Most state-supported institutions of higher education are considered to be arms of the state for purposes of the Eleventh Amendment. Consequently, an understanding of the Eleventh Amendment and the U.S. Supreme Court’s interpretation of it is particularly important for higher education attorneys, administrators, and legal scholars when confronted by the threat of litigation.
Essentially, “sovereign immunity of the states” means that private individuals or corporations cannot sue the states, state agencies, state institutions, or state officials in their official capacities. Therefore, if state colleges and universities are considered “arms of the state,” then both the entities and their administrators generally are immune from litigation. Yet, contrary to popular belief, sovereign immunity does not mean that the states may violate federal law, that federal law is inapplicable to the states, or that the federal government cannot enforce federal law. Rather, sovereign immunity simply prevents private parties from enforcing certain federal claims against states. Sovereign immunity does not bar a suit by the federal government or another state. By ratifying the Constitution, the states surrendered their sovereign immunity for these claims.
Moreover, even with respect to private parties, sovereign immunity is not absolute. There are three exceptions. First, as discussed in more detail below, Congress may abrogate sovereign immunity in some limited circumstances—notably whenever a statutory claim also involves a violation of the Fourteenth Amendment. Second, a state—in the exercise of its sovereignty—may choose to waive its sovereign immunity for certain claims. However, such waivers must be clear and unambiguous and may include limitations as to both the amount that can be recovered and the forum where suits must be brought. Third, under the doctrine of a 1908 U.S. Supreme Court case, Ex Parte Young, private parties generally—but not always—can obtain an injunction to stop state officials from engaging in ongoing violations of federal law. The Young doctrine rests on the theory that no state would violate federal law, and any official who does so is no longer acting as the state, but is in fact a rogue officer who must be stopped. The availability of injunctive relief under the Young doctrine effectively means that sovereign immunity is limited to damages claims. As long as private parties are able to enforce a federal law, the parties will be able to obtain injunctive relief.
Under the terms of the Eleventh Amendment “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.” In the past, many scholars and the Supreme Court itself used the term “Eleventh Amendment immunity” to describe this immunity. Yet “sovereign immunity” is the more accurate term. As the Supreme Court recently observed,
the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today. (Alden v. Maine, 1999, p. 713)
In the founding years of the United States, there was widespread acceptance of the proposition that states had immunity from private suits. In 1793, the Supreme Court held in Chisholm v. Georgia that private citizens from one state could sue another state. In reaction, and almost immediately, Congress passed and the states subsequently ratified the Eleventh Amendment, effectively overturning Chisholm.
While the text of the Eleventh Amendment is limited to the concerns raised in those ratification debates, the Eleventh Amendment confirms a much broader proposition, namely that the states are immune from suits. It is important to note that sovereign immunity does not exist solely in order to prevent judgments in federal courts from being paid out of state treasuries. Instead, the Eleventh Amendment allows the states to avoid being subjected to “the indignity of . . . the coercive process of judicial tribunals at the instance of private parties” (Puerto Rico Aqueduct & Sewer Authority v. Metcalfe & Eddy, 1993, p. 146).
The immunity confirmed by the Eleventh Amendment, then, bars suits against the states by Indian tribes, foreign nations, and corporations created by the national government. Moreover, the Eleventh Amendment applies to proceedings in state court, federal administrative proceedings, admiralty proceedings, and situations where state treasuries are not implicated.
The long history of the Eleventh Amendment notwithstanding, there was a period when the Supreme Court created so many exceptions that it effectively nullified sovereign immunity. In 1976, the Court reasoned that Congress could abolish states’ sovereign immunity by exercising its powers to enforce the Fourteenth Amendment, which allows the federal government to intervene if states abridge the rights of U.S. citizens. In 1989, the Court extended that holding in declaring that Congress could use any of its powers to limit state sovereign immunity, thereby giving it virtually unlimited power to strip the states of their sovereign immunity. Not surprisingly, Congress took advantage of these rulings and proceeded to cancel state sovereign immunity for most federal statutes.
All of this changed in 1996, in Seminole Tribe v. Florida, when the Supreme Court reversed itself in ruling that congressional power to abrogate sovereign immunity was limited to its efforts to enforce the Fourteenth Amendment. Although this case was constitutionally significant in that it technically limited congressional power to nullify sovereign immunity, it had little practical effect, because at the time, congressional powers to enforce the Fourteenth Amendment were almost unlimited. Consequently, Congress could still abrogate sovereign immunity for most federal statutes.
A year later, in City of Boerne v. Flores (1997), the Supreme Court imposed significant limitations on the power of Congress to enforce the Fourteenth Amendment. Flores declares that Congress may enforce only the actual substantive guarantees of the Fourteenth Amendment, which include equal protection of the laws, the privileges or immunities of national citizenship, and due process.
When Flores and Seminole Tribe are combined, congressional abrogation of sovereign immunity becomes extremely difficult. In order to have a valid abrogation, Congress must first make a specific finding that states are violating the substantive guarantees of the Constitution. Once there are such findings, Congress must then demonstrate that abrogation of sovereign immunity for a particular class of claims is a proportionate response to the violations.
Recent Supreme Court cases—particularly those involving higher education—illustrate the points made above. For example, in Florida Prepaid v. College Savings Bank (1999), the Court decided that Congress could not abrogate sovereign immunity for intellectual property claims. In Kimel v. Florida Board of Regents (2000), the Court noted that Congress could not abrogate sovereign immunity for Age Discrimination in Employment Act claims. In 2001, in Board of Trustees of the University of Alabama v. Garrett, the Court pointed out that Congress could not abrogate sovereign immunity for employment claims under the Americans with Disabilities Act. In 2002, in Federal Maritime Commission v. South Carolina State Ports Authority, the Court maintained that sovereign immunity extended not only to judicial proceedings but to federal administrative proceedings.
In the final years of the Rehnquist Court, the justices suddenly became reluctant to expand sovereign immunity. In 2003, in Nevada Department of Human Resources v. Hibbs, the Court observed that sovereign immunity was abrogated for family care provisions of the Family and Medical Leave Act. In 2004, in Tennessee Student Assistance Corp. v. Hood, the Court noted that sovereign immunity did not bar an action against a higher education entity to discharge a student loan. That same year, in Tennessee v. Lane, the Court held that sovereign immunity had been abrogated for claims under Title II of the Americans with Disabilities Act that involved the fundamental constitutional right of access to the courts. This reluctance continued during the first term of the Roberts Court. In United States v. Georgia (2006), the Court unanimously determined that Congress could abrogate sovereign immunity for a claim under Title II of the Americans with Disabilities Act that was also a constitutional claim. In effect, the Court held that Congress always could abrogate sovereign immunity for claims that involve actual Fourteenth Amendment violations.
Finally, in Central Virginia Community College v. Katz (2006), the Court declared that by ratifying the Constitution, the states had surrendered their sovereign immunity “in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts.” As a practical matter, this means that the states may be subjected to suits to recover alleged preferential transfers. However, the Court did not address the immunity for other bankruptcy proceedings, such as a contract claim. Moreover, Katz should be understood not as an expansion of Congress’s power to abrogate sovereign immunity, but as an expansion of the scope of sovereignty that was surrendered when the states ratified the Constitution.
William E. Thro
See also Federalism
- College Savings Bank v. Florida Prepaid, 527 U.S. 666 (1999).
- Noonan, J. T., Jr. (2002). Narrowing the nation’s power: The Supreme Court sides with the states. Berkeley: University of California Press.
- Thro, W. E. (1999). The Eleventh Amendment revolution in the lower federal courts. Journal of College & University Law, 25, 501–526.
- Thro, W. E. (2000). The education lawyer’s guide to the sovereign immunity revolution. Education Law Reporter, 146, 951–981.
- Thro, W. E. (2007). The future of sovereign immunity. Education Law Reporter, 215, 1–31.
- Thro, W. E. (2007). Why you cannot sue State U: A guide to sovereign immunity (2nd ed.). Washington, DC: National Association of College University Attorneys.
- Alden v. Maine, 527 U.S. 706, 713 (1999).
- Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).
- Central Virginia Community College v. Katz, 126 S. Ct. 990 (2006).
- Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
- City of Boerne v. Flores, 521 U.S. 507 (1997).
- Ex Parte Young, 209 U.S. 123 (1908).
- Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002).
- Florida Prepaid v. College Savings Bank, 527 U.S. 627 (1999).
- Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).
- Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).
- Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, 539 U.S. 139 (1993).
- Seminole Tribe v. Florida, 517 U.S. 44 (1996).
- Tennessee v. Lane, 541 U.S. 509 (2004).
- Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440 (2004)
- United States v. Georgia, 126 S. Ct. 877 (2006).