Nilsen v. University of Washington

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PATRICIA NILSEN; ANNA No. 24-7460

SANDI; AVERY SNYDER;

D.C. No.

CARRIE FORD; CHRISTEN

2:23-cv-01498-

RHODES; DIANE JANSEN; ERIN

MJP

BOLAS; GLENA FELKER;

GLORIA TORRES; JESSICA

LOPEZ; JOVY LEGASPI; OPINION

KATHLEEN POKORNY;

KATHERINE GALANGA; KRISTI

HUGHES; LYNNETTE MATHIAS;

MAILE SIVAKANTHAN;

MELISSA EARL-PATOPEA;

MICHELLE SIZER; PETRA

BIGEA; SHANNON SLISH;

SUSAN GROLLER; CRYSTAL

GIBSON,

Plaintiffs - Appellants,

v.

UNIVERSITY OF WASHINGTON,

a governmental agency; JENNIFER

PETRITZ; KRISTI ARAVENA;

KATHY SCHELL,

Defendants - Appellees.

2 NILSEN V. UNIVERSITY OF WASHINGTON

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted May 20, 2026

Seattle, Washington

Filed August 13, 2026

Before: Richard C. Tallman, Richard R. Clifton, and Ryan

D. Nelson, Circuit Judges.

Opinion by Judge Tallman

SUMMARY *

Eleventh Amendment Immunity

The panel affirmed the district court’s summary

judgment in favor of the University of Washington (UW) in

a civil rights action brought by former employees after they

were fired for failure to comply with UW’s COVID-19

vaccine mandate issued by the Governor of Washington

during the pandemic.

Appellants brought claims under 42 U.S.C. § 1983

alleging that UW violated their First and Fourteenth

Amendments rights. The district court dismissed these

claims, concluding that UW was an arm of the state under

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

NILSEN V. UNIVERSITY OF WASHINGTON 3

the three-factor test articulated in Kohn v. State Bar of

California, 87 F.4th 1021 (9th Cir. 2023) (en banc), and thus

was not a “person” under § 1983.

While the appeal was pending, the Supreme Court

decided Galette v. New Jersey Transit Corp., 607 U.S. 509

(2026), which addressed the “arm of the state” analysis. The

panel held that the three-factor test articulated in Kohn

survives Galette, but that Galette clarifies how much weight

the court should give each factor.

Following Galette, to determine whether an entity is an

arm of the state, the court considers the following three

factors: (1) whether the State intended to create a legally

independent entity, which is shown by the entity’s form and

treatment under state law; (2) whether the State is formally

liable for the entity’s debts or liabilities, including

judgments; and (3) the degree of control the State exercises

over the entity. The first factor bears the most weight, and

the third bears the least.

Applying the refined test, the panel held that UW is an

arm of Washington State and thus is not a “person” under

§ 1983. Accordingly, it cannot be sued for civil rights

violations.

The panel addressed Appellants’ other claims in a

concurrently filed memorandum disposition.

4 NILSEN V. UNIVERSITY OF WASHINGTON

COUNSEL

Nathan J. Arnold (argued), Arnold Jacobowitz & Alvarado

PLLC, Seattle, Washington; Dennis McGlothin, Western

Washington Law Group PLLC, Bellevue, Washington; for

Plaintiffs-Appellants.

Zachary J. Pekelis (argued), Pacifica Law Group LLP,

Seattle, Washington; Timothy J. O'Connell, Brent Hamilton,

and Aaron R. Doyer, Stoel Rives LLP, Seattle, Washington;

for Defendants-Appellees.

OPINION

TALLMAN, Circuit Judge:

States generally cannot be sued for civil rights violations

under 42 U.S.C. § 1983 because they are not “persons”

within the meaning of the law. Will v. Mich. Dep’t of State

Police, 491 U.S. 58, 71 (1989). A trickier question is

whether an entity, such as a public university, may seek the

same shelter as an arm of the state. See id. at 70 (immunity

applies “to States or governmental entities that are

considered ‘arms of the State’”). Appellants are former

employees of a public university, the University of

Washington (UW). Relevant here, 1 they sued UW under

§ 1983 after they were fired for failure to comply with UW’s

COVID-19 vaccine mandate issued by the Governor of

Washington during the pandemic. The district court

dismissed these claims, concluding that UW was an arm of

1

We address Appellants’ other claims, including those against the

individual defendants, in a concurrently filed memorandum disposition.

NILSEN V. UNIVERSITY OF WASHINGTON 5

the state under the three-factor test we articulated in Kohn v.

State Bar of California, 87 F.4th 1021 (9th Cir. 2023) (en

banc), and thus was not a “person” under § 1983.

While this appeal was pending before us, the Supreme

Court decided Galette v. New Jersey Transit Corp., 607 U.S.

509 (2026), which addressed the “arm of the state” analysis.

Today we decide whether the Kohn test survives Galette.

We conclude that it does, although Galette clarifies how

much weight we should give each factor. Under this

reweighted three-factor test, which emphasizes who pays

any judgment that might ultimately be rendered against the

university, we hold that UW is an arm of the state and affirm

the district court’s grant of summary judgment dismissing

the § 1983 claims against it under the Eleventh Amendment

doctrine of sovereign immunity.

I

On August 20, 2021, then-Governor of Washington Jay

Inslee issued Proclamation 21-14.1, which required all

healthcare providers, employees in educational settings, and

state employees to be vaccinated against COVID-19 by

October 18, 2021, unless they received a medical or religious

exemption. The Proclamation recited that exempt

employees were entitled to reasonable accommodations

under federal and state law, unless accommodating the

unvaccinated employee would impose an undue hardship on

the employer.

As a public university operating healthcare facilities

through the University of Washington Medical Facility,

Harborview Medical Center, Seattle Children’s Hospital,

and various medical clinics in Washington, UW was subject

to the Proclamation and adopted its own vaccination policy

implementing the Governor’s directive. Appellants

6 NILSEN V. UNIVERSITY OF WASHINGTON

requested and received religious and medical exemptions

from vaccination. But UW determined that accommodating

them in their respective positions would impose undue

hardship and so denied many of the requested

accommodations. None of the Appellants received the

vaccine or could be accommodated through work

reassignment or teleworking, so they were terminated.

Appellants sued UW and two of its human resources

officers, alleging that their terminations violated federal and

state law. They brought claims under § 1983 alleging that

UW violated their rights under the First and Fourteenth

Amendments to the United States Constitution. 2 The parties

cross-moved for summary judgment on these claims. After

concluding that UW was an arm of the state, the district court

granted summary judgment to UW on these claims and

dismissed them. This timely appeal followed.

II

We review the district court’s grant of summary

judgment de novo. Edwards v. Wells Fargo & Co., 606 F.3d

555, 557 (9th Cir. 2010). Whether an entity is an arm of the

state is a question of federal law, Kohn, 87 F.4th at 1025,

which we review de novo, Walden v. Nevada, 945 F.3d

1088, 1092 (9th Cir. 2019).

2

These claims were brought as Appellants’ third, fourth, ninth,

thirteenth, and fourteenth causes of action. During summary judgment

briefing, Appellants voluntarily dismissed their thirteenth cause of

action. This opinion and the concurrently filed memorandum disposition

dispose of all remaining claims in the litigation.

NILSEN V. UNIVERSITY OF WASHINGTON 7

III

A

Section 1983 creates a cause of action against any

“person” acting under color of law who deprives another of

their constitutional rights. But neither States nor

governmental entities that are “arms of the state” are

“person[s]” under § 1983 and thus cannot be sued under that

statute. 3 Will, 491 U.S. at 70–71. The parties here dispute

UW’s status: is it an arm of Washington State or a legally

independent entity? To answer this question, we must first

determine what test to apply.

Whether an entity is an arm of the state boils down to

one essential question: “whether the state structured the

entity to enjoy immunity from suit.” Kohn, 87 F.4th at 1030

(citation modified). Three years ago, our en banc court

directed us to consider three factors to answer that question:

“(1) the state’s intent as to the status of the entity, including

the functions performed by the entity; (2) the state’s control

over the entity; and (3) the entity’s overall effects on the

state treasury.” Id. (citation modified). Under this test, the

factors appeared to carry equal weight; that is, no one factor

was dispositive. See id. at 1037 (noting that the third factor

cannot overcome the other two).

The district court made its arm of the state determination

under the test we articulated in Kohn. But after appellate

briefing concluded, the Supreme Court issued its opinion in

3

There is an exception to this general rule which allows for suit against

a state official in his or her official capacity for prospective injunctive

relief. Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007) (citing Will,

491 U.S. at 71 n.10). The equitable claims against UW do not implicate

this exception because they are brought against the institution itself.

8 NILSEN V. UNIVERSITY OF WASHINGTON

Galette. Galette was one of two consolidated cases, both of

which presented the same question: was the New Jersey

Transit Corporation entitled to sovereign immunity as an

arm of the state? 607 U.S. at 515. In one case, the New York

Court of Appeals concluded that it was not; in the other, the

Pennsylvania Supreme Court said that it was. Id. at 517–19.

The Supreme Court granted certiorari in both cases to

resolve the conflict. Id. at 519.

The Court concluded that the Transit Corporation was

not an arm of the state. Id. at 528. It reaffirmed that the

essential question guiding the inquiry is “whether the State

structured the entity as part of itself or as legally

independent,” id. at 525, which “can be answered only after

considering the provisions of state law that define the

[entity’s] character.” Id. at 519 (citation omitted).

The Court explained the “clearest evidence” that a State

structured a legally independent entity was that the entity

was established as “a corporation with the traditional

corporate powers to sue and be sued, hold property, make

contracts, and incur debt.” Id. at 524. The corporate form

has traditionally involved “separate legal personality,”

which means “courts should presume . . . that [a] corporate

entity is no longer part of the State itself.” Id. at 524–25

(citation modified).

The corporate form, however, is not the only way for a

State to create a legally independent entity. Id. at 525. As

the Court acknowledged, “[o]ther aspects of state law may

indicate legal separateness,” such as by defining the entity

“as not part of the State for other purposes” or by describing

it as a “separate legal entity.” Id.

The Court also looked to “whether the entity is liable for

its own judgments or whether the State is formally liable

NILSEN V. UNIVERSITY OF WASHINGTON 9

[because] any judgment against the entity must be satisfied

out of the state treasury.” Id. (citation modified). Formal

legal liability was the relevant factor, not the entity’s

“practical financial relationship with the State, such as its

expectation that the State would cover its judgments if

needed.” Id. The Court recognized that a State may

indemnify or subsidize entities like nonprofits, private

corporations, or municipalities, but that practical financial

relationship did not convert those entities into arms of the

state. Id. at 525–26.

Finally, the Court acknowledged that “courts may

consider the degree of control the State exerts over the

entity,” but “should do so with caution” because “ultimate

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

even those that are not arms of the State.” Id. at 526 (citation

modified).

In short, Galette identified three factors, listed here in

descending order of importance: (1) how the entity is

structured in relation to the State under state law; (2) whether

the State is formally liable for judgments against the entity;

and (3) the degree of control the State exercises over the

entity. We now consider whether Kohn’s three-factor test is

“clearly irreconcilable” with Galette. See Miller v. Gammie,

335 F.3d 889, 893 (9th Cir. 2003) (en banc). As discussed

below, we conclude that Galette refines Kohn rather than

displaces it.

While using some different language, the Supreme Court

considered substantially the same three factors as Kohn did.

The first factor, which Kohn called “the state’s intent as to

the status of the entity,” 87 F.4th at 1030 (citation modified),

was styled in Galette as “whether the State had structured

the entity to be legally separate.” 607 U.S. at 521. But

10 NILSEN V. UNIVERSITY OF WASHINGTON

Galette, like Kohn, noted that similar considerations under

state law were relevant: how state law characterized the

entity and whether the entity was defined as part of the State

for other purposes under state law for example. Compare id.

at 525, with Kohn, 87 F.4th at 1030. Thus, despite the

different labeling, we conclude that the first Kohn factor and

first Galette factor inform the same consideration: did the

State intend to create an entity that was part of itself or

legally independent?

To be sure, Galette’s analysis under this factor differs

from ours in two respects. First, Galette emphasized the

importance of the corporate form as “[t]he clearest evidence

that a State has created a legally separate entity.” 607 U.S.

at 524. This does not mean that only corporations are legally

separate entities, see id. at 525, but that corporate form is a

weighty consideration under this factor. Second, Galette

dismissed as irrelevant whether the entity exercised

traditional governmental or public powers. The relevant

consideration was not “whether the entity serves public

functions, but rather . . . whether the State has chosen to

serve those public functions through its own apparatus or

through that of a legally separate entity.” Id. at 532. To the

extent Kohn differs from Galette in its emphasis on these

considerations under the first factor, Galette clarifies what is

relevant to our assessment.

The second Kohn factor considers “the state’s control

over the entity.” 87 F.4th at 1030 (citation modified).

Galette found this factor “not especially probative” because

the State retains ultimate control over every entity it creates,

“even those that are not arms of the State.” 607 U.S. at 526.

The Supreme Court also noted that “gauging actual control”

was “an uncertain and unreliable exercise” that made this

factor difficult to apply. Id. (citation modified). The Court

NILSEN V. UNIVERSITY OF WASHINGTON 11

allowed, however, courts to consider control as a factor,

albeit with caution. Id. Thus, the second Kohn factor

remains in play, although Galette teaches that it carries the

least weight.

The third Kohn factor considers “the entity’s overall

effects on the state treasury.” 87 F.4th at 1030 (citation

omitted). Galette narrows the scope of this factor by

focusing only on who ultimately pays—whether the State is

“formally liable for judgments” against the entity, or the

entity’s other debts or liabilities. 607 U.S. at 525, 529–30.

The Court found the entity’s “practical financial relationship

with the State, such as its expectation that the State would

cover its judgments if needed” or its receipt of state funding,

less relevant than the State’s “formal legal liability.” Id. at

525–26. As with the first factor, Galette simply clarifies

what is relevant to our assessment; it does not eliminate the

factor from consideration.

One other point bears mentioning. Under Kohn, the

factors appeared to bear equal weight. See 87 F.4th at 1037.

Galette, however, makes clear that they do not, as the State’s

degree of control over the entity should be considered only

“with caution.” 607 U.S. at 526–27.

Accordingly, we conclude that while Galette did not

effectively overrule the Kohn test, it did refine and rebalance

the test. To determine whether an entity is an arm of the

state, we consider the following three factors: (1) whether

the State intended to create a legally independent entity,

which is shown by the entity’s form and treatment under

state law; (2) whether the State is formally liable for the

entity’s debts or liabilities, including judgments; and (3) the

degree of control the State exercises over the entity. The first

12 NILSEN V. UNIVERSITY OF WASHINGTON

factor bears the most weight, and the third bears the least.

See id. at 523–27.

B

Applying this refined test, we hold that UW is an arm of

Washington State and thus is not a “person” under § 1983.

It cannot be sued for civil rights violations.

1

We first consider whether UW’s form and treatment

under Washington law shows an intent to create a legally

independent entity.

“The clearest evidence” that Washington intended UW

to be “a legally separate entity” would be if it had created

UW as a corporation. Id. at 524. It appears, however, that

UW is not a corporation under state law. See Wash. Rev.

Code § 28B.20.010 (designating the institution simply as

“the University of Washington” without language indicating

corporate form).

Appellants argue that UW is not an arm of the state

because it was created as a corporation years before

Washington was admitted to the Union. Because it was

created in corporate form and predates Washington’s

statehood, Appellants contend (1) that its corporate

character remains, and (2) for “arm of the state” purposes,

we should consider the Washington Legislature’s intent to

create a legally separate entity at the time the entity was

created. Before addressing Appellants’ contentions, we

briefly consider the circumstances of UW’s creation.

In 1863, the Territorial Legislature of Washington

created a board of regents “under the name of the University

of the Territory of Washington” to “provide the inhabitants

NILSEN V. UNIVERSITY OF WASHINGTON 13

of [the] territory with the means of acquiring a thorough

knowledge of the various branches of the literature, science

and arts.” Act of Jan. 23, 1863, §§ 1–2, 1862–63 Wash.

Territorial Stat. 477, 477. The Territorial University was

created as “a body corporate and politic, with perpetual

succession,” that could “sue and be sued, plead and be

impleaded, in all courts of law and equity.” Id. § 1. It had

the power to hold all real or personal property necessary to

accomplish its purpose; to “enact ordinances, by-laws, and

regulations” for its government; to elect, appoint, and

remove the president, the faculty, and other officers; and to

manage and control the course of studies and confer degrees.

Id. §§ 5–11. The regents were elected by the Territorial

Legislature. Id. § 4.

Washington Territory was admitted to the Union as

Washington State on November 11, 1889. Don Brazier,

History of the Washington Legislature 1854 – 1963 41

(2000). Shortly thereafter, the first State Legislature

“established in this state, at or near the city of Seattle, . . . an

institution of learning under the name and style of the

University of Washington.” Act of Mar. 27, 1890, § 1,

1889–90 Wash. Sess. Laws 395, 395. The 1890 Act did not

use the “body corporate and politic” language as had been

used to describe the University of the Territory of

Washington. See id. at 395–99. Instead, it gave UW, acting

through its board of regents, the power to enact laws for the

university’s government; appoint officers and faculty;

manage and control the course of studies and award degrees;

spend the university fund’s income to obtain “apparatus” and

“other means of facility for instruction”; and prescribe

admission standards and tuition rates. Id. §§ 6–8, 10, 12.

UW’s regents would be appointed by the governor, with

the senate’s advice and consent. Id. § 4. They were required

14 NILSEN V. UNIVERSITY OF WASHINGTON

to submit annual reports “of all their doings,” including

financial transactions and future budget estimates, to the

governor. Id. § 11. UW did not have the power to sell its

lands; only the Legislature could do so, and proceeds were

paid into the state treasury as the “state university fund.” Id.

§ 16. UW was only allowed to use the fund’s income. Id.

The principal could be invested only by the State. Id. § 17.

Washington’s Attorney General was designated as UW’s

legal advisor and directed to “institute and prosecute or

defend all suits” on its behalf. Id. § 19. Finally, UW was

prohibited from creating any debt or liability beyond its

annual income. Id. § 20.

Over time, Washington has granted UW’s regents

additional powers. See, e.g., School Code, tit. II, ch. 97, § 5,

1909 Wash. Sess. Laws 230, 240–41 (among other things,

granting the board of regents “full control of the university

and its property of various kinds”). Today, the Revised Code

of Washington primarily addresses UW in chapters 28B.10

(Colleges and Universities Generally) and 28B.20

(University of Washington).

Considering this history, we see no indication that the

pre-statehood corporate entity known as the University of

the Territory of Washington is the same entity in law as

today’s University of Washington. The 1890 Act used

language of creation when referring to the state university:

“[t]here shall be established . . . an institution of learning

under the name and style of the University of Washington.”

Act of 1890 § 1, 1889–90 Wash. Sess. Laws at 395

(emphasis added). In contrast, the 1909 School Code used

language of continuation to refer to the state university:

“[t]he State University, as heretofore located and

established . . . , shall be designated and named the

University of Washington.” School Code, tit. II, ch. 97, § 1,

NILSEN V. UNIVERSITY OF WASHINGTON 15

1909 Wash. Sess. Laws at 238 (emphasis added). This

suggests that the 1890 Act created a new legal entity after

statehood, rather than continuing a preexisting entity as the

1909 School Code did.

This conclusion is bolstered by the 1890 Act’s treatment

of the board of regents. After vesting UW’s governance in

the board of regents and describing their manner of

appointment and term length, the Act provided “[t]hat those

appointed on the first board under this act” would hold their

offices for staggered terms: “two for five years, two for three

years, and three for one year.” Act of 1890 § 3, 1889–90

Wash. Sess. Laws at 396. This suggests that an entirely new

board was being appointed, and staggered terms instituted so

that the new regents’ terms would not all expire at once. This

is again reinforced by comparison to the 1909 School Code,

which provided instead “[t]hat regents now serving upon

[the] board shall continue as such during the terms for which

they were respectively appointed.” School Code, tit. II,

ch. 97, § 3, 1909 Wash. Sess. Laws at 239.

In sum, the 1890 Act created a new board of regents for

a new public institution, unlike the 1909 School Code, which

amended the organic law of a preexisting institution. This

indicates that modern day UW is a legally different entity

than the old University of the Territory of Washington. 4

And unlike the Territorial University, UW was not created

in the corporate form. See generally Act of 1890, 1889–90

Wash. Sess. Laws at 395–99. Nor was it given the full slate

of corporate powers. Notably absent from the 1890 Act is a

grant of the right to sue and be sued. See id. UW also could

not now dispose of its own land without legislative approval

4

Even if UW was the same legal entity, the Legislature intended to limit

UW’s powers to less than what was granted to the Territorial University.

16 NILSEN V. UNIVERSITY OF WASHINGTON

or enter into contracts, acquire property, or incur debt except

as specified in the Act. Id. §§ 7–8, 16, 20; see Galette, 607

U.S. at 524 (noting the traditional corporate powers).

Today, UW still is not described as a corporation under

state law and lacks the express power to sue and be sued.

See Wash. Rev. Code §§ 28B.20.010, 28B.20.130. But it has

been granted other traditional corporate powers: it may

accept and dispose of property, over which it has “full

control . . . except as otherwise provided by law”; it may

enter into contracts for university purposes; and it may incur

debt, including by issuing bonds. See, e.g., id.

§§ 28B.20.130, 28B.20.700–.715. Those powers, however,

are not absolute. See, e.g., id. §§ 28B.10.020 (certain

property acquisitions subject to approval by a politically

appointed council); 28B.20.145 (UW cannot create debt

beyond its biennial income levels); 28B.20.382 (UW cannot

sell certain lands without legislative act).

State law also treats UW as—indeed, expressly classifies

it as—a state agency, subject to the obligations imposed on

state agencies. See, e.g., id. § 34.05.010(2) (defining any

“institution of higher education” as an “agency” subject to

the Administrative Procedure Act); § 42.30.020(1)(a)

(defining any “educational institution . . . created by or

pursuant to statute” as a “public agency” subject to the Open

Public Meetings Act); § 42.56.010(1) (subjecting “state

agencies” to the Public Records Act). UW also has the

power to exercise eminent domain in accordance with

chapter 8.04 of the Revised Code of Washington, which

governs eminent domain powers exercised by the State. Id.

§ 28B.10.020. In contrast, chapter 8.20 of the Code governs

eminent domain exercised by corporations; this distinction

further indicates that Washington considers UW part of

itself, rather than an independent corporation. While

NILSEN V. UNIVERSITY OF WASHINGTON 17

Washington’s classification of UW as a state agency does

not, standing alone, make UW an arm of the state, the

obligations and limitations that Washington law imposes on

UW because of that classification suggests to us that

Washington considers UW as part of itself.

Finally, any lawsuits brought against UW in state court

must be filed in accordance with chapter 4.92 of the Code,

which sets forth procedures for “claims against the state or

against the state’s officers, employees, or volunteers, acting

in such capacity, for damages arising out of tortious

conduct.” Id. § 4.92.100; Kleyer v. Harborview Med. Ctr. of

Univ. of Wash., 887 P.2d 468, 472 (Wash. Ct. App. 1995).

The Washington Supreme Court has also treated UW as an

arm of the state in a civil rights action under § 1983. 5 Hontz

v. State, 714 P.2d 1176, 1180 (Wash. 1986); cf. Kohn, 87

F.4th at 1032 (recognizing that “state court treatment is also

relevant” to discern the State’s intent with respect to the

entity’s status).

In sum, applying the Kohn test in light of Galette, we

conclude that Washington intended UW to be an arm of the

state, not a legally separate entity. While UW has

considerable power to act, it is subject to the constraints all

State offices and departments must abide by. Washington

also extends sovereign immunity to UW in its own courts as

an arm of the state. Finally, history shows that Washington

made a choice after achieving statehood: UW was not

5

Long before Kohn or Galette, we accepted the premise that UW was an

arm of the state. See Goodisman v. Lytle, 724 F.2d 818, 820 (9th Cir.

1984). Goodisman appeared to assume both that UW was an arm of the

state and that the damages sought would be paid out of the state treasury.

See id. As we also hold that UW is an arm of the state in light of the

Supreme Court’s most recent articulation of the test we are to employ,

we see no need to revisit Goodisman.

18 NILSEN V. UNIVERSITY OF WASHINGTON

granted the corporate independence afforded its territorial

predecessor. Thus, we conclude that the analysis of this

factor favors the district court’s decision that UW is an arm

of the state.

2

Next we consider whether Washington is formally liable

for UW’s debts or liabilities, including judgments against it.

UW contends that Washington is liable for judgments

against it because those judgments are paid out of a general

liability account for the State’s operations. We are not so

sure.

The Revised Code of Washington allows the board of

regents of an institution of higher education to ask the

Attorney General to defend a claim against the institution or

its agents. Wash. Rev. Code § 28B.10.842. The costs of

defense, including the cost of a judgment, are paid from a

liability account drawn on the state treasury. Id.; § 4.92.130.

But unlike other institutions of higher education,

Washington has created a “self-insurance revolving fund”

for the sole purpose of paying defense costs, judgments, and

claims against UW, which UW holds and funds. Id.

§ 28B.20.253. This fund appears to be the “exclusive”

means for paying defense costs and judgments for all claims

against UW. See id. § 28B.20.255 (noting that the statutory

provisions concerning this fund govern “notwithstanding”

§ 28B.10.842 and ch. 4.92); Kleyer, 887 P.2d at 472–73

(concluding that the self-insurance provisions supersede ch.

4.92 to the extent they are inconsistent). Thus, it appears that

UW’s judgments are not paid from the State’s general

liability fund.

That does not end our analysis, however, because the

self-insurance revolving fund may still be state money.

NILSEN V. UNIVERSITY OF WASHINGTON 19

When the Legislature created UW’s self-insurance revolving

fund, the fund was held “in the custody of the treasurer.” Act

of Feb. 17, 1976, ch. 12, § 2, 1975–76 Wash. Sess. Laws 21,

22 (2d Extraordinary Session). The fund was later

transferred to UW’s custody. Act of May 7, 1997, ch. 288,

§ 1, 1997 Wash. Sess. Laws 1651, 1651 (codified at Wash.

Rev. Code § 28B.20.253(1)). This was done for

administrative simplicity but appears not to have changed

the money’s public character. See id. at 1652 (note). This

conclusion is reinforced by the fact that UW does not have

total discretion over the fund; payment of claims above a

certain threshold must be approved by the Attorney General,

indicating that these remain state monies held locally by a

state agency rather than in the treasury. Wash. Rev. Code

§§ 28B.20.253(1)(b) (approval authority); 43.79.019

(recognizing the existence of “funds or accounts held locally

by any state agency” that may be transferred to the state

treasury if “financially advantageous”). The record does not

show what other sources of revenue may be realized from

the leasing of UW’s valuable property in the core of

downtown Seattle, from research grants from the Federal

government or other third parties who may contract with the

University for applied research projects, or tuition paid by

its students or funded by other sources.

Washington also appears not to have disclaimed all

formal liability for UW’s debts and other liabilities.

Washington has disclaimed formal liability for certain bonds

issued by UW. See, e.g., id. §§ 28B.10.330; 28B.20.396;

28B.20.715(1)(a). But the fact that Washington has

disclaimed liability for certain obligations, rather than

disclaiming all obligations, suggests that it retains formal

liability for all debts or liabilities not disclaimed. Compare

N.J. Rev. Stat. § 27:25-17 (“No debt or liability of the [New

20 NILSEN V. UNIVERSITY OF WASHINGTON

Jersey Transit Corporation] shall be deemed or construed to

create or constitute a debt, liability, or a loan or pledge of the

credit of the State.”); see Galette, 607 U.S. at 529–30

(relying on this disclaimer to conclude that the State is not

formally liable for the Transit Corporation).

In sum, this factor is neutral. It appears Washington may

be formally liable for some but not all of UW’s debts and

liabilities. And our conclusion regarding the self-insurance

revolving fund’s status as state monies remains tentative, as

no record evidence supports or refutes our assessment.

Accordingly, this factor does not tilt the balance either way.

3

Finally, we consider the degree of control Washington

exercises over UW. In doing so, we are mindful of the

Supreme Court’s admonition that we should do so “with

caution.” Galette, 607 U.S. at 526. Both parties agree that

the governor appoints UW’s regents with the senate’s

consent. Wash. Rev. Code § 28B.20.100(1)(b). The

governor has limited power to remove the regents, which can

be done only upon misconduct or malfeasance in office,

proved before a three-judge tribunal. Id. § 28B.10.500. As

noted above, while the board of regents has “full control of

the university and its property of various kinds,” id.

§ 28B.20.130(1), several of its major actions are subject to

approval by the Legislature or executive agents. And unlike

in Galette, there is no provision of law expressly declaring

UW to be “independent of any supervision or control by”

any state department or officer or requiring it to “exercise

independent judgment.” 607 U.S. at 530. Indeed, there are

several provisions of law expressly requiring oversight and

approval by other state actors. See, e.g., Wash. Rev. Code

NILSEN V. UNIVERSITY OF WASHINGTON 21

§ 28B.20.382 (prohibiting the sale of certain lands without

legislative approval).

But we do not engage further in this “uncertain and

unreliable exercise.” Galette, 607 U.S. at 526 (citation

omitted). As the Supreme Court noted, it is difficult to gauge

the degree of control exercised by the State. Id. This is

particularly true when, as here, two entire chapters of state

law directly regulate the entity. Wash. Rev. Code chs.

28B.10, 28B.20. Many other provisions throughout Title

28B and the rest of the Revised Code of Washington also

govern UW and its activities. Thus, while it is possible to

point to the “full control” granted by section 28B.20.130(1)

as supporting independence, that control is expressly limited

“as . . . provided by law.” And as our survey of Title 28B

alone indicates, there is much law on the subject. Thus, we

conclude that while this factor is not particularly probative,

it does weigh slightly in favor of finding UW an arm of the

state.

***

In sum, after surveying Washington law and the

university’s history, we conclude that UW is an arm of the

state. Our survey indicates that Washington State did not

intend to create a separate legal entity. When Washington

first created UW after joining the Union, it deliberately

chose not to create a corporate entity as it had with UW’s

territorial predecessor. And while it has granted UW

additional powers over the years, Washington has continued

to treat UW as a state agency for all purposes, from public

recordkeeping obligations to sovereign immunity in its own

courts. Furthermore, while it has disclaimed formal liability

for some of UW’s debts and liabilities, Washington has

stopped short of totally renouncing its responsibility for all

22 NILSEN V. UNIVERSITY OF WASHINGTON

of UW’s obligations. Accordingly, we conclude that the

answer to Galette’s “ultimate question” is that Washington

State structured UW as part of itself, not as a legally

independent entity. 607 U.S. at 525.

IV

We hold that the Supreme Court’s most recent decision

in Galette refines and rebalances the three-factor test we

articulated in Kohn. Applying the rebalanced test, we again

hold that UW is an arm of the state and thus is not a “person”

under § 1983. Accordingly, the district court did not err in

granting summary judgment to UW dismissing the § 1983

claims brought against it.

AFFIRMED.