Les Hadley v. North Arkansas Community Technical College , 76 F.3d 1437 ( 1996 )

LOKEN, Circuit Judge.

Les Hadley filed this civil rights action under 42 U.S.C. § 1983 alleging that his former employer, North Arkansas Community Technical College (“NACTC”), violated his due process rights by summarily terminating him as a vocational instructor. NACTC moved for summary judgment, claiming that it is an arm of the State entitled to Eleventh Amendment immunity from this federal court damage action. The district court¹ denied the motion, and we remanded for further consideration in light of Sherman v. Curators of Univ. of Mo., 16 F.3d 860 (8th Cir.1994), and Greenwood v. Ross, 778 F.2d 448 (8th Cir.1985). The court then concluded in a thorough opinion that NACTC is entitled to Eleventh Amendment immunity and dismissed Hadley’s claim. Hadley appeals. We affirm.

I.

The Eleventh Amendment immunizes an uneonsenting State from damage actions brought in federal court, except when Congress has abrogated that immunity for a particular federal cause of action. See generally Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Section 1983 does not override Eleventh Amendment immunity. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 63, 109 S.Ct. 2304, 2308, 105 L.Ed.2d 45 (1989), construing Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Therefore, if NACTC is entitled to the State of Arkansas’s Eleventh Amendment immunity, the district court properly dismissed Hadley’s claim.

A state agency or official may invoke the State’s Eleventh Amendment immunity if immunity will “protect the state treasury from liability that would have had essentially the same practical consequences as a judgment against the State itself.” Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 123 n. 34, 104 S.Ct. 900, 920, 79 L.Ed.2d 67 (1984), quoting Lake Country Estates, Inc. v. Tahoe Reg. Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171, 1177, 59 L.Ed.2d 401 (1979); see Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 463-64, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). On the other hand, Eleventh Amendment immunity does not extend to independent political subdivisions created by the State, such as counties and cities. See Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890). The issue is whether NACTC “is to be treated as an arm of the State ... or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend.” Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977) (holding that Ohio local school districts are like political subdivisions and therefore not immune). State universities and colleges almost always enjoy Eleventh Amendment immunity.² On the other hand, community and technical colleges often have deep roots in a local community. When those roots include local political and financial involvement, the resulting Eleventh Amendment immunity questions tend to be difficult and very fact specific.³

Eleventh Amendment immunity reflects respect for state sovereignty and a desire to protect the state treasury. A narrow majority of the Supreme Court recently held that exposure of the state treasury is a more important factor than whether the State controls the entity in question. Hess v. Port Auth. Trans-Hudson Corp., — U.S. -, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). We see nothing inconsistent with the majority’s reasoning in Hess and the approach we have developed for deciding whether a particular institution of higher learning is entitled to Eleventh Amendment immunity. In addition, Hess involved a bi-State compact entity, and the majority cautioned that “there is good reason not to amalgamate Compact Clause entities with agencies of ‘one of the United States’ for Eleventh Amendment purposes.” Id. at -, 115 S.Ct. at 402. Therefore, we adhere to the test that we instructed the district court to apply on remand, which requires that we

examine the particular entity in question and its powers and characteristics as created by state law to determine whether the suit is in reality a suit against the state. Courts typically look at the degree of local autonomy and control and most importantly whether the funds to pay any award will be derived from the state treasury.

Greenwood v. Ross, 778 F.2d 448, 453 (8th Cir.1985), quoting Laje v. R.E. Thomason Gen. Hosp., 665 F.2d 724, 727 (5th Cir.1982) (citations omitted in original).

II.

Like the district court, we begin by examining “the nature of the entity created by state law.” Mt. Healthy, 429 U.S. at 280, 97 S.Ct. at 572; see Seibert v. University of Okl. Health Sciences Ctr., 867 F.2d 591, 594-95 (10th Cir.1989). Amendment 52 to the Arkansas Constitution authorizes the General Assembly to establish community college districts. The General Assembly has authorized the State Board of Higher Education to formulate criteria for establishing community colleges, and to certify proposed community college districts. See Ark.Code Ann. §§ 6-61-505 to -510. A district is created if a majority of the voters in the proposed district vote in favor of establishing the community college. § 6-61-513. Under a 1991 statute, technical colleges may “become part of the Arkansas technical and community college system under the coordination of the State Board of Higher Education.” § 6-53-301(a) (Supp.1993). That law prompted the 1992 merger of North Arkansas Community College and Twin Lakes Technical College into NACTC.

By statute, the State must provide community colleges “[flunds for the general operation of an adequate comprehensive educational program.” Ark.Code Ann. § 6-61-601(a). To this end:

The amount of state revenues to be recommended for the general operation of each community college shall be the difference between the recommended budget and the total of income for general operation, including student fees and any other income except local taxes. The recommended budget for general operation shall be sufficient to provide an adequate comprehensive educational program ... as determined by the [State Board of Higher Education].

§ 6-61-601(c)(2). For purposes of state appropriation and expenditure procedures, the term “State agency” includes “state-supported institutions of higher learning ... functioning under appropriation made by the General Assembly.” § 19^4-801(1)(A). For the 1993-94 fiscal year, 58.2% of NACTC’s total budget was provided by state funds appropriated by the General Assembly. Moreover, the state treasury is structured to include an NACTC Fund that is dedicated to the “maintenance, operation, and improvement” of NACTC. § 19-5-303(m) (Supp. 1993).

To this point, it seems clear that NACTC is, both financially and institutionally, an arm of the State, and that any damage award to Hadley would inevitably be paid from the state treasury. Those are the factors that led us to conclude in Dover Elevator, 64 F.3d at 446-47, that Arkansas State University is entitled to Eleventh Amendment immunity. But Arkansas community colleges also have elements of local funding and control that require further analysis.

The Arkansas Constitution permits community colleges to be partially funded at the local level:

The General Assembly shall prescribe the method of financing such community college and technical institutes, and may authorize the levy of a tax upon the taxable property in such districts for the acquisition, construction, reconstruction, repair, expansion, operation, and maintenance of facilities therefor.

Amendment 52, § 1. The General Assembly has made local financial participation mandatory:

(a) Each community college district shall be responsible for all capital outlay expenses⁴ ... except that the state may share the responsibility for capital outlay expenses for any community college which has an enrollment of at least one thousand (1,000) full-time equivalent students....

(b) Capital outlay expenses shall be paid from gifts, grants, profits from auxiliary enterprises, tuition, fees, local millages, and other local funds and may be paid from state funds appropriated for such purposes.

§ 6-61-603 (Supp.1993). Therefore, when the voters of Boone County, Arkansas, voted in 1973 to establish NACTC’s community college district, they authorized the levy of a tax not to exceed five mills on taxable property in the district “for the purchase of land and for the construction and furnishing of buildings and facilities for such college.” That authority was extended indefinitely in a special election in 1977. However, while local tax revenues have financed NACTC buildings and improvements, those funds are subject to most state accounting and budgetary procedures, § 19-4-803(b)(2); NACTC is a “State agency” for purposes of the Arkansas State Building Services Act, § 22-2-102(5); and the campus is State owned.

In fiscal 1993-1994, NACTC received $317,366 in local tax revenues, some three percent of its total budget. Those funds were dedicated to new acquisitions or the issuance of bonds to finance new acquisitions. See § 19-4-803(b)(2) (college must use funds from a millage levy “for the purposes stated on the ballot at the time of the election authorizing the millage”); Ark. Const. Art. 16, § 11 (“no moneys arising from a tax levied for one purpose shall be used for any other purpose”). Although the General Assembly has authorized community college districts to levy for general college operations “[i]n the event the local board of a community college wishes to spend larger sums of money than the state funds provided for general operation,” § 6-61-602(a), NACTC has never received any funds for general operations from local tax levies. In fiscal 1993-1994, NACTC’s operating expense ⁵ revenues were 75.1% state appropriated funds, 22.1% tuition payments, and 2.8% federal grants and private donations.

In these circumstances, we conclude that Hadley’s claim “is in reality a suit against the state,” Sherman, 16 F.3d at 863, because “the funds to pay any award will be derived from the state treasury,” Dover Elevator, 64 F.3d at 446. Hadley argues that he seeks damages of less than $250,000 and therefore any award could be paid from other sources, such as future local tax increases, tuition, federal grants, or other discretionary funds. However, while there is dictum in Sherman suggesting it is relevant “whether a judgment against the University can be paid from non-state funds under the University’s discretionary control,” 16 F.3d at 865 (emphasis added), traditional Eleventh Amendment cases did not require a speculative analysis of whether a college largely funded by the State might be able to pay a judgment in the first instance from other revenue sources, and Greenwood and Sherman were not departures from prior Eleventh Amendment jurisprudence. See Treleven v. University of Minnesota, 73 F.3d 816, 818-19 (8th Cir.1996). Mt. Healthy directs us to examine “the nature of the entity,” 429 U.S. at 280, 97 S.Ct. at 572, not the nature of the relief the plaintiff seeks.

Arkansas calls NACTC a state agency⁶ and has made its daily operations financially dependent upon the state treasury. The district’s never-exercised authority to supplement NACTC’s operating budget with limited local tax revenues⁷ does not change the fact that the State has created an institution of higher learning “that is dependent upon and functionally integrated with the state treasury.” Kashani v. Purdue Univ., 813 F.2d 843, 846 (7th Cir.), cert. denied, 484 U.S. 846, 108 S.Ct. 141, 98 L.Ed.2d 97 (1987). The relevant funding inquiry cannot be whether NACTC enjoys some non-state funding, such as user fees (tuition), because then most state departments and agencies, and all state universities, would be denied Eleventh Amendment immunity.⁸ Here, even if NACTC could initially satisfy a judgment from other operating revenues, such as tuition payments or federal grants, the judgment would produce a higher operating budget shortfall that must, by state law, be satisfied by an appropriation from the state treasury. Thus, Hadley’s action “is in essence one for the recovery of money from the state.” Ford Motor, 323 U.S. at 463-64, 65 5.Ct. at 350.

III.

Moving from the critical subject of state funding to the less important question of state control, we agree with the district court that there is substantial, but far from total, state control over NACTC. The State Board of Higher Education is comprised of thirteen members appointed by the governor and confirmed by the Senate. § 6-61-201(a)(l) (Supp.1993). The State Board acting as the State Community College Board has broad powers and duties to guide and regulate community colleges. Ark.Code Ann. §§ 6-61-501(5) (Supp.1993), 6-61-505. The College Panel of the State Board participates actively and widely in NACTC’s day-to-day operation. For example, the College Panel establishes minimum qualifications for the college president, § 6-53-203(a)(3) (Supp.1993); evaluates NACTC budget requests, §§ 6-53-203(a)(4) (Supp.1993), 6-61-601; develops budget forms and determines that state funds are properly spent, §§ 6-53-203(a)(5), (6) (Supp.1993), 6-61-209; determines minimum tuition and fee levels, §§ 6-53-203(a)(7) (Supp.1993), 6-53-208 (Supp.1993), 6-61-215; recommends establishing, expanding, or abolishing institutions, § 6-53-203(a)(9) (Supp. 1993); and reviews curriculum proposals and changes, §§ 6-53-203(d) (Supp.1993), 6-61-214 (Supp.1993). The State Board also approved the merger of North Arkansas Community College and Twin Lakes Technical College into NACTC, the college’s name change, and the its degree programs and courses.

However, the General Assembly has also granted substantial control over NACTC’s daily affairs to locally-elected officials. NACTC has a Local Board of nine qualified electors of the community college district who are elected on a nonpartisan basis for six-year terms. § 6-61-520 (Supp.1993). The Local Board, with the advice of the State Board, has broad power to select college officers; develop NACTC’s education program; appoint a college president and fix the president’s compensation and terms of office; appoint members of the administrative and teaching staffs and fix their compensation and terms of employment; enter into contracts; accept grants and contributions; acquire, own, lease, use, and operate property; and exercise the right of eminent domain. § 6-61-521. Thus, as the district court noted, NACTC with its Local Board is significantly more autonomous than Arkansas state-wide universities. On the other hand, when it comes to finances — the essence of the Eleventh Amendment inquiry — the State Board’s ultimate authority is ensured by its power to withhold state funding if NACTC fails to comply with “prescribed standards of administration or instruction.” § 6-53-105 (Supp.1993).

Read together¹, the provisions delimiting the responsibility of the State and Local Boards reveal a community college system that blends state and local interests and authorities. The local control is of course relevant but falls short, in our view, of making NACTC the Eleventh Amendment equivalent of a political subdivision. In the final analysis, while Eleventh Amendment immunity is a question of federal law, the structuring of state government is the province of the States. Nothing precludes a State from delivering regional or even local governmental services through an arm of the State, from permitting voters in an affected locale to help staff a state agency, or from providing highly structured local input to state agency deci-sionmaking.⁹ Here, Arkansas calls NACTC a state agency, allows for substantial local autonomy but provides ultimate state control, and — most importantly — funds the agency’s general operations primarily from the state treasury. We agree with the district court that NACTC is entitled to Eleventh Amendment immunity.

The judgment of the district court is affirmed.

1 . The HONORABLE H. FRANKLIN WATERS, Chief Judge, United States District Court for the Western District of Arkansas.

2 . For cases involving Eighth Circuit institutions, see Dover Elevator Co. v. Arkansas State Univ., 64 F.3d 442, 446-47 (8th Cir.1995); Richmond v. Board of Regents of Univ. of Minn., 957 F.2d 595, 599 (8th Cir.1992); Sherman v. Curators of Univ. of Mo., 871 F.Supp. 344, 345 (W.D.Mo.1994); Van Pilsum v. Iowa State Univ. of Science and Tech., 863 F.Supp. 935, 937 (S.D.Iowa 1994); Assaad-Faltas v. University of Ark. for Medical Sciences, 708 F.Supp. 1026, 1030 (E.D.Ark.1989), aff'd, 902 F.2d 1572 (8th Cir.), cert. denied, 498 U.S. 905, 111 S.Ct. 271, 112 L.Ed.2d 227 (1990). A fact specific exception to the general rule is Kovats v. Rutgers, the State Univ., 822 F.2d 1303, 1307 (3d Cir.1987).

3 . See, e.g., Mitchell v. Los Angeles Community College Dist., 861 F.2d 198, 201-202 (9th Cir.1988), cert. denied, 490 U.S. 1081, 109 S.Ct. 2102, 104 L.Ed.2d 663 (1989); Goss v. San Jacinto Junior College, 588 F.2d 96, 98-99 (5th Cir.), modified on other grounds, 595 F.2d 1119 (5th Cir.1979); Korgich v. Regents of New Mexico Sch. of Mines, 582 F.2d 549, 551 (10th Cir.1978); Durrani v. Valdosta Technical Inst., 810 F.Supp. 301, 305 (M.D.Ga.1992), aff'd, 3 F.3d 443 (11th Cir.1993); Moche v. City Univ. of New York, 781 F.Supp. 160, 165-66 (E.D.N.Y.1992), aff'd, 999 F.2d 538 (2nd Cir.1993); Thomquest v. King, 626 F.Supp. 486, 488-89 (M.D.Fla.1985).

4 . Essentially, expenditures for land, buildings, and furniture and equipment. See § 6-61-501(2).

5 . "Operating expenses” include "funds devoted to or required for the regular or ordinary expense of the college, including administrative, maintenance, and salary expenses, but excluding capital outlay expenses, student activity expenses, and expense for intercollegiate athletics.” § 6-61-501(3) (Supp.1993); see also § 6-53-103(9) (Supp.1993).

6 . Arkansas has also characterized NACTC as a “state agency” in other governmental contexts. For example, the Department of Finance and Administration determined that community colleges are state agencies for purposes of exempting them from taxation, and the Attorney General determined that they are state agencies that qualify for grants from the Natural and Cultural Resources Grants and Trust Fund.

7 . The total local tax that may be levied for community college purposes is ten miles. § 6-61-503(a).

8 . Accord Lewis v. Midwestern State Univ., 837 F.2d 197, 199 (5th Cir.), cert. denied, 488 U.S. 849, 109 S.Ct. 129, 102 L.Ed.2d 102 (1988); Van Pilsum, 863 F.Supp. at 937-38. Conversely, the inquiry cannot end with the fact that the State appropriates funds for a community college, because then most local school districts would also be Eleventh Amendment immune. See Mt. Healthy, 429 U.S. at 280, 97 S.Ct. at 572.

9 . For example, most local school districts do not enjoy Eleventh Amendment immunity because they are dependent on local taxes and controlled by local governmental entities, like cities and counties. However, California has chosen to structure its public education entities so that all have Eleventh Amendment immunity. See Belanger v. Madera Unified Sch. Dist., 963 F.2d 248, 251-52 (9th Cir.1992), cert. denied, 507 U.S. 919, 113 S.Ct. 1280, 122 L.Ed.2d 674 (1993).

1 . See Note, Clothing State Governmental Entities with Sovereign Immunity: Disarray in the Eleventh Amendment Arm-of-the State Doctrine, 92 Colum.L.Rev. 1243, 1291-96 (1992) (collecting cases).