Читать книгу The Law of Higher Education - William A. Kaplin - Страница 54

3.4.1 Overview. The tort and contract liabilities of postsecondary institutions discussed above are based in state law and, for the most part, are relatively well settled. The institution's federal constitutional rights liability, in contrast, is primarily a matter of federal law, which has undergone a complex evolutionary development. The key statute governing the enforcement of constitutional rights,⁷ commonly known as Section 1983 and codified at 42 U.S.C. § 1983, reads in pertinent part:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, 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 for redress.

Section 1983's coverage is limited in two major ways. First, it imposes liability only for actions carried out “under color of” state law, custom, or usage. Under this language the statute applies only to actions attributable to the state, in much the same way that, under the state action doctrine (see Section 1.5.2 of this book), the U.S. Constitution applies only to actions attributable to the state. While public institutions clearly meet this statutory test, private postsecondary institutions cannot be subjected to Section 1983 liability unless the action complained of was so connected with the state that it can be said to have been done under color of state law, custom, or usage.

Second, Section 1983 imposes liability only on a “person”—a term not defined in the statute. Thus, Section 1983's application to postsecondary education also depends on whether the particular institution or system being sued is considered to be a person, as the courts construe that term. Although private institutions would usually meet this test because they are corporations, which are considered to be legal persons under state law, most private institutions would be excluded from Section 1983 anyway under the “color of law” test. Thus, the crucial coverage issue under Section 1983 is one that primarily concerns public institutions: whether a public postsecondary institution is a person for purposes of Section 1983 and thus subject to civil rights liability under that statute.

A related issue, which also helps shape a public 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 Urbano-Blake factors, the court determined that, although Rutgers “is now, at least in part, a state-created entity which serves a state purpose with a large 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.