# Kovats v. Rutgers, The State University > Court of Appeals for the Third Circuit · June 30, 1987 · 822 F.2d 1303 URL: https://www.frixlaw.com/law-library/cases/8952304 ## Case - **Full name:** Gabor G. KOVATS, Steven C. Procuniar, Joy L. Davis, Roberta M. Delson, Hace Tishler, and Anna Beck v. RUTGERS, THE STATE UNIVERSITY, Board of Governors of Rutgers, The State University, Edward Bloustein, as President of Rutgers, The State University and individually and John R. Martin, as Vice-President for Personnel of Rutgers, The State University and individually and Susan A. Cole, as Vice-President for Personnel of Rutgers, The State University. Appeal of RUTGERS, THE STATE UNIVERSITY Board of Governors of Rutgers, The State University Edward Bloustein as President of Rutgers, The State University and Individually, and John R. Martin, as Vice-President for Personnel of Rutgers, The State University and Individually. Margaret VARMA, on behalf of herself and all others similarly situated and Rutgers Council of AAUP Chapters v. Edward J. BLOUSTEIN President of Rutgers, The State University, T. Alexander Pond Executive Vice-President and Chief Academic Officer of Rutgers, The State University Norman Samuels Provost of the Newark Campus of Rutgers, The State University James Young Former Provost of the Newark Campus of Rutgers, The State University Walter Gordon Provost of the Camden Campus of Rutgers, The State University Kenneth Wheeler Provost of the New Brunswick Campus of Rutgers, The State University Jean Parrish Acting Provost of the New Brunswick Campus of Rutgers, The State University Professors Hans Fisher, Noemie Killer, Richard Poirier, Paul Fussell, Lawrence Fisher, Jane Scanlon, Harvey Feder and Amelie Rorty of Rutgers, The State University Susan A. Cole Vice-President for Personnel at Rutgers, The State University, Elizabeth Mitchell Assistant Vice-President for Faculty Affairs of Rutgers, The State University Robert Pack Associate Provost for Personnel, New Brunswick Members of the Board of Governors of Rutgers, The State University Linda Stamato Chair Donald Dickerson Vice-Chair Floyd Bragg Sanford Jaffe Robert Kaplan Harold Perl Norman Reitman Lawrence S. Schwartz and David Werblin, all individually and in their corporate capacities and Rutgers, The State University the Promotion Review Committee, of Rutgers, The State University. Appeal of Edward J. BLOUSTEIN T. Alexander Pond Norman Samuels James Young Walter Gordon Kenneth Wheeler Jean Parrish The Promotion Review Committee Susan A. Cole Elizabeth Mitchell Robert Pack Linda Stamato Donald Dickerson Floyd Bragg Sanford Jaffee Robert Kaplan Harold Perl Norman Reitman Lawrence S. Schwartz and David Werblin and Rutgers, The State University - **Court:** Court of Appeals for the Third Circuit - **Decided:** June 30, 1987 - **Citations:** 822 F.2d 1303; 40 Educ. L. Rep. 660 - **Precedential status:** Published - **Opinion:** Concurrence by Scirica - **Judges:** Mansmann, Scirica, Sloviter - **Cited by:** 31 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8952304 ## How later opinions describe it (automated extraction) - noting that Rutgers’s claim to immunity was weakened by the fact that, “unlike other state agencies, [Rutgers is] not subject to civil service laws ... or administrative procedure requirements” - noting that state contributions to Rutgers’s budget were comingled with the University’s tuition and other revenues into a discretionary pot of money over which Rutgers retained sole control - finding Rutgers University not an ‘arm of the state’ and therefore not entitled to Eleventh Amendment immunity - finding Rutgers' status under New Jersey law to be too indeterminate to aid in the sovereign immunity inquiry ## Opinion text SCIRICA, District Judge, concurring. I write separately to emphasize the basis for my decision to bar Rutgers from asserting Eleventh Amendment immunity. As the majority observes, our Eleventh Amendment inquiry will vary depending on the unique existence and peculiar circumstances of each state-affiliated entity. See Maj. op. at 1313-1314 (citing Soni v. Board of Trustees of the University of Tennessee, 513 F.2d 347, 352 (6th Cir.1975), cert. denied, 426 U.S. 919 , 96 S.Ct. 2623 , 49 L.Ed.2d 372 (1976)). Thus, the state attributes of other entities may differ significantly from those of Rutgers. I agree that with respect to Rutgers, New Jersey is not the “real, substantial party in interest.” See Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 101 , 104 S.Ct. 900, 908 , 79 L.Ed.2d 67 (1984). I believe, however, that New Jersey’s discretionary power to fund Rutgers is not a significant or dispositive factor in today’s inquiry. The majority states that “[a]ny increase in Rutgers' state appropriation as a result of a judgment against Rutgers will be entirely the result of discretionary action by the state.” Maj. op. at 1309. This view fails to accord proper weight to the practical reality of the state’s tie to Rutgers. To be sure, Rutgers has independent funding sources. Nevertheless, Rutgers is an integral part of New Jersey’s public education system and either directly or indirectly the state will ensure the university’s fiscal stability. For example, it is unlikely that New Jersey would allow a substantial judgment against Rutgers to jeopardize the University’s well being. This court recently addressed a similar situation involving a mix of public and independent funding for the Pennsylvania State System of Higher Education. See Skehan v. State System of Higher Education, 815 F.2d 244, 248 (3d Cir.1987). In Skehan , however, the court held that under the multi-factor inquiry of Urbano v. Board of Managers of New Jersey State Prison, 415 F.2d 247, 250-51 (3d Cir.1969), cert. denied, 397 U.S. 948 , 90 S.Ct. 967 , 25 L.Ed.2d 129 (1970), the state system was entitled to Eleventh Amendment immunity. See Skehan, 815 F.2d at 249 . In reaching its holding, the court acknowledged the discretionary nature of state funding, but emphasized the state’s interest in providing an affordable, high quality education to Pennsylvania students. See id. at 248 . Thus, in a practical sense, a legislature’s funding discretion is tempered by social policy favoring affordable, quality education. Although Skehan and this case involve similar levels of state supervision and control (e.g., gubernatorial appointments and state audits), Rutgers’ status differs in other significant respects. In Skehan , Pennsylvania had preserved sovereign immunity for the state system and state colleges. See id. at 248-49 . Here, however, New Jersey has immunized itself from judgment against Rutgers, and allowed the university to sue and be sued. Similarly, in Skehan , the state system was governed by the Commonwealth’s administrative code, see id. at 248 , but in this case, Rutgers is not obligated to follow state civil service, competitive bidding, or administrative procedure requirements. Based on these circumstances, I agree that Rutgers is not an arm of the state for purposes of the Eleventh Amendment. Nevertheless, any Eleventh Amendment inquiry under Urbano involves a dynamic, every-changing process. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8952304. Public record. Not legal advice.