Indigo Williams v. Tate Reeves

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

December 7, 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,

versus

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

19-60069

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.

_

Appeal from the United States District Court

for the Southern District of Mississippi

USDC No. 3:17-CV-404

_

ON PETITION FOR REHEARING EN BANC

(Opinion April 2, 2020, 5 Cir., , F.3d

)

Before JOLLY, GRAVES, and HIGGINSON, Circuit Judges.

Per Curiam:

The court having been polled at the request of one of its members,

and a majority of the judges who are in regular active service and not

disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Circ. R. 35),

the petition for rehearing en banc is DENIED.

In the en banc poll, 8 judges voted in favor of rehearing (Judges

Jones, Smith, Elrod, Willett, Ho, Duncan, Oldham, and Wilson), and 9

judges voted against rehearing (Chief Judge Owen and Judges Stewart,

Dennis, Southwick, Haynes, Graves, Higginson, Costa, and Engelhardt).

2

19-60069

ENTERED FOR THE COURT:

___________________________

Stephen A. Higginson

United States Circuit Judge

3

No. 19-60069, Williams v. Reeves,

EDITH H. JONES, Circuit Judge, joined by SMITH, ELROD, WILLETT,* HO,*

DUNCAN, OLDHAM, and WILSON, Circuit Judges, dissenting from the denial of

rehearing en banc

This strange case seeks a declaratory judgment that Mississippi’s 1868

Constitution, which satisfied the terms of the post-Civil War Readmission Act

of Congress, granted more educational rights to African-American children

than an amendment to the state’s Constitution in 1987. The sought-for

judgment, in essence, would tell Mississippi what its state Constitution meant

then and means now and would pave the way for federal court orders to effect

a major restructuring of state school funding. Federal courts, however, have

no business interpreting and enforcing state law against state government.

Federalism, the principle of dual sovereignties, is a bedrock principle of our

Founding and a bulwark of individual liberty because it diffuses the exercise

of power by governments. Not only the Eleventh Amendment, but “the

fundamental rule [of dual sovereignty] of which the Amendment is but an

exemplification,” 1 protects states from abuse by federal courts. The Supreme

Court expressed the basic roadblock to maintaining this suit in federal court:

A federal court’s grant of relief against state officials on the basis

of state law, whether prospective or retroactive, does not vindicate

the supreme authority of federal law. On the contrary, it is

difficult to think of a greater intrusion on state sovereignty than

when a federal court instructs state officials on how to conform

their conduct to state law. Such a result conflicts directly with

the principles of federalism that underlie the Eleventh

Amendment.

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 106,

104 S. Ct. 900, 911 (1984).

Pennhurst clearly forbids federal courts from adjudicating claims of state

law against nonconsenting sovereign states in federal court. The panel here

* Judges Willett and Ho concur only in Parts I and IIB.

1 Ex Parte State of New York, 256 U.S. 490, 497, 41 S. Ct. 588, 589 (1921).

1

nonetheless issued a Janus-faced opinion, finding one of the plaintiffs’ claims

barred according to Pennhurst, while permitting another, virtually identical

claim, to move forward in the district court.

This court refused to order en banc reconsideration. I respectfully

dissent. State sovereign immunity should bar this suit in its entirety based

on Pennhurst. Moreover, such sovereign immunity includes immunity from

suit, not simply adverse judgments; we should alternatively have dismissed

the suit because the Mississippi Readmission Act created no implied private

right of action on behalf of these plaintiffs.

I. Background

Following the Civil War, Mississippi’s readmission to full statehood

required it to adopt a constitutional guarantee of a republican form of

government to all state residents. 2 Mississippi adopted a constitution in 1868

that did just that. Article Eight of Mississippi’s 1868 Constitution contained

a series of provisions related to education and the establishment and

maintenance of public schools. Section 1 of Article Eight, relevant to this case,

provides:

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 grades.

MISS. CONST. of 1868, art. VIII § 1 (emphasis added).

Shortly after the 1868 Constitution was ratified, Congress enacted the

Mississippi Readmission Act, which premised the state’s restored rights on

certain “fundamental conditions,” including: “That the constitution of

2 Ten states formerly in rebellion were readmitted to Congress pursuant to similar

federal laws.

2

Mississippi shall never be so amended or changed as to deprive 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, 68 (1870) (emphasis added). 3

Since 1868, the quoted state constitutional provision has been amended four

times. The current version, adopted in 1987, states: “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.

The plaintiffs comprise a group of low-income African-American women

whose children attend Mississippi public schools. They allege “that the

current version of the Mississippi Constitution violates the ‘school rights and

privileges’ condition of the Mississippi Readmission Act.” Williams v. Reeves,

954 F.3d 729, 732 (5th Cir. 2020). “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.’” Id. at 733 (emphasis and alteration in original). The

plaintiffs contend that the removal of the word “uniform” from Mississippi’s

Constitution violates the Readmission Act, resulting in disuniform schools and

a number of injuries, including illiteracy, a diminished likelihood of high school

graduation, low rates of college attendance, and an increased likelihood of

future poverty.

The named defendants, sued in their official capacities, include

Mississippi’s Governor, Lieutenant Governor, Speaker of the House, Secretary

of State, and the entire State Board of Education. They moved to dismiss

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

3 Identical language appears regarding the readmission of Virginia and Texas,

consequently, the same case could be filed in those states if plaintiffs prevail here.

3

court granted the defendants’ 12(b)(1) motion, holding that it lacked

jurisdiction based on Eleventh Amendment sovereign immunity. On

reconsideration, the court dismissed without prejudice.

On appeal, the plaintiffs defended their “request [for] 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 [d]efendants, their employees, their agents, and

their successors.’” Id. at 734. The panel affirmed the district court’s

dismissal concerning the second of plaintiffs’ requests because it “seeks a

declaration of state law and is therefore barred by the Supreme Court’s decision

in Pennhurst . . . .” Id. (emphasis in original).

Contrarily, the panel reasoned that the plaintiffs’ first request for

declaratory relief fits within Ex parte Young’s exception to sovereign immunity

for cases in which a state officer is charged with acting in violation of federal

law. Id. at 735–36. Plaintiffs allege that Section 201 of the current

Mississippi constitution violates federal law, specifically, the Mississippi

Readmission Act’s confirmation of “school rights and privileges.” That the

“school rights and privileges” language depends on the state’s 1868

constitution, the panel declared, did not potentially “run afoul of Pennhurst

because it does not ask the court to compel compliance with ‘state law qua state

law,’” the panel explained. Id. at 740 (quoting 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.” Id. (emphasis in original).

II. Analysis

A. State Sovereign Immunity

Respectfully, there is no way to avoid the conclusion that the panel’s

decision on the first request for declaratory relief requires the federal court to

4

impermissibly adjudicate a question of state law. The first decision the court

must make on remand pits the meaning of “a uniform system” of public schools

in Mississippi’s 1868 constitution against “the establishment, maintenance

and support” of public schools enunciated in the state’s 1987 constitutional

amendment. Only after finding that the provisions conflict and that the

newer provision is less protective of plaintiffs’ children than the 1868 provision

could a court conclude that the “school rights and privileges” referenced in the

federal Readmission Act have not been “secured by the constitution” of

Mississippi.

The doctrine of Ex parte Young constitutes an exception to the states’

constitutional immunity whereby a federal court has jurisdiction over a suit

against a state officer to enjoin an ongoing violation of federal law, even though

the state itself would be immune from suit in federal court. Pennhurst,

465 U.S. at 102–03, 104 S. Ct. at 909. In preserving the delicate balance

between rights created under the Constitution and the states’ Eleventh

Amendment and sovereign right not to be hailed into federal court, “we must

ensure that the doctrine of sovereign immunity remains meaningful, while also

giving recognition to the need to prevent violations of federal law.” Idaho v.

Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 269, 117 S. Ct. 2028, 2034 (1997).

Accordingly, the Supreme Court has carefully limited the application of Ex

parte Young to circumstances in which injunctive relief is necessary to “give[]

life to the Supremacy Clause.” Green v. Mansour, 474 U.S. 64, 68,

106 S. Ct. 423, 426 (1985). One of the most important limitations is that Ex

parte Young does not apply where private parties seek relief amounting to a

federal court order instructing “state officials on how to conform their conduct

to state law.” Pennhurst, 465 U.S. at 106, 104 S. Ct. at 911. To determine

whether the Ex parte Young doctrine avoids an immunity bar, federal courts

conduct a “straightforward inquiry into whether [the] complaint alleges an

ongoing violation of federal law and seeks relief properly characterized as

5

prospective.” Verizon Maryland, Inc. v. Public Serv. Comm’n. of Md.,

535 U.S. 635, 645, 122 S. Ct. 1753, 1760 (2002) (quoting Coeur d’Alene,

521 U.S. at 296, 117 U.S. at 2047 (O’Connor, J., concurring)).

As all these decisions indicate, the touchstone for applying Ex parte

Young is an allegation that federal law is being violated. Without the

imperative of vindicating federal law, federal courts have no warrant to

adjudicate suits against nonconsenting states. What the plaintiffs seek in

this case is plainly an interpretation and enforcement of Mississippi law, which

is not a declaration cognizable through the Ex parte Young exception. The

panel mistook what is, in substance, a state law claim as a federal claim

interpreting the Readmission Act.

The Readmission Act specifies that the State shall not amend state law

so as to violate state law: “. . . the constitution of Mississippi shall never be so

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

school rights and privileges secured by the constitution of said State.”

16 Stat. 67, 68 (1870). The plaintiffs can only prevail on their purported

federal claim if they persuade a court to find that Mississippi violated school

rights granted exclusively by its own 1868 Constitution when it amended its

Constitution in 1987.

The panel rejected plaintiffs’ claim that the Readmission Act

incorporated 1868 state constitutional law. Williams, 954 F.3d at 740. It

stated, correctly, that the Mississippi Readmission Act “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.” Id. Having

recognized these salient facts, it is a mystery how the panel could avoid the

conclusion that plaintiffs are not entitled to relief unless a federal court decides

an explicitly state law issue: whether Section 201 of Mississippi’s 1890

Constitution, as amended in 1987, abrogated rights secured by Mississippi’s

6

1868 Constitution. 4 The plaintiffs’ argument proves the point. They contend

that Section 201 is invalid because it “no longer contains a uniformity

guarantee.” But the uniformity guarantee is (or was) a right granted only by

state law. The Readmission Act says no more than this, as it references only

“the school rights and privileges secured by the Constitution of said State.”

16 Stat. 67, 68 (1870). In the absence of the Readmission Act’s explicit

incorporation of state law or a prohibition on future amendments of the state

constitution, the only way for Section 201 to be declared invalid is to say it

abrogated the previous state constitutional provision. For a federal court to

adjudicate that proposition would violate the sovereignty and federalism

principles undergirding the Pennhurst decision.

Here, the plaintiffs are not asking the federal court merely to consult or

ascertain state law on the way to adjudicating a federal claim, but to

(1) interpret two state constitutional provisions, the 1868 uniformity

guarantee and Section 201; (2) determine whether they are compatible or in

conflict; and then (3) declare whether officers of state government are in

4 Many of these same concerns animate the separate doctrine of Pullman abstention.

See Harris County Com'rs Court v. Moore, 420 U.S. 77, 84 n.8, 95 S. Ct. 870, 876 n.8 (1975)

(“[W]here the challenged statute is part of an integrated scheme of related constitutional

provisions, statutes, and regulations, and where the scheme as a whole calls for clarifying

interpretation by the state courts, we have regularly required the district courts to abstain.”);

Reetz v. Bozanich, 397 U.S. 82, 87, 90 S. Ct. 788, 790 (1970) (“The Pullman doctrine was

based on the avoidance of needless friction between federal pronouncements and state

policies. The instant case is the classic case in that tradition, for here the nub of the whole

controversy may be the state constitution.” (internal quotation and citation omitted));

Railroad Commission of Tex. v. Pullman Co., 312 U.S. 496, 499, 61 S. Ct. 643, 645 (1941)

(“The last word on the meaning of [a Texas statute], and therefore the last word on the

statutory authority of the Railroad Commission in this case, belongs neither to us nor to the

district court but to the supreme court of Texas.”); see also 17A CHARLES ALAN WRIGHT &

ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 4242 (3d ed. 2020) (“Pullman-type

abstention is based in large part on considerations of federalism, and the desire to preserve

harmonious federal-state relations.”); MARTIN A. SCHWARTZ, SECTION 1983 LITIGATION:

CLAIMS AND DEFENSES § 14.02 (4th ed. 2020) (“When there is lack of clarity in a state

constitutional provision that is unique in the sense that it has no counterpart in the federal

Constitution, invocation of Pullman abstention may be justified.”)

7

violation of the state constitution. That is all the Readmission Act provides,

and that adjudication is quintessentially a task for Mississippi’s courts. 5

Further demonstrating the abuse of state sovereign immunity, it is plain

that, if successful, plaintiffs’ request for a declaratory judgment would surely

be followed by a plea for injunctive relief against the state defendants. The

only relief compatible with plaintiffs’ claim as to the Readmission Act would

order the defendants to comply with Article VIII, Section 1 of the 1868

constitution. As the panel understood (regarding plaintiffs’ claim for a direct

declaration of state law), such an order would run afoul of Pennhurst.

Williams, 954 F.3d at 741. The affront to the state’s enforcement of its

constitution and management of its educational system is manifest.

What’s sauce for the goose is sauce for the gander. The panel’s

conclusion that Pennhurst bars a direct declaration of state law must extend

to the declaration of alleged federal law that turns solely and exclusively on a

declaration of state law. The Readmission Act required Mississippi to enforce

“the school rights and privileges secured by the Constitution of said State.”

16 Stat. 67, 68 (1870). These “school rights” are rights secured by state law.

Any claim resting on an “ongoing violation” is not one of federal law, but of

state law. Just as the Supreme Court concluded in Pennhurst and the Fourth

Circuit in Bragg, “a State’s sovereign dignity reserves to its own institutions

the task of keeping its officers in line with [state] law.” Bragg v. West Virginia

Coal Ass’n., 248 F.3d 275, 297 (4th Cir. 2001); see Pennhurst, 456 U.S. at 106,

104 S. Ct. at 911.

5 In a similar vein, two sister circuits concluded that pursuant to Pennhurst and

fundamental Federalism principles, lawsuits challenging states’ regulation of mining

practices that were established under a federal environmental statute did not fall within the

Ex parte Young exception. Bragg v. West Va. Coal Ass’n., 248 F.3d 275, 298 (4th Cir. 2001);

Pennsylvania Federation Sportsmen’s Club v. Hess, 297 F.3d 310, 330 (3d Cir. 2002). As the

Bragg court held, where the federal statute did not incorporate state law, and intended to

craft a floor for state regulation, “any injunction against State officials to enforce this

provision would command them to comport with the State’s own law[.]” 248 F.3d at 295–96.

8

B. No Readmission Act Implied Right of Action.

Because state sovereign immunity, as interpreted by the Supreme Court,

confers immunity from suit, not just liability, 6 this court has the discretion to

consider whether the Readmission Act creates a private right of action.

Singleton v. Wulff, 428 U.S. 106, 121, 96 S. Ct. 2868, 2877 (1976). Consistent

with principles of federalism, we should have decided this important and

intertwined question of law to avert the state’s continued subjection to this

litigation. No claim can be brought under Ex parte Young unless the

Readmission Act can be enforced by private parties. That any such implied

cause of action exists is, however, untenable.

The problem here is straightforward: “[P]rivate rights of action to

enforce federal law must be created by Congress,” Alexander v. Sandoval,

532 U.S. 275, 286 121 S. Ct. 1511, 1519 (2001) (citation omitted), and the

readmission acts did not create such a right or even impose federal statutory

obligations on States. The readmission acts simply offered the states a choice

to comply with certain congressional conditions or run the risk that their

representatives will not be seated. That much is obvious from the text and

structure of the Readmission Act. It was passed “to admit the State of

Mississippi to Representation in the Congress of the United States” upon

certain conditions. 16 Stat. 67 (1870). The Act explicitly describes “the

performance of these several acts” as a “condition precedent to the

representation of the State in Congress.” Id. Later in the Act, it explicitly

6 Federal Maritime Com'n v. South Carolina State Ports, 535 U.S. 743, 766

122 S. Ct. 1864, 1877 (2002) (“Sovereign immunity does not merely constitute a defense to

monetary liability or even to all types of liability. Rather, it provides an immunity from

suit.”); see Alden v. Maine, 527 U.S. 706, 731, 119 S. Ct. 2240, 2246–47 (1999) (“[A]s the

Constitution's structure, its history, and the authoritative interpretations by this Court make

clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the

States enjoyed before the ratification of the Constitution, and which they retain today . . . .”);

Pennhurst, 465 U.S. at 100, 104 S. Ct. at 908 (“This Court's decisions thus establish that an

unconsenting State is immune from suits brought in federal courts by her own citizens as

well as by citizens of another state.” (quotation and citation omitted)).

9

qualifies Mississippi’s admittance “to representation in Congress” upon three

“fundamental conditions,” one of which is the school rights and privileges

condition at issue here. 7 Id. at 68. In short, the Readmission Act does not

create a private right of action, express or implied. Thus, even assuming

arguendo that Mississippi’s current education clause does not comport with the

“fundamental conditions” of the Mississippi Readmission Act, all that can be

said is that Mississippi has chosen to run the risk that its representatives may

be unseated by Congress.

Finding an implied private right of action based on the language of the

Readmission Act would depart drastically from decisions of the Supreme Court

and this court’s recent en banc decision in Planned Parenthood v. Kauffman,

No. 17-50282, 2020 WL 6867212 (5th Cir. Nov. 23, 2020). The Readmission

Act states that as a condition of readmitting the state’s representatives to

Congress, the “constitution of Mississippi shall never be [] amended” to deprive

any citizen or class of citizens of “school rights and privileges secured by the

[state’s] constitution.” 16 Stat. 67, 68 (1870). The Act simply does not confer

judicially enforceable personal “rights.” Instead, the Act instructs Mississippi

as to what it shall not do. The Act’s only enforcement mechanism lies in direct

recourse to Congress.

As our en banc court recently recognized, where “the text and structure

of a statute provide no indication that Congress intends to create new

individual rights, there is no basis for a private suit, whether under § 1983 or

under an implied right of action.” Kauffman, 2020 WL 6867212, at *7

7 The other two conditions are that (1) “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” except with respect to certain felonies and prospective changes concerning

“the time and place of residence of voters,” and (2) 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 under the constitution and laws of said State,

or upon any such ground to require of him any other qualifications for office than such as are

required of all other citizens.” 16 Stat. 67, 68 (1870).

10

(quoting Gonzaga University v. Doe, 536 U.S. 273, 286 (2002)). Furthermore,

the Supreme Court has made clear that “to seek redress through § 1983, . . . a

plaintiff must assert the violation of a federal right, not merely a violation of

federal law.” 8 Id. at *17 (quoting Gonzaga, 536 U.S. at 282, 122 S. Ct. at

2274) (emphasis and alteration in original). It is not enough for plaintiffs to

argue that Mississippi violated the Readmission Act—violation of that federal

law does not create a private right to sue.

The Supreme Court has been clear that it will not find an unenumerated

right of action unless the text and structure of a statute show an unambiguous

intent to create one. Gonzaga, 536 U.S. at 283, 122 S. Ct. at 2275 (“We now

reject the notion that our cases permit anything short of an unambiguously

conferred right to support a cause of action brought under § 1983.”); see

Armstrong v. Exceptional Child Center, Inc., 575 U.S. 320, 332,

135 S. Ct. 1378, 1387–88 (2015) (plurality op.) (same); Kauffman, 2020 WL

6867212, at *7 (same). This should end the analysis. There is nothing in the

text, structure, or history 9 of the Readmission Act that suggests any

congressional intent to create a private right of action—much less an

unambiguous one.

Even if the factors in Wilder and Blessing are still good law post-Gonzaga

and Armstrong, the result is the same. 10 That test asks whether Congress

8 The plaintiffs brought their claim under § 1983.

9 There is no doubt that Congress did not intend for the Readmission Act to provide a

private right of suit through § 1983 when it was adopted for the obvious reason that the

Readmission Act was enacted before Congress adopted § 1983 as part of the Civil Rights Act.

See Civil Rights Act of 1871, ch. 22, 17 Stat. 13. Originally, § 1983 only provided a remedy

for rights secured by the U.S. Constitution. It was not until after the language was amended

and the Supreme Court clarified its scope in the mid-to-late 1900s that federal statutes could

confer rights enforceable by § 1983. See Maine v. Thiboutot, 448 U.S. 1, 4–8,

100 S. Ct. 2504–2506 (1980) (describing the legislative history and confirming that the term

“and laws” in § 1983 “means what it says”).

10 The Supreme Court has made clear that at least some aspects of these cases are

not good law. As this court recently observed, the Supreme Court in Armstrong and

Gonzaga “repudiate[d]” and “disavowed, in part, its decision in Wilder” “that [its] cases

permit anything short of an unambiguously conferred right to support a cause of action

11

intended a statutory provision to benefit the plaintiff; whether the “right” is

not so vague or amorphous as to strain judicial competence; and whether the

provision giving rise to the “right” is mandatory rather than precatory.

Blessing v. Freestone, 520 U.S. 329, 341–42, 117 S. Ct. 1353, 1359 (1997).

Even if we accept that the phrase “school rights and privileges” confers some

educational right on these plaintiffs, the latter two inquiries are unavailing for

the plaintiffs.

Regarding the second Blessing factor, with or without considering

“uniformity,” the concept of “school rights and privileges” is outside of judicial

competence and far beyond what a federal court should be telling states to do.

The Readmission Act, for its part, does not provide any guidance on the term

“school rights and privileges” or provide objective benchmarks for evaluating

such rights. Making such determinations on its own is well beyond the

provenance of the federal judiciary. This is especially true considering the

Supreme Court’s refusal, under the comparatively more precise Equal

Protection Clause, to adjudicate school children’s rights to “equal funding” of

public education. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 40–

43, 93 S. Ct. 1278, 1300–02 (1973). The Court eloquently explained that

judicial restraint was required in the face of challenging issues of fiscal policy

with which judges lack familiarity and competence. In addition to fiscal

matters, the Court noted, “this case also involves the most persistent and

difficult questions of educational policy, another area in which this Court’s lack

of specialized knowledge and experience counsels against premature

interference with the informed judgments made at the state and local levels.”

brought under § 1983.” Kauffman, 2020 WL 6867212, at *7–8 (quoting Gonzaga, 536 U.S.

at 283, 122 S. Ct. at 2275 and Armstrong, 535 U.S. at 330, 135 S. Ct. at 1386); see id. at *19

(Elrod, J. concurring) (rejecting the argument that Gonzaga and Armstrong merely clarified

one of the Wilder/Blessing factors because it “ignores Armstrong’s recognition—one made by

a majority of the Court, not just a plurality—that Gonzaga ‘plainly repudiate[d]’ Wilder”

(alterations in original)).

12

Id. Since funding is the likely endgame of this litigation, we should be bound

by that case to acknowledge the strain on judicial competence were plaintiffs

to prevail.

Not only are any “rights” granted by the Readmission Act too vague and

amorphous for judicial resolution, but the statute’s language is not

“mandatory” toward any goal and thus fails the third Blessing factor. The Act

places conditions on Mississippi that are enforced through congressional

action, but in no way does it contemplate granting plaintiffs a right enforceable

against the state. 11 And as previously explained, if we view the statute from

the perspective of the Gonzaga/Armstrong framework, there is little doubt

Congress did not “unambiguously” confer judicially enforceable rights on the

plaintiffs.

In short, the plaintiffs’ case is doomed irrespective of constitutional

sovereign immunity because they are not empowered to enforce the

Readmission Act. For this additional reason, we may not subject the State to

further litigation and travail. The panel decision is an affront to the

principles of Federalism embodied in Pennhurst. I respectfully dissent from

the court’s denial of en banc rehearing.

11 We would not be the only court to reach this conclusion with respect to interpreting

one of the readmission acts. For example, a panel interpreting the act “admitting Virginia

to representation in Congress” reasoned as follows: “It is extremely doubtful, even if

Virginia has violated the conditions of this Act . . . whether this presents a question

justiciable in the courts. Such a matter is one peculiarly within the domain of Congress itself,

since it only purports to set up a condition governing Virginia's right to admission to

representation in Congress.” Butler v. Thompson, 97 F. Supp. 17, 20 (E.D. Va. 1951).

13