According to the Eleventh Amendment, “The Judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” In the past, many scholars and the Court itself have used the term Eleventh Amendment immunity to describe this immunity, yet sovereign immunity is the more accurate term. As the Supreme Court recently observed,
The sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution’s structure, and its history, and the authoritative interpretations by this Court make clear, the States’ immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today. (Alden v. Maine, 1999, p. 713)
Sovereign immunity has enormous significance for education lawyers and their clients. Essentially, “sovereign immunity of the States” means that private individuals or corporations cannot sue the states, state agencies, or state institutions. Therefore, if state universities or school boards are considered “arms of the State,” then both the entity and its administrators, when sued in their official capacities, generally are immune from suits. Yet, contrary to popular belief, sovereign immunity does not mean that the states may violate federal law, that federal law is inapplicable to the states, or that the federal government could not enforce federal law. Rather, sovereign immunity simply prevents private parties from enforcing certain federal claims.
In the founding years of the United States, there was widespread acceptance of the proposition that states had immunity from private suits. In 1793, the Supreme Court held in Chisholm v. Georgia that private citizens from one state could sue another state. In reaction and almost immediately, Congress passed and the states subsequently ratified the Eleventh Amendment, which effectively overturns Chisholm.
While the text of the Eleventh Amendment is limited to the concerns raised in those ratification debates, the Eleventh Amendment confirms a much broader proposition: The states are immune from suit. Sovereign immunity does not exist solely in order to prevent federal court judgments from being paid out of a state’s treasury. It allows the states to avoid being subjected to “the indignity of . . . the coercive process of judicial tribunals at the instance of private parties” (Puerto Rico Aqueduct & Sewer Authority v. Metcalfe & Eddy, Inc., 1993, p. 146).
Thus, the immunity confirmed by the Eleventh Amendment bars suits against the states by American Indian tribes, foreign nations, and corporations created by the national government. Moreover, it applies to proceedings in state court, federal administrative proceedings, admiralty, and situations in which the state’s treasury is not implicated.
Despite this long history, there was a period when the Supreme Court created so many exceptions that it effectively nullified sovereign immunity. In 1976, the Court reasoned that Congress could abolish the state sovereign immunity by exercising its powers to enforce the Fourteenth Amendment, which allows the federal government to intervene if states abridge the rights of U.S. citizens. In 1989, the Court extended that holding and declared that Congress could use any of its powers to limit state sovereign immunity, thereby giving it virtually unlimited power to strip the states of their sovereign immunity. Not surprisingly, Congress took advantage of these rulings and proceeded to cancel the state sovereign immunity for most federal statutes.
All of this changed in 1996, in Seminole Tribe of Florida v. Florida, when the Court reversed itself and ruled that the power of Congress to abrogate sovereign immunity was limited to its efforts to enforce the Fourteenth Amendment. Although this case was constitutionally significant in that it technically limited congressional power to nullify sovereign immunity, it had little practical effect because at the time, the powers of Congress to enforce the Fourteenth Amendment were almost unlimited. Thus, Congress could still abrogate sovereign immunity for most federal statutes.
A year later, in City of Boerne v. Flores (1997), the Court imposed significant limitations on the power of Congress to enforce the Fourteenth Amendment. Flores declares that Congress can enforce only the actual substantive guarantees of the Fourteenth Amendment, which include equal protection of the laws, the privileges or immunities of national citizenship, and due process.
When Flores and Seminole Tribe are combined, congressional abrogation of sovereign immunity becomes extremely difficult. To have a valid abrogation, Congress must first make a specific finding that the states are violating the substantive guarantees of the Constitution. Once there are such findings, Congress must then demonstrate that abrogation of sovereign immunity for a particular class of claims is a proportionate response to the violations.
Recent Supreme Court decisions illustrate this point. For example, in Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999), the Court held that Congress could not abrogate sovereign immunity for intellectual property claims. In Kimel v. Florida Board of Regents (2000), the Court noted that Congress could not abrogate sovereign immunity for Age Discrimination in Employment Act claims. In 2001, in Board of Trustees of University of Alabama v. Garrett, the Court found that Congress could not abrogate sovereign immunity for employment claims under the Americans with Disabilities Act. In 2002, in Federal Maritime Commission v. South Carolina State Ports Authority, the Court held that sovereign immunity extended not only to judicial proceedings but also to federal administrative proceedings.
In the final years of the Rehnquist Court, the Court suddenly became reluctant to expand sovereign immunity. In 2003, in Nevada Department of Human Resources v. Hibbs, the Court observed that sovereign immunity was abrogated for family care provisions of the Family and Medical Leave Act. In 2004, in Tennessee Student Assistance Corporation v. Hood, the Court pointed out that sovereign immunity did not bar an action to discharge a student loan. That same year, in Tennessee v. Lane, the Court decided that sovereign immunity had been abrogated for claims under Title II of the Americans with Disabilities Act that involved the fundamental constitutional right of access to the Courts. This reluctance continued during the first term of the Roberts Court. In United States v. Georgia (2006), the Court unanimously determined that Congress could abrogate sovereign immunity for a claim under Title I of the Americans with Disabilities Act that was also a constitutional claim. Finally, in Central Virginia Community College v. Katz (2006), the Court was of the opinion that by ratifying the Constitution, the states had surrendered their sovereign immunity “in proceedings necessary to effectuate the in rem jurisdiction of the bankruptcy courts.”
William E. Thro
- Noonan. J. T., Jr. (2002). Narrowing the nation’s power: The Supreme Court sides with the states. Berkeley: University of California Press.
- Snow, B. A., & Thro, W. E. (2001). The significance of Blackstone’s understanding of sovereign immunity for America’s public institutions of higher education. Journal of College & University Law, 28, 97–128.
- Thro, W. E. (1999). The Eleventh Amendment revolution in the lower federal courts. Journal of College & University Law, 25, 501–526.
- Thro, W. E. (2003). Immunity or intellectual property: The constitutionality of forcing the states to choose. West’s Education Law Reporter, 173, 17–39.
- Thro, W. E. (2007). The future of sovereign immunity. West’s Education Law Reporter, 215, 1–31.
- Thro, W. E. (2007). Why you cannot sue State U: A guide to sovereign immunity (2nd ed.). Washington, DC: National Association of College University Attorneys.
- Alden v. Maine, 527 U.S. 706 (1999).
- Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.
- Board of Trustees of University of Alabama v. Garrett, 531 U.S. 356 (2001).
- Central Virginia Community College v. Katz, 126 S. Ct. 990 (2006).
- Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793).
- City of Boerne v. Flores, 521 U.S. 507 (1997).
- Federal Maritime Commission v. South Carolina State Ports Authority, 535 U.S. 743 (2002).
- Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999).
- Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).
- Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).
- Puerto Rico Aqueduct & Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139 (1993).
- Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996).
- Tennessee Student Assistance Corporation v. Hood, 541 U.S. 440 (2004).
- Tennessee v. Lane, 541 U.S. 509, 518 (2004).
- United States v. Georgia, 546 U.S. 151 (2006).