# Culjack v. Roberts

> District Court, M.D. Alabama · January 10, 2023

URL: https://www.frixlaw.com/law-library/cases/9988131

## Case

- **Court:** District Court, M.D. Alabama
- **Decided:** January 10, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 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/9988131

## How later opinions describe it (automated extraction)

- explaining that “only a complaint that states a plausible claim for relief survives a motion to dismiss”
- 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”
- 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”
- concluding that the Supreme Court “has not approved of statutes or regulations which distinguish between old bona fide domiciliaries and new bona fide domiciliaries”

## Opinion text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9988131. Public record. Not legal advice.