Bailey v. Ohio State University

• Decision Date: 10 April 1980
• Docket Number: No. C-2-78-94.,C-2-78-94.
• Citation: 487 F. Supp. 601
• Parties: Dorothy C. BAILEY et al., Plaintiffs, v. The OHIO STATE UNIVERSITY et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

487 F. Supp. 601

Dorothy C. BAILEY et al., Plaintiffs, v. The OHIO STATE UNIVERSITY et al., Defendants.

No. C-2-78-94.

United States District Court, S. D. Ohio, E. D.

April 10, 1980.

Robert F. Laufman, Maggie Quinn, Alphonse A. Gerhardstein, Cincinnati, Ohio, for plaintiffs.

William J. Brown, Atty. Gen. of Ohio, Thomas B. Ridgley, G. Ross Bridgman, Larry R. Thompson, Vorys, Sater, Seymour & Pease, Columbus, Ohio, for defendants.

OPINION AND ORDER

KINNEARY, District Judge.

This matter is before the Court on the motion of the defendants to dismiss the plaintiffs' second and third claims for relief. The plaintiffs are two professors of The Ohio State University College of Social Work who charge the university and certain university officials with maintaining policies that discriminate against them on the basis of sex with respect to hiring, promotion, salary and working conditions. The Court will address the claims in the same order as have the parties.

A. The Third Claim

In their second amended complaint, the plaintiffs' third claim for relief is that The Ohio State University and the individual defendants have deprived the plaintiffs of their constitutional rights in violation of 42 U.S.C. § 1983. The defendants seek dismissal of this claim, asserting that the university and its officials are immune from suit under the eleventh amendment to the Constitution of the United States.

In Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793), the Supreme Court ruled that the state of Georgia could be sued by private citizens in a federal court. Shortly thereafter, the eleventh amendment was adopted in order to overrule constitutionally the Chisholm decision. The eleventh amendment provides as follows:

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.

U.S.Const., Amend. 11. In addition to the amendment, the Supreme Court eventually rejected the reasoning of Chisholm in Hans v. Louisiana, 134 U.S. 1, 18-19, 10 S.Ct. 504, 508-509, 33 L.Ed. 842 (1890), holding that, even though the eleventh amendment was silent as to federal suits against a state by its own citizens, Article III and the Act of Congress conferring jurisdiction should not be construed to create such "anomalous and unheard of" suits or "new and strange jurisdictions." Id. at 18, 10 S.Ct. at 508.

Other cases, however, culminating in the famous decision in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), evolved the rule that a state official directly involved in an unconstitutional act could be subject to suit in federal court. Such an official was not deemed to be acting as the state, since the state had no power to authorize unconstitutional acts. Thus, as in Ex parte Young, the Attorney General could be sued, but the state itself could not.

There are two other important limits on the reach of the immunity conferred by the eleventh amendment and the decision in Hans v. Louisiana, supra hereinafter referred to as "eleventh amendment immunity". First, it has long been recognized that the immunity can be waived by state consent to the suit. E. g., Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882, 27 L.Ed. 780 (1883). Second, the fifth section of the fourteenth amendment, which grants to Congress the power to pass laws enforcing the other provisions of the fourteenth amendment, permits Congress to authorize federal suits against the state for that purpose. E. g., Fitzpatrick v. Bitzer, 427 U.S. 445, 456, 96 S.Ct. 2666, 2671, 49 L.Ed.2d 614 (1976). This latter limit on state immunity from federal suit is important because of the power Congress had to remove that immunity by including states as "persons" within the meaning of 42 U.S.C. § 1983, the statute upon which the plaintiffs here base their third claim for relief. The Supreme Court determined in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492, however, that cities and municipal corporations were not § 1983 "persons," and it followed ineluctably that states were also not included as "persons" under the statute. Fitzpatrick v. Bitzer, supra, 427 U.S. at 452, 96 S.Ct. at 2669.

A further step in the development of eleventh amendment jurisprudence was taken in 1974 when the Supreme Court decided Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Edelman limited the Ex parte Young exception to eleventh amendment immunity by holding that a federal court may not award retroactive relief consistently with the eleventh amendment where that relief will require the expenditure of funds directly from the state treasury. The Edelman decision added a new tier to state immunity from federal suit which looked not to the fact of the suit against the state, but to the type of relief sought. Thus, after Edelman, relief in a suit properly brought under Ex parte Young which burdened the state treasury could only be prospective in nature. E. g., Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977).

The relationship of eleventh amendment immunity and § 1983 became decidedly more complex when the supreme Court decided Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), which overruled Monroe v. Pape, supra, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), finding that Congress had intended to include a municipality as a "person" in § 1983. The question arose, therefore, whether a state was also a "person" under the statute and, if so, whether the eleventh amendment was an obstacle to such a suit against a state. After Monell, some courts apparently took the position that a state was a "person" under § 1983 and could be sued as long as the Edelman limits on retroactive relief were observed. See, e. g., Gay Student Services v. Texas A & M University, 612 F.2d 160, 165 (CA 5, 1980). Such notions should have been dispelled by the Supreme Court's decision in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) and subsequent dicta in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979).¹ In Alabama v. Pugh, supra, the Court summarily held that the State of Alabama could not be joined as a defendant in a claim brought under § 1983 without violating the eleventh amendment. It is significant that the relief awarded against Alabama was in the form of an injunction. The opinion in Quern v. Jordan, supra, explained that Alabama v. Pugh was so decided because a state cannot even be named as a defendant in a § 1983 action without violating the eleventh amendment. While recognizing that Congress could have abrogated such state immunity because § 1983 was enacted pursuant to § 5 of the fourteenth amendment, the opinion in Quern stated that Congressional elimination of eleventh amendment immunity would not be implied, and that there was no express indication of such an intent in the statute or in its enactment process. Quern v. Jordan, 440 U.S. 332, 340-45, 99 S.Ct. 1139, 1145-1147, 59 L.Ed.2d 358 (1979). The fact that Congress did not intend to abrogate eleventh amendment immunity for the states means, necessarily, that a state is not a "person" under § 1983 and no suit for any relief may be maintained against the state under § 1983.

Turning to the present dispute, the propriety of the plaintiffs' claim based upon § 1983 depends upon whether the university is more properly characterized as a reasonably autonomous political subdivision such as a city or a school district, or as a dependent instrumentality deemed to be merely an "arm of the state." If the latter, then the university must be dismissed as a defendant to the claim based upon § 1983 because such "instrumentalities" are treated as the state for purposes of eleventh amendment immunity. Mt. Healthy City Board of Education v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977).

Before determining the university's eleventh amendment status, however, the Court notes that the university officials named as defendants are plainly not "the state," and they may be sued under § 1983, Ex parte Young, supra, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), as long as the relief awarded does not require the direct expenditure of funds from the state treasury for past wrongs, whether that relief be characterized as damages or restitution. Edelman v. Jordan, supra, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). The Court is of the opinion that it cannot determine with sufficient precision at this point what effect certain forms of relief against the defendant officials may have. The Court will therefore deny the motion to dismiss as to the individual university officials, and await further factual development at trial to determine what further limits may exist under Edelman.

The Court must therefore determine whether the university² is an immune instrumentality of the state, or a potentially liable political subdivision. Although the issue is one of federal law, the resolution "depends, at least in part, upon the nature of the entity created by state law." Mt. Healthy, supra, 429 U.S. at 280, 97 S.Ct. at 572. The plaintiffs do not dispute that Ohio State is considered to be an instrumentality of the state under Ohio law. Wolf v. Ohio State University Hospital, 170 Ohio St. 49, 162 N.E.2d 475 (1959); see Ohio Revised Code, O.R.C. § 2743.01.

The usual approach of courts attempting to determine the status of public universities has been to look for indicia of fiscal and academic autonomy. The plaintiffs here suggest that the factual record in this case is presently insufficient to support any decision on this issue. There has been no allegation or argument, however, that the university does not actually operate in accordance with the statutory scheme which created it. If the state statutes, of which this Court may take judicial...