NEA Brief - Lightfoot 11th Amendment

7/22/2019 NEA Brief - Lightfoot 11th Amendment

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No. 13-14631

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ZANETA (JOI) RAINEY LIGHTFOOT,

Plaintiff-Appellant ,

v.

HENRY COUNTY SCHOOL DISTRICT,

Defendant/Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA (NO. 1:12-CV-00694-CAP)

BRIEF OF THE NATIONAL EDUCATION ASSOCIATION

AND GEORGIA ASSOCIATION OF EDUCATORS AS

AMICI CURIAE IN SUPPORT OF PLAINTIFF-APPELLANT

Alice O’Brien

Jason Walta

NATIONAL EDUCATION ASSOCIATION

1201 16th Street, N.W.

Washington, D.C. 20036

Telephone: (202) 822-7035

[email protected]@nea.og

Counsel for the National

Education Association and Georgia

Association of Educators

Case: 13-14631 Date Filed: 02/12/2014 Page: 1 of 49Case: 13-14631 Date Filed: 03/12/2014 Page: 1 of 49



Zaneta Lightfoot v. Henry County School District

Docket No. 13-14631-F

C1 of C2

CORPORATE DISCLOSURE STATEMENT

AND CERTIFICATE OF INTERESTED PARTIES

Pursuant to Circuit Rule 26.1 of the Federal Rules of Appellate

Procedure, amici curiae National Education Association (NEA) and Georgia

Association of Educators, Inc. (GAE) state that neither NEA nor GAE is a

publicly-held corporation, issues stock, or has a parent corporation. NEA is a

non-profit labor organization under Section 501(c)(5) of the Internal Revenue

Code. GAE, is the Georgia affiliate of NEA and is a non-profit business league

organized under Section 501(c)(6) of the Internal Revenue Code.

Pursuant to Circuit Rule 26.1 and Federal Rule of Appellate Procedure

26.1, the undersigned counsel of record verifies that those persons or entities

listed below have or may have an interest in the outcome of this case:

Buckley & Klein, LLP – counsel for Appellant

Georgia Association of Educators – amicus curiae

Henry County School District – Appellee / Defendant below

Legare, Cheryl B. – counsel for Appellant

Lightfoot, Zaneta (“Joi”) Rainey – Appellant / Plaintiff below

McBride, Grant Edward – counsel for Appellee

National Education Association – amicus curiae

O’Brien, Alice –counsel for amicus curiae NEA




Zaneta Lightfoot v. Henry County School District

Docket No. 13-14631-F

C2 of C2

Pannell, Hon. Charles A. –Judge, United States District Court

Scott, Justin M. – counsel for Appellant

Smith, Welch, Webb & White LLC – counsel for Appellee

Walta, Jason – counsel for amicus curiae NEA

Welch, Jr., A.J. – counsel for Appellee

White, William A. – counsel for Appellee

/s/ Jason Walta

Jason WaltaNATIONAL EDUCATION ASSOCIATION



(202) 822-7035




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TABLE OF CONTENTS

Corporate disclosure statement & certificate of interested parties ...................... C1

Table of contents ............................................................................................................................ i

Table of authorities .................................................................................................................... iii

Interest of amici curiae .............................................................................................................. 1

Issue presented ............................................................................................................................. 3

Introduction and summary of argument ............................................................................ 4

Argument ......................................................................................................................................... 6

I. An essential feature of the constitutional design is that sovereign

immunity does not extend to local government entities ................................. 6

II. The district court erred in concluding that county school districts in

Georgia are “arms of the state” entitled to sovereign immunity, rather

than non-sovereign local government bodies .................................................... 10

A. This Court’s standard for evaluating whether an entity is an “arm ofthe state” properly emphasizes both the fiscal and structural

concerns of the Eleventh Amendment ............................................................ 10

B. The overwhelming weight of both binding and persuasive authority

holds that the Eleventh Amendment does not protect local school

districts with the same characteristics as Georgia’s county school

districts ......................................................................................................................... 14

1. Georgia county school districts do not differ materially from thelocal school districts that were denied sovereign immunity in a

binding decision of the Supreme Court .................................................... 14

2. Nor do Georgia county school districts differ materially from the

local school districts that were denied sovereign immunity in

prior panel decisions that are binding on this Court .......................... 23




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3. Nor do Georgia county school districts differ materially from the

many local school districts that were denied sovereign immunity

in persuasive decisions from other circuits ........................................... 26

Conclusion ..................................................................................................................................... 32

Certificate of compliance ......................................................................................................... 33

Certificate of service .................................................................................................................. 34




-iii-

TABLE OF AUTHORITIES

CASES

Abusaid v. Hillsborough County Bd. of Comm'rs,405 F.3d 1298, 1313 (11th Cir. 2005) .......................................................... 7, 12-13*

Adams v. Rankin County Bd. of Educ.,

524 F.2d 928 (5th Cir. 1975) ........................................................................................... 23

Alden v. Maine,

527 U.S. 706 (1999) ........................................................................................6, 7, 8, 9, 13*

Ambus v. Granite Bd. of Educ.,

995 F.2d 992 (10th Cir. 1993) (en banc) ................................................................... 27

Anderson v. Clarksville Montgomery County Sch. Sys.,

2006 WL 1639438 (M.D. Tenn. 2006) ......................................................................... 28

Belanger v. Madera Unified Sch. Dist.,

963 F.2d 248 (9th Cir. 1992) ................................................................................... 30, 31

Bd. of Trs. of Univ. of Ala. v. Garrett ,

531 U.S. 356 (2001) ............................................................................................................... 9

Black v. N. Panola Sch. Dist.,

461 F.3d 584 (5th Cir. 2006) ........................................................................................... 27

Blackett v. Rapid City Area Sch. Dist.,

1 Fed. Appx. 589 (8th Cir. 2001) .................................................................................... 29

Bonner v. City of Prichard ,

661 F.2d 1206 (11th Cir.1981) (en banc) .................................................................. 23

Braintree Baptist Temple v. Holbrook Pub. Sch.,

616 F.Supp. 81 (D. Mass. 1984) ...................................................................................... 28

Campbell v. Gadsden County Dist. Sch. Bd.,

534 F.2d 650 (5th Cir. 1976) .......................................................................... 23, 25, 26*




-iv-

CASES—CONT’D

Cash v. Granville County Bd. of Educ.,

242 F.3d 219 (4th Cir. 2001) ........................................................................................... 27

City of Lafayette v. La. Power & Light Co.,

435 U.S. 389 (1978) ............................................................................................................... 7

Cole v. Buchanan County Sch. Bd .,

661 F.Supp.2d 569 (W.D. Va. 2009) .............................................................................. 28

Coleman v. Ct. of App. of Md.,

132 S.Ct. 1327 (2012) ........................................................................................................... 9

Cline v. Sch. District No. 32,476 F.Supp. 868 (D. Neb. 1979) ..................................................................................... 28

Cmty. Commc’ns Co. v. City of Boulder ,

455 U.S. 40 (1982) ................................................................................................................. 8

Craig v. Me. Sch. Admin. Dist. No. 5 ,

350 F.Supp.2d 294 (D. Me. 2004) .................................................................................. 29

Dale v. Stephens County Sch. Dist.,237 Fed.Appx. 603 (11th Cir. 2007) ............................................................................. 24

Davis v. DeKalb County Sch. Dist .,

233 F.3d 1367 (11th Cir. 2000) ...................................................................................... 24

DeKalb County Sch. Dist. v. Ga. State Bd. of Educ.,

751 S.E.2d 827 (Ga. 2013) ................................................................................................ 17

Duke v. Grady Mun. Sch.,127 F.3d 972 (10th Cir. 1997) ........................................................................................ 27

Eason v. Clark County Sch. Dist.,

303 F.3d 1137 (9th Cir. 2002) ................................................................................ 27, 31




-v-

CASES—CONT’D

Eckerd v. Indian River Sch. Dist.,

475 F.Supp. 1350 (D. Del. 1979) .................................................................................... 28

Edelman v. Jordan,

415 U.S. 651 (1974) ............................................................................................................... 6

Eng'g Contractors Ass'n v. Metro. Dade County ,

122 F.3d 895 (11th Cir. 1997) ........................................................................................ 19

Febres v. Camden Bd. of Educ.,

445 F.3d 227 (3d Cir. 2006) ............................................................................................. 27

Gary A. v. New Trier High Sch. Dist.,796 F.2d 940 (7th Cir. 1986) ........................................................................................... 27

Gernetzke v. Kenosha Unified Sch. Dist. No. 1,

274 F.3d 464 (7th Cir. 2001) ........................................................................................... 29

Ghassomians v. Ashland Indep. Sch. Dist .,

55 F. Supp. 2d 675 (E.D. Ky. 1998) ................................................................................ 28

Green v. Clarendon County Sch. Dist. 3,923 F.Supp. 829 (D.S.C. 1996) ......................................................................................... 28

Gregory v. Ashcroft ,

501 U.S. 452 (1990) ............................................................................................................... 8

Gwinnett County Sch. Dist. v. Cox ,

289 Ga. 265, 710 S.E.2d 773 (2011) .............................................................. 16, 20, 25

Hall v. Marion Sch. Dist. No. 2,31 F.3d 183 (4th Cir. 1994) .............................................................................................. 29

Herts v. Smith,

345 F.3d 581 (8th Cir. 2003) ........................................................................................... 27




-vi-

CASES—CONT’D

Hess v. Port Auth. Trans-Hudson Corp.,

513 U.S. 30, 48 (1994) ............................................................................... 11, 12, 13, 17*

Holz v. Nenana City Pub. Sch. Dist.,

347 F.3d 1176 (9th Cir. 2003) ........................................................................................ 26

Jinks v. Richland County ,

538 U.S. 456 (2003) ........................................................................................................ 8, 13

Jones v. Am. Gen. Life Ins. Co.,

370 F.3d 1065 (11th Cir. 2004) ...................................................................................... 26

Kanongata'a v. Wash. Interscholastic Activities Ass'n,2006 WL 1727891 (W.D. Wash. 2006) ....................................................................... 28

Kenny v. Bd. of Trs. of Valley County Sch. Dist. Nos. 1 & 1A,

563 F.Supp. 95 (D. Mont. 1983) ...................................................................................... 28

Kimel v. Fla. Bd. of Regents,

528 U.S. 62 (2000) ................................................................................................................. 9

Lee-Thomas v. Prince George’s County Pub. Sch.,666 F.3d 244 (4th Cir. 2012) ........................................................................................... 30

Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency ,

440 U.S. 391 (1979) ........................................................................................................ 7, 10

Lincoln County v. Luning,

133 U.S. 529 (1890) ............................................................................................................... 7

Lopez v. Houston Indep. Sch. Dist.,817 F.2d 351 (5th Cir. 1987) ........................................................................................... 27

Lowe v. Hamilton County Dep’t of Job & Family Servs.,

610 F.3d 321 (6th Cir. 2010) ........................................................................................... 29




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CASES—CONT’D

Madon v. Laconia Sch. Dist.,

952 F.Supp. 44 (D.N.H. 1996) .......................................................................................... 29

Mahone v. Ben Hill County Sch. Sys.,

377 Fed.Appx. 913 (11th Cir. 2010) ............................................................................. 24

Manders v. Lee,

338 F.3d 1304 (11th Cir. 2003) (en banc) ................................................................. 11

McDaniel v. Thomas,

248 Ga. 632, 285 S.E.2d 156 (1981) ............................................................................. 20

Miener v. State of Mo.,673 F.2d 969 (8th Cir. 1982) ........................................................................................... 27

Milliken v. Bradley ,

418 U.S. 717 (1974) ............................................................................................................. 29

Minton v. St. Bernard Parish Sch. Bd.,

803 F.2d 129 (5th Cir. 1986) ........................................................................................... 27

Missouri v. Jenkins,495 U.S. 33 (1990) ............................................................................................................... 29

Monell v. Dep’t of Soc. Servs.,

436 U.S. 658 (1978) ..................................................................................................... 23, 24

Moore v. Tangipahoa Parish Sch. Bd.,

594 F.2d 489 (5th Cir.1979) .................................................................................. 23, 25*

Mt. Healthy City Bd. of Educ. v. Doyle,429 U.S. 274 (1977) ................................................................................................... passim*

Muskrat v. Deer Creek Pub. Sch.,

715 F.3d 775 (10th Cir. 2013) ........................................................................................ 29




-viii-

CASES—CONT’D

Narin v. Lower Merion Sch. Dist.,

206 F.3d 323 (3d Cir. 2000) .............................................................................................. 27

Nev. Dep’t of Human Res. v. Hibbs,

538 U.S. 721 (2003) ............................................................................................................. 10

Northern Ins. Co. v. Chatham County ,

547 U.S. 189 (2006) ........................................................................................................... 7, 8

Okeson v. Tolley Sch. Dist. No. 25 ,

570 F.Supp. 408 (D.N.D. 1983) ....................................................................................... 29

Panzarella v. Boyle,406 F.Supp. 787 (D.R.I. 1975) ......................................................................................... 28

Parker v. Franklin County Cmty. Sch. Corp.,

667 F.3d 910 (7th Cir. 2012) ............................................................................ 12, 14, 27

Quern v. Jordan,

440 U.S. 332 (1979) ............................................................................................................... 9

Riddick v. Sch. Bd. of City of Portsmouth,238 F.3d 518 (4th Cir. 2000) ........................................................................................... 29

Rosa R. v. Connelly ,

889 F.2d 435 (2d Cir. 1989) ............................................................................................ 27

Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist.,

511 F.3d 1114 (10th Cir. 2008) ...................................................................................... 28

R.S. ex rel. S.S. v. Minnewaska Area Sch. Dist. No. 2149 ,894 F.Supp.2d 1128 (D. Minn. 2012) ........................................................................... 29

Savage v. Glendale Union High Sch. Dist. No. 205 ,

343 F.3d 1036 (9th Cir.2003) ................................................................................. 27, 31




-ix-

CASES—CONT’D

Scarbrough v. Morgan County Bd. of Educ.,

470 F.3d 250 (6th Cir. 2006) ........................................................................................... 29

Shands Teaching Hosp., Inc. v. Beech St. Corp.,

208 F.3d 1308 (11th Cir. 2000) ....................................................................................... 11

Shrum ex rel. Kelly v. Kluck ,

249 F.3d 773 (8th Cir. 2001) ..................................................................................... 28-29

Settlegoode v. Portland Pub. Schs.,

371 F.3d 503 (9th Cir. 2004) ............................................................................................ 29

Soper v. Hoben,195 F.3d 845 (6th Cir. 1999) ............................................................................................ 27

Stewart v. Baldwin County Bd. of Educ.,

908 F.2d 1499 (11th Cir. 1990) ............................................... 12, 13, 14, 23, 24, 25*

Stoddard v. Sch. Dist. No. 1,

590 F.2d 829 (10th Cir. 1979) ......................................................................................... 28

Tenet v. Doe,544 U.S. 1 (2005) ................................................................................................................... 14

Travelers Indem. Co. v. Sch. Bd. of Dade County ,

666 F.2d 505 (11th Cir. 1982) ................................................................................. 23, 25

Unified Sch. Dist. No. 480 v. Epperson,

583 F.2d 1118 (10th Cir. 1978) ....................................................................................... 27

United States v. Ala. Dep’t of Mental Health,673 F.3d 1320 (11th Cir. 2012) ......................................................................................... 9

United States v. Blankenship,

382 F.3d 1110 (11th Cir. 2004) ....................................................................................... 26




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CASES—CONT’D

Vierling v. Celebrity Cruises, Inc.,

339 F.3d 1309 (11th Cir. 2003) ................................................................ 11, 12, 19, 22

Walton v. Alexander ,

44 F.3d 1297 (5th Cir. 1995) ............................................................................................ 27

Wigg v. Sioux Falls Sch. Dist. 49-5 ,

274 F.Supp.2d 1084 (D.S.D. 2003),

rev'd in part , 382 F.3d 807 (8th Cir. 2004) ................................................................. 28

Woods v. Rondout Valley Cent. Sch. Dist.,

466 F.3d 232 (2d Cir. 2006) .............................................................................................. 27

Zoll v. E. Allamakee Cmty. Sch. Dist.,

588 F.2d 24 (8th Cir. 1978) ............................................................................................... 28

CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES

United States Constitution

Amendment XI ............................................................................................................... passim

United States Code42 U.S.C. § 1983 ......................................................................................................... 9, 24, 28

Georgia Constitution

Article VII, Section IV, Paragraph X ................................................................................ 22

Article VIII, Section I, Paragraph I .................................................................................. 20

Article VIII, Section VI, Paragraph I ............................................................................... 19

Article VIII, Section V, Paragraph I ................................................................................. 16

Article IX, Section II, Paragraph IX ................................................................................. 17

Article IX, Section III, Paragraph I .................................................................................. 17Article IX, Section V, Paragraph I .................................................................................... 17

Georgia Code

Section 20-2-50 ...................................................................................................................... 16

Section 20-2-74 ...................................................................................................................... 19

Sections 20-2-160 to 20-2-172 ........................................................................................ 19




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CONSTITUTIONAL PROVISIONS, STATUTES, AND RULES—CONT’D

Georgia Code—cont’d

Section 20-2-242.................................................................................................................... 18

Section 20-2-390.................................................................................................................... 19Section 20-2-430.................................................................................................................... 19

Sections 28-5-47.1 to 28-5-48 ........................................................................................ 19

Section 36-80-3 ...................................................................................................................... 18

Section 45-19-1 ...................................................................................................................... 18

Section 48-8-111.................................................................................................................... 19

Ohio Constitution

Article VI, Section 2 ............................................................................................................... 20

Ohio Revised CodeSection 133.27 ........................................................................................................................ 15

Section 2743.01 ...................................................................................................................... 15

Section 3301.07 ...................................................................................................................... 15

Section 3313.09 ...................................................................................................................... 21

Section 3313.11 ...................................................................................................................... 21

Section 3313.13 ...................................................................................................................... 21

Section 3313.14 ...................................................................................................................... 21

Section 3313.15 ...................................................................................................................... 21

Section 3313.60 ...................................................................................................................... 21Section 3313.66 ...................................................................................................................... 21

Section 3313.671 ................................................................................................................... 21

Section 3317.01 et seq. ....................................................................................................... 15

Section 3319.16 ...................................................................................................................... 21

Section 5705.192 ................................................................................................................... 15

Section 5705.194 ................................................................................................................... 15

Section 5705.02 ...................................................................................................................... 15

Section 5705.03 ...................................................................................................................... 15

Federal Rules of Appellate Procedure

Rule 29 ......................................................................................................................................... 2

Eleventh Circuit Rules

Rule 29-1 ..................................................................................................................................... 2




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OTHER

Ross Rubenstein & David L. Sjoquist, Financing Georgia’s Schools:

A Primer (2003) ........................................................................................................................... 19

U.S. Census Bureau, Annual Survey of Public Employment &

Payroll Summary Report: 2011 (Aug. 22, 2013) ............................................................... 9




-1-

INTEREST OF AMICI CURIAE

This brief is filed on behalf of the National Education Association (NEA)

and the Georgia Association of Educators (GAE) as amici curiae in support of

Plaintiff-Appellant Zaneta (Joi) Rainey Lightfoot.

NEA is a nationwide employee organization representing more than

three million elementary and secondary teachers, higher education faculty,

education support professionals, school administrators, retired educators, and

students preparing to become educators.

GAE is a voluntary professional association, the membership of which

includes teachers, administrators, educational support personnel, student

teachers and other public school employees in every county and independent

school system in Georgia. GAE is a state affiliate of, and GAE’s membership are

also members of, NEA. GAE is organized to assist its membership in matters

pertaining to the terms and conditions of their employment with each and

every public school district in the state

Amici have a significant interest in this case because the district court’s

erroneous ruling below threatens to deprive NEA and GAE members of their

ability to assert important federal constitutional and statutory rights related

to their employment in the Georgia school system.




-2-

Defendant-Appellee Henry County School District (HCSD) declined

consent for the filing of this brief, so NEA and GAE have submitted with this

brief a motion for leave of this Court to file as amici curiae. See Fed. R. App.

29(a)-(b); 11th Cir. R. 29-1.

No party’s counsel authored this brief in whole or in part. No party or

party’s counsel contributed money that was intended to fund preparing or

submitting this brief. No person—other than the amici curiae, their members,

or their counsel—contributed money that was intended to fund preparing or

submitting the brief. See Fed. R. App. P. 29(c)(5)




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ISSUE PRESENTED

A state’s sovereign immunity under the Eleventh Amendment does not

extend to suits prosecuted against a local-government entity that is not an

“arm of the state.” Binding decisions from the Supreme Court and panels of

this Court—as well as numerous persuasive decisions from sister courts of

appeals—have all held that local school districts that are substantially the

same as Georgia county school districts are not arms of the state entitled to

immunity. The question presented by this appeal is:

Whether the district court below erred in holding that the HCSD is

nevertheless entitled to Eleventh Amendment immunity.




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INTRODUCTION AND

SUMMARY OF ARGUMENT

The district court below erred in holding that HCSD is an arm of the

state and therefore entitled to immunity from Lightfoot’s federal claims.

The immunity the Eleventh Amendment does not extend to local-

government entities such as municipalities, counties, and local school

districts. This limitation on the scope of immunity preserves the proper

balance between the supremacy of federal law and the separate sovereignty of

the states by, among other things, allowing Congress to subject local-

government entities to suits under federal causes of action. The district court’s

decision—which grants sovereign immunity to a quintessentially local

entity—upsets the Constitution’s balance and trenches on Congress’s

authority.

This Court’s standard for evaluating whether an entity is an arm of the

state properly emphasizes both the fiscal and structural concerns of the

Eleventh Amendment. Applying the same factors this Court requires, the

Supreme Court, this Court, and its sister circuits have all consistently found

local school systems to be political subdivisions entitled to no protection

under the Eleventh Amendment.




-5-

Most significantly, in Mt. Healthy City Board of Education v. Doyle, 429

U.S. 274 (1977), the Supreme Court held that Ohio local school districts are

not immune under the Eleventh Amendment. Because there are no material

differences between the local school boards at issue in Mt. Healthy and the

Georgia county school districts at issue here, the Court’s decision has direct

application to this case, and this Court is duty-bound to follow its result.

This Court is also bound by a raft of binding panel decisions holding that

local school districts in other states—all of which have the same essential

characteristics as Georgia’s county school districts—are local government

entities lacking immunity under the Eleventh Amendment. This Court is not

free to disregard prior panel decisions that are so closely on point and have

not been directly overruled by the Supreme Court or this Court sitting en banc.

Finally, this Court should be guided by the overwhelming weight of

authority from sister circuits—all of which supports reversal of the district

court’s erroneous conclusion that HCSD enjoys the state’s sovereign

immunity.




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ARGUMENT

I. AN ESSENTIAL FEATURE OF THE CONSTITUTIONAL DESIGN IS

THAT SOVEREIGN IMMUNITY DOES NOT EXTEND TO LOCAL

GOVERNMENT ENTITIES

The Eleventh Amendment provides that “[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….” U.S. Const. amend. XI. By its terms, the Amendment applies

only to suits brought against a state by “Citizens of another State,” but it is

well established that an unconsenting state is also immune “from suits

brought in federal courts by her own citizens.” Edelman v. Jordan, 415 U.S.

651, 662-63 (1974). As the Supreme Court has explained, this immunity “is a

fundamental aspect of the sovereignty which the States enjoyed before the

ratification of the Constitution, and which they retain today (either literally or

by virtue of their admission into the Union upon an equal footing with the

other States) except as altered by the plan of the Convention or certain

constitutional Amendments.” Alden v. Maine, 527 U.S. 706, 713 (1999).

There are, however, “certain limits … implicit in the constitutional

principle of state sovereign immunity.” Id. at 755. One “important” limit is that

Eleventh Amendment immunity “does not extend to suits prosecuted against a

municipal corporation or other governmental entity which is not an arm of




-7-

the State.” Id . at 756. The Supreme Court has adhered to this limitation

consistently for more than a century. See Northern Ins. Co. v. Chatham County ,

547 U.S. 189, 193-94 (2006) (collecting cases); Mt. Healthy City Bd. of Educ. v.

Doyle, 429 U.S. 274, 280 (1977); Lincoln County v. Luning, 133 U.S. 529, 530-31

(1890). And, it is well established in this Court’s cases, as well. See Abusaid v.

Hillsborough County Bd. of Comm'rs, 405 F.3d 1298, 1314 (11th Cir. 2005).

This limitation follows as a “consequence of [the Supreme] Court's

recognition of preratification sovereignty as the source of immunity from suit

… that only States and arms of the State possess immunity.” Northern Ins., 547

U.S. at 193 (emphasis added). And, the text of the Eleventh Amendment itself

confirms that immunity may only be invoked by “one of the United States.”

Lake Country Estates, Inc. v. Tahoe Reg’l Planning Agency , 440 U.S. 391, 400

(1979).

In contrast, counties, municipalities, and other local government entities

“are not themselves sovereign; they do not receive all the federal deference of

the States that create them.” City of Lafayette v. La. Power & Light Co., 435 U.S.

389, 412 (1978) (plurality opinion). Accordingly, the Supreme Court has

rejected—not only claims that such entities are immune under the Eleventh

Amendment, see, e.g., Mt. Healthy , 429 U.S. at 280—but also claims that they

may somehow retain a degree of common law or “residual” immunity that




-8-

shields them against suits under federal law, see Northern Ins., 547 U.S. at 194.

All of this “reflects the federalism principle that we are a Nation of States, a

principle that makes no accommodation for sovereign subdivisions of States.”

Cmty. Commc’ns Co. v. City of Boulder , 455 U.S. 40, 50 (1982) (emphasis in

original).

Where, as is the case here, a court erroneously allows a non-sovereign

local government entity to claim Eleventh Amendment immunity, that ruling

upsets the “proper balance” established by the constitutional design “between

the supremacy of federal law and the separate sovereignty of the States.”

Alden, 527 U.S. at 757. Congress maintains “a decided advantage” in the

“delicate balance” between the federal governments and the states, Gregory v.

Ashcroft , 501 U.S. 452, 460 (1990), with the “undisputed power” to subject

local government entities to suits under federal causes of action, Jinks v.

Richland County , 538 U.S. 456, 466 (2003). Affording immunity to a non-

sovereign local government entity therefore trenches on Congress’s legitimate

exercise of legislative power.

Furthermore, the creation of such an unwarranted expansion of

sovereign immunity denies millions of citizens the statutory rights to which

they are entitled. There are approximately 14 million local government

employees nationwide, 5.3 million of whom are instructional personnel for




-9-

primary and secondary schools at the local government level.1 When a court

improperly extends immunity to non-sovereign local school districts, it

deprives those employees of a broad spectrum of federally-secured rights,

including: the right to receive the minimum wage and compensation for

overtime;2 the right to protection of one’s job while recovering from a serious

health condition;3 the right to be free of discrimination on the basis of age,

disability, or military status;4 and the right to hold their employers

responsible for violations of constitutional rights.5 And that is contrary to

Congress’s clearly expressed intent—particularly as to the self-care

1 See U.S. Census Bureau, Annual Survey of Public Employment & Payroll

Summary Report: 2011 at 3-4 (Aug. 22, 2013), available at

http://www.census.gov/prod/2013pubs/g11-aspep.pdf.

2 See Alden, 527 U.S. at 758 (holding that states are immune from

individual damages actions under the Fair Labor Standards Act).3 See Coleman v. Ct. of App. of Md., 132 S. Ct. 1327, 1334-38 (2012) (same

with regard to suits under the Family & Medical Leave Act’s self-care

provisions).

4 See Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73 (2000) (same with

regard to suits under the Age Discrimination in Employment Act); Bd. of Trs. of

Univ. of Ala. v. Garrett , 531 U.S. 356, 365 (2001) (same with regard to suits

under Title I of the Americans with Disabilities Act); United States v. Ala. Dep’t

of Mental Health, 673 F.3d 1320, 1325 (11th Cir. 2012) (stating, in dicta, that

states are immune from individual damages actions under the Uniformed

Services Employment and Reemployment Rights Act).

5 Quern v. Jordan, 440 U.S. 332, 340-41 (1979) (holding that 42 U.S.C.

§ 1983 does not abrogate sovereign immunity).




-10-

provisions of FMLA at issue here—to subject local government employers to

liability in individuals’ suits. See Nev. Dep’t of Human Res. v. Hibbs, 538 U.S.

721, 726 (2003).

II. THE DISTRICT COURT ERRED IN CONCLUDING THAT COUNTY

SCHOOL DISTRICTS IN GEORGIA ARE “ARMS OF THE STATE”

ENTITLED TO SOVEREIGN IMMUNITY, RATHER THAN NON-

SOVEREIGN LOCAL GOVERNMENT BODIES

The district court below found that the HCSD is an “arm of the state”

entitled to sovereign immunity against Lightfoot’s federal claims. That

conclusion cannot be squared with this Court’s standard for evaluating a

government entity’s sovereign status, nor with the overwhelming weight of

both binding and persuasive authority holding that school districts having the

same characteristics of HCSD are quintessentially local government entities

with no Eleventh Amendment immunity.

A. This Court’s Standard for Evaluating Whether an Entity is an

“Arm of the State” Properly Emphasizes Both the Fiscal and

Structural Concerns of the Eleventh Amendment

The Supreme Court has recognized that political subdivisions lacking

sovereign immunity may still exercise a “slice of state power.” Lake Country

Estates, 440 U.S. at 401. Thus, the inquiry into whether an entity is an “arm of

the state” must ultimately be focused, not simply on whether the entity is

conferred some power by the state, but whether a judgment against the entity




-11-

“would have had essentially the same practical consequences as a judgment

against the State itself.” Id.

To that end, this Court’s test for whether a public entity is an “arm of

the state” examines a variety of factors, including: whether the state is

responsible for judgments against the entity; where the entity derives its

funds; how state law defines the entity; and what degree of control the state

maintains over the entity. See Manders v. Lee, 338 F.3d 1304, 1309 (11th Cir.

2003) (en banc). Several observations about the significance of these factors

are in order.

First , “the vulnerability of the State's purse”—that is, whether the state

itself would be responsible for an adverse judgment—is undoubtedly the

“most salient” factor in the analysis. Hess v. Port Auth. Trans-Hudson Corp., 513

U.S. 30, 48 (1994); see also Vierling v. Celebrity Cruises, Inc., 339 F.3d 1309,

1314 (11th Cir. 2003) (noting that “the source of the entity’s funds and

responsibility for satisfying judgments” are of “considerable importance”)

(citation and quotation marks omitted); Shands Teaching Hosp., Inc. v. Beech

St. Corp., 208 F.3d 1308, 1311 (11th Cir. 2000) (noting that Eleventh

Amendment immunity is appropriate “only to the extent that a judgment

would expose the [state] government to financial liability”). Indeed, as the

Supreme Court has observed, “the prevention of federal-court judgments that




-12-

must be paid out of a State’s treasury” was the very “impetus for the Eleventh

Amendment[’s]” passage. Hess, 513 U.S. at 48; see also Abusaid , 405 F.3d at

1312. Thus, when a judgment against the public entity could be satisfied out of

its own funds, as opposed to from the state’s coffers, “the Eleventh

Amendment’s core concern is not implicated.” Hess, 513 U.S. at 51.

Second , and relatedly, the ability of the entity to raise its own funds

counsels strongly in favor of a finding it has no sovereign immunity. See

Stewart v. Baldwin County Bd. of Educ., 908 F.2d 1499, 1510 (11th Cir. 1990).

That is so even if the entity also receives “a significant amount of money” from

the state. Mt. Healthy , 429 U.S. at 280; see also Parker v. Franklin County Cmty.

Sch. Corp., 667 F.3d 910, 929 (7th Cir. 2012); Vierling, 339 F.3d at 1315 n.16.

Third , the inquiry into how the state defines the entity will itself depend

on several factors. One factor that weighs against immunity is if the entity is

governed by locally elected officials. See Abusaid , 405 F.3d at 1305; Stewart ,

908 F.2d at 1510-11. Also important is how the entity is identified in the

state’s constitution and statutes; if the entity is consistently denominated as a

political subdivision or other local government entity, it will generally not

partake of the state’s sovereign immunity. See Mt. Healthy , 429 U.S. at 280;

Abusaid , 405 F.3d at 1305. It is of little significance, however, if the entity

enjoys some form of immunity in the state’s own courts. See Abusaid , 405 F.3d




-13-

1298 at 1312 ; Stewart , 908 F.2d at 1510 n.6. “[A] State's authority to set the

conditions upon which its political subdivisions are subject to suit in its own

courts must yield to the enactments of Congress.” Jinks, 538 U.S. at 466.

Finally , with respect to the degree of control exercised by the state, it is

often a hallmark of local-government status that the entity in question has the

power to enter contracts, to sue and be sued, to purchase and sell property,

and to borrow funds in its own name. See Stewart , 908 F.2d at 1510-11. For

purposes of this factor, however, it is far less significant that the state retains

some ultimate authority to intervene in the entity’s otherwise local affairs.

See, e.g., Mt. Healthy , 429 U.S. at 280. That is because giving controlling weight

to the state’s ultimate authority over its political subdivisions would not

“home in on the impetus for the Eleventh Amendment: the prevention of

federal-court judgments that must be paid out of a State’s treasury,” Hess, 513

U.S. at 48. Moreover, if such control were sufficient to make an otherwise local

entity an arm of the state, it would render obsolete this “important limit to the

principle of sovereign immunity.” Alden, 527 U.S. at 756. After all, “ultimate

control of every state-created entity resides with the State, for the State may

destroy or reshape any unit it creates.” Hess, 513 U.S. at 47 (emphasis added).




-14-

B. The Overwhelming Weight of Both Binding and Persuasive

Authority Holds that the Eleventh Amendment Does Not Protect

Local School Districts With the Same Characteristics as Georgia’s

County School Districts

Applying the same factors discussed above, the Supreme Court, this

Court, and its sister circuits have all consistently found local school systems to

be political subdivisions entitled to no protection under the Eleventh

Amendment. See, e.g., Mt. Healthy , 429 U.S. at 280; Stewart , 908 F.2d at 1510;

Parker , 667 F.3d at 928-29. The district court’s significant departure from that

trend was in error. The decision below misapplies the proper standard for

determining an entity’s sovereign status and cannot be reconciled with both

binding and persuasive precedent that is directly on point.

1. Georgia county school districts do not differ materially

from the local school districts that were denied

sovereign immunity in a binding decision of theSupreme Court

In Mt. Healthy , the Supreme Court found that a local school board in

Ohio cannot avail itself of the protections of the Eleventh Amendment because

it “is more like a county or city than it is like an arm of the State.” 429 U.S. at

280. There are no material differences between the Ohio local school boards

at issue in Mt. Healthy and the Georgia county school districts at issue here.

Mt. Healthy therefore has “direct application” to this case, and this Court is

duty-bound to follow its result. Tenet v. Doe, 544 U.S. 1, 11-12 (2005).




-15-

The Mt. Healthy Court focused largely on two features of Ohio local

school boards to conclude that those entities have no protection under the

Eleventh Amendment. First, the Court examined “the nature of the entity

created by state law.” 429 U.S. at 280. In particular, the Court observed that

local school boards were denominated under Ohio law as “political

subdivisions,” a term that did not include the state itself. Id . (citing Ohio Rev.

Code § 2743.01). The Court also noted that Ohio school boards were based in

a particularly locality, such that the party in that case was “but one of many

local school boards within the State of Ohio.” Id.

Second, the Court examined the state’s control over school boards, as

compared to the school board’s authority to act autonomously, especially with

respect to fiscal matters. The Court noted that Ohio local school boards were

“subject to some guidance from the State Board of Education.” Id. (citing Ohio

Rev. Code § 3301.07). The local school boards also “receive[d] a significant

amount of money from the State.” Id. (citing Ohio Rev. Code § 3317.01 et seq.).

Nevertheless, the Court observed that local school boards had a degree of

fiscal independence from the state, based on their “extensive powers to issue

bonds, and to levy taxes within certain restrictions of state law.” Id. (citing

Ohio Rev. Code §§ 133.27, 5705.02, 5705.03, 5705.192, 5705.194).




-16-

Viewing these factors together, the Mt. Healthy Court concluded that,

“the record before us indicates that a local school board [in Ohio] is more like

a county or city than it is like an arm of the State.” Id. As such, the local school

board had no protection under the Eleventh Amendment. Id.

There is no feature of Georgia’s county school districts that can

distinguish them meaningfully from the Ohio local school boards examined in

Mt. Healthy . With respect to “the nature of the entity created by state law,” id .

at 280, Georgia county school districts—like local school boards in Ohio—

operate on, and are elected on, a local basis. See Ga. Const. art. VIII, § V, ¶ I; Ga.

Code § 20-2-50. This arrangement effectuates a more than “134-year-old

status quo in regard to exclusive local control over general K–12 public

education” that “limit[s] governmental authority over the public education of

Georgia’s children to that level of government closest and most responsive to

the taxpayers and parents of the children being educated.” Gwinnett County

Sch. Dist. v. Cox , 289 Ga. 265, 266, 710 S.E.2d 773, 776 (2011).

Accordingly, Georgia county school districts, like their counterparts in

Ohio, are regarded under state law as “political subdivisions” that are separate




-17-

from the state itself.6 The Georgia Constitution is structured in a manner that

consistently situates county school boards alongside other non-sovereign

entities such as counties and municipalities. See, e.g., Ga. Const. art. IX, § II, ¶ IX

(allowing the legislature to waive the state-law immunity of “counties,

municipalities, and school districts”); id. § III, ¶ I (authorizing the state, as well

as its “departments” and “agencies,” to contract with “any county,

municipality, school district, or other political subdivision of the state”); id.

§ V, ¶ I (imposing limits on the debt incurred by counties, municipalities,

school districts, and other political subdivisions). As a result, members of

county school district’s governing boards are considered local , rather than

state, constitutional officers. See DeKalb County Sch. Dist. v. Ga. State Bd. of

Educ., 751 S.E.2d 827, 832-40 (Ga. 2013).

6 The district court below acknowledged that “Georgia courts

consistently recognize school districts as political subdivisions of the state.”

Doc. 80 at 5 (collecting cases). Yet, the court unaccountably found that this

factored in favor of treating HCSD as an arm of the state. Id . at 5-6. Quite to the

contrary, the term “political subdivision,” when used in the Eleventh

Amendment context, consistently refers to the kinds of local governmententities that do not enjoy sovereign immunity. See, e.g., Hess, 513 U.S. at 43,

(“[T]he Court has consistently refused to construe the [Eleventh] Amendment

to afford protection to political subdivisions such as counties and

municipalities … .”) (emphasis added).




-18-

The same is true under the Georgia Code, which explicitly designates

county school districts as “political subdivisions,” Ga. Code § 20-2-242, and

hews consistently to a categorical distinction between “state agencies and

departments” and “political subdivisions” that include county school districts,

see, e.g., id. §§ 28-5-47.1 to 28-5-48 (distinguishing between “state agencies”

and “local political subdivisions” and including school districts in the

definition of “local political subdivisions”); id . § 36-80-3 (establishing criteria

for investments by a “municipality, county, school district, or other … political

subdivision”); id. § 45-19-1 (defining “public employment” as “employment in

the government of this state or the government of a county, municipality,

school system, or other political subdivision of this state”). It is therefore clear

as a matter of Georgia law that county school districts are considered local in

nature. With respect to the second factor considered by the Mt. Healthy Court—

the entity’s relative fiscal independence from the state, see 429 U.S. at 280—

Georgia county school districts are even more autonomous than their

counterparts in Ohio. Like the local school boards in Ohio, Georgia school

districts are subject to guidance from the State Board of Education and receive

part of their funding from the state. Id. However, unlike Ohio school boards,

Georgia school systems have significant flexibility in raising funds. Georgia




-19-

schools are primarily funded through a combination of local contributions

from property taxes and state grants. Ga. Code §§ 20-2-160 to 20-2-172; see

generally Ross Rubenstein & David L. Sjoquist, Financing Georgia’s Schools: A

Primer (2003), available at

http://aysps.gsu.edu/sites/default/files/documents/frc/report87.pdf. In

addition to the amount local school systems must contribute based on the

required five mills per dollar tax rate, school systems may generate additional

funds by levying a property tax in excess of the required level for its

contribution requirement. See Ga. Const. art. VIII, § VI, ¶ I. Furthermore,

county school boards have the power to borrow money, issue bonds, and

accept donations. See Ga. Code §§ 20-2-390 , 20-2-430, 20-2-74. Local school

boards also have the option of calling for a referendum for a sales tax to

support capital outlay. Id. § 48-8-111.

As the foregoing demonstrates, there is “remarkably little difference”

between the government entity at issue here and an entity the Supreme Court

has already found does not qualify as an arm of the state for Eleventh

Amendment purposes. Vierling, 339 F.3d at 1315. This Court is “not at liberty

to disregard binding case law that is so closely on point.” Eng'g Contractors

Ass’n v. Metro. Dade County , 122 F.3d 895, 908 (11th Cir. 1997).




-20-

The district court below, however, failed to heed this binding precedent,

focusing instead on a hodge-podge of factors that do not establish HCSD’s

sovereign status. The problem with the district court’s analysis is that, without

exception, every factor it relied upon to support its finding of immunity

applies equally to the Ohio local school districts at issue in Mt. Healthy .

For starters, the district court found it significant that “[t]he Georgia

Constitution places the obligation for the provision of adequate public

education on the state.” Doc. 80 at 5 (citing Ga. Const. art. VIII, § I, ¶ I). 7 Yet,

the Ohio Constitution contains a comparable provision that directs the state’s

“general assembly [to] make such provisions … [as] will secure a thorough and

efficient system of common schools throughout the State.” Ohio const. art. VI,

§ 2.

Likewise, the district court relied heavily on Georgia law that dictates

certain aspects of a county board of education’s operations, such as defining

7 In any event, the district court attached unwarranted meaning to the

State’s obligation to provide for “adequate public education” under the

Georgia Constitution. As the Georgia Supreme Court has recognized, “[t]he

adoption of the term ‘adequate education’ was not intended to fundamentally

alter the existing obligation of the state with regard to education.” McDaniel v.Thomas, 248 Ga. 632, 641, 285 S.E.2d 156, 163 (1981); cf. Cox , 289 Ga. at 266,

710 S.E.2d at 776 (noting that the “constitutional history of Georgia could not

be more clear that … local boards of education have the exclusive authority

[for]… the provision of an adequate public education for the citizens”).




-21-

eligibility criteria for school board members, their terms of office, the

procedures for filling vacancies on the board, the board’s quorum

requirement, and when meetings must convene. Doc. 80 at 7. But, Ohio law in

effect at the time of the Mt. Healthy Court’s decision imposes precisely the

same kinds of restrictions. See Ohio Rev. Code § 3313.13 (qualifications for

local school board members); id . § 3313.09 (terms of office); id. § 3313.11

(filing vacancies); id . § 3313.18 (quorum for meetings); id. §§ 3313.14,

3313.15 (timing of meetings).

The district court also found it meaningful that “[t]here are a number of

additional statutes that establish the state’s control over local boards in areas

of curriculum development, employment and compensation of teachers,

student discipline, and student health,” and that “county board[s] may

terminate a teacher only for precise reasons mandated by the state.” Doc. 80

at 7-8. But, yet again, this does nothing to distinguish Georgia’s county school

district from their counterparts in Ohio, which are subject to the very same

kinds of state-imposed requirements. See Ohio Rev. Code § 3313.60

(curricular requirements); id . § 3313.66 (procedures for student suspensions

and expulsions); id. § 3313.671 (student immunizations); id . § 3319.16 (“just

cause” for teacher terminations).




-22-

Finally, although the district court acknowledged that “[t]here is no

obligation for the state to pay any judgment” against a county school district,8

the court agreed with HCSD’s contention that “because the state funds a

significant portion of HCSD’s operating budget, state funds are implicated, and

therefore, Eleventh Amendment immunity is warranted.” Doc. 80 at 9. This

conclusion runs headlong into the holding of Mt. Healthy , which denied

immunity even though Ohio local school districts receive “a significant amount

of money” from the state. 429 U.S. at 280; see also Vierling, 339 F.3d at 1315

n.16 (“[I]t is not the receipt of money that affects the analysis, but whether the

[entity] acts independently of the state.”).

This Court’s analysis of this appeal can begin and end with the close

similarities between school districts in Ohio and Georgia. Mt. Healthy ’s

Eleventh Amendment holding plainly binds this Court. Neither the district

court nor HCSD have pointed to any distinction between Georgia and Ohio

local school districts that would call for a different result.

8 In fact, the Georgia Constitution forbids the state from “assum[ing] the

debt, or any part thereof, of any county, municipality, or other political

subdivision.” Ga. Const. art. VII, § IV, ¶ X.




-23-

2. Nor do Georgia county school districts differ materially

from the local school districts that were denied

sovereign immunity in prior panel decisions that are

binding on this Court

This Court is also bound by a raft of binding panel decisions holding that

local school districts in other states—all of which have the same essential

characteristics as Georgia’s county school districts—are local government

entities lacking immunity under the Eleventh Amendment. See Stewart , supra

(Alabama); Travelers Indem. Co. v. Sch. Bd. of Dade County , 666 F.2d 505, 509

(11th Cir. 1982) (Florida); Moore v. Tangipahoa Parish Sch. Bd., 594 F.2d 489,

493-94 (5th Cir. 1979) (Louisiana); Campbell v. Gadsden County Dist. Sch. Bd.,

534 F.2d 650, 656 (5th Cir. 1976) (Florida); Adams v. Rankin County Bd. of

Educ., 524 F.2d 928, 929 (5th Cir. 1975) (Mississippi).9 A brief review of some

of these decisions demonstrates that the district court’s decision below is not

just contrary to Mt. Healthy , but to binding panel precedent as well, and is due

to be reversed for that reason as well.10

9 See Bonner v. City of Prichard , 661 F.2d 1206, 1209 (11th Cir.1981) (en

banc) (adopting as binding precedent all Fifth Circuit decisions issued before

October 1, 1981).10 Indeed, this Court has already recognized—at least implicitly—that

Georgia county school boards are not arms of the state. Under the Supreme

Court’s seminal decision in Monell v. Department of Social Services, 436 U.S.

658 (1978), a local government entity is a “person” subject to liability under

(continued . . .)




-24-

In Stewart , this Court rejected an Alabama county school board’s claim

to Eleventh Amendment immunity. 908 F.2d at 1510-11. The Stewart Court

focused on the school board’s “significant amount of flexibility in raising local

funding.” Id . at 1510. In particular, the court noted that Alabama county school

boards could issue bonds and borrow funds, as well as raise money through

local taxes. Id . Given these findings, the Stewart Court concluded “[i]t is clear

that Alabama school boards have a degree of fiscal autonomy comparable to

that of the [Ohio] school boards at issue in Mt. Healthy .” Id. And, based on what

we have already discussed, supra at 19-20, it should be equally clear that

Georgia’s county school districts have a comparable degree of fiscal autonomy,

as well.

The Stewart Court also found it significant that Alabama county school

boards had the power to establish education policy in local schools and

42 U.S.C. § 1983 so long as it is “not considered part of the State for Eleventh

Amendment purposes.” Id. at 690 n.54. On several occasions, this Court has

analyzed the potential § 1983 liability of a Georgia local school district under

Monell, giving no indication that those entities may not qualify as statutory

“persons.” See, e.g., Mahone v. Ben Hill County Sch. Sys., 377 Fed.Appx. 913, 917

(11th Cir. 2010); Dale v. Stephens County Sch. Dist., 237 Fed.Appx. 603, 604

(11th Cir. 2007); Davis v. DeKalb County Sch. Dist ., 233 F.3d 1367, 1375-76(11th Cir. 2000). Although the jurisdictional issue of sovereign immunity was

apparently not raised in these cases, this Court “ought not disregard the

implications of an exercise of judicial authority assumed to be proper.” Monell ,

436 U.S. at 696.




-25-

remained accountable to their local constituencies. Id. at 1511. Again, Georgia

county school districts are materially the same in both respects: they are

primarily responsible for establishing local school policy, and they are locally

elected so as to be “responsive to the taxpayers and parents of the children

being educated.” Cox , 289 Ga. at 266, 710 S.E.2d at 776.

Moore is also instructive. There, in a panel decision binding on this

Court, the Fifth Circuit held that Louisiana parish school boards are not

entitled to Eleventh Amendment immunity. 594 F.2d at 493-94. The Moore

Court explained that this conclusion followed from a “straight up” application

of principles announced by the Supreme Court in Mt. Healthy . Id. at 493. In

particular, the court noted that the Louisiana school boards—like county

school districts in Georgia, see supra at 19-20—had the power to sue and be

sued; the power to contract; the power to purchase, hold and sell property;

the power to borrow funds; and the power to levy and collect taxes. Id. at 493-

94. The Moore Court also emphasized that, just like Georgia county school

districts, see supra at 19, Louisiana parish school boards are considered under

state law to be “political subdivisions and not the alter ego of the state.” Id .

Finally, the Fifth Circuit’s decision in Campbell —which this Court

followed in Travelers Indemnity, supra—held that a local school district in

Florida was not entitled to Eleventh Amendment because they were “locally




-26-

controlled, essentially local in character, and the funds to defray the award

would not be derived primarily from the state treasury.” 534 F.2d at 656. As

discussed above, Georgia local school systems are likewise subject to the

control of local boards of education, are essentially local in character, and

have ample resources to raise funds that are completely separate from state

funds.

This Court is not free to disregard prior panel decisions that are “so

closely on point” and have not been directly overruled by the Supreme Court

or this Court sitting en banc. United States v. Blankenship, 382 F.3d 1110, 1141

(11th Cir. 2004).

3. Nor do Georgia county school districts differ materially

from the many local school districts that were denied

sovereign immunity in persuasive decisions of other

circuits

As a final matter, this Court should be guided by “the overwhelming

weight of authority from [its] sister circuits,” Jones v. Am. Gen. Life Ins. Co., 370

F.3d 1065, 1071 (11th Cir. 2004), all of which provides yet further support for

reversal of the decision below.

In virtually every circuit decision addressing local school districts’

claims of sovereign immunity, the courts have concluded that these entities do

not qualify as arms of the state. See Holz v. Nenana City Pub. Sch. Dist., 347 F.3d




-27-

1176, 1181 (9th Cir. 2003) (Alaska); Savage v. Glendale Union High Sch. Dist.

No. 205 , 343 F.3d 1036, 1041-51 (9th Cir. 2003) (Arizona); Herts v. Smith, 345

F.3d 581, 588 (8th Cir. 2003) (Arkansas); Rosa R. v. Connelly , 889 F.2d 435,

438 (2d Cir. 1989) (Connecticut); Gary A. v. New Trier High Sch. Dist., 796 F.2d

940, 944-47 (7th Cir. 1986) (Illinois); Parker , 667 F.3d at 928-29 (Indiana);

Unified Sch. Dist. No. 480 v. Epperson, 583 F.2d 1118, 1123 (10th Cir. 1978)

(Kansas); Minton v. St. Bernard Parish Sch. Bd., 803 F.2d 129, 131 (5th Cir.

1986) (Louisiana); Soper v. Hoben, 195 F.3d 845, 853 n.9 (6th Cir. 1999)

(Michigan); Black v. N. Panola Sch. Dist., 461 F.3d 584, 596-97 (5th Cir. 2006)

(Mississippi); Miener v. State of Mo., 673 F.2d 969, 980 (8th Cir. 1982)

(Missouri); Febres v. Camden Bd. of Educ., 445 F.3d 227, 237 (3d Cir. 2006)

(New Jersey); Duke v. Grady Mun. Sch., 127 F.3d 972, 981 (10th Cir. 1997)

(New Mexico); Woods v. Rondout Valley Cent. Sch. Dist., 466 F.3d 232, 251 (2d

Cir. 2006) (New York); Eason v. Clark County Sch. Dist., 303 F.3d 1137, 1141-

45 (9th Cir. 2002) (Nevada); Cash v. Granville County Bd. of Educ., 242 F.3d

219, 226 (4th Cir. 2001) (North Carolina); Narin v. Lower Merion Sch. Dist., 206

F.3d 323, 331 (3d Cir. 2000) (Pennsylvania); Lopez v. Houston Indep. Sch. Dist.,

817 F.2d 351, 353 (5th Cir. 1987) (Texas), overruled on other grounds by

Walton v. Alexander , 44 F.3d 1297 (5th Cir. 1995); Ambus v. Granite Bd. of




-28-

Educ., 995 F.2d 992, 994-97 (10th Cir. 1993) (en banc) (Utah); Stoddard v. Sch.

Dist. No. 1, 590 F.2d 829, 835 (10th Cir. 1979) (Wyoming).

These decisions are in addition to the numerous district court cases that

have found a state’s local school districts are not arms of the state for Eleventh

Amendment purposes.11 And, they are in addition to the many sister circuit

and district court cases that have implicitly recognized that local school

districts lack Eleventh Amendment immunity by treating them as “persons”

for purposes of determining their liability for civil rights violations under 42

U.S.C. § 1983.12 See note 10, supra.

11 Eckerd v. Indian River Sch. Dist., 475 F.Supp. 1350, 1364 (D. Del. 1979)

(Delaware); Ghassomians v. Ashland Indep. Sch. Dist ., 55 F.Supp. 2d 675, 682

(E.D. Ky. 1998) (Kentucky); Braintree Baptist Temple v. Holbrook Pub. Sch., 616

F.Supp. 81, 89 (D. Mass. 1984) (Massachusetts); Kenny v. Bd. of Trs. of Valley

County Sch. Dist. Nos. 1 & 1A, 563 F.Supp. 95, 98-99 (D. Mont. 1983)(Montana); Cline v. Sch. District No. 32, 476 F.Supp. 868, 969-70 (D. Neb. 1979)

(Nebraska); Panzarella v. Boyle, 406 F.Supp. 787, 795-99(D.R.I. 1975) (Rhode

Island); Green v. Clarendon County Sch. Dist. 3, 923 F.Supp. 829, 849-50 (D.S.C.

1996) (South Carolina); Wigg v. Sioux Falls Sch. Dist. 49-5 , 274 F.Supp.2d 1084,

1094-97 (D.S.D. 2003) (South Dakota), rev'd in part on other grounds, 382 F.3d

807 (8th Cir. 2004); Anderson v. Clarksville Montgomery County Sch. Sys., 2006

WL 1639438, *2 (M.D. Tenn. 2006) (Tennessee); Cole v. Buchanan County Sch.

Bd ., 661 F.Supp.2d 569, 571-73 (W.D. Va. 2009) (Virginia); Kanongata'a v.

Wash. Interscholastic Activities Ass'n, 2006 WL 1727891, *20 (W.D. Wash.2006) (Washington).

12 See Rost ex rel. K.C. v. Steamboat Springs RE-2 Sch. Dist., 511 F.3d 1114,

1123-25 (10th Cir. 2008) (Colorado); Zoll v. E. Allamakee Cmty. Sch. Dist., 588

F.2d 246, 251-52 (8th Cir. 1978) (Iowa); Shrum ex rel. Kelly v. Kluck , 249 F.3d

(continued . . .)




-29-

The nearly complete unanimity of this body of law should not be

surprising. “No single tradition in public education is more deeply rooted than

local control over the operation of schools; local autonomy has long been

thought essential both to the maintenance of community concern and support

for public schools and to quality of the educational process.” Milliken v.

Bradley , 418 U.S. 717, 741-42 (1974). Local school districts—like counties and

municipalities—are therefore “quintessentially local bodies, not entitled to

state sovereign immunity almost by definition.” Lowe v. Hamilton County Dep’t

of Job & Family Servs., 610 F.3d 321, 330 (6th Cir. 2010); see also Missouri v.

Jenkins, 495 U.S. 33, 56 n.20 (1990) (stating, without the need for extended

773, 779-81 (8th Cir. 2001) (Nebraska); Muskrat v. Deer Creek Pub. Sch., 715F.3d 775, 788-89 (10th Cir. 2013) (Oklahoma); Settlegoode v. Portland Pub.

Schs., 371 F.3d 503, 516 & n.11 (9th Cir. 2004) (Oregon); Hall v. Marion Sch.

Dist. No. 2, 31 F.3d 183, 195-96 (4th Cir. 1994) (South Carolina); Blackett v.

Rapid City Area Sch. Dist., 1 Fed.Appx. 589, 591 (8th Cir. 2001) (South Dakota);

Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261-62 (6th Cir.

2006) (Tennessee); Riddick v. Sch. Bd. of City of Portsmouth, 238 F.3d 518,

522-26 (4th Cir. 2000) (Virginia); Gernetzke v. Kenosha Unified Sch. Dist. No. 1,

274 F.3d 464, 468-69 (7th Cir. 2001) (Wisconsin). See also Craig v. Me. Sch.

Admin. Dist. No. 5 , 350 F.Supp.2d 294, 297-98 (D. Me. 2004) (Maine); R.S. exrel. S.S. v. Minnewaska Area Sch. Dist. No. 2149, 894 F.Supp.2d 1128, 1136-38

(D. Minn. 2012) (Minnesota); Madon v. Laconia Sch. Dist., 952 F.Supp. 44, 48-

49 (D.N.H. 1996) (New Hampshire); Okeson v. Tolley Sch. Dist. No. 25 , 570

F.Supp. 408, 411-12 (D.N.D. 1983) (North Dakota).




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analysis, that the Eleventh Amendment “does not afford local school boards …

immunity from suit”).

There are, to be sure, instances where a state choses to structure school

system differently, so that a private action against school district is effectively

a demand on the state and its own treasury. Based on the only reasoned

circuit court decision to actually accept a school district’s claim of Eleventh

Amendment immunity, California appears to be such a case. See Belanger v.

Madera Unified Sch. Dist., 963 F.2d 248, 251-54 (9th Cir. 1992).13 The Belanger

Court’s finding of immunity followed from California’s unique system of

school funding under which any funds lost to a judgment would automatically

be supplanted by state funds. Id. at 252. Thus, as the court explained:

In the critical area of school funding … , California has selected a

different path from that of most states. California has vestedcontrol of school funding in the state rather than local

governments. Thus, the school district in this case is easily

distinguished from the Ohio school district in Mount Healthy .

Id. at 254.

13 In one other decision, the Fourth Circuit accepted—in a footnote with

no substantive analysis—the plaintiff’s concession that a Maryland county

school board was an “arm of the state.” See Lee-Thomas v. Prince George’s

County Pub. Sch., 666 F.3d 244, 248 n.5 (4th Cir. 2012).




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But in subsequent cases dealing with other states, the Ninth Circuit has

taken pains to emphasize that California is the exception, not the rule. For

example, the court has distinguished Belanger and denied immunity where—

as is the case in Georgia—a judgment against the school district would not be

satisfied out the of the state treasury. See Eason, 303 F.2d at 1142 (noting that

“Belanger is … distinguishable because Nevada does not share the unique

structure of the California school system”); Savage, 343 F.3d at 1041 (noting

the “unique features of California law” and concluding that “Arizona’s school

districts are more akin to Nevada’s than California’s and therefore are subject

to suit in federal court”).

Collectively, the cases from other circuits demonstrate overwhelmingly

that local school systems like the county school districts in Georgia are not

entitled to Eleventh Amendment immunity. Georgia’s county school districts

do not have the unique characteristics that would justify a contrary finding.

Because the district court below ignored or misapplied both binding and

persuasive authority that is directly on point, this Court should reverse the

finding of immunity with respect to HCSD.




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CONCLUSION

For the foregoing reasons, amici curiae NEA and GAE respectfully join

the plaintiff-appellant in requesting that this Court reverse the decision below

with respect to its ruling on HCSD’s claim of sovereign immunity.

Respectfully submitted,

/s/Alice O’Brien

Alice O’Brien

Jason Walta


1201 16th Street, N.W.Washington, D.C. 20001

Telephone: (202) 822-7035

[email protected]

[email protected]

Counsel for the National Education Association

and Georgia Association of Educators




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CERTIFICATE OF COMPLIANCE

I, Jason Walta, counsel for amicus, certify pursuant to Federal Rule of

Appellate Procedure 29(d) and Eleventh Circuit Rule 29-2 that the attached

amicus brief is proportionally spaced, has a type face of 14 points or more,

and contains 6,993 words.

/s/ Jason Walta

Jason Walta

NATIONAL EDUCATION ASSOCIATION1201 16th Street, N.W.


(202) 822-7035

Date: February 12, 2014




CERTIFICATE OF SERVICE

I certify that on February 12, 2014, I electronically filed the foregoing

amici curiae brief with the Clerk of the Court for the United States Court of

Appeals for the Eleventh Circuit by using the appellate CM/ECF system.

I certify that all participants in the case who are registered CM/ECF

users will be served by the appellate CM/ECF system. I further certify that the

following participants in the case are not registered CM/ECF users and have

been served on this day by depositing a true and correct copy of this filing

with a third-party commercial carrier for delivery within three days at the

address listed below:

A. J. Welch, Jr.

Lindsay Marie Hodgson

Smith, Welch, Webb & White

2200 Keys Ferry CourtMcDonough, Georgia 30253

/s/ Jason Walta

Jason Walta




(202) 822-7035

Date: February 12 2014


Documents

NEA Brief - Lightfoot 11th Amendment