The Law of Higher Education. William A. Kaplin
institution's liability for violations of federal constitutional rights, is the extent to which Article III and the Eleventh Amendment of the U.S. Constitution immunize public institutions from suit. While the “person” issue is a matter of statutory interpretation, the immunity issue is a matter of constitutional interpretation. In general, if a lawsuit is against the state itself or against a state official or employee sued in his or her “official capacity,” and the plaintiff seeks money damages that would come from the state treasury,8 Eleventh Amendment immunity from federal court suit will apply. As discussed below, in Section 1983 litigation, the immunity issue usually parallels the person issue, and the courts have used Eleventh Amendment immunity law as a backdrop against which to fashion and apply a definition of “person” under Section 1983.
In a series of cases beginning in 1978, the U.S. Supreme Court dramatically expanded the potential Section 1983 liability of various government entities. As a result of these cases, it became clear that any political subdivision of a state may be sued under this statute; that such political subdivisions may not assert a qualified immunity from liability based on the reasonableness or good faith of their actions; that the officers and employees of political subdivisions, as well as officers and employees of state agencies, may sometimes be sued under Section 1983; and that Section 1983 plaintiffs may not be required to resort to state administrative forums before seeking redress in court.
The first, and key, case in this series is the U.S. Supreme Court's decision in Monell v. Department of Social Services of the City of New York, 436 U.S. 658 (1978). Overruling prior precedents that had held the contrary, the Court decided that local government units, such as school boards and municipal corporations, are “persons” under Section 1983 and thus subject to liability for violating constitutional rights protected by that statute. Since the definition of “person” is central to Section 1983's applicability, the question is whether the Court's definition in Monell is broad enough to encompass postsecondary institutions: Are some public postsecondary institutions sufficiently like local government units that they will be considered “persons” subject to Section 1983 liability?
The answer depends not only on a close analysis of Monell but also on an analysis of the particular institution's organization and structure under state law. Locally based institutions, such as community colleges established as an arm of the county or as a community college district, are the most likely candidates for “person” status. At the other end of the spectrum, state universities established and operated by the state itself are apparently the least likely candidates. This distinction between local entities and state entities is appropriate because the Eleventh Amendment immunizes the states, but not local governments, from federal court suits on federal constitutional claims. Consequently, the Court in Monell limited its “person” definition “to local government units which are not considered part of the state for Eleventh Amendment purposes.” And in a subsequent case, Quern v. Jordan, 440 U.S. 332 (1979), the Court emphasized this limitation in Monell and asserted that neither the language nor the history of Section 1983 evidences any congressional intention to abrogate the states' Eleventh Amendment immunity (440 U.S. at 341–45).
The clear implication, reading Monell and Quern together, is that local governments—such as school boards, cities, and counties—are persons suable under Section 1983 and are not immune from suit under the Eleventh Amendment, whereas state governments and state agencies controlled by the state are not persons under Section 1983 and are immune under the Eleventh Amendment. The issue in any particular case, then, as phrased by the Court in another case decided the same day as Quern, is whether the entity in question “is to be regarded as a political subdivision” of the state (and thus not immune) or as “an arm of the state subject to its control” (and thus immune) (Lake County Estates v. Tahoe Regional Planning Agency, 440 U.S. 391, 401–2 (1979)). See also Borrell v. Bloomsburg University, 63 F. Supp. 3d 418 (M.D. Pa. 2014) (holding that a health care services provider that operated a joint nurse anesthesia program with a university acted under color of state law, as did the program's director, in terminating the plaintiff from the program for refusing to submit to a drug test).
3.4.2 Eleventh Amendment immunity. The case law in Section 3.1.1 above adds clarity to what had been the confusing and uncertain status of postsecondary institutions under Section 1983 and the Eleventh Amendment. But courts continued to have difficulty determining whether to place particular institutions on the person (not immune) or nonperson (immune) side of the line when determining liability. Nevertheless, various courts have affirmed the proposition that the Eleventh Amendment and Section 1983 shield most state universities from damages liability in federal constitutional rights cases.
The courts have applied a variety of factors in resolving Eleventh Amendment sovereign immunity issues. In Kashani v. Purdue University, 813 F.2d 843 (7th Cir. 1987), for example, in determining whether Purdue University was entitled to Eleventh Amendment immunity, the court placed primary importance on the “extent of the entity's financial autonomy from the state.” The relevant considerations were “the extent of state funding, the state's oversight and control of the university's fiscal affairs, the university's ability independently to raise funds, whether the state taxes the university, and whether a judgment against the university would result in the state increasing its appropriations to the university.” Applying these considerations, the court dismissed the plaintiff's Section 1983 claim, concluding that Purdue was entitled to immunity because it “is dependent upon and functionally integrated with the state treasury.” The court also suggested that, although the states have structured their educational systems in many ways and courts review each case on its facts, “it would be an unusual state university that would not receive immunity” (813 F.2d at 845). The court did reaffirm, however, that under the doctrine of Ex parte Young, 209 U.S. 123 (1908), the Eleventh Amendment does not bar claims against university officers in their official capacities for the injunctive relief of reinstatement.
Other courts have applied a more expansive set of factors known variously as the “Urbano factors,” the “Blake factors,” or, more recently, the “Fitchik factors,” to credit the cases from which they derived. (See, e.g., Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250–51 (3d Cir. 1969).) In Hall v. Medical College of Ohio at Toledo, 742 F.2d 299 (6th Cir. 1984), for example, a student who had been dismissed from medical school alleged racial discrimination. The district court granted immunity to the college, looking generally to the extent of the college's functional autonomy and fiscal independence. The appellate court affirmed the district court's ruling that the school was an “arm of the state” entitled to Eleventh Amendment immunity, but it emphasized that the nine-part Urbano/Blake test “is the better approach for examining the ‘peculiar circumstances’ of the different colleges and universities.” Similarly, the court in Skehan v. State System of Higher Education, 815 F.2d 244 (3d Cir. 1987), used the Urbano/Blake test to determine that the defendant State System “is, effectively, a state agency and therefore entitled to the protection of the eleventh amendment.”
In contrast, the court in Kovats v. Rutgers, The State University, 822 F.2d 1303 (3d Cir. 1987), determined that Rutgers is not an arm of the state of New Jersey and thus is not entitled to Eleventh Amendment immunity. The case involved Section 1983 claims of faculty members who had been dismissed. Focusing on two of the Urbano-Blake factors, the court considered whether a judgment against Rutgers would be paid by Rutgers or by the state and determined that Rutgers in its discretion could pay the judgment either with segregated non-state funds or with non-state funds that were commingled with state funds. Rutgers argued that, if it paid the judgment, the state would have to increase its appropriations to the university, thus affecting the state treasury. The court held that such an appropriations increase following a judgment would be in the legislature's discretion and that “[i]f the state structures an entity in such a way that the other relevant criteria indicate it to be an arm of the state, then immunity may be retained even where damage awards are funded by the state at the state's discretion.” Then, considering the other