396 F.2d 730 (8th Cir. 1968), 19015, Board of Trustees of Arkansas A and M College v. Davis

Docket Nº19015.
Citation396 F.2d 730
Party NameBOARD OF TRUSTEES OF ARKANSAS A & M COLLEGE, a Body Corporate, and Dr. Homer Babin, President of Arkansas A & M College, Appellants, v. H. Brent DAVIS, Appellee.
Case DateJune 24, 1968
CourtUnited States Courts of Appeals, Court of Appeals for the Eighth Circuit

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396 F.2d 730 (8th Cir. 1968)

BOARD OF TRUSTEES OF ARKANSAS A & M COLLEGE, a Body Corporate, and Dr. Homer Babin, President of Arkansas A & M College, Appellants,


H. Brent DAVIS, Appellee.

No. 19015.

United States Court of Appeals, Eighth Circuit.

June 24, 1968

Don Langston, Asst. Atty. Gen. of Arkansas, Little Rock, Ark., for appellants; Joe Purcell, Atty. Gen., Lance

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Hanshaw, and R. D. Smith, III, Asst. Attys. Gen., Little Rock, Ark., were on the brief.

Samuel M. Fetters, Syracuse, N.Y., for appellee; John W. Walker and Norman J. Chachkin, Little Rock, Ark., Eleanor H. Norton, and James Graham, New York City, were on the brief.

Before VAN OOSTERHOUT, Chief Judge, and MATTHES and LAY, Circuit Judges.

MATTHES, Circuit Judge.

This case is before the Court on an interlocutory appeal under 28 U.S.C. § 1292(b) from an order of the District Court denying defendants' motion to dismiss. The parties will be designated as they were in the lower Court.

According to the Complaint, H. Brent Davis, plaintiff, a citizen of the State of Texas, was employed pursuant to a written contract with the Board of Trustees of Arkansas A & M College 1 to teach in the Department of Languages and Literature of that College from August 1, 1965, to May 31, 1966, at a salary of $6,000. The complaint alleged that on October 29, 1965, the Board of Trustees, acting through 'its employee and agent defendant, Dr. Homer Babin,' dismissed plaintiff without stating the reasons for his dismissal and without affording him a hearing in which to answer the charges against him. 2 Plaintiff averred that the termination of his employment was a direct consequence of his activities relating to the abolition of corporal punishment in the Arkansas State Penitentiary and the ensuing publicity through the news media; that he had prepared a petition against corporal punishment, which was endorsed by 'several' students.

The complaint further alleged that defendants, in summarily dismissing plaintiff, had deprived him of his constitutional rights guaranteed under the First and Fourteenth Amendments, and had unlawfully breached the contract of employment to his irreparable loss, injury and harm.

Plaintiff sought injunctive relief to restore him to his former position with backpay and to restrain the defendants from thereafter terminating his employment by reason of activities protected by the federal constitution. He also prayed for a judgment for $25,000 in damages resulting from 'family disruption, inconvenience, damage to reputation, inability to find other employment, (and) physical, mental and emotional suffering.'

Defendants premised their motion to dismiss on (1) lack of jurisdiction over the subject matter by reason of state immunity under the Eleventh Amendment; (2) failure of the complaint to state a claim for relief.

In its unreported order denying the motion the District Court refrained from specific discussion of the Eleventh Amendment issue. It found that jurisdiction existed for the reason that (a) Arkansas A & M College, organized pursuant to Sections 80-3101-- 80-3102, Ark.Stat.Ann., is a body 'politic' and as such may sue and be sued as a legal entity; (b) the Civil Rights Statutes, 28 U.S.C. § 1343(3) and 42 U.S.C. § 1983 explicitly confer jurisdiction; (c) the complaint alleges diversity of citizenship and the requisite jurisdictional amount

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under 28 U.S.C. § 1332; (d) there exists a federal question under the privileges and immunities and due process clauses of the Constitution, 28 U.S.C. § 1331. In concluding that the complaint also asserted a claim for relief the Court, 270 F.Supp. 528 stated:

'The Court is of the opinion that such conduct (by the Board of Trustees) subjected the plaintiff to deprivation of his position as a member of the faculty which raises a question which can be determined only by testimony as to the privileges or immunities secured by the Constitution.'


The 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 on of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.'

The nub of defendants' position is that since Arkansas A & M College is a creature of the State and an agency of it, the trustees partake of its sovereign immunity. They equate this action therefore with one in which the state is the named defendant. See State of Arkansas v. State of Texas, 346 U.S. 368, 370, 74 S.Ct. 109, 98 L.Ed. 80 (1953).

Plaintiff does not dispute that Arkansas A & M College is a state agency. He stands on the proposition, however, with which we agree, that sovereign immunity does not extend to state or federal officials who act beyond their authority or in violation of the United States Constitution.

The foundation case is Ex parte Young,3 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), where the Supreme Court held that a suit against the Attorney General of Minnesota to enjoin the enforcement of an unconstitutional state statute did not violate the prohibition of the Eleventh Amendment. In rejecting the claim of state immunity the Court announced this basic principle:

'The act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the state to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of, and one which does not affect the state in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting, by the use of the name of the state, to enforce a legislative enactment which is void because unconstitutional. If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States. See In re Ayers, supra, 123 U.S. 443, page 507, 8 S.Ct. 164, 31 L.Ed. 216.' 209 U.S. at 159-160, 28 S.Ct. 454.

Kenneth Culp Davis, who discusses the rationale of the Young decision in his administrative law treatise, states:

'* * * (The Court) was deliberately indulging in fiction in order to find a way around sovereign immunity. It knew that the injunction against the attorney general was in truth a means of preventing the state from enforcing the statute. The reality is all too obvious that the suit was

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in practical...

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