Long v. Richardson

• Decision Date: 24 October 1975
• Docket Number: No. 74-1992,74-1992
• Parties: William LONG and Patricia M. Long, his wife, Plaintiffs-Appellants, v. Dr. John RICHARDSON, acting President of Memphis State University, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 74

525 F.2d 74

William LONG and Patricia M. Long, his wife, Plaintiffs-Appellants, v. Dr. John RICHARDSON, acting President of Memphis State

University, et al., Defendants-Appellees.

No. 74-1992.

United States Court of Appeals, Sixth Circuit.

Argued June 2, 1975.

Decided Oct. 24, 1975.

C. M. Murphy, Memphis, Tenn., for plaintiffs-appellants.

Milton P. Rice, Atty. Gen. of Tenn., Nashville, Tenn., W. Henry Haile, Asst. Atty. Gen., for defendants-appellees.

Before WEICK, EDWARDS and CELEBREZZE, Circuit Judges.

EDWARDS, Circuit Judge.

Plaintiffs in this case are former law students at Memphis State University who are seeking judgment from the United States District Court in the Western District of Tennessee, Western Division, for out-of-State tuition fees paid by them while they were in school. Their complaint is filed under 42 U.S.C. § 1983 (1970). They assert violations of the equal protection and due process clauses of the United States Constitution and rely upon Vlandis v. Kline, 412 U.S. 441, 93 S.Ct. 2230, 37 L.Ed.2d 63 (1973), and Kelm v. Carlson, 473 F.2d 1267 (6th Cir. 1973).

In this suit for money judgment, plaintiffs were met at the threshold by a motion to dismiss on grounds of the Eleventh Amendment. The United States District Judge granted the motion to dismiss, relying upon Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), and Jordon v. Gilligan, 500 F.2d 701 (6th Cir. 1974), cert. denied, 421 U.S. 991, 95 S.Ct. 1996, 44 L.Ed.2d 481 (1975).

As in Vlandis v. Kline, supra, and in Kelm v. Carlson, supra, this case is filed not against Memphis State University, but against particular officials of that institution. But since these plaintiffs had graduated from law school before filing this suit, it is clear that the suit is solely for money damages. Additionally, since Memphis State University is created by and is a part of the State of Tennessee, and these defendants are not charged with acting other than in their official capacities, the judgment, if entered, would be paid out of state funds. See T.C.A. § 49-3215 (Supp.1974).

Appellant points out and relies upon the fact that much the same situation prevailed in Vlandis v. Kline, supra, and in Kelm v. Carlson, supra. There are, however, two differences. In neither of the earlier cases was the Eleventh Amendment defense raised or discussed. And, more important, both were decided before Edelman v. Jordan, supra. In Edelman Justice Rehnquist, for a five-man majority of the United States Supreme Court, declared that "a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Edelman v. Jordan, supra at 663, 94 S.Ct. at 1356.

While, as the dissenters in Edelman pointed out, there are many reasons why the Supreme Court should not have adopted this construction and application, the fact is that the Supreme Court did. And, of course, it is binding upon us.

Plaintiffs-appellants in this appeal also rely strongly upon Soni v. Board of Trustees of University of Tennessee, 513 F.2d 347 (6th Cir. 1975), petition for cert. filed, 44 U.S.L.W. 3069 (U.S. Aug. 5, 1975), where this court held that the State of Tennessee had waived the Eleventh Amendment defense as to the University of Tennessee. Our analysis of the applicable Tennessee statutes and case law convinces us that in contrast to the governing statutes concerning the University of Tennessee, there is no similar clear and specific waiver by Tennessee as to Memphis State University, and we therefore affirm dismissal of this complaint.

In Soni, supra, the case primarily relied on by appellants in this appeal, Chief Judge Phillips wrote:

Thus we are faced with the threshold question of whether this action against the University of Tennessee is a suit against the State within the meaning of the amendment. It is well established that even though a state is not named a party to an action, the eleventh amendment still may bar the action if it seeks "to impose a liability which must be paid from public funds in the state treasury . . . ." Edelman v. Jordan, 415 U.S. 651, 663, 94 S.Ct. 1347 (1974).

The educational institution now known as the University of Tennessee was incorporated by the General Assembly of Tennessee by Chapter 64 of the Acts of 1807 (Scott's Revision, Vol. 1, 1047 (1820)). The original charter provides that "The said trustees and their successors by the name aforesaid, may sue and be sued, plead and be impleaded, in any court of law or equity in this State or elsewhere."

The University is managed and controlled by the Board of Trustees, whose members include the Governor, the Commissioners of Agriculture and of Education, the President of the University, the Executive Director of the Higher Education Commission, and seventeen other members appointed by the Governor and subject to confirmation by the Tennessee Senate. T.C.A. §§ 49-3301 to -3303. The Board is empowered to borrow money and to issue bonds, which do not thereby become obligations of the State of Tennessee. T.C.A. §§ 49-3501 to -3510. The University receives income from many sources in addition to the substantial annual appropriations from the Tennessee Legislature.

In University of Tennessee v. Peoples Bank, 157 Tenn. 87, 6 S.W.2d 328 (1928), the Supreme Court of Tennessee held that a claim of the University was entitled to preference in a receivership proceeding for the liquidation of an insolvent bank. The Supreme Court said:

We are of the opinion that the state, and the public represented by it, must be considered as the owner of property held by the University, and that the sovereign character of the state's ownership is not changed by the creation of the corporation as a convenient means through which the state exercises the strictly governmental function of educating the youth among its citizens. We are not able to find that the state has lost or divested itself of any element of sovereignty in the creation of this corporation which is subject to the will of the legislative branch of the state government in every particular, and the only purpose of which is to perform a governmental function. Id. at 95, 6 S.W.2d at 330.

We have been unable to find any case discussing the University's status under the eleventh amendment. There are, however, many federal cases from other circuits holding other state colleges and universities to be state instrumentalities that enjoy the protection of the eleventh amendment. See, e. g., Brennan v. University of Kansas, 451 F.2d 1287, 1290 (10th Cir. 1971); Williams v. Eaton, 443 F.2d 422, 427-28 (10th Cir. 1971) (University of Wyoming); Walstad v. University of Minnesota Hosps., 442 F.2d 634, 641-42 (8th Cir. 1971); Board of Trustees of Arkansas A & M College v. Davis, 396 F.2d 730 (8th Cir.), cert. denied, 393 U.S. 962, 89 S.Ct. 401, 21 L.Ed.2d 375 (1968); Hamilton Mfg. Co. v. Trustees of State Colleges in Colorado, 356 F.2d 599 (10th Cir. 1966); Scott v. Board of Supervisors of Louisiana State University, 336 F.2d 557 (5th Cir. 1964); Board of Regents of the University of Nebraska v. Dawes, 370 F.Supp. 1190 (D.Neb.1974). In addition, two district courts in this circuit have reached essentially the same conclusion. Depperman v. University of Kentucky, 371 F.Supp. 73, 77 (E.D.Ky.1974); Huckins v. Board of Regents of University of Michigan, 263 F.Supp. 622 (E.D.Mich.1967).

This line of authority, of course, does not control the present case. Each state university exists in a unique governmental context, and each must be considered on the basis of its own peculiar circumstances. For example, in the Walstad and Scott cases, supra, the state constitutions apparently contained provisions specifically extending state immunities to the universities. No such provision appears in the Tennessee Constitution. In addition, a federal district court recently scrutinized three state-related universities and concluded that they were not state instrumentalities. Samuel v. University of Pittsburgh, 375 F.Supp. 1119 (W.D.Pa.1974), appeal dismissed for want of an appealable order, 506 F.2d 355 (3d Cir. 1974) (University of Pittsburgh, Temple University, Pennsylvania State University).

We are uncertain whether the University of Tennessee is a state instrumentality protected by the eleventh amendment. The record before us contains little data on the University's financial relationship with the State of Tennessee, and the Tennessee cases and statutory materials do not compel a conclusion one way or the other.

Assuming, without deciding, that this action is a suit against the State within the meaning of the eleventh amendment, we believe that Tennessee has waived the immunity by consenting to suits against the University of Tennessee. As noted above, the University's original charter provides that it may "sue and be sued, plead and be impleaded, in any court of law or equity in this State or elsewhere." We are not unmindful that a waiver of a constitutional right must appear clearly and may not be lightly inferred. Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). For example, it seems generally agreed that a state's consent to be sued in its own courts does not necessarily imply consent to be sued in federal court. See Williams v. Eaton, 443 F.2d 422, 428 (10th Cir. 1971); Scott v. Board of Supervisors of Louisiana State University, 336 F.2d 557, 558 (5th Cir. 1964). We are also aware that when a "public instrumentality is created with the right 'to sue and be sued' that waiver of immunity in the particular setting may be restricted to suits or proceedings of a special character in the state, not the federal courts." Petty v. Tennessee-Missouri Bridge Comm'n, 359 U.S. 275, 277, 79 S.Ct. 785, 787, 3 L.Ed.2d 804 (1959); see Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 465-66 & n. 8, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Board of Regents of the University...