Indigo Williams v. Tate Reeves

Case: 19-60069 Document: 00515370195 Page: 1 Date Filed: 04/02/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

April 2, 2020

No. 19-60069

Lyle W. Cayce

Clerk

INDIGO WILLIAMS, on behalf of her minor child J.E.; DOROTHY

HAYMER, on behalf of her minor child, D.S.; PRECIOUS HUGHES, on

behalf of her minor child, A.H.; SARDE GRAHAM, on behalf of her minor

child, S.T.,

Plaintiffs - Appellants

v.

TATE REEVES, in his official capacity as Governor of Mississippi; PHILIP

GUNN, in his official capacity as Speaker of the Mississippi House of

Representatives; TATE REEVES, in his official capacity as Lieutenant

Governor of Mississippi; DELBERT HOSEMANN, in his official capacity as

Secretary of State of Mississippi; CAREY M. WRIGHT, in her official capacity

as State Superintendent of Education and Executive Secretary of MS State

Board of Education; ROSEMARY AULTMAN, in her official capacity as

Chair of the Mississippi State Board of Education; JASON DEAN, in his

official capacity as Member of the Mississippi State Board of Education;

BUDDY BAILEY, in his official capacity as Member of the Mississippi State

Board of Education; KAMI BUMGARNER, in her official capacity as Member

of the Mississippi State Board of Education; KAREN ELAM, in her official

capacity as Member of the Mississippi State Board of Education; JOHNNY

FRANKLIN, in his official capacity as Member of the Mississippi State Board

of Education; WILLIAM HAROLD JONES, in his official capacity as Member

of the Mississippi State Board of Education; JOHN KELLY, in his official

capacity as Member of the Mississippi State Board of Education; CHARLES

MCCLELLAND, in his official capacity as Member of the Mississippi State

Board of Education,

Defendants - Appellees

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Appeal from the United States District Court

for the Southern District of Mississippi

Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.

STEPHEN A. HIGGINSON, Circuit Judge:

Five years after the end of the Civil War, the Mississippi Readmission

Act of 1870 reseated Mississippi’s representatives in Congress, formally

restoring Mississippi’s rights as a member of the Union. By the plain terms of

the Act, the State’s readmission to Congress was subject to several

“fundamental conditions,” including a restriction prohibiting the State from

“amend[ing] or chang[ing]” its Constitution in such a way that it “deprive[s]

any citizen or class of citizens of the United States of the school rights and

privileges secured by the constitution of said State.” 16 Stat. 67 (1870).

The plaintiffs in this lawsuit are low-income African-American women

whose children attend public schools in Mississippi. They filed suit against

multiple state officials in 2017, alleging that the current version of the

Mississippi Constitution violates the “school rights and privileges” condition of

the Mississippi Readmission Act. The district court held that plaintiffs’ suit

was barred by the Eleventh Amendment and dismissed the case. Though we

agree that a portion of the relief plaintiffs seek is prohibited by the Eleventh

Amendment, we hold that the lawsuit also partially seeks relief that satisfies

the Ex parte Young exception to sovereign immunity. Accordingly, we AFFIRM

in part and VACATE and REMAND in part.

I.

When the Confederate states seceded from the Union, their

congressional seats became vacant, leaving them without representation in the

Senate and the House of Representatives. See Joint Committee on

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Reconstruction, 39th Cong., 1st Sess., 1866 S. Rept. 112, x–xxi. In order to

regain representation in Congress at the end of the war, the former

Confederate states were required to adopt a Constitution that guaranteed a

republican form of government to all state residents. 14 Stat. 429 (1867).

Mississippi adopted a new Constitution on May 15, 1868, which was

subsequently ratified on December 1, 1869 (the “1868 Constitution”). See Miss.

Const. of 1868. Article Eight of the 1868 Constitution contained a series of

provisions related to education and the establishment and maintenance of

schools in the State. Section 1 provided as follows:

As the stability of a republican form of government depends mainly

upon the intelligence and virtue of the people, it shall be the duty

of the Legislature to encourage, by all suitable means, the

promotion of intellectual, scientific, moral, and agricultural

improvement, by establishing a uniform system of free public

schools, by taxation or otherwise, for all children between the ages

of five and twenty-one years, and shall, as soon as practicable,

establish schools of higher grade.

Id., art. VIII § 1.

Shortly after the 1868 Constitution was ratified, Congress enacted the

Mississippi Readmission Act, which declared that the State was now “entitled

to representation in the Congress of the United States.” 16 Stat. 67, 68 (1870).

Despite this broad proclamation, Congress conditioned Mississippi’s newly-

restored rights on three “fundamental” restrictions:

First, That the constitution of Mississippi shall never be so

amended or changed as to deprive any citizen or class of citizens of

the United States of the right to vote who are entitled to vote . . . .

Second, That it shall never be lawful for the said State to deprive

any citizen of the United States, on account of his race, color, or

previous condition of servitude, of the right to hold office . . . .

Third, That the constitution of Mississippi shall never be so

amended or changed as to deprive any citizen or class of citizens of

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the United States of the school rights and privileges secured by the

constitution of said State.

Id. Since 1868, the Mississippi Constitution’s education clause has been

amended four times: in 1890, 1934, 1960, and, most recently, in 1987. The

current version of the Constitution contains the following education clause,

codified in Section 201 of Article 8:

The Legislature shall, by general law, provide for the

establishment, maintenance and support of free public schools

upon such conditions and limitations as the Legislature may

prescribe.

Miss. Const., art. VIII § 201.

Plaintiffs argue that Section 201, as most recently amended in 1987,

violates the “school rights and privileges” condition of the Mississippi

Readmission Act. They highlight one specific difference between the 1868 and

1987 education clauses: While the 1868 version of the education clause

required the Legislature to establish “a uniform system of free public schools,”

the 1987 version has no reference to “uniform[ity],” mandating only that the

Legislature provide for the establishment of a system of “free public schools.” 1

Plaintiffs allege that the removal of the uniformity clause has caused

significant disparities in the educational resources, opportunities, and

outcomes afforded to children in Mississippi based on their race and the race

of their classmates. They assert that the schools attended by plaintiffs’

children—Raines Elementary and Webster Street Elementary—“are

emblematic” of the problems caused by the lack of a uniformity guarantee. The

student body at both schools is over 95% African American, and over 95% of all

1 Plaintiffs identify other differences between the two education clauses as well,

including the elimination of “an obligation for the Legislature to ‘encourage’ the promotion of

public education ‘by all suitable means’” and the elimination of the duty “to establish a core

curriculum of ‘intellectual, scientific, moral, and agricultural improvement.’” Throughout

their briefing, however, they focus primarily on the absence of the uniformity guarantee.

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students are eligible to receive free-or-reduced-price lunch, an indicator of

poverty. Fewer than 11% of the students at these schools are proficient in

reading and math, and the schools are currently rated “D” by the Mississippi

Department of Education. In contrast, plaintiffs point to three “A”-rated

schools—in Madison County, DeSoto County, and Gulfport—where the student

populations are predominantly white and higher-income and over 65% of

students are proficient in reading and math.

These disparities extend well beyond academic performance. Plaintiffs

allege that their children attend schools where “[t]he ceilings are covered in

wet spots, . . . the paint is chipping off the walls,” students are taught by

inexperienced teachers, and extracurricular activities are limited or non-

existent. At schools that are predominantly white, children benefit from

experienced teachers, low student-teacher ratios, and extensive resources,

including “an iPad e-Reader library,” musical programming, and robust

physical education.

According to plaintiffs, Mississippi’s removal of the word “uniform” from

its Constitution resulted in a violation of the Readmission Act that has caused

them to suffer a number of injuries, including illiteracy, a diminished

likelihood of high school graduation, low rates of college attendance and college

completion, and an increased likelihood of future poverty. In their first

complaint, filed in May 2017, they sought a three-part declaratory judgment

against fourteen state officials—all of whom play a role in managing and

overseeing educational services in Mississippi. Defendants moved to dismiss

under Federal Rule of Civil Procedure 12(b)(1) and (b)(6). The district court

granted defendants’ motion for dismissal under 12(b)(1), holding that

plaintiffs’ complaint was barred by sovereign immunity. Although plaintiffs

sued state officials rather than Mississippi itself, the court concluded that the

relief plaintiffs seek would impermissibly “result in the issuing of an order that

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would, and could, operate only against the State.” The district court also held

that plaintiffs’ claim for declaratory relief was not covered by the Ex parte

Young exception to the Eleventh Amendment because it sought to “rectify prior

violations of the Mississippi Readmission Act” rather than prospectively

dictate future conduct.

Plaintiffs timely moved for reconsideration of the district court’s order.

The district court denied the motion on the merits, but amended the judgment

to reflect the fact that the dismissal was without prejudice—a mandatory

condition for a dismissal under Federal Rule of Civil Procedure 12(b)(1). See

Warnock v. Pecos County, 88 F.3d 341, 343 (5th Cir. 1996) (“Because sovereign

immunity deprives the court of jurisdiction, . . . claims barred by sovereign

immunity can be dismissed only under Rule 12(b)(1) and not with prejudice.”).

On appeal, plaintiffs largely abandon the relief requested in their original

complaint, relying instead on the proposed amended complaint attached to

their motion for reconsideration. In that complaint, plaintiffs request a

“prospective declaratory judgment” that makes two distinct findings: first,

“that Section 201 of the Mississippi Constitution is violating the Readmission

Act,” and second, “that the requirements of Article VIII, Section 1 of the

Constitution of 1868 remain legally binding on the Defendants, their

employees, their agents, and their successors.” 2

This appeal requires us to consider the “substance rather than . . . the

form of the relief” plaintiffs seek, identifying the often “indistinct” line between

permissible and prohibited claims under the Eleventh Amendment. See

Papasan v. Allain, 478 U.S. 265, 278–79 (1986). As we explain below, this

2 Plaintiffs initially sought a third declaration that the “1987, 1960, 1934, and 1890

versions of Section 201 were void ab initio.” They removed this request from their amended

complaint and acknowledge on appeal that the remaining two parts of their requested

declaration “would suffice for present purposes.”

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careful analysis leads us to a split conclusion on plaintiffs’ request for a two-

part declaratory judgment: while the first part of their requested declaration

seeks prospective relief that is permissible under Ex parte Young, the second

part seeks a declaration of state law and is therefore barred by the Supreme

Court’s decision in Pennhurst State School & Hospital v. Halderman, 465 U.S.

89 (1984).

II.

We review a district court’s dismissal under Federal Rule of Civil

Procedure 12(b)(1) de novo. AT&T Commc’ns v. BellSouth Telecomms. Inc., 238

F.3d 636, 643 (5th Cir. 2001) (citations omitted). In conducting this analysis,

we “take the well-pled factual allegations of the complaint as true and view

them in the light most favorable to the plaintiff.” Lane v. Halliburton, 529 F.3d

548, 557 (5th Cir. 2008). A dismissal for lack of jurisdiction will not be affirmed

unless “it appears certain that the plaintiff cannot prove any set of facts in

support of his claim that would entitle plaintiff to relief.” Gilbert v. Donahoe,

751 F.3d 303, 307 (5th Cir. 2014).

III.

The district court dismissed the complaint because it concluded that

plaintiffs’ claims were barred by the Eleventh Amendment. On appeal, the

state officials defend the district court’s judgment while also making several

alternative arguments in support of affirmance, contending that plaintiffs lack

standing, the suit is barred by the political question doctrine, and there is no

private right of action under the Mississippi Readmission Act. These

arguments were raised in defendants’ briefing before the district court, but

they were not addressed in the district court’s order. Though “[a] successful

party in the District Court may sustain its judgment on any ground that finds

support in the record,” Jaffke v. Dunham, 352 U.S. 280, 281 (1957), the decision

whether to consider an argument for the first time on appeal is “one left

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primarily to the discretion of the courts of appeals,” Singleton v. Wulff, 428

U.S. 106, 121 (1976).

We conclude that there are no “special circumstances” that would justify

review of these issues at this stage of the litigation, Man Roland, Inc. v. Kreitz

Motor Express, 438 F.3d 476, 483 (5th Cir. 2006), and we therefore remand so

that the district court may reach them in the first instance. We thus confine

the remainder of our analysis to the Eleventh Amendment question. We

express no opinion on the merits of this lawsuit or defendants’ alternative

jurisdictional arguments. See PDK Labs. Inc. v. U.S. D.E.A., 362 F.3d 786, 799

(D.C. Cir. 2004) (“[T]he cardinal principle of judicial restraint [is] if it is not

necessary to decide more, it is necessary not to decide more.” (Roberts, J.,

concurring)).

A.

As a sovereign entity, a state may not be sued without its consent. The

Eleventh Amendment, which protects the states’ sovereign immunity,

“deprives a federal court of jurisdiction to hear a suit against a state.” Warnock,

88 F.3d at 343 (citing Pennhurst, 465 U.S. at 100). Read literally, the text of

the Eleventh Amendment prevents only non-citizens of a state from suing that

state. U.S. Const. amend. XI. Since Hans v. Louisiana, 134 U.S. 1, 10–11

(1890), however, courts have understood that the Amendment provides

protections beyond its text, shielding states from suits brought by their own

citizens as well as citizens of other states. 3 See Va. Office for Prot. & Advocacy

3 Because this broad reading of the Eleventh Amendment is not supported by its text,

we have dubbed “Eleventh Amendment immunity” a “misnomer . . . [since] that immunity is

really an aspect of the Supreme Court’s concept of state sovereign immunity and is neither

derived from nor limited by the Eleventh Amendment.” Meyers ex. rel. Benzing v. Texas, 410

F.3d 236, 240–41 (5th Cir. 2005) (citing Alden v. Maine, 527 U.S. 706, 712–13 (1999)).

“Nevertheless, the term ‘Eleventh Amendment immunity’ has been used loosely and

interchangeably with ‘state sovereign immunity’ to refer to a state’s immunity from suit

without its consent in federal courts.” Id. (citing cases).

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v. Stewart, 563 U.S. 247, 253 (2011) (VOPA). The doctrine of sovereign

immunity is derived from the fundamental principle that “it is inherent in the

nature of sovereignty not to be amenable to the suit of an individual without

[the sovereign’s] consent.” Fla. Prepaid Postsecondary Educ. Expense Bd. v.

College Sav. Bank, 527 U.S. 627, 634 (1999) (quoting Seminole Tribe of Fla. v.

Florida, 517 U.S. 44, 54 (1996)).

Sovereign immunity is not limitless, and this case involves an important

caveat—the Ex parte Young exception. Under Ex parte Young, 209 U.S. 123,

167–68 (1908), a litigant may sue a state official in his official capacity if the

suit seeks prospective relief to redress an ongoing violation of federal law. Id.

at 167–68; Air Evac EMS v. Tex., Dep’t of Ins., Div. of Workers’ Comp., 851 F.3d

507, 519 (5th Cir. 2017). The exception rests on a legal fiction, the premise that

a state official is “not the State for sovereign-immunity purposes” when “a

federal court commands [him or her] to do nothing more than refrain from

violating federal law.” VOPA, 563 U.S. at 255. Though an Ex parte Young suit

has an “obvious impact on the State itself,” it is an essential mechanism for

affirming the supremacy of federal law. 4 Pennhurst, 465 U.S. at 104–05; see

also VOPA, 563 U.S. at 254–55 (observing that the Ex parte Young exception

“has existed alongside our sovereign-immunity jurisprudence for more than a

century, accepted as necessary to permit the federal courts to vindicate federal

rights.” (internal quotation marks omitted)).

4 As a general rule, “a suit against state officials that is in fact a suit against a State

is barred regardless of whether it seeks damages or injunctive relief.” Pennhurst, 465 U.S. at

102. But Ex parte Young is “an important exception to th[at] general rule.” Id. Thus, if a case

meets the requirements of Ex parte Young, it is permissible—despite the fact that, in reality,

a judgment in the case would ultimately operate against the state. Id.; Puerto Rico Aqueduct

& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (“Young and its progeny

render the [Eleventh] Amendment wholly inapplicable to a certain class of suits.”).

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There are three basic elements of an Ex parte Young lawsuit. The suit

must: (1) be brought against state officers who are acting in their official

capacities; (2) seek prospective relief to redress ongoing conduct; and (3) allege

a violation of federal, not state, law. NiGen Biotech, L.L.C. v. Paxton, 804 F.3d

389, 394 (5th Cir. 2015). An Ex parte Young suit must also seek equitable

relief—relief that is “declaratory or injunctive in nature and prospective in

effect.” Aguilar v. Tex. Dep’t of Criminal Justice, 160 F.3d 1052, 1054 (5th Cir.

1998); see also Lipscomb v. Columbus Mun. Separate Sch. Dist., 269 F.3d 494,

500–01 (5th Cir. 2001) (holding that Ex parte Young applied to a suit for

declaratory relief because the “requested relief is indistinguishable from a suit

to enjoin the [state official] from declining to [enforce the law]”). “[T]he inquiry

into whether suit lies under Ex parte Young does not include an analysis of the

merits of the claim.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S.

635, 646 (2002). 5 Therefore, in order to determine whether a suit complies with

the requirements of Ex parte Young, the “court need only conduct a

‘straightforward inquiry into whether [the] complaint alleges an ongoing

violation of federal law and seeks relief properly characterized as prospective.’”

Id. (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)

(O’Connor, J., concurring in part and concurring in judgment)).

Plaintiffs clearly comply with the first requirement for an Ex parte

Young suit: the named defendants are state officers, and they are sued in their

official capacities. Plaintiffs’ two-part request for a declaratory judgment

requires a more nuanced analysis of the “prospective” and “federal law” prongs

5 Defendants argue that the availability of a private right of action to enforce the

Mississippi Readmission Act is a question that goes “hand in hand” with the sovereign

immunity question. In McCarthy ex rel. Travis v. Hawkins, 381 F.3d 407 (5th Cir. 2004),

however, we held that there is “no support” for the notion that “a court must determine the

validity of a plaintiff’s cause of action in the course of deciding whether an Ex parte Young

suit can proceed in the face of a state’s Eleventh Amendment defense.” Id. at 415.

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of an Ex parte Young lawsuit. Two Supreme Court cases primarily guide our

inquiry: Papasan v. Allain and Pennhurst State School & Hospital v.

Halderman.

i.

Defendants argue that plaintiffs’ lawsuit seeks retroactive relief that

cannot be pursued under Ex parte Young. The Ex parte Young exception is

“focused on cases in which a violation of federal law by a state official is ongoing

as opposed to cases in which federal law has been violated at one time or over

a period of time in the past.” Papasan, 478 U.S. at 277–78. This limitation is

consistent with the purpose of the Ex parte Young exception: While “‘[r]emedies

designed to end a continuing violation of federal law are necessary to vindicate

the federal interest in assuring the supremacy of that law,” id. at 278 (quoting

Green v. Mansour, 474 U.S. 64, 68 (1985)), the same rationale does not apply

to remediation of a prior violation of federal law. Thus, to comply with the

dictates of Ex parte Young, plaintiffs’ lawsuit must allege that the defendants’

actions are currently violating federal law. See NiGen Biotech, 804 F.3d at 394

(citing Green, 474 U.S. at 71–73).

According to defendants, the first part of plaintiffs’ two-part requested

declaration—a finding “that Section 201 of the Mississippi Constitution is

violating the Readmission Act”—fails this test. Defendants characterize this

portion of plaintiffs’ requested relief as a challenge to the Mississippi

legislature’s actions to amend the Constitution’s education clause—an act that

occurred thirty-two years ago, and which is not expected to occur again in the

imminent future. Defendants also note that the Mississippi Readmission Act

itself places limitations on the amendment of the Constitution, not on the text

of the laws that result from that amendment process. See 16 Stat. 68

(prohibiting the State from “amend[ing] or chang[ing]” its Constitution if the

amendment has the particular effect of “depriv[ing] any citizen or class of

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citizens of the United States of the school rights and privileges secured by the

constitution of said State”). They therefore argue that plaintiffs unlawfully

seek retroactive relief—a declaration that the constitutional amendment

violated federal law at the time that it occurred.

We disagree with this characterization of plaintiffs’ requested relief. The

Supreme Court’s decision in Papasan is particularly instructive, compelling

the conclusion that this portion of plaintiffs’ requested relief is permissible

under Ex parte Young. In Papasan, a group of Mississippi public-school

children alleged that the State had breached its obligation to hold federally-

granted land in a perpetual trust for the benefit of schoolchildren in the State’s

northern twenty-three counties—an area previously held by the Chickasaw

Indian Nation. 478 U.S. at 272–73. Mississippi sold the land in 1856, investing

the proceeds in railroads that were later destroyed. Id. at 272. The Papasan

plaintiffs alleged that those decisions amounted to a breach of trust and an

equal protection violation. Id. at 274.

The Court allowed plaintiffs to pursue their equal-protection claim but

rejected the second claim for a breach of trust. Id. at 280–82. Though phrased

as a claim for equitable relief, the breach-of-trust claim asked the State to

provide monetary relief for the State’s imprudent investment activities, a harm

that occurred when the State sold the land over 100 years before the plaintiffs

brought their claims. Id. at 280–81. Because the plaintiffs sought to remedy

the breach itself, any relief linked to the past breach would have been

retrospective, not prospective. Id. In contrast, the Court held that the equal-

protection claim was prospective and thus permitted that claim to go forward.

Id. at 281–82. Plaintiffs alleged that the State’s past actions had present and

persistent consequences, denying them “their rights to an interest in a

minimally adequate level of education, or reasonable opportunity therefor.” Id.

at 282. The Court held that “[t]his alleged ongoing constitutional violation—

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the unequal distribution by the State of the benefits of the State’s school

lands—is precisely the type of continuing violation for which a remedy may

permissibly be fashioned under Young.” Id. Though “the current disparity

result[ed] directly from . . . actions in the past,” the “essence” of the claim

alleged a current and persisting disparity in the State’s distribution of funds.

Id.

Like the equal-protection claim in Papasan, plaintiffs’ claim that Section

201 currently violates the Mississippi Readmission Act seeks relief for an

ongoing violation. Plaintiffs argue that Mississippi schoolchildren today are

deprived of their school rights, and they allege that the current version of

Section 201—presently enforced and maintained by the defendants—is the

cause of that harm. Papasan instructs that the historical origins of the

continuing violation are not determinative of the viability of an Ex parte Young

suit. As long as the claim seeks prospective relief for ongoing harm, the fact

that a current violation can be traced to a past action does not bar relief under

Ex parte Young. Id. at 282. Plaintiffs must allege that “the defendant is

violating federal law, not simply that the defendant has done so” at some point

in the past, NiGen Biotech, 804 F.3d at 394. Once they meet that requirement,

however, the complaint’s straightforward, present-tense allegations “are

sufficient to demonstrate the ongoing nature of the alleged un[lawful] conduct.”

Id. at 395.

Plaintiffs’ allegations are sufficiently forward-looking, and thus

permissible under Papasan. They seek relief for what they allege to be

defendants’ ongoing violation of federal law—the enforcement of a state

constitutional provision that conflicts with the federal Readmission Act. This

is the type of relief permitted under Ex parte Young, which “rests on the need

to promote the vindication of federal rights.” Cox v. City of Dallas, 256 F.3d

281, 307 (5th Cir. 2001); Verizon, 535 U.S. at 645. Contrary to defendants’

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characterization, plaintiffs do not challenge the act of amending the

Mississippi Constitution; instead, they challenge the ongoing harm they

allegedly suffer as a result of its current text. An invalid law produces

consequences long after the date of its enactment—that is the very essence of

a legal dictate. “In discerning on which side of the line a particular case falls,

we look to the substance rather than to the form of the relief sought, and will

be guided by the policies underlying the decision in Ex parte Young.” In re Tejas

Testing Tech. One, 149 F.3d 1177, at *4 (5th Cir. 1998) (unpublished) (quoting

Papasan, 478 U.S. at 279) (holding that several of plaintiffs’ causes of action

sought, “at least on their face, prospective declaratory or injunctive relief for a

continuing violation of federal law,” and were therefore permissible under Ex

parte Young). Thus, because plaintiffs claim to be presently harmed by these

consequences, they may pursue prospective relief under Ex parte Young.

Defendants also argue that plaintiffs’ request for a declaration that

Section 201 conflicts with the Readmission Act impermissibly interferes with

“special sovereignty interests.” We do not find this argument persuasive.

Though the Supreme Court held in Coeur d’Alene that “special sovereignty

interests” may invalidate an otherwise appropriate Ex parte Young suit, that

case involved a lawsuit that was the “functional equivalent of a quiet title

action”—a specific infringement on state land rights. 521 U.S. at 281. We have

never before applied the holding of Coueur d’Alene in a context outside of the

unique land rights challenge in that case. See, e.g., Severance v. Patterson, 566

F.3d 490, 495 (5th Cir. 2009) (declining to extend the Coeur d’Alene limitation

to a case that did not involve a quiet title action and would thus not impede on

the state’s right to its own lands); Lipscomb, 269 F.3d at 502 (holding that a

lawsuit that did not seek to quiet title was not barred by Coeur d’Alene since it

would not result in relief that “strip[ped] the State of any of its jurisdiction or

authority to regulate the land”). To the contrary, “this circuit has rejected the

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idea that Coeur d’Alene affects the traditional application of Ex parte Young.”

AT&T Comm’ns, 238 F.3d at 648; Air Evac EMS, 851 F.3d at 517; see also 17

Charles Alan Wright & Arthur R. Miller, FEDERAL PRACTICE AND PROCEDURE

§ 4232 (3d ed. 2019) (“Lower courts have been reluctant to use the special state

sovereignty interest rationale to limit Ex Parte Young relief.”). Moreover,

plaintiffs’ requested relief would not interfere with the State’s general ability

to manage and operate its own schools. It would simply lead to a declaration

that one constitutional provision defining the terms of that management

structure violates federal law.

For these reasons, we conclude that the first part of plaintiffs’ two-part

requested relief—a declaration that Section 201 of the Mississippi Constitution

conflicts with the Readmission Act—may be pursued under Ex parte Young,

and we reverse the district court’s Eleventh Amendment-only dismissal as to

this part.

ii.

We reach the opposite conclusion with respect to the second part of

plaintiffs’ requested declaratory judgment: a finding that “the requirements of

Article VIII, Section 1 of the Constitution of 1868 remain legally binding on

the Defendants, their employees, their agents, and their successors.” Because

this request impermissibly asks a federal court to “instruct[] state officials on

how to conform their conduct to state law,” it is barred by the Supreme Court’s

decision in Pennhurst, 465 U.S. at 106.

In Pennhurst, the Court explained that the rule announced in Ex parte

Young cannot be used to redress a state official’s violation of state law. Id. The

plaintiffs in Pennhurst sought to invoke the federal court’s supplemental

jurisdiction to bring a claim under a Pennsylvania state law. Id. at 92. The

Court found that this practice did not comply with the purpose or requirements

of an Ex parte Young suit. “A federal court’s grant of relief against state officials

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on the basis of state law, whether prospective or retroactive, does not vindicate

the supreme authority of federal law.” Id. at 106. “Such a result [would]

conflict[] directly with the principles of federalism that underlie the Eleventh

Amendment.” Id.

Plaintiffs’ first requested declaration—a judicial finding that Section 201

violates the Mississippi Readmission Act—will necessarily require the court to

determine the meaning of “school rights and privileges,” a term that will

require analysis of the 1868 Constitution. This judicial exercise, however, does

not run afoul of Pennhurst because it does not ask the court to compel

compliance with “state law qua state law.” Ibarra v. Tex. Emp’t Comm’n, 823

F.2d 873, 877 (5th Cir. 1987). Instead, it asks the court to interpret the

meaning of a federal law—the Mississippi Readmission Act—by reference to a

related state law. See World of Faith World Outreach Ctr. Church, Inc. v.

Morales, 986 F.2d 962, 965 (5th Cir. 1993) (“Under existing law, federal courts

must necessarily construe local law and administrative regulations to

ascertain if there is a[n] interest protected by [a federal statute].” (quoting

Patchette v. Nix, 952 F.2d 158, 162 (8th Cir. 1991))); Everett v. Schramm, 772

F.2d 1114, 1119 (3d Cir. 1985) (“[A]scertaining state law is a far cry from

compelling state officials to comply with it.”).

In contrast, the second part of plaintiffs’ claim asks the court to do

something more than merely “determine . . . what the [state] statute means.”

World of Faith, 986 F.2d at 966. It asks the court to identify which state law is

binding upon state officials, making a judicial declaration that a state law

enacted over 150 years ago remains valid and enforceable, despite many years

of amendments and alterations. Because the Ex parte Young exception “is not

a way to enforce state law through the back door,” Wozniak v. Adesida, 932

F.3d 1008, 1011 (7th Cir. 2019), Pennhurst requires us to hold that this is an

invalid basis for an Ex parte Young suit.

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Plaintiffs argue that the second part of their requested declaration is

permissible under Pennhurst because it merely asks the court to enforce a state

law that is incorporated within the federal Readmission Act. They cite cases in

which a federal law explicitly incorporated a particular provision of a state law

or otherwise transformed an individual state requirement into a binding

federal mandate. See Kapps v. Wing, 404 F.3d 105, 120 n.21 (2d Cir. 2005)

(compelling defendants to comply with state law because “compliance with

state law [was] required as a matter of federal law”); Ibarra, 823 F.2d at 877

(finding no Pennhurst violation where a Texas statute “expressly incorporates”

certain standards from a federal statute, “and indeed, provides that any change

in the [federal] standard is automatically incorporated into Texas law”);

Everett, 772 F.2d at 1119 (allowing a federal claim to proceed under Pennhurst

where the federal law required states to abide by standards of need provided

in state law). Likewise, plaintiffs cite cases where state laws required

compliance with a federal rule, transforming the state laws into federal

mandates that could be enforced without “run[ning] afoul of Pennhurst’s

admonition regarding state law claims.” Cox, 256 F.3d at 308.

Plaintiffs’ claim does not fit either of these situations. Plaintiffs sue

defendants under the Mississippi Readmission Act, which does not explicitly

incorporate any of the language, requirements, or provisions of the 1868

Constitution. Nor does the Readmission Act require Mississippi to abide

indefinitely by the 1868 Constitution’s education clause. Indeed, it explicitly

permits the State to amend its Constitution, placing only a general limitation

upon the State to retain the “school rights and privileges” that were protected

under the 1868 Constitution. The Readmission Act does not use the phrase

“uniformity” or any of the specific language contained in the 1868 education

clause. By asking a federal court to declare that all of these state requirements

remain binding and valid upon state officials, plaintiffs seek to import a

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specific “uniformity” requirement into the more general federal act. Yet while

the Readmission Act imposes an obligation for the State to continue to provide

the same educational rights that were protected in 1868, it does not

demonstrate that Congress intended to force Mississippi to retain fixed, 200-

year-old language in its education clause.

Other circuits have similarly held that the federal government’s

approval of a state law does not automatically transform that law into a federal

mandate. In Pennsylvania Federation of Sportsmen’s Clubs, Inc. v. Hess, 297

F.3d 310 (3d Cir. 2002), and Bragg v. West Virginia Coal Ass’n, 248 F.3d 275

(4th Cir. 2001), the plaintiffs sued to enforce federally-approved state mining

plans, arguing that the Surface Mining Control and Reclamation Act

(“SMCRA”) made those state plans enforceable by federal courts. The Third

and Fourth Circuits both held that these claims were barred by Pennhurst.

Hess, 297 F.3d at 323–30; Bragg, 248 F.3d at 296. Though the state plans had

been approved by the federal government, this approval did not mean that the

state plans had somehow been “incorporated or ‘codified’ into federal law.”

Hess, 297 F.3d at 326; Bragg, 248 F.3d at 297. As a result, the Bragg and Hess

courts held that a federal court could not order state officials to abide by their

own plans. Id. 6

Plaintiffs’ second request for relief is analogous to the impermissible

claims in Bragg and Hess. Plaintiffs ask the court to make a declaration about

state law, arguing that the Mississippi Constitution became enforceable

against the State in federal court when it was approved by Congress in the

Readmission Act. 7 Yet while a federal court can interpret the meaning of

6 The court in Hess allowed two of plaintiffs’ claims to move forward because those

claims alleged violations of specific federal, not state, regulations, which “ha[d] no

counterpart in state law.” Hess, 297 F.3d at 331.

7 The requested relief is not identical to Hess and Bragg in all respects. Plaintiffs ask

the court to identify binding state law, but they do not seek a declaration that state officials

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“school rights and privileges,” it cannot transform century-old state law into a

binding federal mandate. See Bragg, 248 F.3d at 297 (holding that a state’s

“dignity interest” in setting and enforcing its own law “does not fade into

oblivion merely because a State’s law is enacted to comport with a federal

invitation to regulate within certain parameters and with federal agency

approval”).

“[T]he determinative question [under Pennhurst] is not the relief

ordered, but whether the relief was ordered pursuant to state or federal law.”

Brown v. Ga. Dep’t of Revenue, 881 F.2d 1018, 1023 (11th Cir 1989). Because

plaintiffs’ second requested declaration seeks an order compelling state

officials to comply with a specific state law, we conclude that it is barred by

Pennhurst and is thus invalid under Ex parte Young.

IV.

For the foregoing reasons, the judgment of the district court is

AFFIRMED in part and VACATED and REMANDED in part.

have violated state law. We are not persuaded that this distinction is meaningful. As

defendants note, “the requested relief would first tell state officials what state law is, and

then have those officials conform their conduct to state law.” This would constitute a major

intrusion into state sovereignty, the primary justification for the Eleventh Amendment. The

Readmission Act did not strip the state of its power to amend the Constitution; instead, it

identified certain conditions that must guide the amendment process.

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