The Law of Higher Education. William A. Kaplin
degree of state financing, it remains under state law an independent entity able to direct its own actions and responsible on its own for judgments resulting from those actions.”
Later cases on the Eleventh Amendment immunity of state universities have generally upheld the universities' immunity claims, continuing to rely on a variety of factors to reach this result. In Sherman v. Curators of the University of Missouri, 16 F.3d 860 (8th Cir. 1994), on remand, 871 F. Supp. 344 (W.D. Mo. 1994), for instance, the appellate court focused on two factors: the university's degree of autonomy from the state and the university's fiscal dependence on state funds as the source for payments of damage awards against the university. Applying these factors on remand, the district court ruled that the university was immune from suit under the Eleventh Amendment. In Rounds v. Oregon State Board of Higher Education, 166 F.3d 1032 (9th Cir. 1999), the court focused on two primary factors in granting immunity to the University of Oregon, looking, first, to the university's “nature as created by state law,” especially the extent to which the university is subject to the supervision of state officials or a state board of higher education; and, second, to the university functions, particularly whether the university “performs central governmental functions.” And in Bowers v. National Collegiate Athletic Association, 475 F.3d 524 (3d Cir. 2007), a case involving the University of Iowa, a court that had previously used the “Urbano factors” applied what it now called the “Fitchik factors.” These factors constitute a “three-part test” that “examines [these] three elements: (1) whether the payment of the judgment would come from the state; (2) what status the [university] has under state law; and (3) what degree of autonomy the [university] has” (475 F.3d at 546). Each factor is to be given equal weight. Applying the factors in “a fact-intensive review that calls for individualized determination,” the court concluded that “the first Fitchik factor weighed slightly against immunity, while the second and third factors weighed heavily in favor of immunity.” Accordingly, the court ruled that the University of Iowa came within the scope of Eleventh Amendment immunity.
When the Eleventh Amendment immunity of a community college, technical college, or junior college, rather than a state university, is at issue, courts have been more reluctant to grant immunity, since the various factors that courts use may indicate that community and junior colleges have greater institutional autonomy from the state government.
In other more recent cases, courts have also begun to make clear that a state university's Eleventh Amendment immunity may sometimes extend to other entities that the university has recognized or with which it is otherwise affiliated.
Since the Eleventh Amendment provides states and “arms of the state” with immunity only from federal court suits, it does not directly apply to Section 1983 suits in state courts. The definition of “person” may thus be the primary focus of the analysis in state court Section 1983 suits. In Will v. Michigan Department of State Police, 491 U.S. 58 (1989), the U.S. Supreme Court ruled that Section 1983 suits may be brought in state courts, but that neither the state nor state officials sued in their official capacities would be considered “persons” for purposes of such suits. In Howlett v. Rose, 496 U.S. 356 (1990), the Court reaffirmed that Section 1983 suits may be brought in state courts against other government entities (or against individuals) that are considered “persons” under Section 1983. In such cases, state law protections of sovereign immunity and other state procedural limitations on suits against the sovereign (see Felder v. Casey, 487 U.S. 131 (1988)) will not generally be available to the governmental (or individual) defendants.
In Alden v. Maine, 527 U.S. 706 (1999), however, the Court determined that, even though the Eleventh Amendment does not apply in state courts, the states do have an implied constitutional immunity from suits in state court. Thus states sued in state court under Section 1983 may now invoke an implied sovereign immunity from state court suits that would protect them much as the Eleventh Amendment immunity protects them in federal court. States may assert this immunity defense in lieu of arguing, under Will and Howlett, that they are not “persons” or may argue that, if they fall within the protection of Alden's implied sovereign immunity, they cannot be “persons” under Section 1983.
Notes
1 1 Subsequent to the ruling of the trial court, the university moved for judgment notwithstanding the verdict, which the trial court awarded. While that ruling was on appeal, the student who had poured the substance on Furek agreed to pay all but $100 of the $30,000 compensatory damages award. Although the Delaware Supreme Court subsequently overturned the judgment for the university, and ordered a new trial on the apportionment of liability between the student and the university, it does not appear that Furek availed himself of the opportunity for a new trial, leaving the university responsible for only $100 of the damage award.
2 2 “10 Leading Causes of Death by Age Group—United States 2010,” Office of Statistics and Programming, National Center for Injury Prevention and Control, CDC, available at https://www.cdc.gov/injury/wisqars/pdf/10lcid_all_deaths_by_age_group_2010-a.pdf.
3 3 See http://www.suicide.org/college-student-suicide.html.
4 4 Center for Collegiate Mental Health. (2017, January). 2016 Annual Report (Publication No. STA 17-74). See also Katie Reilly, “Record Numbers of Students Are Seeking Treatment for Depression and Anxiety—But Schools Can't Keep Up.” Time, March 18, 2018, available at http://time.com/5190291/anxiety-depression-college-university-students/.
5 5 This decision reverses and remands a summary judgment in favor of the university by the trial court. In a second opinion in this case, 547 P.2d 1015 (1976), the court reaffirmed (without discussion) the portion of its first opinion dealing with authorization.
6 6 Not all courts will be so willing to find institutional authority in cases concerning public institutions. Other courts in other circumstances may assert that a person who deals with a public institution “does so at his peril,” as in First Equity Corp. of Florida v. Utah State University, 544 P.2d 887 (Utah 1975), where the court upheld the university's refusal to pay for stocks ordered by one of its employees.
7 7 In addition to federal constitutional rights, there are numerous federal statutes that create statutory civil rights, violation of which will also subject institutions to liability. These statutory rights are enforced under the statutes that create them, rather than under Section 1983. Institutions may also be liable for violations of state constitutional rights, which are enforced under state law rather than Section 1983.
8 8 State employees and officials may be sued in either their “official” capacities or their “personal” (or “individual”) capacities under Section 1983. For the distinction between the two capacities, see Hafer v. Melo, 502 U.S. 21, 25–31 (1991). Since lawsuits seeking money damages against employees or officers in their “official” capacities are generally considered to be covered by a state's Eleventh Amendment immunity, such suits are discussed in this section of the book.
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