- Community College Not an Arm of the State
- Comment About a Transgender Student Results In Teacher Discipline
- Landlord’s Stipulation of Settlement Was Fatally Incomplete
Community College Not an Arm of the State
Recently, in Leitner v. Westchester Community College the Second Circuit Court of Appeals affirmed a federal court’s conclusion that Westchester Community College was not entitled to sovereign immunity under the Eleventh Amendment of the U.S. Constitution.
The Eleventh Amendment, which was passed by the Congress on March 4, 1794, and ratified by the states on February 7, 1795, deals with each state’s sovereign immunity. It was adopted in order to overrule the U.S. Supreme Court’s decision in Chisholm v. Georgia, 2 U.S. 419 (1793). In Chisholm, the Court ruled that federal courts had the authority to hear cases in law and equity brought by private citizens against states, and that states did not enjoy sovereign immunity from suits made by citizens of other states in federal court. The Amendment provides:
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.
Although the Eleventh Amendment grants immunity to states from suit in federal court for money damages or equitable relief without their consent, in Ex parte Young, 209 U.S. 123 (1908), the Supreme Court ruled that federal courts may enjoin state officials from violating federal law.
In this case, Carol Leitner, an adjunct professor at Westchester Community College, a community college in the State University of New York (SUNY) system, was fired for making offensive comments in class. She sued Westchester Community College and certain administrators claiming violations of her constitutional rights.
The Court explained that SUNY is a higher education system established by the New York State Education Department, and Westchester Community College is a community college within the SUNY system. By statute, SUNY is comprised of four university centers, various technical and specialized colleges, “and such additional universities, colleges and other institutions” as are “acquired, established, operated or contracted to be operated for the state by the state university trustees.” N.Y. Educ. Law § 352(3). New York law defines “community colleges” as “[c]olleges established and operated pursuant to the [New York Education Law], and providing two-year post secondary programs … and receiving financial assistance from the state.” N.Y. Educ. Law § 350(2).
The laws of Westchester County provide that Westchester Community College is a “county department.” Laws of Westchester County § 164.71. Westchester Community College is locally sponsored by Westchester County and is predominately operated by and accountable to county authorities. See N.Y. Educ. Law §§ 355, 6306. Westchester Community College’s Board of Trustees is composed of ten members: four are appointed by the governor of New York, five are appointed by the Westchester County Board, and one is appointed by Westchester Community College’s student body. Westchester Community College’s Board appoints the College’s President, adopts the curriculum, and prepares the annual budget, all subject to approval by SUNY’s Board. N.Y. Educ. Law § 6306(2). Judgments against Westchester Community College are paid out of its budget, one-third of which is provided by the State. See N.Y. Educ. Law § 6304(1).
On a motion to dismiss, the federal District Court partly denied the College’s motion, finding it was not entitled to sovereign immunity under the Eleventh Amendment. The Second Circuit affirmed. It recognized that the immunity from suit encompasses not just actions in which a state is actually named as a defendant, but also certain actions against state agents and instrumentalities, including actions for the recovery of money from the state. The question framed by the Second Circuit was whether the College as the state instrumentality is independent or whether it is an “arm of the state.” Sovereign immunity does not extend to local governments or municipalities.
Applying the tests created by the Court in Mancuso v. N.Y. State Thruway Auth., and Clissuras v. City Univ. of N.Y., the Second Circuit found the College is neither a state entity, nor an arm of the state, entitled to sovereign immunity.
In 1996, in Mancuso v. N.Y. State Thruway Auth., 86 F.3d 289 (2d Cir. 1996), the Second Circuit applied a six-factor test to determine whether a government entity was an arm of the state: “(1) how the entity is referred to in the documents that created it; (2) how the governing members of the entity are appointed; (3) how the entity is funded; (4) whether the entity’s function is traditionally one of local or state government; (5) whether the state has a veto power over the entity’s actions; and (6) whether the entity’s obligations are binding upon the state.”
In 2004, in Clissuras v. City Univ. of N.Y., 359 F.3d 79, 82 (2d Cir. 2004), the Second Circuit applied a two-factor test to “guide the determination of whether an institution is an arm of the state: (1) the extent to which the state would be responsible for satisfying any judgment that might be entered against the defendant entity, and (2) the degree of supervision exercised by the state over the defendant entity.”
The Court concluded here that the two Clissuras factors weighed against a finding of sovereign immunity. Although one third of College’s budget comes from New York State, the State is not otherwise responsible for its debts or satisfying judgments against it. Nor was the College and its daily operations substantially controlled by the State. Applying the fourth Mancusofactor, the Circuit, citing Grimm v. Rensselaer County, noted that New York’s high court has held that operation of SUNY community colleges serves a municipal, rather than State, purpose.
The Court held: “We conclude that a finding of sovereign immunity for [Westchester Community College] would not serve the twin aims of the Eleventh Amendment: immunity would not further the state’s interest in preserving its treasury, nor would it protect the integrity of the state. Accordingly, we hold that [Westchester Community College] is not an arm of the state entitled to sovereign immunity under the Eleventh Amendment.
Comment About a Transgender Student Results In Teacher Discipline
In Matter of Hicks v. The Dept. of Edu. of the City of N.Y., the petitioner, a retired teacher with 28 years of service with the New York City Department of Education (“DOE”), commenced an Article 78 proceeding for a declaration that the DOE arbitrarily and capriciously awarded her an unsatisfactory rating (“U Rating”) for the 2010-2011 school year after she, among other things, made an inappropriate comment to a transgender student.
The Court noted that a challenge to a U Rating requires a showing that the DOE’s determination was arbitrary and capricious or without a rational basis. “[A] court may not substitute its judgment for that of the board or body it reviews unless the decision under review is arbitrary and unreasonable and constitutes an abuse of discretion.” “Arbitrary action is without sound basis in reason and is generally taken without regard to the facts.”
Applying this standard, the Court concluded that the determination here was “not arbitrary, capricious or in violation of law. While the charges concerning inappropriate touching based on hugging a 19 year old male student, and kissing an 18 year old female student are insufficient for this court to uphold the U Rating, the charge of making an inappropriate comment is more than sufficient. That charge involves a transgender student, and the allegation that petitioner referred to the student as ‘it’ on more than one occasion. Petitioner is a teacher of special-needs students, and the DOE’s conclusion that such a comment is a sufficient basis for a U Rating is far from arbitrary or capricious. Although petitioner testified at the Chancellor’s Review Committee and denied making the statements, DOE’s finding was based on an investigator’s report and his interview with staff.”
The Court noted that the petitioner conceded that she confronted the student with the comment, “[s]how me the pass that allows you to use the women’s bathroom.” So even if petitioner had demonstrated that she never called the student “it” and that the staff was lying, the U Rating is sustainable based on petitioner’s admission that she confronted the student, demanding to see a pass for the women’s bathroom.
Landlord’s Stipulation of Settlement Was Fatally Incomplete
In 133 Plus 24 Sanford Ave. Realty Corp. v. Xiu Lan Ni, a landlord appealed from an order denying its motion for entry of a final judgment of possession based on tenant’s failure to comply with a stipulation of settlement in a commercial holdover summary proceeding.
The parties entered into a settlement agreement in which tenant agreed to install gas, sewer and water meters, obtain a certificate of occupancy for the premises and pay landlord two $50,000 installments. Although the stipulation was detailed with respect to the tenant’s extensive obligations and the strict timing of those obligations, the problem was that the stipulation did not provide for entry of a final judgment based upon a default under the stipulation of settlement. The Appellate Term concluded that in the absence of such provision, the landlord was not entitled to a final judgment of possession based on tenant’s breach of the stipulation.
The Court based its conclusion on the law which requires strict construction of language in written instruments that could result in a forfeiture – here, losing a valuable leasehold interest. One can easily conclude that at least the landlord intended to be able to evict the tenant upon a breach of a stipulation in a wrongful holdover proceeding, but that was not enough. Landlords should be forewarned that in the absence of such a provision, a landlord is not entitled to a final judgment of possession and a warrant of eviction based upon a breach of the stipulation.