It is perfectly appropriate,
therefore, in applying principles of congruence and proportional-
ity, to compare the substantive provisions of Title VII, as ex-
tended to the States in 1972, to the limitations placed on the
States by the Equal Protection Clause.
No. 01-3448                                                25

   In the present case, the legislative record confirms that
Congress was responding to a pattern of discrimination
by the States. The legislative history shows that Congress
relied upon and adopted two comprehensive studies of
racial and national origin discrimination to support its
proposed legislation. See H.R. Rep. No. 92-238, at 17 (1971).
The first of these “indicate[d] that widespread discrim-
ination against minorities exist[ed] in State and local
government employment . . . .” Id. The legislative record
also specifically addresses the problem of racial and gen-
der discrimination in academia. See id. at 19-20. Finally,
statistical evidence bolstered Congress’ view that “there
exist[ed] a profound economic discrimination against
women workers” across all fields, and, consequently, leg-
islation was needed to strengthen and broaden federal
administrative procedures for combatting this discrimina-
tion. Id. at 4.
  Not only did Congress document the need for additional
legislation protecting minority and women workers em-
ployed by the states, local governments, and specifically
educational institutions, Congress had become familiar with
the problems of race and national origin discrimination
in the public and private sector in enacting the Civil
Rights Act of 1964, and with the problems of gender
discrimination in considering the Equal Rights Amendment
and the Educational Opportunity Act, see Okruhlik v.
Univ. of Ark. ex rel. May, 255 F.3d 615, 625 (8th Cir. 2001).
Such familiarity “ ‘reduce[s] the need for fresh hearings
and prolonged debates.’ ” Id. (quoting Fullilove v. Klutznick,
448 U.S. 448, 503 (1980) (Powell, J., concurring)). As we
concluded in Varner, “[w]e believe that this evidence is
sufficient to support the limited action taken by Congress
in its passage of [the 1972 Act], particularly given the well-
documented history of gender [and race] discrimina-
tion in this Nation, a history that is embodied in the Su-
26                                                   No. 01-3448

preme Court’s own jurisprudence.” Varner, 226 F.3d at
935-36.
  We are not alone in concluding that Congress validly
abrogated the States’ Eleventh Amendment immunity in
passing the 1972 Act. In Okruhlik, the Eighth Circuit also
rejected an Eleventh Amendment challenge to Title VII.
Following the guidelines of the Supreme Court, that cir-
cuit looked at the legislative history where it found “much
support” for Congress’ action. Okruhlik, 255 F.3d at 624.
As well, it compared the scope of the employer’s responsi-
bility under Title VII to its responsibility under the Equal
Protection Clause and noted that “the elements of a claim
of intentional discrimination are essentially the same un-
der Title VII and the Constitution.” Id. at 626. Any dif-
ferences between the two protections, either by way of
                     8
remedies or scope, were “proportional and congruent”
responses to a pattern of unconstitutional state action. Id.
  Because the disparate treatment provision of Title VII
prohibits little if any constitutional behavior and because
Congress was acting on a solid evidentiary ground in ex-
tending Title VII to the States, we hold that the 1972 Act
validly abrogated the States’ Eleventh Amendment im-
munity with respect to Title VII disparate treatment claims.


B. Prayer for Injunctive Relief in Count II
  The University also challenges the district court’s failure
to dismiss Dr. Nanda’s claims for injunctive relief pursuant


8
  The Eighth Circuit considered the effect of Title VII’s disparate
impact provisions as well as Title VII’s disparate treatment
provision. See Okruhlik v. Univ. of Ark. ex rel. May, 255 F.3d 615,
626 (8th Cir. 2001).
No. 01-3448                                                   27

to 42 U.S.C. § 1983. The University and its officials con-
tend that the district court erred when it let stand Dr.
Nanda’s request in Count II for injunctive relief against
the University officials in their official capacities. Because
the requested relief of reinstatement can be granted only
by the University acting through its trustees, the defen-
dants contend that this request is appropriately character-
ized as a request for injunctive relief against the Univer-
sity. The University, they continue, is protected by the
Eleventh Amendment from such relief. Before we address
the merits of this claim, we must first consider whether we
                                                          9
have jurisdiction to entertain this aspect of the appeal.
  We believe that we have jurisdiction over this conten-
tion for the same reason that we have jurisdiction over
the earlier contention concerning the applicability of the
Eleventh Amendment to a suit under Title VII. In essence,
the defendants are claiming that the Eleventh Amend-
ment provides them with a shield from litigating this
claim. This situation therefore is different from the situa-
tion in Cherry in which we held that a claim of immu-
nity from punitive damages under Title IX was not the
equivalent of a claim of immunity from litigation. See
Cherry, 265 F.3d at 547. As our citations to Burns-Vidlak
v. Chandler, 165 F.3d 1257, 1260 (9th Cir. 1999), and to
Pullman Construction Industries, Inc. v. United States, 23 F.3d
1166, 1169 (7th Cir. 1994), confirm, in Cherry we were


9
  Dr. Nanda did not argue that this court lacked jurisdiction to
entertain the University’s appeal on this issue; however, this
court must assure itself of its own jurisdiction regardless of
whether the issue was raised by a party. See Wingerter v. Chester
Quarry Co., 185 F.3d 657, 660 (7th Cir. 1999) (“A court of ap-
peals has an obligation to examine its jurisdiction sua sponte,
even if the parties fail to raise a jurisdictional issue.”).
28                                                No. 01-3448

speaking of a claim of immunity not based on the Eleventh
Amendment.
   We agree with the district court that, under § 1983, a
suit against state officials in their official capacity limited
to injunctive relief is not barred by the Eleventh Amend-
ment. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
n.10 (1989). Whether such relief is warranted and whether
it is warranted against these defendants are matters not
properly before us on this interlocutory appeal.


                         Conclusion
  For the foregoing reasons, the judgment of the district
court is affirmed.
                                                    AFFIRMED

A true Copy:
        Teste:

                           _____________________________
                           Clerk of the United States Court of
                             Appeals for the Seventh Circuit




                     USCA-97-C-006—9-17-02
