Culjack v. Roberts

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

JEFFREY S. PROSSER, et al., )

)

Plaintiffs, )

)

v. ) Case No. 3:21-cv-518-RAH

) [WO]

B.T. ROBERTS, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Several current and former Auburn University students and their parents filed

this suit against twenty-five Auburn University officials, including all members of

the Board of Trustees, the Provost, the Registrar, and the Assistant Registrar, all in

their official and individual capacities (collectively, the Defendants).1 In their

Second Amended Complaint (the operative complaint) (Doc. 67), the Plaintiffs

allege that the Defendants arbitrarily and capriciously denied them in-state tuition

benefits even though they met the relevant qualifications to become bona fide

residents of the State of Alabama, in violation of the Fourteenth Amendment to the

United States Constitution. The Plaintiffs also assert that the Alabama statutory

1 Defendants Dr. Jay Gogue, Bill Hargrave, Charles D. McCrary, and Sarah B. Newton have since

left Auburn University. Their successors in office have been substituted as parties for the official

capacity claims. (Doc. 79.) The Plaintiffs maintain this action against Defendants Gogue,

Hargrave, McCrary, and Newton in their individual capacities.

framework establishing the qualifications for being deemed a bona fide resident for

in-state tuition purposes facially violates the Fourteenth Amendment because it

grants each university too much discretion for determining who qualifies as a bona

fide Alabama resident. The Defendants have filed a motion to dismiss all claims.

(Doc. 68.) After considering the Second Amended Complaint, the Defendants’

motion to dismiss and the subsequent briefing on the motion, as well as the

arguments presented during oral argument, the Court concludes that the Defendants’

motion to dismiss is due to be granted in part and denied in part.

I. JURISDICTION AND VENUE

The Court has original subject matter jurisdiction over this case pursuant to

28 U.S.C. §§ 1331, 1343(a)(3), 2201(a).

Personal jurisdiction and venue are uncontested, and the Court concludes that

venue properly lies in the Middle District of Alabama. See 28 U.S.C. § 1391.

II. FACTUAL AND PROCEDURAL BACKGROUND

As is appropriate at the motion-to-dismiss stage, the following facts are taken

as true from the factual allegations set forth in the Second Amended Complaint:

Auburn University (Auburn), an Alabama public university, allows students

who relocate to Alabama to apply to the Board of Registrars for in-state tuition after

establishing bona fide residency in the state for a one-year period with an intent to

remain as permanent residents. (Doc. 67 at 6–7, 54–55.) Auburn charges Alabama

residents $5,000 per semester for tuition, whereas Auburn charges $15,000 per

semester to non-Alabama residents. (Id. at 7–8.) Several students (the Student-

Plaintiffs) and their parents (the Parent-Plaintiffs) now claim they are or were

unfairly deemed to be non-Alabama residents for tuition purposes, despite becoming

bona fide residents of Alabama.

One example of the challenges these Plaintiffs have faced in securing in-state

tuition as bona fide Alabama residents is the situation facing Plaintiff Nicholas Pero.

Pero moved to Alabama from Florida in 2017 to enroll at Auburn University and

with the intent to open a branch of his family’s sales business in Alabama. A

graduate of a Florida high school, Pero was admitted to Auburn for the 2017–18

school year. Auburn denied him Alabama residency status in 2019, one reason being

that Auburn decided to disallow work at a relative’s business or place of employment

as proof of bona fide residency. Pero has taken at least one leave of absence while

enrolled at Auburn but has resided in Alabama since 2017. (Id. at 11, 26–29.)

Like many states, Alabama law permits public universities in the state to

charge reduced tuition rates to state residents. Under Alabama law, a university

student who is not a minor (at least 19 years of age) may be defined as a resident

student if they meet one of several broad criteria, including permanent employment

within the state. ALA. CODE § 16-64-2(a)(1). If a student is a minor at the time of

registration, they may be enrolled as a resident student if their “supporting person,”

among other determining factors, can verify full-time employment within the state.

Id. § 16-64-2(a)(2). A supporting person is defined as the custodial parent(s), or if

the parents are deceased or do not have legal custody, the legal custodian, guardian,

or conservator. Id. § 16-64-1(5).

Alabama law directs the board of trustees of each Alabama public university

to adopt “rules and guidelines” which permit the university to comply with this

statutory framework. Id. § 16-64-2(c). The institutions are also delegated the

responsibility of determining whether a student is a resident for purposes of

obtaining in-state tuition. When applying for Alabama residency status, an applicant

must first certify by a signed statement their Alabama residential address, an intent

to remain at the Alabama address indefinitely, and “[p]ossession of more substantial

connections with the State of Alabama than with any other state.” Id. § 16-64-3(a).

The institutions must then evaluate the presence or absence of the applicant’s

connections to the State of Alabama by considering thirteen factors, including the

location of the student’s high school, the payment of Alabama state income taxes,

and “[c]ontinuous physical presence in the state for a purpose other than attending

school.” Id. § 16-64-3(b). Alabama law also permits the governing boards of public

four-year universities to implement more rigorous policies defining nonresident

students than those outlined by statute. Id. § 16-64-5. Public universities must

charge nonresident students at least twice the tuition rate charged to resident

students. Id. § 16-64-4(a).

Nine Student-Plaintiffs and six Parent-Plaintiffs who either were denied

acknowledgement as bona fide Alabama residents by Auburn, or continue to be

denied such status, despite claiming bona fide residency in the state, filed this action

on August 4, 2021. (Doc. 1.) In their Second Amended Complaint, filed on

February 3, 2022, the Plaintiffs claim that the Defendants administer residency

review requirements in an inconsistent, unfair, and unreasonable manner and should

be enjoined from operating in such a manner. The Plaintiffs also claim that the

Defendants are acting with a distinct bias against allowing formerly out-of-state

students to receive in-state tuition benefits. (Doc. 67 at 41.) Furthermore, the

Plaintiffs claim that the statutes at issue are unconstitutionally vague, are incapable

of administration without due process, and are abused by Auburn for the purpose of

financial gain. (Id. at 41.) Specifically, the Plaintiffs allege violations of the Equal

Protection Clause, procedural and substantive due process, the Privileges and

Immunities Clause, and the right to travel. Each Plaintiff seeks attorney’s fees and

monetary damages for the alleged violations of their constitutional rights. (Id. at

45.) Additionally, “[all] Plaintiffs request that the court direct the Defendants to

submit a detailed plan for the [Court’s] approval that meets the minimal

requirements of Due Process and equal protection under the 14th Amendment.” (Id.

at 43.) The Weidle, Culjak, Rush, Kulick, and Allen Plaintiffs all seek declaratory

relief in the form of a designation that they are all bona fide Alabama residents.

III. STANDARD OF REVIEW

“A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack

of subject matter jurisdiction by either facial or factual attack.” Stalley ex rel. U.S.

v. Orlando Reg’l Healthcare Sys., Inc., 524 F.3d 1229, 1232 (11th Cir. 2008) (per

curiam). “A ‘facial attack’ on the complaint ‘require[s] the court merely to look and

see if [the] plaintiff has sufficiently alleged a basis of subject matter jurisdiction, and

the allegations in his complaint are taken as true for the purposes of the

motion.’” McElmurray v. Consol. Gov’t of Augusta–Richmond Cnty., 501 F.3d

1244, 1251 (11th Cir. 2007) (alterations in original) (quoting Lawrence v. Dunbar,

919 F.3d 1525, 1529 (11th Cir. 1990)). “Factual attacks,” on the other hand, serve

to “challenge ‘the existence of subject matter jurisdiction in fact, irrespective of the

pleadings, and matters outside the pleadings, such as testimony and affidavits[,] are

considered.’” Id. (citation omitted).

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint

against the legal standard set forth in Rule 8: “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To

survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007)). In ruling on a motion to dismiss for failure to state a claim upon which

relief can be granted, the court must accept well-pled facts as true, but the court is

not required to accept a plaintiff’s legal conclusions. Id. A complaint may be

dismissed if the facts as pled do not state a claim for relief that is plausible on its

face. See id. at 679 (explaining that “only a complaint that states a plausible claim

for relief survives a motion to dismiss”).

“Determining whether a complaint states a plausible claim for relief [is] . . . a

context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. The plausibility standard requires “more than

a sheer possibility that a defendant has acted unlawfully.” Id. at 678. Conclusory

allegations that fail to rise “above the speculative level” are insufficient to meet the

plausibility standard. Twombly, 550 U.S. at 555. This pleading standard “does not

require ‘detailed factual allegations,’ but it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (quoting

Twombly, 550 U.S. at 555). Indeed, “[a] pleading that offers ‘labels and conclusions’

or ‘a formulaic recitation of the elements of a cause of action will not do.’” Id.

(quoting Twombly, 550 U.S. at 555). It is the plaintiff’s responsibility to allege

sufficient facts to support his claims. Twombly, 550 U.S. at 555.

IV. DISCUSSION

In their motion to dismiss, the Defendants raise jurisdictional and merits

challenges, arguing that the Second Amended Complaint is due to be dismissed in

its entirety. The Defendants argue that the Parent-Plaintiffs lack Article III standing,

the Second Amended Complaint fails to state a claim upon which relief can be

granted, and the Plaintiffs are not entitled to monetary damages from the Defendants

either in their individual or official capacities. For the reasons discussed below, the

Court concludes that the Parent-Plaintiffs have standing, some—but not all—of the

Plaintiffs’ claims are due to be dismissed for failure to state a claim, the official

capacity defendants are not “persons” under § 1983 who can be sued for monetary

damages, and qualified immunity bars the individual capacity claims for monetary

damages. The Defendants’ remaining arguments fail or need not be considered.2

2 The Defendants ask the Court to dismiss the Second Amended Complaint in its entirety because,

in their view, it is an impermissible shotgun pleading. (Doc. 68 at 8–9 (citing Weiland v. Palm

Beach Cnty. Sheriff’s Off., 792 F.3d 1313, 1320–25 (11th Cir. 2015)).) The Eleventh Circuit has

made clear that courts should not tolerate shotgun pleadings. See Weiland, 792 F.3d at 1320–25.

The Second Amended Complaint, while certainly not a model of clarity, does not constitute a

shotgun pleading. Unlike situations where it is “virtually impossible” to determine which

allegations support which claims for relief, here the Second Amended Complaint presents detailed

factual allegations, shows that the factual allegations concern nearly all Defendants, and outlines

(albeit roughly) the legal claims against the Defendants. See id. at 1325 (quoting Anderson, 77

F.3d 364, 366 (11th Cir. 1996)). While not all claims survive dismissal, they are not due to be

dismissed on the grounds that the pleadings are presented in a shotgun manner.

The Defendants also argue that the Second Amended Complaint fails to state a claim against

certain Defendants because the claims appear to rest on those Defendants’ status as supervisors,

and the Second Amended Complaint fails to establish the “extremely rigorous” standard for

holding a supervisor liable “in [their] individual capacity for the actions of a subordinate.” (Doc.

68 at 34 (quoting Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003)).) The Court will assume

A. Standing

The Defendants argue that none of the Parent-Plaintiffs have standing, as they

have not themselves suffered a concrete injury. According to the Defendants, the

parents are avenging the alleged wrongs suffered by third parties—their children—

and the Second Amended Complaint centers around the students’ enrollment,

tuition-classification determination, and tuition itself. (Doc. 68 at 17–18.) However,

given the information outlined in the Second Amended Complaint, which must be

assumed true, the Parent-Plaintiffs have standing to proceed at this stage.

Article III standing is a threshold inquiry. Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 94–95 (1988). Article III of the Constitution limits federal courts

to “adjudicating actual ‘cases’ and ‘controversies.’” See, e.g., Allen v. Wright, 468

U.S. 737, 750 (1984), abrogated on other grounds by Lexmark Int’l, Inc. v. Static

Control Components, Inc., 572 U.S. 118 (2014). To satisfy Article III’s well-

established “case or controversy” requirement, the Plaintiffs must demonstrate that

they have “standing” to sue; that is, they must show that they “(1) suffered an injury

in fact, (2) that is fairly traceable to the challenged conduct of the [Defendants], and

(3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v.

without deciding that the Plaintiffs have sufficiently stated supervisory liability claims against

these defendants—although the Court has serious doubts on that score. Nonetheless, as discussed

further below, all individual capacity defendants are entitled to qualified immunity. Moreover,

this argument has no impact on the official capacity claims for prospective relief against those

defendants.

Robins, 578 U.S. 330, 338 (2016) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555,

560–61 (1992)); Flat Creek Transp., LLC v. Fed. Motor Carrier Safety Admin., 923

F.3d 1295, 1300 (11th Cir. 2019). “Because standing is jurisdictional, a dismissal

for lack of standing has the same effect as a dismissal for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1).” Stalley, 524 F.3d at 1232 (citation

omitted).

Alabama law provides instructions for its state universities’ determinations of

who is and is not an Alabama resident for purposes of granting in-state tuition

benefits. See ALA. CODE §§ 16-64-1 to 5. The student’s intent to remain in Alabama

is central to a university’s determination of residency. Id. § 16-64-1(4). But when

it comes to minor students, the statute allows universities to consider the residency

intent of the student’s parents or other supporting persons. See id. § 16-64-2(a)(2)

(“For purposes of admission and tuition, a public institution of higher education may

consider that the term resident student includes any of the following: One who, at

the time of registration, is a minor and whose supporting person satisfies one of the

following . . . .”); § 16-64-1(5) (defining a student’s parents as their supporting

person except in limited circumstances). And according to the Second Amended

Complaint, Auburn relied upon the residency intent of students’ parents in

determining whether students qualified for in-state tuition rates. Notably, the ages

of the Student-Plaintiffs are not apparent in the Second Amended Complaint.

The Defendants argue that the statute’s contemplation of the parents’

residency does not obviate the responsibility of students for their own tuition

payments, regardless of their age and capacity status. (Doc. 75 at 7–8.) The

Defendants’ argument, however, ignores that the challenged statute recognizes a

significant and legally relevant role for parents of students who are minors (under

the age of 19). After all, in Alabama, a minor does not have the ability to contract

and therefore cannot enter into a tuition agreement or enrollment contract with

Auburn. ALA. CODE § 16-64-1(1); Williams v. Baptist Health Sys., Inc., 857 So. 2d

149, 151 (Ala. Civ. App. 2003).

Thus, if a parent is responsible for paying the tuition bill for their minor

child—minor students are unable to contract with the pertinent university as a matter

of law—and if Auburn relies on the parents’ residency to determine the students’

tuition bills, as alleged in the Second Amended Complaint and as permitted by

statute, then the parent clearly suffers a concrete harm by being wrongfully

designated as a non-Alabama resident for purposes of their children’s tuition costs.

In short, the Court concludes that the Parent-Plaintiffs have standing insofar as their

claims concern tuition payments made on behalf of their minor children.

As to when their children reached the age of majority, the Second Amended

Complaint does not expressly allege that a contractual relationship or legal

obligation to pay tuition exists between the Parent-Plaintiffs and Auburn. However,

that omission is not fatal to the Parent-Plaintiffs’ standing in this case. The Second

Amended Complaint is rife with allegations that Auburn officials sought, and

continued to seek on an ongoing basis, information from the Parent-Plaintiffs to

determine whether they are bona fide Alabama residents. Auburn officials then

allegedly use the parents’ residency status to determine the students’ eligibility for

in-state tuition. Moreover, the Parent-Plaintiffs allege that Auburn officials harass

them on an ongoing basis to supply information regarding their residency status.

Finally, according to the Second Amended Complaint, the parents—not the

students—pay the tuition bills. Thus, Auburn’s processes and decisions, which are

based on information provided by the parents, directly impact the parents in terms

of how much tuition they will have to pay for their children.

Furthermore, and relevant for the statutory challenge, the Court finds that

Auburn’s procedures are inextricably linked with the statutory framework governing

residency determinations for Alabama universities, as the governing statute

delegates authority to the boards of trustees of each Alabama public university to

implement residency requirements for tuition purposes. See ALA. CODE § 16-64-

2(c). At this early stage of the proceedings, the Plaintiffs’ allegations plausibly

demonstrate both the existence of an injury-in-fact and a real and immediate threat

of future injury to the parents under both the challenged statutory framework and

Auburn’s internal procedures for residency determinations. See Wooden v. Bd. of

Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1284 (11th Cir. 2001).3 Accordingly,

the Court finds that, at this stage, the Plaintiff-Parents have sufficiently demonstrated

standing to sue Auburn for its allegedly unconstitutional residency determination

processes.

As an additional matter, each Plaintiff except for Jeffrey Prosser, Brooke

Prosser, and Nicholas Pero seek declaratory relief in the form of a judicial

designation that they are bona fide Alabama residents in this matter, while each

Plaintiff seeks injunctive relief in the form of procedural residency determinations

that comply with the Fourteenth Amendment. Both forms of relief necessarily rest

upon a factual premise that the referenced student is and remains a student enrolled

at Auburn.

Here, the Second Amended Complaint alleges that Brooke Prosser has

graduated from Auburn. The Plaintiffs assert that Brooke Prosser has standing to

3 Some district courts have concluded that parents who pay university tuition for their adult

children lacked standing to sue the university for breach of contract. See, e.g., Espejo v. Cornell

Univ., 523 F. Supp. 3d 228, 236–37 (N.D.N.Y. 2021), on reconsideration sub nom. Faber v.

Cornell Univ., No. 3:20-CV-467 (MAD/ML), 2021 WL 4950287 (N.D.N.Y. Oct. 25, 2021);

Rynasko v. N.Y. Univ., No. 20 Civ. 3250 (GBD), 2021 WL 1565614, at *3 (S.D.N.Y. Apr. 21,

2021); In re Univ. of Mia. COVID-19 Tuition & Fee Refund Litig., 524 F. Supp. 3d 1346, 1354–

55 (S.D. Fla. 2021); but see Doe v. Emory Univ., No. 20-CV-2002-TWT, 2021 WL 358391, at *2–

3 (N.D. Ga. Jan. 22, 2021). However, the Court does not find those cases helpful here for two

reasons. First, the Parent-Plaintiffs have not sued Auburn for breach of contract. Second, the

tuition-paying parents in those cases sued their children’s universities over the allegedly deficient

quality of the students’ remote classes during the COVID-19 pandemic. Education quality is at

least one step removed from paying tuition. By contrast, here, the tuition-paying parents are suing

over the tuition rates themselves and Auburn’s allegedly unconstitutional processes for

determining who is eligible for in-state tuition.

pursue prospective injunctive relief because the initial Complaint declares that she

is enrolled at Auburn University and standing must exist at the commencement of

the litigation. (Doc. 81 at 2–3.) Although the initial Complaint alleges she was

enrolled at Auburn, the Second Amended Complaint alleges she “has now

graduated” from Auburn. (Doc. 67 at 10.) She does not allege that she intends to

re-enroll. It follows from Brooke’s graduation from Auburn that she will not be

charged tuition for future semesters, whether at in-state or out-of-state rates.

“[T]o have standing to obtain forward-looking relief, a plaintiff must show a

sufficient likelihood that [s]he will be affected by the allegedly unlawful conduct in

the future.” Wooden, 247 F.3d at 1283; see also City of Los Angeles v. Lyons, 461

U.S. 95, 105 (1983). “Article III standing must be determined as of the time at which

the plaintiff’s complaint is filed.” Focus on the Fam. v. Pinellas Suncoast Transit

Auth., 344 F.3d 1263, 1275 (11th Cir. 2003). But where an amended complaint has

been filed, the plaintiff must also possess Article III standing on that later date, either

based on the facts as alleged in the complaint or through relation back to the original

complaint. Id.; see also Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 51 (1991)

(analyzing standing for prospective injunctive relief “at the time the second amended

complaint was filed”).

Separately, “[m]ootness doctrine ensures that a justiciable case or controversy

is present ‘at all stages of review.’” Gagliardi v. TJCV Land Tr., 889 F.3d 728, 733

(11th Cir. 2018) (citation omitted). “If, due to events that have happened since the

filing of the complaint, the court can no longer redress” the plaintiff’s asserted injury,

the plaintiff’s claim “is moot and should be dismissed.” Fla. Wildlife Fed. v. S. Fla.

Water Mgmt. Dist., 647 F.3d 1296, 1304 (11th Cir. 2011).4 “As is so often the case

in suits for injunctive relief brought by students, graduation or impending graduation

renders their claims for injunctive relief moot.” Pederson v. La. State Univ., 213

F.3d 858, 874 (5th Cir. 2000) (holding that, “[b]ecause the named plaintiffs will not

benefit from a favorable ruling on the question implicating injunctive relief, . . . this

question is moot as to them”).

Brooke Prosser’s graduation, alleged in the Second Amended Complaint,

means that she is not likely to be injured by Auburn’s allegedly unlawful conduct in

the future, and a ruling directing Auburn to use new residency determination

processes in the future would not redress her injuries. It follows that either Brooke

Prosser lacks standing to request prospective injunctive relief or that this request has

become moot. Compare Wooden, 247 F.3d at 1284–85 (finding that student plaintiff

lacked standing to seek prospective injunctive relief against university’s admissions

policy, explaining that “[plaintiff] is now a student at [the university], and there is

4 The Supreme Court has repeatedly stated that “the doctrine of mootness can be described as ‘the

doctrine of standing set in a time frame: The requisite personal interest that must exist at the

commencement of the litigation (standing) must continue throughout its existence (mootness).’”

Friends of the Earth, Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189–90 (2000)

(citation omitted) (also acknowledging that this description is “not comprehensive”).

no evidence that he intends to re-apply for admission to [the university] under any

version of the freshman admissions policy,” and therefore “[t]here is no

likelihood . . . that he will ever again be exposed to [the university]’s allegedly

discriminatory freshman admissions process”), with Bd. of Sch. Comm’rs of City of

Indianapolis v. Jacobs, 420 U.S. 128, 128–29 (1975) (per curiam) (holding that a

challenge to the constitutionality of certain school board rules became moot where

all plaintiffs had graduated), and DeFunis v. Odegaard, 416 U.S. 312, 316–20

(1974) (per curiam) (holding that a challenge to the constitutionality of a law

school’s admissions policies became moot where the plaintiff sought only an

injunction demanding his admission to the law school, the plaintiff was admitted to

the law school during the litigation, and the plaintiff was about to graduate from the

law school). Whether framed as a standing problem or a mootness problem, Brooke

Prosser’s graduation from Auburn means that the Court lacks jurisdiction to award

her prospective relief in the form of an injunction directing Auburn to take certain

actions in the future. Similarly, since Brooke has graduated from Auburn, Jeffrey

Prosser no longer faces a real and immediate threat of future injury related to

Auburn’s tuition rates, nor would a ruling directing Auburn to use different

processes in the future redress his injuries. Consequently, the Court also lacks

jurisdiction over his request for prospective injunctive relief.

Based on the Second Amended Complaint, the Court cannot discern whether

any of the other student-plaintiffs have graduated from Auburn; however, a review

of the dates of initial enrollment at Auburn suggest that other student plaintiffs may

have graduated. The Court expects the parties to further develop this issue at a later

stage in this case.

B. Failure to State a Claim

The Defendants also argue that the Second Amended Complaint fails to state

a claim upon which relief can be granted. They direct this argument towards both

the individual and official capacity claims.5 The Court will consider the Defendants’

arguments with respect to each of the Plaintiffs’ claims in turn.

5 As explained further below, the Defendants argue that Eleventh Amendment sovereign immunity

bars the Plaintiffs’ official capacity claims for monetary damages. In their reply brief, the

Defendants argue that Ex parte Young does not permit the Plaintiffs to pursue declaratory or

injunctive relief because they have not “allege[d] facts sufficient to state a claim for any violation

of federal law.” (Doc. 75 at 9.) Under Ex parte Young, the Supreme Court held that private

individuals can sue state officials in their official capacities for declaratory and injunctive relief

notwithstanding Eleventh Amendment immunity. 209 U.S. 123, 155–56 (1908). The Eleventh

Circuit has accordingly held: “[The Ex parte Young] doctrine provides an exception to Eleventh

Amendment immunity for lawsuits against state officials as long as the plaintiffs seek only

prospective injunctive relief to stop ongoing violations of federal law.” Friends of the Everglades

v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1215 (11th Cir. 2009). The Defendants have argued

that Ex parte Young does not apply only because the Plaintiffs have failed to state a claim. They

have not argued, for example, that any of the Defendants are improper defendants for Ex parte

Young purposes. Thus, at this stage, the Defendants’ Ex parte Young argument overlaps with their

failure-to-state-a-claim arguments.

1. Equal Protection

The Second Amended Complaint asserts both facial and as-applied equal

protection challenges. The Plaintiffs allege that the statute facially violates the Equal

Protection Clause because it empowers Alabama colleges to design their own

definitions of what constitutes a “bona fide resident of Alabama,” thereby leading to

disparate treatment and “separate classes” of Alabama bona fide residents. (Doc. 67

at 42–43.) They additionally allege that the statute and the Defendants’ conduct as

applied to them violate the Equal Protection Clause. The Defendants do not

acknowledge the Plaintiffs’ facial challenge, let alone argue that it should be

dismissed. Thus, the Court will begin and end with the Defendants’ arguments

directed at the as-applied challenge.

The Defendants argue that the Plaintiffs failed to sufficiently allege a

challenge to Auburn’s residency determinations under the Equal Protection Clause

because they have failed to show that they were disparately treated on account of a

discriminatory motive or purpose.6 The Plaintiffs respond that they are challenging

6 The Defendants also appear to argue that the Plaintiffs’ equal protection challenge fails to identify

a federal or constitutional right which underlies the violation. (Doc. 68 at 23.) No such showing

is required to properly allege a violation of the Equal Protection Clause. “The equal protection

clause ‘is essentially a direction that all persons similarly situated should be treated alike.’” Spence

v. Zimmerman, 873 F.2d 256, 261 (11th Cir. 1989) (quoting City of Cleburne v. Cleburne Living

Ctr., Inc., 473 U.S. 432, 439 (1985)). The differential treatment itself is the potential constitutional

violation. Whether that differential treatment is a violation of the Equal Protection Clause is

impacted by whether the underlying conduct concerns a fundamental right or a suspect class, and

therefore which level of scrutiny the Court must afford the treatment. See Gary v. City of Warner

Robins, 311 F.3d 1334, 1337 (11th Cir. 2002).

the differential treatment of bona fide Alabama residents for purposes of in-state

tuition rates at Auburn University. (See Doc. 72 at 13–14.) The Defendants,

pointing out only four explicit references to discrimination in the Second Amended

Complaint, further argue that the allegations are far too conclusory to properly state

a claim.7 (Doc. 68 at 24; Doc. 75 at 12.) The Court concludes that the four

references to discrimination in the Second Amended Complaint state a plausible as-

applied equal protection violation when viewed in the light most favorable to the

Plaintiffs and in the context of the Second Amended Complaint as a whole.

“The Equal Protection Clause ‘is essentially a direction that all persons

similarly situated should be treated alike.’” Chabad Chayil, Inc. v. Sch. Bd. of

Miami-Dade Cnty., 48 F.4th 1222, 1233 (11th Cir. 2022) (quoting City of Cleburne,

473 U.S. at 439). “When legislation classifies persons in such a way that they

receive different treatment under the law, the degree of scrutiny the court applies

depends upon the basis for the classification.” Gary, 311 F.3d at 1337. “If a

fundamental right or a suspect class is involved, the court reviews the classification

under strict scrutiny.” Id. If not, the Court reviews the classification under “the

7 The Defendants note that the only allegation of an equal protection violation which is actually

incorporated into a claim for relief is the claim that “Auburn has been capricious[,] arbitrary and

discriminatory in its application of all of the statutes.” (Doc. 68 at 24 (quoting Doc. 67 at 6).)

Consistent with the standard the Court applies at the motion to dismiss stage and finding no

rationale to believe that the Plaintiffs are intentionally misleading either the Defendants or the

Court, the Court will construe the claims raised in the Second Amended Complaint as a whole.

rational basis test,” asking whether it is “rationally related to the achievement of a

legitimate government purpose.” Id.

The Plaintiffs do not clearly articulate whether they think rational basis or

strict scrutiny review applies here, although elsewhere they suggest that the statute

and the Defendants’ conduct violate the fundamental right to travel. The Court need

not decide what level of scrutiny applies at this stage because the Plaintiffs’ equal

protection claim survives dismissal even under rational basis review. The Second

Amended Complaint states a plausible equal protection claim because each Plaintiff

alleges sufficient facts to show that they would reasonably be deemed bona fide

Alabama residents who have lived in the state for greater than one year, and therefore

can point to discriminatory treatment by Auburn officials who have found them not

to be bona fide residents. The Plaintiffs have also alleged that Auburn has a financial

rationale for treating them as out-of-state residents, as Auburn earns three times as

much tuition from each non-resident student. The Court is unable to conceive of a

rational basis for treating the Plaintiffs differently from other similarly situated

Alabama residents based on the facts assumed as true in the Second Amended

Complaint.8

8 While challenges like the one at bar have been few and far between in the federal system, two

other federal district courts have concluded that bona fide residents cannot be treated differently

by state universities for purposes of granting in-state tuition benefits. See Ward v. Temple Univ.,

No. CIV.A. 02-7414, 2003 WL 21281768, at *7 (E.D. Pa. Jan. 2, 2003) (“While a state may

provide in-state residents with reduced tuition rates, it cannot treat similarly situated in-state

residents differently for tuition purposes. For example, it cannot single out one bona fide resident

Rather than asserting a rational basis for this distinction, the Defendants argue

the Second Amended Complaint is too conclusory. The Second Amended

Complaint is not a model of clarity, but it is sufficiently clear as to what the Plaintiffs

are claiming and the factual basis for their claim. At this preliminary stage, these

allegations are sufficient. The Plaintiffs have pleaded sufficient facts to sustain their

as-applied equal protection challenge to Auburn University’s determination that they

are not Alabama residents for purposes of receiving in-state tuition rates. And as

explained above, the Defendants have not moved to dismiss the facial challenge.

Accordingly, the Defendants’ motion to dismiss the equal protection claim is due to

be denied.

2. Procedural Due Process

As with equal protection, the Second Amended Complaint asserts both facial

and as-applied procedural due process challenges. The Plaintiffs allege that § 16-

64-5 facially violates procedural due process because it gives Alabama colleges

unfettered discretion to use “as many subjective criteria as they choose” to determine

who is a bona fide Alabama citizen, rendering the provision arbitrary and capricious;

and that §§ 16-64-1 through -5 facially violate due process because they make no

and arbitrarily charge him or her more than other bona fide residents.”); Black v. Sullivan, 561 F.

Supp. 1050, 1069 (D. Me. 1983) (concluding that the Supreme Court “has not approved of statutes

or regulations which distinguish between old bona fide domiciliaries and new bona fide

domiciliaries”). While this Court recognizes that Ward and Black are nonbinding, the Court finds

their analysis persuasive.

provision for appellate review of an Alabama college or university’s residency

decision. (Doc. 67 at 42–43.) The Plaintiffs additionally allege that the statute and

the Defendants’ conduct as applied to them violate due process. The Defendants

again do not acknowledge the Plaintiffs’ facial due process challenge, let alone argue

that it should be dismissed. Thus, the Court again will begin and end with the

Defendants’ arguments directed at the as-applied challenge.

The Plaintiffs assert that the procedures for addressing improper and wrongful

denials of Alabama residency applications fall short of the Fourteenth Amendment’s

requirements for procedural due process. The Defendants counter that there is

sufficient constitutional process in place for appealing an adverse residency

determination. (Doc. 68 at 28.)

To establish a procedural due process violation under § 1983, a plaintiff must

show: “(1) a deprivation of a constitutionally-protected liberty or property interest;

(2) state action; and (3) constitutionally-inadequate process.” Grayden v. Rhodes,

345 F.3d 1225, 1232 (11th Cir. 2003).

The dispute here centers around whether the process provided by Auburn is

constitutionally adequate. The Court must balance three factors in determining

whether the process provided is constitutionally adequate: (1) “the private interest

that will be affected by the official action”; (2) “the risk of an erroneous deprivation

of such interest through the procedures used, and the probable value, if any, of

additional or substitute procedural safeguards”; and (3) “the Government’s interest,

including the function involved and the fiscal administrative burdens that the

additional or substitute procedural requirement would entail.” Mathews v. Eldridge,

424 U.S. 319, 335 (1976); accord Worthy v. City of Phenix City, 930 F.3d 1206,

1223 (11th Cir. 2019).

In the Second Amended Complaint, the Plaintiffs assert that while Auburn

permits students who are enrolled as non-resident students to apply for

reclassification as Alabama residents, the process is plagued by a litany of

deficiencies, including (1) a lack of in-person hearings; (2) bias on the part of

reviewing officials without a check by independent officials; (3) a lack of written

rationales supporting given determinations; (4) unclear procedures for presenting

and appealing claims; and (5) unfettered discretion by reviewing officials. (Doc. 67

at 18–20.) Given that Auburn’s tuition rates for non-Alabama residents are three

times greater than rates for Alabama residents, the private interest at stake is great.

And given the alleged deficiencies set forth in the Second Amended Complaint, the

Plaintiffs have plausibly shown that the risk of an erroneous deprivation is high and

that additional safeguards—for example, in-person hearings, written rationales, or

both—would be of value in preventing erroneous deprivations.

Rather than addressing the alleged deficiencies as pled and analyzing them

under the Mathews framework, the Defendants instead cite other district court

decisions finding that public universities are not obligated under the Fourteenth

Amendment to provide a full panoply of procedural protections to those students

applying for in-state residency for tuition purposes and who wish to later appeal an

adverse ruling. See Lister v. Hoover, No. 71–C–409 (W.D. Wis. Feb. 26, 1982),

aff’d, 706 F.2d 796 (7th Cir. 1983); Spielberg v. Bd. of Regents, Univ. of Mich., 601

F. Supp. 994 (E.D. Mich. 1985); Black v. Sullivan, 561 F. Supp. 1050 (D. Me. 1983);

Michelson v. Cox, 476 F. Supp. 1315 (S.D. Iowa 1979). But each case cited by the

Defendants was decided in large part based on the unique facts before each court.

For instance, the Southern District of Iowa based its conclusion in Michelson that an

in-person hearing provided merely a marginal benefit in part on its finding that a

student has three opportunities to obtain reclassification during each term and there

is a meaningful opportunity to be heard at each step. 476 F. Supp. at 1321. The

Western District of Wisconsin based its conclusion in Lister in part on the finding

that students at Wisconsin state universities could appeal their residency

determinations to the legislature and the state courts. 706 F.2d at 804.

The Defendants do not even attempt to analyze Auburn’s residency

determination process, as alleged in the Second Amended Complaint, under the

Mathews framework. Rather than grapple with the factual allegations regarding the

residency determination process at Auburn University and under the Alabama Code,

the Defendants instead make a conclusory argument that because other district courts

have upheld unique residency determination procedures in other states as satisfying

procedural due process requirements, this Court should uphold Auburn’s system

here. Although the Second Amended Complaint may not be a model of clarity, it

provides sufficient information about Auburn’s residency determination process and

the Plaintiffs’ engagement with the process to allow the Defendants to grapple with

the facts alleged by the Plaintiffs and provide some analysis under Mathews based

on those facts. The Defendants have failed to do so. Thus, the Defendants’ motion

to dismiss the Plaintiffs’ procedural due process claim is due to be denied.

3. Substantive Due Process

The Defendants also seek dismissal of the Plaintiffs’ substantive due process

claim to the extent one is asserted.

The Defendants argue that there is nothing conscience-shocking about

asserting the justifiable governmental interest of charging preferential tuition rates

for bona fide state residents. (Doc. 68 at 27 (citing Vlandis, 412 U.S. at 452–53;

Starns, 326 F. Supp. at 241).) Contrary to the Defendants’ framing, however, the

Plaintiffs do not argue that it violates substantive due process for Auburn to charge

different tuition rates for Alabama citizens and non-Alabama citizens in the first

instance. Instead, the Plaintiffs contend that the Defendants have engaged in

conscience-shocking behavior because they have “wrongfully extract[ed] excessive

tuition from duly qualified Alabama domiciled citizens,” creating two classes of

Alabama citizens in order to increase the tuition payments received by Auburn.

(Doc. 72 at 14–15.)

“[T]he substantive component of the [Due Process Clause] . . . protects

individual liberty against ‘certain government actions regardless of the fairness of

the procedures used to implement them.’” Collins v. City of Harker Heights, 503

U.S. 115, 125 (1992) (quoting Daniels v. Williams, 474 U.S. 327, 331 (1986)).

“Conduct by a government actor will rise to the level of a substantive due process

violation only if the act can be characterized as arbitrary or conscience-shocking in

a constitutional sense.” Davis v. Carter, 555 F.3d 979, 982 (11th Cir. 2009). “This

standard is ‘narrowly interpreted and applied.’” L.S. ex rel. Hernandez v. Peterson,

982 F.3d 1323, 1330 (11th Cir. 2020) (citation omitted). “‘Only the most egregious

official conduct’ qualifies under this standard, so ‘even intentional wrongs seldom

violate the Due Process Clause.’” Id. (citation omitted).

The Court finds that the Plaintiffs have not raised a plausible substantive due

process challenge to Auburn’s denial of in-state tuition rates. The Supreme Court

and Eleventh Circuit have admonished courts to exercise care in expanding the scope

of substantive due process rights, because “guideposts for responsible

decisionmaking in this unchartered area are scarce and open-ended.” Collins, 503

U.S. at 125; see also Peterson, 982 F.3d at 1330. The Court has found no case law

expanding substantive due process protections to in-state tuition generally or a

university’s residency determinations specifically. And the Court is mindful of the

Eleventh Circuit’s directive that the conscience-shocking standard is “narrowly

interpreted and applied.” Peterson, 982 F.3d at 1330 (citation omitted). Assuming

without deciding that Auburn’s residency determination processes could be

considered arbitrary and capricious in a general sense, the Court concludes Auburn’s

alleged conduct nonetheless does not qualify as “the most egregious official

conduct” and thus is not sufficiently arbitrary or conscience-shocking so as to violate

substantive due process. See id. (citation omitted). Accordingly, the Defendants’

motion to dismiss the substantive due process claim is due to be granted.

4. Privileges and Immunities Clause

The Defendants also argue that the Second Amended Complaint presents no

colorable challenge under the Privileges and Immunities Clause of Article IV of the

Constitution. (Doc. 68 at 30–31.) The Defendants further assert that the Clause

applies only where a state has allegedly discriminated against out-of-staters with

respect to the privileges and immunities the state affords to its own citizens.

According to the Defendants, because the Plaintiffs repeatedly allege and argue that

they are Alabama citizens, they have no viable claim under the Privileges and

Immunities Clause.

The Privileges and Immunities Clause states that “[t]he Citizens of each State

shall be entitled to all Privileges and Immunities of Citizens in the several States.”

U.S. CONST. art. IV, § 2, cl. 1. This Clause prohibits a state from denying to out-of-

state citizens the “fundamental” privileges and immunities enjoyed by citizens of

the state. See, e.g., McBurney v. Young, 569 U.S. 221, 226–27 (2013); United Bldg.

& Constr. Trades Council of Camden Cnty. & Vicinity v. Mayor & Council of the

City of Camden, 465 U.S. 208, 215–18 (1984). “The object of the Privileges and

Immunities Clause is to ‘strongly . . . constitute the citizens of the United States [as]

one people,’ by ‘plac[ing] the citizens of each State upon the same footing with

citizens of other States, so far as the advantages resulting from citizenship in those

States are concerned.’” Lunding v. N.Y. Tax Appeals Tribunal, 522 U.S. 287, 296

(1998) (first and third alterations in original) (citation omitted). But where

government action affects a subclass of state citizens, the disadvantaged state

citizens “have no claim under the Privileges and Immunities Clause.” United Bldg.

& Constr. Trades Council, 465 U.S. at 217 (explaining that where a New Jersey city

ordinance would disadvantage New Jersey citizens who do not reside in the city as

well as out-of-state citizens, “the disadvantaged New Jersey residents have no claim

under the Privileges and Immunities Clause”).

The Plaintiffs do not respond to the Defendants’ arguments regarding their

Privileges and Immunities Clause claim. Instead, the Plaintiffs confusingly cite the

Privileges or Immunities Clause of the Fourteenth Amendment—a different

provision from Article IV’s Privileges and Immunities Clause—and assert that the

Defendants have denied bona fide Alabamians “a benefit of the state in which they

are properly domiciled.” (Doc. 72 at 16.) But given their allegations and theory that

they are Alabama citizens, the Plaintiffs “have no claim under the Privileges and

Immunities Clause.” See United Bldg. & Constr. Trades Council, 465 U.S. at 217.

Accordingly, the Defendants’ motion to dismiss the Privileges and Immunities

Clause claim is due to be granted.

5. Right to Travel

The Defendants argue that the Plaintiffs have not pled facts showing that their

right to travel under the Fourteenth Amendment has been infringed. (Doc. 68 at 32.)

The Defendants also assert that durational residency requirements have been found

by other courts not to infringe upon the right to travel. (Id. at 32–33.) The Plaintiffs

do not engage with the merits of the Defendants’ argument; rather, they say the

“initial mention of the right to travel exists in this case only to show that all the

Defendants were or should have been aware of the holdings in the Saenz [v. Roe,

526 U.S. 489 (1999)] and Shapiro [v. Thompson, 394 U.S. 618 (1969)] cases that

neither the State nor its subsidiary has the ability to maintain two classes of citizens

for the purposes of denying one their rights as a citizen of that state.” (Doc. 72 at

17.) The Plaintiffs further state that these cases will “hereinafter be used to bolster

the failure of qualified immunity.” (Id.) Based on their response, the Plaintiffs have

all but conceded that they have not brought a separate right-to-travel claim but

instead rely on case law concerning the right to travel in their attempts to defeat the

Defendants’ qualified immunity defense to the Plaintiffs’ asserted claims. To the

extent the Second Amended Complaint asserts an independent right-to-travel claim,

the Court will treat the claim as conceded and abandoned. Accordingly, the

Defendants’ motion to dismiss the right-to-travel claim is due to be granted.

In sum, the Defendants’ motion to dismiss for failure to state a claim is due to

be granted as to the Plaintiffs’ substantive due process, Privileges and Immunities

Clause, and right-to-travel claims. The motion is due to be denied as to the Plaintiffs’

equal protection and procedural due process claims—subject to the Court’s

conclusion below that the Plaintiffs cannot recover monetary damages from the

Defendants in this case.

C. Monetary Damages

The Defendants also assert that the Plaintiffs cannot recover monetary

damages from the Defendants in their individual or official capacities. The

Defendants argue that the Plaintiffs’ requests for monetary damages should be

dismissed because (1) the Defendants in their official capacities are not “persons”

under § 1983 and also because they are entitled to Eleventh Amendment sovereign

immunity, and (2) the Defendants in their individual capacities are entitled to

qualified immunity. The Court agrees with the Defendants that the requests for

monetary damages are due to be dismissed.

1. Official Capacity Claims

The Court begins with the Defendants’ defenses to the official capacity claims

for monetary damages. First, “neither a State nor its officials acting in their official

capacities are ‘persons’ under § 1983” who are suable for monetary damages. Will

v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). Additionally, the Eleventh

Amendment to the United States Constitution provides states sovereign immunity

from suit. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98–100

(1984). The Eleventh Amendment likewise bars suits for money damages brought

against state officials in their official capacities because those suits are, in effect,

suits against the state. Lancaster v. Monroe Cnty., 116 F.3d 1419, 1429 (11th Cir.

1997). While Congress may waive Eleventh Amendment immunity to enforce rights

under the Fourteenth Amendment, such Congressional intent must be

“unequivocally express[ed]” for the waiver to be effective. Pennhurst, 465 U.S. at

99 (citing Fitzpatrick v. Bitker, 427 U.S. 445 (1976); Quern v. Jordan, 440 U.S. 332,

342 (1979)). Congress did not waive this immunity in enacting § 1983. Quern, 440

U.S. at 342. Accordingly, state officials sued in their official capacities are immune

from claims for money damages. Cross v. State Dep’t of Mental Health & Mental

Retardation, 49 F.3d 1490, 1503 (11th Cir. 1995).

These two defenses are distinct yet similar. “The ultimate issue in the

statutory inquiry”—whether a defendant is a “person” under § 1983—“is whether

States can be sued under [the federal] statute; and the ultimate issue in the Eleventh

Amendment inquiry is whether unconsenting States can be sued under [the federal]

statute.” Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 779 (2000).

Eleventh Amendment immunity is a subject matter jurisdiction issue, see

McClendon v. Ga. Dep’t of Cmty. Health, 261 F.3d 1252, 1256 (11th Cir. 2001),

whereas the question whether a defendant is a “person” under § 1983 is a statutory

interpretation issue, see Will, 491 U.S. at 64–65; Vt. Agency, 529 U.S. at 778–79.9

Although jurisdictional questions are normally given priority, the United States

Supreme Court has instructed that when presented with both defenses, courts should

address the statutory question first. Vt. Agency, 529 U.S. at 779.

Auburn University is a corporate agency of the State of Alabama. ALA. CODE

§ 16-48-1. And as noted above, “a suit against a state official in his or her own

official capacity is . . . a suit against the official’s office.” Will, 491 U.S. at 71.

Accordingly, the Defendants in their official capacities are not “persons” under

§ 1983 who are suable for monetary damages. See id.; see also Satterfield v. Bd. of

Trs. of Univ. of Ala., No. 2:15-cv-1549-KOB, 2016 WL 6916828, at *3 (N.D. Ala.

Feb. 26, 2016) (concluding that the University of Alabama Board of Trustees is not

9 The Defendants are incorrect that the issue of whether a defendant is a person under § 1983 is a

jurisdictional issue.

a “person” subject to a § 1983 claim for monetary damages).10 Because the Court

has concluded that the Defendants in their official capacities are not suable § 1983

“persons,” the Court need not address the Eleventh Amendment question. Cf. Vt.

Agency, 529 U.S. at 787 (concluding that a state agency was not a suable “person”

under the False Claims Act and “express[ing] no view on the question whether an

action in federal court by a qui tam relator against a State would run afoul of the

Eleventh Amendment”). All claims against all Defendants in their official capacities

for monetary damages are due to be dismissed.

2. Individual Capacity Claims

The Defendants also argue that qualified immunity bars the Plaintiffs’

individual capacity claims for monetary damages because the Defendants did not

violate any clearly established law.

“[I]mmunity is a right not to be subjected to litigation beyond the point at

which immunity is asserted.” Howe v. City of Enterprise, 861 F.3d 1300, 1302 (11th

Cir. 2017) (per curiam). Generally speaking, it is proper to grant a motion to dismiss

on qualified immunity grounds when the “complaint fails to allege the violation of

a clearly established constitutional right.” St. George v. Pinellas Cnty., 285 F.3d

10 While the Court acknowledges that Satterfield is nonbinding, the Court finds its analysis

persuasive.

1334, 1337 (11th Cir. 2002); see also Quiller v. Barclays Am./Credit, Inc., 727 F.2d

1067, 1069 (11th Cir. 1984), aff’d en banc, 764 F.2d 1400 (11th Cir. 1985).

Qualified immunity protects government officials from suit unless they

violate “clearly established statutory or constitutional rights of which a reasonable

person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A

defendant “asserting that he is entitled to the protection of qualified immunity must

initially establish that he was acting within the scope of his discretionary authority

when the allegedly wrongful acts occurred. Once the defendant has made this

showing, the burden shifts to the plaintiff” to show that qualified immunity is not

appropriate. Griffin Indus., Inc. v. Irvin, 496 F.3d 1189, 1199 (11th Cir. 2007)

(internal citations omitted).

Once a defendant has proven that he was acting within his discretionary

authority, the burden shifts to the plaintiff, who must make two showings. “[T]he

plaintiff must establish that the defendant violated a constitutional right” and that the

right violated was “clearly established.”11 Griffin Indus., Inc., 496 F.3d at 1199.

“[C]learly established law consists of holdings of the Supreme Court, the Eleventh

11 Courts may consider these prongs in either order. Pearson v. Callahan, 555 U.S. 223, 236

(2009) (“The judges of the district courts and the courts of appeals should be permitted to exercise

their sound discretion in deciding which of the two prongs of the qualified immunity analysis

should be addressed first in light of the circumstances in the particular case at hand.”).

Circuit, or the highest court of the relevant state.” Sebastian v. Ortiz, 918 F.3d 1301,

1307 (11th Cir. 2019).

The parties do not dispute that the Defendants acted within their discretionary

authority, and the Court accordingly will focus on whether the facts pled in the

Second Amended Complaint show that the Defendants violated a constitutional right

that was clearly established. While the Court concludes that Plaintiffs’ equal

protection and procedural due process rights may have been violated under the facts

pled in the Second Amended Complaint, the Court cannot conclude that the

allegedly violated rights were clearly established.

The Plaintiffs assert that, under Shapiro v. Thompson, 394 U.S. 618, 627–32

(1969), overruled on other grounds by Edelman v. Jordan, 415 U.S. 651 (1974), and

Saenz, 526 U.S. at 506–07, the Defendants understood that creating two classes of

domiciled citizens is unconstitutional. However, whether an act is unconstitutional

is only one part of the qualified immunity analysis. The Plaintiffs also must show

that the violated constitutional right was clearly established at the time the alleged

violation occurred.

The Plaintiffs identify no Supreme Court or Eleventh Circuit precedent

holding unconstitutional a university’s residency determination process for in-state

tuition purposes. The Plaintiffs instead argue that Shapiro and Saenz sufficiently put

the Defendants on notice that they were violating the Plaintiffs’ constitutional rights.

The Court is not persuaded. These cases addressed state statutes denying or limiting

new state residents’ access to welfare benefits, holding in each case that the statute

was unconstitutional. See Saenz, 526 U.S. at 492 (holding that state statutory

provision limiting the maximum welfare benefits available to residents who had

resided in the state for less than 12 months violated the Fourteenth Amendment right

to travel); Shapiro, 394 U.S. at 621–22, 638 (holding that a state statutory provision

denying welfare assistance to residents of the state who had not resided in the state

for at least one year violated the Equal Protection Clause). The statutes held

unconstitutional in Saenz and Shapiro are materially different from the allegedly

constitutional conduct for which the Plaintiffs seek monetary damages here:

residency determinations for in-state tuition purposes that state officials allegedly

implemented in an arbitrary, capricious, and/or biased manner. Although the

Plaintiffs are correct that there need not be a case directly on point to overcome

qualified immunity, “existing precedent must have placed the statutory or

constitutional question beyond debate.” Ashcroft v. al-Kidd, 563 U.S. 731, 741

(2011). The Court is not persuaded that Saenz or Shapiro places the constitutional

questions presented here beyond debate. Were the students allegedly denied access

to Auburn based on residency, rather than denied in-state tuition rates, the Court

might face a closer question. But based on the facts and claims the Plaintiffs have

pled, the Court cannot agree that Shapiro and Saenz clearly established the rights

allegedly violated here.

All Defendants are entitled to qualified immunity.12 All claims brought

against Defendants in their individual capacities are due to be dismissed.13

V. CONCLUSION

Accordingly, it is hereby ORDERED as follows:

(1) The Defendants’ motion to dismiss (Doc. 68) is GRANTED to the following

extent:

a. The Plaintiffs’ substantive due process, Privileges and Immunities

Clause, and right-to-travel claims are dismissed in their entirety.

b. The individual capacity claims are dismissed as to all Defendants.

Accordingly, Defendants Dr. Jay Gogue, Bill Hargrave, Charles D.

McCrary, and Sarah B. Newton are dismissed as defendants from this

action.

12 Because the Court concludes that all individual capacity Defendants are entitled to qualified

immunity, the Court pretermits discussion of the Defendants’ supervisory liability arguments.

Additionally, since all claims for monetary damages are due to be dismissed, and the Court lacks

jurisdiction over Plaintiffs Jeffrey S. Prosser’s and Brooke Prosser’s requests for prospective

injunctive relief, Plaintiffs Jeffrey S. Prosser and Brooke Prosser are due to be dismissed as parties

to this case.

13 Since Plaintiffs Jeffrey S. Prosser and Brooke Prosser are due to be dismissed from this action,

the Court need not address the res judicata arguments raised by the Defendants.

c. Plaintiffs Jeffrey S. Prosser and Brooke Prosser are dismissed as

plaintiffs from this action.

The Defendants’ motion to dismiss is DENIED in all other respects.

(2) The official capacity claims for injunctive relief for alleged violations of the

remaining Plaintiffs’ (Fred Rush, Nicholas Rush, Alex Rush, Gordon Weidle,

Brandon Weidle, Michael Culjak, William Culjak, Caroline Culjak, Nicholas

Pero, Laura Kulick, Zoe Kulick, Scott Allen, and Haley Allen) equal

protection and procedural due process rights, both facially and as applied,

shall proceed against all remaining Defendants (B.T. Roberts, Clark Sahlie,

James W. Rane, Bob Dumas, Jimmy Sanford, Gaines Lanier, Elizabeth

Huntley, Michael A. Demaioribus, James Pratt, Raymond J. Harbert, Wayne

T. Smith, Quentin Riggins, Timothy Vines, Kay Ivey, Sarah Nobles, Karen

Battye, Susan Marsh, Zeke Smith, Caroline Aderholt, Vini Nathan, and Chris

Roberts).

(3) The official capacity claims for declaratory relief for alleged violations of the

Weidle, Culjak, Rush, Kulick, and Allen Plaintiffs’ equal protection and

procedural due process rights, both facially and as applied, shall proceed

against all remaining Defendants.

DONE, on this the 10th day of January, 2023.

/s/ R. Austin Huffaker, Jr.

R. AUSTIN HUFFAKER, JR.

UNITED STATES DISTRICT JUDGE