Osteen v. Henley

Decision Date30 December 1993
Docket NumberNo. 93-1151,93-1151
Citation13 F.3d 221
Parties88 Ed. Law Rep. 939 Thomas OSTEEN, Plaintiff-Appellant, v. Barbara HENLEY, in her personal capacity and also in her official capacity as Vice President for Student Affairs of Northern Illinois University, et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

T. Jordan Gallagher, William P. Brady, Kurt Peter Klein, Gallagher, Klein & Brady, DeKalb, IL, Howard R. Wertz, Lynwood, IL (argued), for plaintiff-appellant.

Gregory K. Harris, Asst. U.S. Atty., Giffin, Winning, Cohen & Bodewes, Springfield, IL (argued), George M. Shur, Northern Illinois University University Legal Counsel, DeKalb, IL, for defendants-appellees.

Before POSNER, Chief Judge, MANION, Circuit Judge, and FOREMAN, District Judge. *

POSNER, Chief Judge.

Late one night, as Thomas Osteen, an undergraduate at Northern Illinois University, was leaving a bar in the company of two male friends and the girlfriend of one of them, the girlfriend began "mouthing off to a male [another student] who was outside of a bar who decided to mouth off to her and the two of them mouthed out to each other and he didn't realize she was with three football players so when he realized that he was mouthing off to a young lady that was being accompanied by three football players one of which was her boyfriend, it was a little bit too late for him." (We are quoting, not Gertrude Stein, but one of the defendants, university judicial officer Larry Bolles.) "I'm told without one word, Mr. Osteen, not one word out of his mouth he stomps this guy in the head with some cowboy boots. This is what the guy said, he had on some boots and he stomped him." Osteen's kick or stomp broke the other student's nose. Another student, apparently a friend of the one whom Osteen had just assaulted, approached Osteen, who again without a word "broke his face with one punch." Osteen had broken his second nose for the night. The incident, aggravated in Bolles's mind by the fact that the woman whose honor Osteen was defending in this violent manner was not even Osteen's own girlfriend, led to Osteen's expulsion for two years and to this lawsuit (dismissed by the district court), in which Osteen challenges the expulsion as a deprivation of property without due process of law, in violation of the Fourteenth Amendment. Although it is an open question in this circuit whether a college student as distinct from an elementary school or high school student has a property right in continued attendance, Akins v. Board of Governors, 840 F.2d 1371, 1376 (7th Cir.1988), vacated on other grounds, 488 U.S. 920, 109 S.Ct. 299, 102 L.Ed.2d 319 (1988), the defendants have not raised it, so we shall not attempt to answer it.

The suit is against a variety of university officials in both their individual and official capacities and seeks both injunctive relief--the reinstatement of Osteen with or without the restoration of his football scholarship--and damages. If the request for injunctive action were the only thing before us, we would be inclined to remand for a hearing on possible mootness. We were told at argument that after being expelled from NIU Osteen enrolled in another college, and for all we know he will have received his degree from that college before he could possibly be readmitted to NIU. (The record is silent as to what year of college Osteen was in when he was expelled.) More important, the expulsion was only for two years, and the two years are up, so that there is, at least as far as the record discloses, no obstacle to his being readmitted. But since the entire case would not be moot even if the injunctive aspect of it were, we shall soldier on, merely adding that the district court was incorrect to bypass the issue of standing and deny injunctive relief on the ground that such relief is barred by the Eleventh Amendment. That amendment is not a bar to injunctions against state officials even when they are named in their official capacities, because all that such an injunction does is require the state to confine its future activity within the limits set by federal law. Kentucky v. Graham, 473 U.S. 159, 169 n. 18, 105 S.Ct. 3099, 3107 n. 18, 87 L.Ed.2d 114 (1985); Kroll v. Board of Trustees, 934 F.2d 904, 908 (7th Cir.1991). The immunity that the Eleventh Amendment grants does not go so far as to allow state officials to ignore federal law with impunity.

But insofar as the defendants are being sued for damages in their official capacities, the suit is against the university and if the university is the state is therefore barred by the Eleventh Amendment. Kentucky v. Graham, supra, 473 U.S. at 165-66, 105 S.Ct. at 3105. Northern Illinois University is an Illinois state university. Cannon v. University of Health Sciences, 710 F.2d 351, 356 (7th Cir.1983), held that Southern Illinois University, another Illinois state university, is an arm of the state and Davidson v. Board of Governors, 920 F.2d 441, 442 (7th Cir.1990), held (though without discussion) that Western Illinois University is too; and while we later ducked the question whether NIU is, Benning v. Board of Regents, 928 F.2d 775, 777 (7th Cir.1991), we failed in doing so to cite either Cannon or Davidson.

Despite the similarity in their names, these three universities have separate provenances and are governed by separate statutes. 110 ILCS 505, 605, 705. But as Osteen has pointed us to no difference in their governance that might bear on the Eleventh Amendment, he has the uphill fight of persuading us that Cannon and Davidson--which are consistent with decisions concerning other state universities, as noted in Kroll v. Board of Trustees, supra, 934 F.2d at 908 n. 2, and Benning v. Board of Regents, supra 28 F.2d at 777--are wrong and should be overruled. He points to the provision of the Illinois constitution of 1970 that "except as the General Assembly may provide by law, sovereign immunity in this State is abolished." Ill. Const. art. XIII, Sec. 4. Later, however, the legislature immunized the state, expressly including universities belonging to the "Regency Universities System," from suit other than in the Illinois Court of Claims. 705 ILCS 505/8(d); Kroll v. Board of Trustees, supra, 934 F.2d at 910. And Northern Illinois University is one of those universities. 110 ILCS 705/1; Benning v. Board of Regents, supra, 928 F.2d at 777-79. Osteen argues that this legislation creates merely a "procedural" bar to suit in any state court other than the court of claims, leaving federal jurisdiction unaffected. In effect he is arguing that a state cannot waive its sovereign immunity in part; if the state doesn't want to be sued in federal court, it can't establish a court of claims to hear suits against it. But since a state can waive its sovereign immunity to suit in its own courts without thereby being deemed to have waived its Eleventh Amendment immunity to suit in federal court, Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 3146, 87 L.Ed.2d 171 (1985); Kroll v. Board of Trustees, supra, 934 F.2d at 907-10, we cannot see why a state cannot confine damages suits against itself to a particular state court.

Insofar as the defendants are also being sued for damages in their individual capacity, the Eleventh Amendment does not bar the suit. Almost certainly, qualified immunity does. (Conceivably, absolute immunity is available to the university's judicial officers, though this is most unlikely given the Supreme Court's refusal to grant such immunity to members of school boards that adjudicate violations of school disciplinary regulations, Wood v. Strickland, 420 U.S. 308, 320, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975), and to members of prison disciplinary committees, Cleavinger v. Saxner, 474 U.S. 193, 204-06, 106 S.Ct. 496, 502-03, 88 L.Ed.2d 507 (1985).) But as the alleged violations of Osteen's constitutional rights occurred just a couple of years ago and there have been no pertinent legal changes since, the issue of qualified immunity merges with the merits, Mahoney v. Kesery, 976 F.2d 1054, 1057-59 (7th Cir.1992)--to which we turn at last.

Bolles mailed Osteen a notice of charges and a copy of the university's student judicial code, thus initiating disciplinary proceedings. According to the code, Bolles's function as university judicial officer was to meet with Osteen and attempt to resolve the matter without a hearing, but if this failed he was to present the case against Osteen at a hearing. The two met and in Bolles's presence Osteen signed a form in which he pleaded guilty to the charges but requested a hearing on Bolles's proposed sanction, which was a two-year expulsion. The hearing was held before an appeals board consisting of the university's assistant judicial officer (i.e., assistant to Bolles) presiding and in addition one faculty member and two students. The case against Osteen was presented by Bolles, Osteen being represented by a student advocate. Osteen, his advocate, and Bolles addressed the board (we quoted part of Bolles's statement earlier), which in addition considered character references and other documents and concluded that the two-year expulsion was the proper sanction. Osteen attempted to appeal to the university's vice-president for student affairs but was told that the vice-president's authority under the judicial code had been delegated to an associate vice-president. After considering Osteen's appeal that officer upheld the expulsion but postponed it to the end of the semester.

The suit attacks a number of features of the disciplinary proceeding. Bolles had played a dual role as judge and prosecutor. The presiding officer of the appellate tribunal was Bolles's assistant. She cut off Osteen's advocate on the ground that the issue of guilt was not before the board, just the issue of sanction, when the advocate was trying to give Osteen's version of the assaults....

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