995 F.2d 992 (10th Cir. 1993), 91-4015, Ambus v. Granite Bd. of Educ.

Docket Nº:91-4015.
Citation:995 F.2d 992
Party Name:Gregory T. AMBUS, Plaintiff-Appellant, v. GRANITE BOARD OF EDUCATION, Defendant-Appellee.
Case Date:June 07, 1993
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 992

995 F.2d 992 (10th Cir. 1993)

Gregory T. AMBUS, Plaintiff-Appellant,

v.

GRANITE BOARD OF EDUCATION, Defendant-Appellee.

No. 91-4015.

United States Court of Appeals, Tenth Circuit

June 7, 1993

Page 993

Stephen W. Cook of Cook & Davis, Salt Lake City, UT, for plaintiff-appellant.

Page 994

Brent A. Burnett, Asst. Atty. Gen. (R. Paul Van Dam, Atty. Gen., with him on the brief), Salt Lake City, UT, for defendant-appellee.

Before McKAY, Chief Judge, and LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, EBEL, and KELLY, Circuit Judges.

LOGAN, Circuit Judge.

In Ambus v. Granite Board of Education, 975 F.2d 1555 (10th Cir.1992), this court reviewed a judgment in a 42 U.S.C. § 1983 suit by plaintiff Gregory T. Ambus, who was terminated from his position as a teacher in a Utah public school. Among other issues disposed of in the opinion, with the unanimous agreement of the active circuit judges this court overruled our earlier decision in Harris v. Tooele County School District, 471 F.2d 218 (10th Cir.1973), which held that Utah school districts were entitled to the state's Eleventh Amendment immunity. Because in analyzing the immunity issue the opinion relied in part upon a Utah statute that the panel erroneously thought was enacted after the Harris decision, and because of the importance of the issue, we granted en banc rehearing limited to the issue of the Eleventh Amendment immunity of Utah school districts. After considering the additional briefing and oral argument, we reaffirm our overruling of Harris.

I

In the absence of a waiver, the Eleventh Amendment forbids a suit for damages against a state in federal court. Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347, 1356, 39 L.Ed.2d 662 (1974). Although Congress did not abrogate state Eleventh Amendment immunity when enacting § 1983, Quern v. Jordan, 440 U.S. 332, 341, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979), that immunity extends only to the states themselves and to those governmental entities that are "arms of the state." Meade v. Grubbs, 841 F.2d 1512, 1525 (10th Cir.1988). Thus, unless Utah school districts are properly considered "arms of the state," they are amenable to suits for damages in federal court under § 1983. If the Eleventh Amendment applies, it confers total immunity from suit, not merely a defense to liability. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., --- U.S. ----, ---- - ----, 113 S.Ct. 684, 688-89, 121 L.Ed.2d 605 (1993).

The principal development since Harris affecting Eleventh Amendment jurisprudence in this area is the Supreme Court's decision in Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), involving an Ohio school district board. There, the Court held that "[t]he answer [to a school board's entitlement to immunity] depends, at least in part, upon the nature of the entity created by state law." Id. at 280, 97 S.Ct. at 572. The Court ruled four factors to be relevant: (1) the characterization of the district under state law; (2) the guidance and control exercised by the state over the local school board; (3) the degree of state funding received by the district; and (4) the local board's ability to issue bonds and levy taxes on its own behalf. Id. The Court held that "[o]n balance, the record before us indicates that a local school board such as petitioner is more like a county or city than it is like an arm of the State." Id. Therefore, the school board was not entitled to Eleventh Amendment immunity. We must apply the Mt. Healthy analysis to the Utah school board's immunity claim.

We believe that the immunity issue must be determined in each case on the basis of the individual state laws involved. Since Mt. Healthy we have considered school districts' Eleventh Amendment immunity directly in two cases. We denied immunity to Kansas school districts, Unified Sch. Dist. No. 480 v. Epperson, 583 F.2d 1118 (10th Cir.1978), and granted it to New Mexico school districts, Martinez v. Board of Educ., 748 F.2d 1393 (10th Cir.1984), based upon the particular facts of those cases. In Bertot v. School District No. 1, Albany County, Wyo., 613 F.2d 245 (10th Cir.1979) (en banc), we noted that the issue of Wyoming school district immunity under the Eleventh Amendment was not directly implicated, but assumed that Mt. Healthy had resolved the issue against a finding of immunity. See id. at 248 n. 3.

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Nearly all other courts considering the issue since Mt. Healthy have refused to grant local school districts Eleventh Amendment immunity. See Lester H. ex rel. Octavia P. v. Gilhool, 916 F.2d 865 (3d Cir.1990) (Pennsylvania school districts), cert. denied, --- U.S. ----, 111 S.Ct. 1317, 113 L.Ed.2d 250 (1991); Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499 (11th Cir.1990) (Alabama school boards); Rosa R. v. Connelly, 889 F.2d 435 (2d Cir.1989) (Connecticut school boards), cert. denied, 496 U.S. 941, 110 S.Ct. 3225, 110 L.Ed.2d 671 (1990); Lopez v. Houston Indep. Sch. Dist., 817 F.2d 351 (5th Cir.1987) (Texas school districts); Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129 (5th Cir.1986) (Louisiana school boards); Fay v. South Colonie Cent. Sch. Dist., 802 F.2d 21 (2d Cir.1986) (New York school districts); Gary A. v. New Trier High School Dist. No. 203, 796 F.2d 940 (7th Cir.1986) (Illinois school districts); Travelers Indem. Co. v. School Bd., 666 F.2d 505 (11th Cir.) (Florida boards of education), cert. denied, 459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 74 (1982); Eckerd v. Indian River Sch. Dist., 475 F.Supp. 1350 (D.Del.1979) (Delaware school boards). But see Belanger v. Madera Unified Sch. Dist., 963 F.2d 248 (9th Cir.1992) (granting Eleventh Amendment immunity to California school districts in light of near total authority exercised by state), cert. denied, --- U.S. ----, 113 S.Ct. 1280, 122 L.Ed.2d 674 (1993).

II

A

The first Mt. Healthy factor concerns the characterization of local school districts under state law. Plaintiff points to the Utah Constitution, which provides that counties are legal subdivisions of the state and that school districts are legal subdivisions of counties, Utah Const. art. XI, § 1, and to the Utah Governmental Immunity Act, which specifically defines a school district as a "political subdivision" for purposes of the Act, Utah Code Ann. § 63-30-2(7). The Board's response, that Campbell v. Pack, 15 Utah 2d 161, 389 P.2d 464, 465 (1964), and Bingham v. Board of Education, 118 Utah 582, 223 P.2d 432, 436 (1950), indicate...

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