Jane G. McElligott, J.D.Unit 3 Seminar

Eleventh Amendment provides: “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.”

This amendment appears only to prohibit a citizen of another state or of another country from suing a state in federal court, but the U.S. Supreme Court has interpreted the Eleventh Amendment to have much broader implications through its decisions in cases such as Hans v. Louisiana, 134 U.S. 1 (1890), in which the Court held that a citizen cannot sue his or her own state in federal court.

Exceptions to 11th Amendment immunity: Immunity does not apply to political subdivisions, such as cities, towns,

counties, and community colleges (such as San Jacinto Junior College, which are created by the State, but which have autonomy in the way they are operated and the way they raise funding and therefore are not considered “arms of the state” (as are state universities);

11th Amendment does not bar suit by one state against another state; 11th Amendment does not bar a suit by the federal government against a

state; State can waive its 11th Amendment immunity by consenting to suit in

federal court; The 11th Amendment does not bar actions brought against state officials

for violating federal law when the relief sought is an injunction (Ex parte Young, 209 U.S. 123 (1906);

Exceptions to 11th Amendment immunity continued: The 11th Amendment does not bar an action against a state official for

money damages (if damages are to be paid only out of the official’s own pocket and not out of the state’s own pocket);

When Congress acts pursuant to its power to enforce the 14th Amendment (Equal Protection and Due Process) and creates a cause of action to sue the state in federal court, 11th Amendment does not apply, but note that the Court held in Seminole Tribe v. Florida, 517 U.S. 44 (1996) that Congress does not have the power under the Commerce Clause (Art. 1, sec. 8) to abrogate (take away) a state’s 11th amendment immunity from being sued in federal court and in Alden v. Maine, 527 U.S. 706 (1999), the Court cannot use its power under Art. 1 “to subject nonconsenting States to private suits for damages in state courts.” For an excellent article on this case, see: The Hypocrisy of Alden v. Maine.

Eleventh Amendment – Provides sovereign immunity for the states (right not to be sued without its consent); bars individuals from suing states in federal court. However, Congress can take away states’ immunity from suit when it enacts legislation in furtherance of its power to enforce the 14th Amendment (equal protection). In Cohen v. Court of Appeals of Maryland (March, 2012), the U.S. Supreme Court held that lawsuits against the state pursuant to the self-care provision (providing medical leave for an employee’s own health issues) of the Family Medical Leave Act (FMLA) are barred by the 11th Amendment under the doctrine of sovereign immunity.

In Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003), the U.S. Supreme Court held that sovereign immunity does not bar an employee from suing the state for violating the family care provision of the FMLA, given that the purpose of this section is to protect employees from sex discrimination involving state medical leave policies and therefore, enforces the 14th Amendment equal protection clause.

Only when the federal law is aimed at wiping out discrimination pursuant to Congress’s power to enforce the 14th Amendment can Congress eliminate the states’ sovereign immunity.

Goss, an untenured instructor at San Jacinto Junior College (SJJC), a public junior college, sued the college, alleging that she was denied renewal of her contract in violation of her First Amendment rights. Goss participated in the formation of a local chapter of the Texas Junior College Teachers Association, which type of activity in forming a union chapter is protected by the First Amendment freedom of association. The denial of renewal may also have been due to Goss’s support of her husband for election to the Board of Regents (protected political conduct).

Goss won $23,400 in back pay damages at trial and SJJC appealed to the federal district court, which in this opinion in the text affirmed the entry of judgment in favor of Goss.

On appeal, court held that SJJC was not entitled to immunity under the 11th Amendment because it is an independent “political subdivision.” The court cited a previous case, Hander v. San Jacinto Junior College, in which the court analyzed the “statutory authority for establishing, funding, and operating junior college districts in Texas” and determined that such districts are “independent political subdivisions not immune from suit.” 519 F.2d 273 (5th Cir. 1975).

The court held that the Texas junior colleges had autonomy and their own means of funding, such as issuing bonds, etc. and were sufficiently independent to be political subdivisions rather than “arms of the state.” While community colleges are often considered political subdivisions not immune from liability, state universities are considered “arms of the state,” entitled to immunity.

Note that Goss brought her suit against SJCC for violation of her First Amendment rights under 42 U.S.C. § 1983, part of the Civil Rights Act of 1871. This provision is the vehicle used for “seeking redress for an alleged deprivation of a litigant’s federal constitutional and federal statutory rights by persons acting under color of state law.” Section 1983 Litigation.

Section 1983 provides in part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any state … subjects … any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding.” Section 1983 Litigation.

Section 1983 is a “tool for checking the abuse by state officials” Section 1983 Litigation. The Court in Monroe v. Pape, 365 U.S. 167 (1961) emphasized that “the federal forum was necessary to vindicate federal rights because, according to Congress in 1871, state courts could not protect Fourteenth Amendment rights because of their “prejudice, passion, neglect, [and] intolerance” Section 1983 Litigation.

“To establish a prima facie case under 42 U.S.C. § 1983, plaintiffs must allege two elements: (1) the action occurred “under color of law” and (2) the action is a deprivation of a constitutional right or a federal statutory right.” Section 1983 Litigation.

In Monell v. Department of Social Services, 436 U.S. 658 (1978), the U.S. Supreme Court held that a municipality (political subdivision) can be held liable under Section 1983 if the deprivation of rights to the plaintiff is based on an unconstitutional policy or pervasive practice followed by the municipality (such as a police department that engages in widespread racial profiling in making traffic stops and supervisors are aware of such conduct).

Coffee v. Rice University, 408 S.W.2d 269 (1966) (p 9, text): Rice University of Houston (a private university) brought an action against the Attorney General of Texas, petitioning for the authority to ignore restrictions in its charter that prohibited the university from admitting African American students. The court had a jury consider the facts and it determined that the restrictions prohibiting the admission of African American students had become impractical and the benefactor’s intent could no longer be carried out; based on such findings, the court issued judgment permitting the university to ignore the charter restrictions and admit African American students.

Case shows how institutions of higher education have had to modify their charters and trusts when events such as the civil rights movement bring about important changes.

Bob Jones University v. United States, 461 U.S. 574 (1983) (p. 49, text): Bob Jones University (BJU), a religious nonprofit private institution, refused to

admit African American students because of its discriminatory stance against interracial dating or marriage. In 1975, BJU began admitting married African American couples, but strictly prohibited BJU is a Christian school with half of the students studying for the ministry or similar religious occupation; as a private nonprofit religious school, BJU did not pay taxes under 501(c)(3) of the IRS Code.

In Bob Jones University. v. Johnson, 396 F. Supp. 597 (1974), the court held that the university must comply with Title VI of the Civil Rights Act of 1964(which prohibits race discrimination by schools accepting any form of financial assistance) because some of 221 students in the student body were receiving veterans benefits, a form of federal financial assistance. The slightest bit of federal financial assistance will make Title VI applicable. Instead of changing its admission policy however, BJU barred students from receiving any veteran benefits to avoid having to comply with Title VI: Bob Jones Students Barred from Veteran Aid Program.

The IRS joined the fight to stop race discrimination by BJU, ruling that BJU’s tax-free status as a charitable organization was revoked in accordance with the public policy of the IRS to revoke the charitable status to organizations that engaged in racial discrimination. The federal district court, court of appeals, and the U.S. Supreme Court upheld the IRS’s revocation, holding that the intent of the IRS statute permitting tax-free status to charitable organizations is that such organizations must meet “common law standards of charity – namely that an institution seeking tax-exempt status must serve a public purpose and not be contrary to public policy,” and the public policy is strongly against discrimination. Bob Jones University v. United States.

In Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481 (1986), the U.S. Supreme Court tackled the issue of whether it is a violation of the First Amendment Establishment Clause if a legally-blind student were permitted to use state funds (vocational rehabilitation assistance and educational financial aid) to pursue a degree in biblical studies at a religious school, Inland Empire School of the Bible. The Department of Services for the Blind in Washington State denied the students such funds on the basis that the provision of financial assistance to students studying to be ministers, pastors, etc., deciding that this would violate the state constitution provisions against the establishment of religion.

Student appealed this decision to the Supreme Court of Washington, which upheld the denial of state funds to the student, holding that such funding would violate both the Washington State the U.S. Constitution’s provisions against the establishment of religion, given that such funding had the effect of advancing religion.

Student then appealed to the U.S. Supreme Court, which reversed and held in favor of the student, holding that it is fine for the state to provide assistance to the individual student with a disability; the state just cannot give the funding directly to the religious institution. Indirect subsidies are okay, but not direct subsidies. The Court found that the state funding program did not encourage students in any way to use their funds at religious institutions, so this ““neutrally available” state aid to help pay for religious education was not an endorsement of education.” Witters v. Washington Dept. of Services for the Blind.

Because the Washington Supreme Court had rested in its original decision on the basis of both federal and state law, the U.S. Supreme Court remanded the case to the Washington Supreme Court to determine if its state constitution’s provision on the establishment of religion would prevent the student from receiving state aid, and the Washington Supreme Court held in the affirmative that such financial assistance to the student violated the state constitution.

In Sheldon Jackson College v. State, 599 P.2d 127 (1979), the Supreme Court of Alaska held that a state grant program that covered the difference in tuition for students who wanted to go to private colleges versus public colleges violated the Alaska state constitution in that such program advanced religion by directly benefiting religious institutions.

State constitutions or state statutes (referred to as Blaine Amendments) often have more restrictive provisions prohibiting financial assistance to students attending religious schools and colleges and state supreme courts may tend to strike down such assistance or financial assistance as establishment of religion under its own constitution.

Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002) – U.S. Supreme Court upheld Cleveland, Ohio’s school voucher program as permissible under the Establishment Clause, holding that the voucher program does not advance religion and is for a secular purpose. However, such voucher programs remain vulnerable to being struck down under state law.