Henry v. Texas Tech University

Decision Date25 January 1979
Docket NumberCiv. A. No. CA-5-77-56.
Citation466 F. Supp. 141
PartiesCharles HENRY v. TEXAS TECH UNIVERSITY, Dr. Judson F. Williams, Robert L. Pfluger, J. Fred Bucy, Bill Collins, Clint Formby, Dr. John J. Hinchey, A. J. Kemp, Jr., Charles G. Scruggs, Don R. Workman, Cecil Mackey, Grover Murray, Glenn Barnett, George Tyner, Dr. Richard Lockwood, Texas Tech University School of Medicine at Lubbock.
CourtU.S. District Court — Northern District of Texas

COPYRIGHT MATERIAL OMITTED

Don Graf, McCleskey, Harriger, Brazill & Graf, Lubbock, Tex., for plaintiff.

James H. Milam, Crenshaw, Dupree & Milam, Marilyn Phelan, Resident Legal Counsel, Lubbock, Tex., for defendants.

Roland H. Allen, Asst. Atty. Gen., Austin, Tex., for Dr. Judson F. Williams.

MEMORANDUM ORDER

PATRICK E. HIGGINBOTHAM, District Judge.

A black male employee of Texas Tech Medical School at Lubbock filed this suit under the civil rights acts1 on behalf of himself and a class of Black and Spanish surnamed American employees and potential employees. The defendants in turn moved to dismiss both the individual and the class claims. After an evidentiary hearing and briefs, the motions to dismiss and the question of class certification demand decision.

The Proffered Class Representative

Charles Henry is a black male. He holds a Ph.D. degree in the field of education. He was employed by Texas Tech2 from 1972 until 1976. Henry was employed as a science instructor with the Lubbock Independent School District from September, 1956 until 1972. From 1968 to 1972 Henry was employed as a part-time instructor at Texas Tech and received a full-time faculty appointment with the medical school in June, 1972. Dr. Henry held a Master's Degree in 1972 and was working toward his Ph.D. while employed at Texas Tech. In April, 1976, having received a "terminal" contract, Dr. Henry's employment at Texas Tech ended.

Dr. Henry filed a charge of discrimination with the EEOC on April 15, 1976, and received his "right to sue letter" on March 10, 1977. No complaint was filed or referred to any state agency. This suit followed on April 11, 1977. Dr. Henry charges the following unlawful employment practices:

1. Maintaining, recruiting, and hiring policies and practices which discriminate against Blacks and Spanish surnamed Americans based on their race and national origin, respectively.

2. Maintaining policies and practices with respect to employment contracts, assignment of duties, compensation, and working conditions which discriminate against Blacks and Spanish surnamed Americans based on their race and national origin, respectively.

3. Failing to promote Black and Spanish surnamed American employees because of their race and national origin.

4. Maintaining job classifications and placement on the basis of race and national origin.

5. Maintaining hiring policies and practices and promotion policies and practices which set higher requirements for Blacks and Spanish surnamed Americans than for Anglo-Caucasian employees.

6. Maintaining policies and practices with respect to employee privileges which discriminate against Blacks and Spanish surnamed Americans.

7. Maintaining policies and practices which make it more difficult for Blacks and Spanish surnamed employees to advance within their professions than Anglo-Caucasian employees.

8. Failing to compensate Blacks and Spanish surnamed American employees on the same basis as Anglo-Caucasian employees.

9. Maintaining terms and conditions of employment which discriminate or have a discriminatory effect on Blacks and Spanish surnamed Americans because of their race and national origin.

The defendants include Texas Tech University, Texas Tech University School of Medicine at Lubbock, and the members of the Board of Regents, in their official capacity as regents. The two schools have a common board including Dr. Cecil Mackey who serves as President (Chief Executive Officer) of both schools. Dr. Grover Murray, a former president, and certain other officers are also named as defendants in their official capacity.

Dr. Henry seeks to assert claims both individually and as a class representative under section 16 of the Civil Rights Act of 1870, 42 U.S.C. § 1981 (1976), section 1 of the Civil Rights Act of 1871, 42 U.S.C. § 1983 (1976), and under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The defendants have moved to dismiss the action on several grounds, and have challenged the maintenance of the suit as a class action. Before reaching the class questions, the motions to dismiss must be examined.

Motions to Dismiss
A. "Instrumentality of State" Challenge to the 1981 and 1983 Claims.

The gravamen of the motions to dismiss those portions of this suit grounded on §§ 1981 and 1983 is that the defendants may not be sued under these provisions by virtue of their relationship to the State of Texas. Defendants argue that this court lacks subject matter jurisdiction to entertain claims under §§ 1983 and 1981 because defendants are not persons for purposes of those statutes and for the reason that the Eleventh Amendment to the United States Constitution prohibits an action for damages against the state.3 Defendants rely upon Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974) and Kirker v. More, 308 F.Supp. 615, aff'd, 436 F.2d 423, cert. denied, 404 U.S. 824, 92 S.Ct. 49, 30 L.Ed.2d 51 (1970) for their eleventh amendment argument. Their premise is that these defendants are instruments of the state. If Texas Tech is essentially a unit of local government, it is a "person" for purposes of 42 U.S.C. § 1983. Monell v. Dep. Soc. Ser. City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The court in Monell, however, took pains to make clear that its holding did not affect the immunity of states provided by the eleventh amendment:

Our holding today is, of course, limited to local government units which are not considered part of the State for Eleventh Amendment purposes. 436 U.S. at 690, n. 54, 98 S.Ct. at 2036.

Thus if Texas Tech is the "alter ego" of the state, suit under §§ 1983 and 1981 against it is barred by the eleventh amendment.

Before examining that question in greater detail, it is important to note that the eleventh amendment operates as an absolute jurisdictional bar to suits against the state absent consent by the state. This circuit has firmly rejected the notion that the fourteenth amendment operates as a pro tanto repeal of the eleventh. See Jagnandan v. Giles, 538 F.2d 1166 (5th Cir. 1976).

The question, then, is whether Texas Tech is so related to the State of Texas that suit against it is barred by the eleventh amendment. The standards upon which that determination must be made have been set forth by the courts. As put by one commentator:

Whether a particular government unit is an alter ego of the state is an issue of federal law, and is to be determined through examination of a number of factors; including the degree of state control over the units, the manner in which it is founded, and whether it is separately incorporated. See, e. g., Soni v. Board of Trustees, 513 F.2d 347, 351-58 (6th Cir. 1975) (dictum) . . . Urbano v. Board of Managers, 415 F.2d 247, 250-52 (3d Cir. 1969); S. J. Groves & Sons Co. v. New Jersey Turnpike Authority, 268 F.Supp. 568, 571-79 (D.N.J.1967). Damage Remedies Against Municipalities for Constitutional Violations, 89 Harv.L.Rev. 922, 931 n. 57.

The Fifth Circuit in Hander v. San Jacinto Junior College, 519 F.2d 273 (5th Cir. 1975)4 gave some guidance for determining whether the State is the real party in interest for purposes of the eleventh amendment:

In Eleventh Amendment cases the question of whether the state is "the real party in interest" is one of federal law, but federal courts must examine the powers, characteristics and relationships created by state law in order to determine whether the suit is in reality against the state itself. Id. at 279.

In addition to these factors, it is important to consider whether, in the event of monetary recovery, the judgment would have to be paid from state funds. Edelman v. Jordan, supra. See also Miller-Davis Co. v. Illinois State Toll Highway Authority, 567 F.2d 323 (7th Cir. 1977).

The Texas legislature created Texas Tech in 1923 and named it Texas Technological College. In 1969 the legislature changed the name to Texas Tech University. The statutes authorizing the operation of the University and providing for its governance are codified at Tex.Education Code Ann. §§ 109.01 et seq. (Vernon 1972 & Supp. 1978). The code provides for the "government, control, and direction of the policies of the university" by "a board of nine regents, who shall be appointed by the governor with the advice and consent of the senate." Id. at § 109.21. The statutes further provide that one of the board members act as chief executive officer, and that the board has the power of eminent domain. The funds used to purchase the university's land, buildings, and equipment were appropriated from the general revenues of the State of Texas, see Texas Technological College v. Fry, 278 S.W.2d 480 (Tex.Civ. App. — Amarillo 1954), and the University continues to operate by means of state funds.

The Education Code also provides in a separate chapter for the establishment and operation of the Texas Tech University School of Medicine at Lubbock. Tex.Education Code Ann. §§ 110.01 et seq. (Vernon 1972 & Supp.1978). The code provides that the medical school is "a separate institution and not a department, school, or branch of Texas Tech University but it is under the direction, management, and control of the Texas Tech University Board of Regents." Id. at § 110.01.

In addition, the legislature has established a Coordinating Board, Texas College and University System, Tex.Education Code Ann. §§ 61.001 et seq. (Vernon 1972 & Supp.1978), which exercises broad managerial powers over all of the public institutions of...

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