Joseph, Michael v. Bd Regents Univ WI

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 05-1826

MICHAEL JOSEPH,

Plaintiff-Appellant,

v.

BOARD OF REGENTS OF THE UNIVERSITY OF WISCONSIN

SYSTEM,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 04-C-740-S—John C. Shabaz, Judge.

____________

ARGUED DECEMBER 9, 2005—DECIDED DECEMBER 27, 2005

____________

Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,

Circuit Judges.

FLAUM, Chief Judge. Plaintiff Michael Joseph attended

college at the University of Wisconsin (“University”). He has

completed his studies, but still owes the University over

$18,000 in tuition. He alleges that the University violated

his constitutional rights by charging him out-of-state

tuition while he was a student. He also claims that the

tuition reciprocity agreement between Wisconsin state

colleges and Minnesota state colleges is unconstitutional.

2 No. 05-1826

The defendant, the Board of Regents of the University of

Wisconsin System, claims that the suit is barred by the

Eleventh Amendment, or, in the alternative, that it is

without merit. The defendant has also moved to sanction

the plaintiff’s attorney for filing a frivolous appeal.

The district court ruled that Joseph’s suit was barred by

the Eleventh Amendment. For the following reasons, we

now affirm the district court’s judgment and deny the

defendant’s request for sanctions.

I. Background

Michael Joseph attended high school in Colorado. He

attended the University of Wisconsin for five semesters. He

was charged the nonresident tuition rate of $9,000 per

semester. Joseph has paid $27,000 to the University, but

still owes approximately $18,500 in back tuition.

During the period when Joseph attended the University,

the tuition for Wisconsin residents was approximately

$2,500 per semester. Tuition for Minnesota residents,

because of a reciprocity agreement between the two states’

university systems, was only slightly higher.

Tuition rates for the University are set by the Board of

Regents of the University of Wisconsin System (“the

Board”). The Board is composed of seventeen members.

Fifteen of those members are appointed by the governor of

Wisconsin with the advice and consent of the state senate.

The Board has the primary responsibility of governing the

state university system, consistent with the mandates of

Wisconsin statutes. The Wisconsin State Treasurer is the

Board’s treasurer, and the Board must submit its biennial

budget to the State of Wisconsin Department of Administra-

tion to be incorporated into the state’s budget. This budget

is subject to legislative control during the state budget

No. 05-1826 3

process, and the Department of Administration oversees the

University’s financial affairs throughout the year.

Joseph sued the Board under 42 U.S.C. § 1983 (“§ 1983”),

claiming that the University’s tuition policy is unconstitu-

tional. Specifically, Joseph claims that the tuition policy

violates the Equal Protection Clause and Article I, Section

10 of the Constitution. The Board moved to dismiss the

complaint, under Federal Rule of Civil Procedure 12(b)(6),

for failure to state a claim upon which relief can be granted.

The district court granted the motion, ruling that the

Eleventh Amendment barred the suit. Joseph now appeals.

The Board claims that it is immune from this suit under

the Eleventh Amendment. The Board argues in the alterna-

tive that Joseph does not have standing to bring suit, and

that the constitutional claims are without merit. The Board

has also moved for sanctions against attorney Joseph,1

under Federal Rule of Appellate Procedure 38, for filing a

frivolous appeal.

II. Discussion

A. Eleventh Amendment

We find that the district court properly dismissed Jo-

seph’s complaint because it is barred by the Eleventh

Amendment of the United States Constitution. The Elev-

enth Amendment bars private litigants’ suits against non-

consenting states in federal courts, with the exception of

causes of action where Congress has abrogated the states’

traditional immunity through its powers under the Four-

teenth Amendment. The Supreme Court has held that state

agencies, as “arms of the state,” Kroll v. Bd. of Trustees of

1

The plaintiff in this case is represented by his father, Joel

Joseph.

4 No. 05-1826

Univ. of Ill., 934 F.2d 904, 907 (7th Cir. 1991), and state

officials in their official capacities are also immune from

suit under the Eleventh Amendment. Will v. Mich. Dep’t of

State Police, 491 U.S. 58, 70-71 (1989). Additionally, the

Court has ruled that states and their departments are not

“persons” within the meaning of § 1983. Id. at 66, 71.

The Board is an “arm of the state” for Eleventh Amend-

ment purposes. Romco Ltd. v. Outdoor Aluminum, Inc., 725

F. Supp. 1033 (W.D. Wis. 1989) (applying the factors in

Kashani v. Purdue, 813 F.2d 843 (7th Cir. 1987), to deter-

mine if the Board is an “arm of the state” for Eleventh

Amendment purposes, and holding that it is); see also

EEOC. v. Bd. of Regents of the Univ. of Wis. Sys., 288 F.3d

296, 299 (7th Cir. 2002) (“If this case was to be prosecuted

in federal court, the EEOC had to do it. The individual

charging parties were barred by the Eleventh Amendment

from suing the state (and therefore the Board of Regents of

the state university system).”).

Joseph argues that Congress abrogated the Board’s

immunity when passing § 1983. He cites three cases in

support of his argument, none of which are convincing. The

first, Vlandis v. Kline, 412 U.S. 441 (1973), was a § 1983

suit involving a public university. That case does not,

however, “definitively rule[ ] that students have the right

under § 1983 to sue a state university,” as Joseph claims.

The plaintiffs in that case sued the director of admissions

as an individual, and therefore the Eleventh Amendment

was not implicated. Joseph misplaces his reliance on Gratz

v. Bollinger, 539 U.S. 244 (2003), as well. The plaintiffs in

that case sued under a law in which Congress has specifi-

cally abrogated the states’ Eleventh Amendment rights.

Gratz, 539 U.S. at 259 n.10; 42 U.S.C. § 2000d-7(a)(1). The

Supreme Court has expressly held that Congress has not

abrogated the states’ immunity in § 1983 suits. Quern v.

Jordan, 440 U.S. 332, 341-45 (1979). Finally, Joseph relies

on Monell v. Dep’t of Social Services, 436 U.S. 658 (1978), to

No. 05-1826 5

support his position. The Court has been clear, however,

that Monell’s holding applies only to municipalities and not

states or states’ departments. Will, 491 U.S. at 70 (“[W]e

consequently limited our holding in Monell to local govern-

ment units which are not considered part of the state for

Eleventh Amendment purposes.” (internal quotation marks

omitted) (citing Monell, 436 U.S. at 690, n.54)).

Because the Board is an “arm of the state” and Congress

has not abrogated its immunity in § 1983 actions, this suit

is barred by the Eleventh Amendment.

B. Sanctions request

Although we recognize that the Board’s request for

sanctions is not without basis, in the exercise of our discre-

tion, we decline to grant it.

III. Conclusion

For the foregoing reasons, the judgment of the district

court is AFFIRMED and the request for sanctions is DENIED.

A true Copy:

Teste:

________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit

USCA-02-C-0072—12-27-05