Lesage v. State of Tex., 97-50454

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 158 F.3d 213
• Docket Number: No. 97-50454,97-50454
• Parties: 130 Ed. Law Rep. 37 Francois Daniel LESAGE, Plaintiff-Appellant, v. STATE OF TEXAS; University of Texas System; Bernard Rapoport; Thomas O. Hicks; Martha Smiley; Linnet Deily; Donald Evans; Zan Holmes, Jr.; Lowell Lebermann; Tom Loeffler; Ellen Clarke Temple; University of Texas at Austin; Robert Berdahl; College of Education; Manuel Justiz, Dean of the College of Education, in his official capacity; Frank Wicker, Director of Admissions, in his official capacity; William Cunningham, Chancellor, Chancellor of the University of Texas System in his official capacity, Defendants-Appellees.
• Decision Date: 13 October 1998

Page 213

158 F.3d 213 130 Ed. Law Rep. 37 Francois Daniel LESAGE, Plaintiff-Appellant,
v.
STATE OF TEXAS; University of Texas System; Bernard
Rapoport; Thomas O. Hicks; Martha Smiley; Linnet Deily;
Donald Evans; Zan Holmes, Jr.; Lowell Lebermann; Tom
Loeffler; Ellen Clarke Temple; University of Texas at
Austin; Robert Berdahl; College of Education; Manuel
Justiz, Dean of the College of Education, in his official
capacity; Frank Wicker, Director of Admissions, in his
official capacity; William Cunningham, Chancellor,
Chancellor of the University of Texas System in his official
capacity, Defendants-Appellees. No. 97-50454. United States Court of Appeals,
Fifth Circuit. Oct. 13, 1998.

Page 215

Steven Wayne Smith, Austin, TX, for Plaintiff-Appellant.

Christopher Norman Johnsen, Austin, TX, for Defendants-Appellees.

Linda Frances Thome, Jessica Dunsay Silver, U.S. Dept. of Justice, Appellate Section, Civil Rights Div., Washington, DC, for Intervenor.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, DeMOSS and PARKER, Circuit Judges.

DeMOSS, Circuit Judge:

Francois Daniel Lesage applied to enroll in a doctoral program in counseling psychology at The University of Texas at Austin. Midway through the University's process of accepting applicants to that program, our Court handed down its opinion in Hopwood v. Texas, 78 F.3d 932 (5th Cir.), cert. denied, 518 U.S. 1033, 116 S.Ct. 2581, 135 L.Ed.2d 1095 (1996).

Lesage, an African immigrant of Caucasian descent, was denied admission. He consequently sued the State of Texas, the University and several of its subdivisions, and various University officials in their official capacities. Lesage alleged that the University impermissibly relied on race as a selection criterion by giving preferred status to Black and Hispanic applicants. He claimed that the University's admissions policy violated the Fourteenth Amendment of the United States Constitution and 42 U.S.C. §§ 1981, 1983, and 2000d. He sought monetary, declaratory, and injunctive relief.

The state asserted sovereign immunity for itself, its agencies, and its officials acting in their official capacity under the Eleventh Amendment, and at an early stage in the proceedings the district court dismissed Lesage's claims to the extent that he sought monetary relief under §§ 1981 and 1983. Lesage moved for partial summary judgment on the issue of the state's liability, and the state moved for summary judgment based on its theory that Lesage would have been denied admission regardless of the use of racial preferences in admissions. The district court granted the state's motion and dismissed the case.

Lesage appeals from the adverse judgment, and we reverse.

I.

The state asserts that Lesage's claims under Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, are barred by the

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Eleventh Amendment. ¹ Pursuant to the United States Constitution, "[t]he 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. XI. Federal jurisdiction is thus negated with respect to covered suits, including federal suits against a state brought by the citizens of that state. See Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, ----, 117 S.Ct. 2028, 2033, 138 L.Ed.2d 438 (1997); Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). Eleventh Amendment immunity, if applicable, is shared by a state's agencies and officers to the extent that the state is the "real, substantial party in interest." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); see Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, ----, 117 S.Ct. 900, 903, 137 L.Ed.2d 55 (1997); Earles v. State Bd. of Cert. Pub. Acc'ts, 139 F.3d 1033, 1036 (5th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 444, --- L.Ed.2d ---- (1998) (No. 98-385).

The district court addressed the state's original claims of sovereign immunity with respect to the entire case and granted the state's motion to dismiss to the extent that Lesage sought monetary relief from the state pursuant to 42 U.S.C. §§ 1981 and 1983. The motion was otherwise denied. The entire case was later dismissed with prejudice pursuant to the court's entry of summary judgment in favor of the state.

Lesage may not bring his claims against the state in federal court unless the state has waived its immunity or Congress has abrogated it. Congress has conclusively resolved this issue against the state's claims of immunity by providing that "[a] State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of ... title VI of the Civil Rights Act of 1964." 42 U.S.C. § 2000d-7(a)(1).

A.

The state contends that the abrogation of its Eleventh Amendment immunity under 42 U.S.C. § 2000d-7(a)(1) is invalid. "In order to determine whether Congress has abrogated the States' sovereign immunity, we ask two questions: first, whether Congress has 'unequivocally expresse[d] its intent to abrogate the immunity'; and second, whether Congress has acted 'pursuant to a valid exercise of power.' " Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 1123, 134 L.Ed.2d 252 (1996) (quoting Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985)) (internal citation omitted, alterations in original). The first element of this inquiry--"a clear legislative statement," id., of congressional intent to abrogate the states' immunity--has plainly been satisfied by 42 U.S.C. § 2000d-7(a)(1).

The second element--federal legislative power to accomplish the abrogation--is also present. The Constitution forbids any state law that may "deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend. XIV, § 1. This provision has been construed to mean that in the distribution of benefits a state government cannot discriminate among citizens on the basis of race absent a compelling

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governmental interest in doing so, narrowly tailored to accomplish that need. See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2113, 132 L.Ed.2d 158 (1995); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94, 109 S.Ct. 706, 721-22, 102 L.Ed.2d 854 (1989); Dallas Fire Fighters Ass'n v. City of Dallas, Tex., 150 F.3d 438, 440-41 (5th Cir.1998); Messer v. Meno, 130 F.3d 130, 135-36 (5th Cir.1997), petition for cert. filed, 67 U.S.L.W. 3259 (U.S. Sept. 23, 1998) (No. 98-535); Hopwood, 78 F.3d at 940.

Congress has "power to enforce" the substantive provisions of the Fourteenth Amendment. U.S. CONST. amend. XIV, § 5. While this is a broad grant of power, it is not unlimited. See City of Boerne v. Flores, 521 U.S. 507, ----, 117 S.Ct. 2157, 2163, 138 L.Ed.2d 624 (1997) (quoting Oregon v. Mitchell, 400 U.S. 112, 128, 91 S.Ct. 260, 266, 27 L.Ed.2d 272 (1970)). Congress only has the power to "enforce." This power is not a power to decree or change the substance of constitutional rights, because if it were Congress could no longer be said to be enforcing the provisions of the Fourteenth Amendment. See id. at ----, 117 S.Ct. at 2164. The Supreme Court thus recently announced a new standard for testing whether Congress has properly exercised Section Five power: "There must be a congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." Id. at ----, 117 S.Ct. at 2164. This Court has paraphrased the command in Flores to involve consideration of "two primary facets: the extent of the threatened constitutional violations, and the scope of the steps provided in the legislation to remedy or prevent such violations." Coolbaugh v. Louisiana ex rel. La. Dep't of Public Safety & Corr., 136 F.3d 430, 435 (5th Cir.1998), cert. denied, --- U.S. ----, 119 S.Ct. 58, --- L.Ed.2d ---- (1998) (No. 97-1941) (petition filed by Coolbaugh on ADA issues); see also Scott v. University of Miss., 148 F.3d 493, 501-02 (5th Cir.1998).

In the case of Title VI, the constitutional concern is racial discrimination in federally funded public institutions. Racial discrimination by state actors invokes the prohibition of the Equal Protection Clause. See U.S. CONST. amend. XIV, § 1. The legislation enacted by Congress to enforce that prohibition provides that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. This law prohibits precisely that which the Constitution prohibits in virtually all possible applications. ² It can therefore hardly be argued that the statute does not reflect "congruence and proportionality between the injury to be prevented or remedied and the means adopted to that end." That being the case, the original enactment of Title VI, as well as the subsequent explicit abrogation of state sovereign immunity to permit federal enforcement of Title VI, were within the congressional power to enforce the Fourteenth Amendment.

B.

The state suggests that Congress intended to invoke its powers under the Spending Clause rather than the Fourteenth Amendment when it enacted Title VI. Assuming arguendo the validity of that proposition concerning the subjective intent of certain legislators, it is entirely irrelevant to our inquiry. In evaluating the constitutionality of a statute, we simply ask if Congress sufficiently articulated an abrogation of state sovereign immunity and if it had the power to do so. See Seminole Tribe, 517 U.S. at 55, 116 S.Ct. at 1123. This is an entirely objective inquiry, for " '[t]he constitutionality of action...