Williams ex rel. J.E. v. Reeves

• Decision Date: 07 December 2020
• Docket Number: No. 19-60069,19-60069
• Citation: 981 F.3d 437 (Mem)
• Parties: Indigo WILLIAMS, ON BEHALF OF her minor child J.E.; Dorothy Haymer, on behalf of her minor child, D.S.; Precious Hughes, on behalf of her minor child, A.H.; Sarde Graham, on behalf of her minor child, S.T., Plaintiffs—Appellants, v. Tate REEVES, in his official capacity as Governor of Mississippi; Philip Gunn, in his official capacity as Speaker of the Mississippi House of Representatives; Tate Reeves, in his official capacity as Lieutenant Governor of Mississippi; Delbert Hosemann, in his official capacity as Secretary of State of Mississippi; Carey M. Wright, in her official capacity as State Superintendent of Education and Executive Secretary of MS State Board of Education; Rosemary Aultman, in her official capacity as Chair of the Mississippi State Board of Education; Jason Dean, in his official capacity as Member of the Mississippi State Board of Education; Buddy Bailey, in his official capacity as Member of the Mississippi State Board of Education; Kami Bumgarner, in her official capacity as Member of the Mississippi State Board of Education; Karen Elam, in her official capacity as Member of the Mississippi State Board of Education; Johnny Franklin, in his official capacity as Member of the Mississippi State Board of Education; William Harold Jones, in his official capacity as Member of the Mississippi State Board of Education; John Kelly, in his official capacity as Member of the Mississippi State Board of Education; Charles McClelland, in his official capacity as Member of the Mississippi State Board of Education, Defendants—Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

981 F.3d 437 (Mem)

Indigo WILLIAMS, ON BEHALF OF her minor child J.E.; Dorothy Haymer, on behalf of her minor child, D.S.; Precious Hughes, on behalf of her minor child, A.H.; Sarde Graham, on behalf of her minor child, S.T., Plaintiffs—Appellants,

v.Tate REEVES, in his official capacity as Governor of Mississippi; Philip Gunn, in his official capacity as Speaker of the Mississippi House of Representatives; Tate Reeves, in his official capacity as Lieutenant Governor of Mississippi; Delbert Hosemann, in his official capacity as Secretary of State of Mississippi; Carey M. Wright, in her official capacity as State Superintendent of Education and Executive Secretary of MS State Board of Education; Rosemary Aultman, in her official capacity as Chair of the Mississippi State Board of Education; Jason Dean, in his official capacity as Member of the Mississippi State Board of Education; Buddy Bailey, in his official capacity as Member of the Mississippi State Board of Education; Kami Bumgarner, in her official capacity as Member of the Mississippi State Board of Education; Karen Elam, in her official capacity as Member of the Mississippi State Board of Education; Johnny Franklin, in his official capacity as Member of the Mississippi State Board of Education; William Harold Jones, in his official capacity as Member of the Mississippi State Board of Education; John Kelly, in his official capacity as Member of the Mississippi State Board of Education; Charles McClelland, in his official capacity as Member of the Mississippi State Board of Education, Defendants—Appellees.

No. 19-60069

United States Court of Appeals, Fifth Circuit.

FILED December 7, 2020

William B. Bardwell, Esq., Christine Bischoff, Attorneys, Southern Poverty Law Center, Jackson, MS, Rita Bender, William Bender, Skellenger Bender, P.S., Seattle, WA, Brad Elias, Anton Metlitsky, O'Melveny & Myers, L.L.P., New York, NY, Jason Zarrow, O'Melveny & Myers, L.L.P., Washington, DC, for Plaintiffs-Appellants.

Krissy C. Nobile, Esq., Office of the Attorney General for the State of Mississippi, Jackson, MS, for Defendants-Appellees.

Kyle Douglas Hawkins, Office of the Attorney General, Office of the Solicitor General, Austin, TX, for Amici Curiae.

Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.

Per Curiam:

The court having been polled at the request of one of its members, and a majority of the judges who are in regular active service and not disqualified not having voted in favor ( Fed. R. App. P. 35 and 5^th Circ. R. 35 ), the petition for rehearing en banc is DENIED.

In the en banc poll, 8 judges voted in favor of rehearing (Judges Jones, Smith, Elrod, Willett, Ho, Duncan, Oldham, and Wilson), and 9 judges voted against rehearing (Chief Judge Owen and Judges Stewart, Dennis, Southwick, Haynes, Graves, Higginson, Costa, and Engelhardt).

EDITH H. JONES, Circuit Judge, joined by SMITH, ELROD, WILLETT,^* HO,* DUNCAN, OLDHAM, and WILSON, Circuit Judges, dissenting from the denial of rehearing en banc

This strange case seeks a declaratory judgment that Mississippi's 1868 Constitution, which satisfied the terms of the post-Civil War Readmission Act of Congress, granted more educational rights to African-American children than an amendment to the state's Constitution in 1987. The sought-for judgment, in essence, would tell Mississippi what its state Constitution meant then and means now and would pave the way for federal court orders to effect a major restructuring of state school funding. Federal courts, however, have no business interpreting and enforcing state law against state government. Federalism, the principle of dual sovereignties, is a bedrock principle of our Founding and a bulwark of individual liberty because it diffuses the exercise of power by governments. Not only the Eleventh Amendment, but "the fundamental rule [of dual sovereignty] of which the Amendment is but an exemplification,"¹ protects states from abuse by federal courts. The Supreme Court expressed the basic roadblock to maintaining this suit in federal court:

A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment.

Pennhurst State School & Hosp. v. Halderman , 465 U.S. 89, 106, 104 S. Ct. 900, 911, 79 L.Ed.2d 67 (1984).

Pennhurst clearly forbids federal courts from adjudicating claims of state law against nonconsenting sovereign states in federal court. The panel here nonetheless issued a Janus-faced opinion, finding one of the plaintiffs’ claims barred according to Pennhurst , while permitting another, virtually identical claim, to move forward in the district court.

This court refused to order en banc reconsideration. I respectfully dissent. State sovereign immunity should bar this suit in its entirety based on Pennhurst . Moreover, such sovereign immunity includes immunity from suit, not simply adverse judgments; we should alternatively have dismissed the suit because the Mississippi Readmission Act created no implied private right of action on behalf of these plaintiffs.

I. Background

Following the Civil War, Mississippi's readmission to full statehood required it to adopt a constitutional guarantee of a republican form of government to all state residents.² Mississippi adopted a constitution in 1868 that did just that. Article Eight of Mississippi's 1868 Constitution contained a series of provisions related to education and the establishment and maintenance of public schools. Section 1 of Article Eight, relevant to this case, provides:

As the stability of a republican form of government depends mainly upon the intelligence and virtue of the people, it shall be the duty of the Legislature to encourage, by all suitable means, the promotion of intellectual, scientific, moral, and agricultural improvement, by establishing a uniform system of free public schools, by taxation or otherwise, for all children between the ages of five and twenty-one years, and shall, as soon as practicable, establish schools of higher grades.

MISS. CONST. of 1868, art. VIII § 1 (emphasis added).

Shortly after the 1868 Constitution was ratified, Congress enacted the Mississippi Readmission Act, which premised the state's restored rights on certain "fundamental conditions," including: "That the constitution of Mississippi shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the constitution of said State ." 16 Stat. 6768 (1870) (emphasis added).³ Since 1868, the quoted state constitutional provision has been amended four times. The current version, adopted in 1987, states: "The Legislature shall, by general law, provide for the establishment, maintenance and support of free public schools upon such conditions and limitations as the Legislature may prescribe." MISS. CONST. , art. VIII § 201.

The plaintiffs comprise a group of low-income African-American women whose children attend Mississippi public schools. They allege "that the current version of the Mississippi Constitution violates the ‘school rights and privileges’ condition of the Mississippi Readmission Act." Williams v. Reeves, 954 F.3d 729, 732 (5th Cir. 2020). "They highlight one specific difference between the 1868 and 1987 education clauses: While the 1868 version of the education clause required the Legislature to establish ‘a uniform system of free public schools,’ the 1987 version has no reference to ‘uniform[ity],’ mandating only that the Legislature provide for the establishment of a system of ‘free public schools.’ " Id. at 733 (emphasis and alteration in original). The plaintiffs contend that the removal of the word "uniform" from Mississippi's Constitution violates the Readmission Act, resulting in disuniform schools and a number of injuries, including illiteracy, a diminished likelihood of high school graduation, low rates of college attendance, and an increased likelihood of future poverty.

The named defendants, sued in their official capacities, include Mississippi's Governor, Lieutenant Governor, Speaker of the House, Secretary of State, and the entire State Board of Education. They moved to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). The district court granted the defendants’ 12(b)(1) motion, holding that it lacked jurisdiction based on Eleventh Amendment sovereign immunity. On reconsideration, the court dismissed without prejudice.

On appeal, the plaintiffs defended their "request [for] a ‘prospective declaratory judgment’ that makes two distinct findings: first ‘that Section 201 of the Mississippi Constitution is violating the Readmission Act,’ and second, ‘that the requirements of Article VIII, Section 1 of the Constitution of 1868 remain legally binding on the [d]efendants, their employees, their agents, and their successors.’ " Id. at 734. The panel affirmed the district court's dismissal concerning the second of plaintiffs’ requests because it "seeks a declaration of state law and is therefore barred by the Supreme Court's decision in Pennhurst ...." Id. (emphasis in original).

Contrarily, the panel reasoned that the plaintiffs’ first request for declaratory relief fits within Ex parte Young ’s exception to sovereign immunity for cases in which a state officer is charged with acting in violation of federal law. Id. at 735–36. Plaintiffs allege that Section 201 of the current Mississippi constitution violates federal law, specifically, the Mississippi Readmission Act's confirmation of "school rights and privileges." That the "school rights and privileges" language depends on the state's 1868 constitution, the panel...