14‐1042‐cv Carol Leitner v. Westchester Community College, et al.
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August Term 2014
(Argued: September 22, 2014 Decided: February 25, 2015)
Docket No. 14‐1042‐cv
CAROL LEITNER,
Plaintiff‐Appellee,
v.
WESTCHESTER COMMUNITY COLLEGE, JOSEPH HANKIN, in his personal and official capacity as President of Westchester Community College, CHET ROGALSKI, in his personal and official capacity as Dean and Vice President of Academic Affairs, JIANPING WANG, in her personal and official capacity as Associate Dean of the Arts and Humanities, GABRIELLE MILLER, in her personal and official capacity as Curricular Chairperson of the Communications and Media Arts Department,
Defendants‐Appellants,
WESTCHESTER COMMUNITY COLLEGE FEDERATION OF TEACHERS LOCAL 2431,
Defendant.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
Before: LEVAL, CHIN, and CARNEY, Circuit Judges.
Interlocutory appeal from an order of the United States District
Court for the Southern District of New York (Seibel, J.), denying in part
defendants‐appellantsʹ motion to dismiss plaintiff‐appelleeʹs first amended
complaint. The district court held that defendants‐appellants ‐‐ a community
college and certain of its administrators ‐‐ are not ʺarms of the stateʺ entitled to
Eleventh Amendment sovereign immunity.
AFFIRMED.
CURTIS B. LEITNER (Catherine M. Foti, on the brief), Morvillo Abramowitz Grand Iason & Anello P.C., New York, New York, for Plaintiff‐Appellee.
DENISE M. COSSU (John M. Murtagh, on the brief), Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains, New York, for Defendants‐Appellants.
‐ 2 ‐ CHIN, Circuit Judge:
In this case, plaintiff‐appellee Carol Leitner was an adjunct professor
at Westchester Community College, a community college in the State University
of New York (ʺSUNYʺ) system. She was fired, purportedly for making offensive
comments in class. She sued Westchester Community College and certain of its
administrators (collectively ʺWCCʺ), claiming that they violated her state and
federal constitutional rights.
The district court (Seibel, J.) granted in part and denied in part
WCCʹs motion to dismiss. In relevant part, the district court concluded that
WCC was not entitled to sovereign immunity under the Eleventh Amendment.
We agree. Accordingly, we affirm.1
STATEMENT OF THE CASE
A. The Facts
For purposes of this appeal, the facts alleged in Leitnerʹs first
amended complaint are assumed to be true. In addition, the organizational facts
relevant to the sovereign immunity question are set forth in the governing
statutes and are largely undisputed.
1 Leitner also sued her union, Westchester Community College Federation of Teachers Local 2431 (the ʺUnionʺ), for breach of its duty of fair representation. The district court denied the Unionʹs motion to dismiss, and it is not a party to this appeal.
‐ 3 ‐ 1. WCC
SUNY is a higher education system established by the New York
State Education Department, and WCC is a community college within the SUNY
system. By statute, SUNY is comprised of four university centers, various
technical and specialized colleges, ʺand such additional universities, colleges and
other institutionsʺ as are ʺacquired, established, operated or contracted to be
operated for the state by the state university trustees.ʺ N.Y. Educ. Law § 352(3).
New York law defines ʺcommunity collegesʺ as ʺ[c]olleges established and
operated pursuant to the [New York Education Law] . . . and receiving financial
assistance from the state.ʺ N.Y. Educ. Law § 350(2).
The laws of Westchester County provide that WCC is a ʺcounty
department.ʺ Laws of Westchester County § 164.71. WCC is locally sponsored
by Westchester County and is predominately operated by and accountable to
county authorities. See N.Y. Educ. Law §§ 355, 6306. WCCʹs 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 WCCʹs
student body. WCCʹs Board appoints WCCʹs President, adopts the curriculum,
and prepares the annual budget, all subject to approval by SUNYʹs Board. N.Y.
‐ 4 ‐ Educ. Law § 6306(2). Judgments against WCC are paid out of its budget, one‐
third of which is provided by the state. See N.Y. Educ. Law § 6304(1).
WCC has adopted a three‐step procedure for disciplining faculty
members, which is memorialized in a WCC memorandum written in 1983. The
memorandum states that if the administration learns of ʺsome difficulty with the
performance or decorum of a faculty member,ʺ the following disciplinary
procedures are followed: (1) an informal meeting with the associate dean,
department chairperson, and union representative, followed by a letter
summarizing the meeting; (2) if the problem recurs, a second meeting with the
parties, after which an administrator will draft a letter detailing the problem and
course of remediation; and (3) if the problem persists, a hearing with the parties
and WCCʹs dean, after which the dean may recommend termination of the
faculty member. June 3, 1983 Memorandum of John F.M. Flynn.
2. Leitnerʹs Employment at WCC
In 1981, Leitner began working as an adjunct professor at WCC, and
for thirty years, she regularly taught classes in ʺSpeech Communicationʺ and
ʺVoice and Diction.ʺ In 2004, Leitner had a step‐one meeting to address WCCʹs
criticism of ʺher refusal to lower her academic standards.ʺ App. at 504. In 2007,
‐ 5 ‐ Leitner had a step‐two meeting to address a number of student complaints that
Leitner made offensive remarks during class. After this meeting, WCC directed
Leitner not to use ʺany language that [could] be construed as abusive, belittling,
humiliating, or insultingʺ and to ʺtreat every student with courtesy and respect.ʺ
App. at 505.
In the fall 2010, an incident during one of Leitnerʹs classes led to her
step‐three meeting, and, ultimately, WCCʹs termination of her employment.
During a class discussion after a studentʹs recitation of a poem, Leitner expressed
her approval of Arizonaʹs controversial immigration law and her doubts about
the fairness of spending taxpayer money on public services for illegal
immigrants. In June 2011, Leitner had a step‐three hearing. Based on what WCC
contended was a pattern of student complaints and Leitnerʹs continued failure to
comply with previous directives to follow WCCʹs speech code, WCC dismissed
Leitner, effective July 6, 2011. Leitner contends that her termination ʺwas the
culmination of the administrationʹs longstanding campaign of retaliation against
her.ʺ App. at 519.
‐ 6 ‐ B. Proceedings Below
On May 11, 2012, Leitner filed a complaint against WCC alleging
that WCC improperly retaliated against her in response to her constitutionally
protected in‐class speech. Leitner pled First Amendment retaliation claims and
as‐applied vagueness and overbreadth claims pursuant to 42 U.S.C. § 1983 and
Article I, Sections 6 and 8 of the New York State Constitution. In her amended
complaint, Leitner added claims against the Union for breach of duty of fair
representation and against WCC for violating her rights under the collective
bargaining agreement.
WCC moved to dismiss Leitnerʹs complaint under Federal Rules of
Civil Procedure 12(b)(1) and 12(b)(6) arguing, in relevant part, that the court
lacked subject matter jurisdiction, the complaint failed to state a claim upon
which relief could be granted, and that WCC was entitled to immunity. Ruling
from the bench on March 24, 2014, the district court, in relevant part, held that
WCC was not entitled to sovereign immunity under the Eleventh Amendment.
On April 4, 2014, WCC filed this interlocutory appeal challenging the district
courtʹs denial of sovereign immunity.
‐ 7 ‐ DISCUSSION
A. Applicable Law
1. Jurisdiction and Standard of Review
Our jurisdiction is generally limited to hearing ʺfinal decisions of the
district courts.ʺ 28 U.S.C. § 1291. We do, of course, have jurisdiction to hear
appeals from the small class of non‐final ʺcollateralʺ district court orders that
ʺfinally determine claims of right separable from, and collateral to, rights
asserted in the action, too important to be denied review and too independent of
the cause itself to require that appellate consideration be deferred until the whole
case is adjudicated.ʺ Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949).
District court orders rejecting Eleventh Amendment sovereign immunity claims
fall within this small class of collateral district court orders. Hence, we have
jurisdiction to hear this appeal. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 147 (1993); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of
Educ., 466 F.3d 232, 235 (2d Cir. 2006).
In considering whether a governmental entity is entitled to
Eleventh Amendment sovereign immunity, we review the district courtʹs factual
findings for clear error and its legal conclusions de novo. McGinty v. New York,
‐ 8 ‐ 251 F.3d 84, 90 (2d Cir. 2001). All Circuits to have considered the question,
including our own, require the party asserting Eleventh Amendment immunity
to bear the burden of demonstrating entitlement. Woods, 466 F.3d at 237.
2. Eleventh Amendment Sovereign Immunity
The Eleventh Amendment generally bars suits in federal court by
private individuals against non‐consenting states. Port Authority Trans‐Hudson
Corp. v. Feeney, 495 U.S. 299, 304 (1990). This 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. See Regents of the Univ. of Cal. v. Doe, 519 U.S.
425, 429 (1997); Hans v. Louisiana, 134 U.S. 1, 15 (1890). The question is whether
the state instrumentality is independent or whether it is an ʺarm of the state.ʺ See
Alden v. Maine, 527 U.S. 706, 756 (1999). Sovereign immunity does not, however,
extend to local governments or municipalities. See id.
The Supreme Court has not articulated a clear standard for
determining whether a state entity is an ʺarm of the stateʺ entitled to sovereign
immunity, and the Circuits have applied different tests for establishing sovereign
immunity. The Supreme Court has emphasized, however, that ʺthe Eleventh
‐ 9 ‐ Amendmentʹs twin reasons for beingʺ ‐‐ preserving the stateʹs treasury and
protecting the integrity of the state ‐‐ ʺremain our prime guide.ʺ Hess v. PATH,
513 U.S. 30, 47‐48 (1994). The first factor, ʺthe vulnerability of the Stateʹs purse,ʺ
is ʺthe most salient factor in Eleventh Amendment determinations.ʺ Id. at 48.
3. The Second Circuitʹs Tests for Sovereign Immunity
The Second Circuit has applied two different tests to determine
whether government entities are ʺarms of the stateʺ entitled to sovereign
immunity under the Eleventh Amendment. The district court noted that, in this
case, ʺit seems the outcome would be the same under either test.ʺ Spec. App. at
22.
In 1996, in Mancuso v. N.Y. State Thruway Auth., 86 F.3d 289 (2d Cir.
1996), we applied a six‐factor test to determine whether a government entity was
an arm of the state: ʺ(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 entityʹs function is traditionally one of local
or state government; (5) whether the state has a veto power over the entityʹs
actions; and (6) whether the entityʹs obligations are binding upon the state.ʺ Id.
at 293 (citing Lake Country Estates, Inc. v. Tahoe Regʹl Planning Agency, 440 U.S. 391
‐ 10 ‐ (1979)). If all six factors point in one direction, the analysis is complete. See id. If
the factors point in different directions, a court must focus on the two main aims
of the Eleventh Amendment, as identified by the Supreme Court: preserving the
stateʹs treasury and protecting the integrity of the state. See id.; Hess, 513 U.S. at
47.
In Mancuso, we found the factors relating to the New York State
Thruway Authority to point in different directions, and ultimately held that it
was not entitled to sovereign immunity because, while closely identified with the
state, it was generally self‐funded and not under significant state control. 86
F.3d at 296. We have applied this test in cases involving school boards and local
school districts, concluding that such entities were not arms of the state entitled
to sovereign immunity. See, e.g., Gorton v. Gettel, 554 F.3d 60, 62‐64 (2d Cir. 2009)
(per curiam) (holding that board of cooperative education services was not
entitled to sovereign immunity); Woods, 466 F.3d at 243‐51 (holding that board of
education was not entitled to sovereign immunity); Fay v. S. Colonie Cent. Sch.
Dist., 802 F.2d 21, 27‐28 (2d Cir. 1986), overruled on other grounds by Taylor v. Vt.
Depʹt of Educ., 313 F.3d 768, 786 (2d Cir. 2002) (holding that school district was
not entitled to sovereign immunity); cf. McGinty, 251 F.3d at 95‐100 (holding that
‐ 11 ‐ New York State and Local Employeesʹ Retirement System was entitled to
sovereign immunity).
In 2004, in Clissuras v. City Univ. of N.Y., 359 F.3d 79, 82 (2d Cir.
2004) (per curiam), we applied a two‐factor test to ʺguide 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.ʺ Id. (quoting Pikulin v. City Univ. of N.Y., 176 F.3d 598, 600
(2d Cir. 1999) (per curiam)) (internal quotation marks omitted).
In Clissuras, we held that the New York City College of Technology,
a senior college that by statute was part of the City University of New York
(ʺCUNYʺ), was an arm of the state entitled to sovereign immunity because: (1)
the comptroller of the state is responsible for money judgments against a senior
CUNY college; and (2) ultimate control over how CUNY is governed and
operated rests with the state. 359 F.3d at 81‐82. We did not cite Mancuso or
discuss the six‐factor test, and while we have not applied the two‐part test in a
subsequent precedential opinion, we have continued to cite it in summary
orders. See, e.g., Shibeshi v. City Univ. of N.Y., 531 F. Appʹx 135, 135 (2d Cir. 2013)
‐ 12 ‐ (summary order) (affirming finding that CUNY was entitled to sovereign
immunity, citing Clissuras); Gengo v. City Univ. of N.Y., 479 F. Appʹx 382, 383 (2d
Cir. 2012) (summary order) (same); Skalafuris v. City of New York, 444 F. Appʹx
466, 468 (2d Cir. 2011) (summary order) (citing Clissuras to support proposition
that CUNYʹs senior colleges are entitled to sovereign immunity); Sank v. City
Univ. of N.Y., 112 F. Appʹx 761, 763 (2d Cir. 2004) (summary order) (affirming
finding that CUNY and City College of New York were entitled to sovereign
immunity, citing Clissuras).
At the same time, we have continued to apply the Mancuso six‐part
test. See, e.g., Gorton, 554 F.3d at 62; Walker v. City of Waterbury, 253 F. Appʹx 58,
60‐61 (2d Cir. 2007) (summary order). District courts have continued to apply
both tests. See, e.g., Gengo v. City Univ. of N.Y., No. 07‐CV‐681, 2011 WL 1204716,
at *3 (E.D.N.Y. Mar. 29, 2011), affʹd, 479 F. Appʹx 382 (applying the Clissuras two‐
part test); Innis Arden Golf Club v. Pitney Bowes, Inc., 514 F. Supp. 2d 328, 337 (D.
Conn. 2007) (applying the Mancuso six‐part test). Hence, there is a lack of clarity
as to whether the Mancuso six‐part or the Clissuras two‐part test governs, or
whether both can serve simultaneously as useful guides.
‐ 13 ‐ 4. Sovereign Immunity for SUNY Community Colleges
While we have held that SUNY itself is entitled to sovereign
immunity because it is ʺan integral part of the government of the State,ʺ Dube v.
State Univ. of N.Y., 900 F.2d 587, 594 (2d Cir. 1990) (internal quotation marks
omitted), we have yet to decide whether sovereign immunity extends to SUNYʹs
community colleges. Although the district courts in this Circuit have, on several
occasions, found that different SUNY community colleges are entitled to
sovereign immunity, the cases provide little guidance as to the appropriate
analysis. Several district courts have simply cited our finding from Dube that
SUNY is entitled to sovereign immunity before similarly finding that a SUNY
community college enjoys sovereign immunity. See, e.g., Davis v. Stratton, 575 F.
Supp. 2d 410, 424 (N.D.N.Y. 2008), revʹd on other grounds, 360 F. Appʹx 182 (2d
Cir. 2010); Staskowski v. Cnty. of Nassau, 05‐CIV‐5984, 2006 WL 3370699, at *1
(E.D.N.Y. Nov. 16, 2006); Fabio v. Nassau Cmty. Coll., 02‐CV 6237 (E.D.N.Y. Feb.
26, 2004). One district court explicitly applied the two‐part Clissuras test to hold
that SUNY Rockland Community College was entitled to sovereign immunity.
Kohlhausen v. SUNY Rockland Cmty. Coll., No. 10‐CIV‐3168, 2011 WL 1404934, at
*8 (S.D.N.Y. Feb. 9, 2011).
‐ 14 ‐ Other Circuits examining the question whether a particular stateʹs
community colleges are entitled to sovereign immunity have conducted detailed
inquiries into those collegesʹ fiscal and governance structures. As in our own
Mancuso and Clissuras tests, such inquiries have focused on how much funding a
community college receives from its state government, whether a money
judgment against the community college will be borne by the state treasury, the
balance between local and state control over the community college, and relevant
distinctions that state law draws between community colleges and other
governmental entities traditionally entitled to immunity. Given the state‐specific
nature of these questions, federal courts have unsurprisingly concluded that
community colleges in some states are entitled to Eleventh Amendment
immunity, while community colleges in other states are not.2 In general, where a
2 See, e.g., Williams v. Dist. Bd. of Trustees of Edison Cmty. Coll., 421 F.3d 1190, 1192‐94 (11th Cir. 2005) (finding Eleventh Amendment immunity where all members of Florida community collegeʹs board of trustees were appointed by governor, and where state was liable for money judgments against community college); Hadley v. N. Ark. Cmty. Technical Coll., 76 F.3d 1437, 1439‐42 (8th Cir. 1996) (finding Eleventh Amendment immunity where Arkansas state legislature identified community college as ʺstate agencyʺ and where state appropriations accounted for 75.1% of collegeʹs operating expenses); Mitchell v. L.A. Cmty. Coll. Dist., 861 F.2d 198, 201 (9th Cir. 1988) (finding Eleventh Amendment immunity where state law identified California community colleges as ʺdependent instrumentalities of the state,ʺ where collegesʹ funding came exclusively from state appropriations and tuition fees set by state, and where some of those tuition fees were re‐appropriated by state (internal quotation marks omitted)); Hander v. San Jacinto Junior Coll., 519 F.2d 273, 278‐79 (5th Cir. 1975) (finding no Eleventh Amendment immunity where Texas junior collegeʹs board of trustees was locally elected and had the power ʺto issue revenue bonds and to levy . . . taxes,ʺ and where state appropriations only supplemented local funding); see also Griner v. Se. Cmty. Coll., 95 F. Supp. 2d 1054, 1059‐60 (D. Neb. 2000) (finding no Eleventh Amendment immunity where Nebraska community collegeʹs general operating funds did ʺnot come primarily from
‐ 15 ‐ community college is predominantly or exclusively dependent on state
appropriations rather than local funding, or where the state government controls
the collegeʹs board of trustees, courts have found the college to be an ʺarm of the
stateʺ and thus entitled to Eleventh Amendment immunity. Absent these
conditions, courts have generally declined to extend immunity to community
colleges.
B. Application
We apply both the Mancuso and Clissuras tests. In the end, as we
have seen in our review of the cases, the tests have much in common, and the
choice of test is rarely outcome‐determinative. The Clissuras test incorporates
four of the six Mancuso factors. To the extent that the Clissuras factors point in
different directions, the additional factors from the Mancuso test can be
instructive. Here, we address the Clissuras factors first and then look to the
additional Mancuso factors.
the state treasury,ʺ and where there was ʺneither evidentiary nor statutory evidence that the state of Nebraska would necessarily be liable for payment of a judgment rendered againstʺ college (internal quotation marks omitted)) (distinguishing Nebraska law from Arkansas law analyzed by Eighth Circuit in Hadley); Gardetto v. Mason, 854 F. Supp. 1520, 1543‐44 (D. Wy. 1994) (finding no Eleventh Amendment immunity where Wyoming state legislature had defined ʺcommunity college districtsʺ as form of ʺlocal government,ʺ where collegeʹs trustees were elected by local voters, and where the collegeʹs board had independent power to raise revenue (internal quotation marks omitted)).
‐ 16 ‐ 1. Stateʹs Responsibility for WCCʹs Financial Obligations
The first Clissuras factor, and the most important factor in
determining whether a state entity is entitled to sovereign immunity, is ʺwhether
a judgment against the entity must be satisfied out of a Stateʹs treasury.ʺ Hess,
513 U.S. at 31. This condition is also reflected in the third and sixth Mancuso
factors, which address how the entity is funded and whether the entityʹs
obligations are binding upon the state, respectively. These considerations weigh
against a finding that WCC is entitled to sovereign immunity. WCC receives
one‐third of its budget from New York State, but the state is not otherwise
responsible for WCCʹs debts or for satisfying judgments against WCC. Rather,
Westchester County, which appoints half of WCCʹs Board of Trustees, has the
power to issue bonds and levy taxes to raise funds for WCC. See N.Y. Educ. Law
§ 6304(1)(c). Additionally, if WCC exceeds its budget, the excess is borne by
local, not state, sponsors. See N.Y. Educ. Law § 6304(1)(c)(3).
Receipt of government funding is relevant in determining whether
the state is responsible for judgments against a state entity like a community
college. The district court in Kohlhausen reasoned that ʺ[t]he absence of an
express payment authorization provision suggests that judgments rendered
‐ 17 ‐ against the SUNY community college or its employees or trustees in their official
capacities are simply paid out of the community collegeʹs operating budget, to
which the state contributes one‐third.ʺ 2011 WL 1404934, at *7. Thus, the district
court held, ʺthere is some indication that responsibility for money judgments
against [the college] rests with the state.ʺ Id. While WCC ‐‐ like the SUNY
community college in Kohlhausen ‐‐ also obtains one‐third of its budget from the
state, this fact alone is not sufficient to establish state responsibility for a
community collegeʹs financial obligations.
We have repeatedly held that a school boardʹs receipt of funds from
state appropriations is not equivalent to satisfaction of a judgment against the
board from the state treasury. See Woods, 466 F.3d at 249; Rosa R. v. Connelly, 889
F.2d 435, 437‐38 (2d Cir. 1989); Fay v. S. Colonie Cent. Sch. Dist., 802 F.2d 21, 27 (2d
Cir. 1986), overruled on other grounds by Taylor v. Vermont Depʹt of Educ., 313 F.3d
768 (2d Cir. 2002). Indeed, we did not extend sovereign immunity to the school
board in Woods, which received 39.9% of its funding from the state. 466 F.3d at
245. New York Education Law § 1709(26) clearly provides that where local funds
are insufficient to satisfy a judgment against a local board of education,
additional funds are obtained not from the state treasury but from levying a local
‐ 18 ‐ property tax. See Woods, 466 F.3d at 250. While the Education Law provisions
governing community colleges are not as explicit, they similarly require local
sponsors to levy taxes if a collegeʹs budget exceeds the maximum costs allowed
by the state. N.Y. Educ. Law § 6304(3) (stating that college is not prohibited from
exceeding stateʹs budget so long as ʺthe excess costs over such prescribed limits
or allowances shall be borne and paid for or otherwise made available to or by
such [local] sponsorsʺ); N.Y. Educ. Law § 6304(5‐a) (stating that community
college shall ʺprovide for the raising of taxes required by such budgetʺ).
We thus conclude that the first Clissuras factor ‐‐ the stateʹs
responsibility for satisfying judgments against WCC ‐‐ weighs against a finding
that WCC is entitled to sovereign immunity.
2. State Control Over WCC
The second Clissuras factor, the extent of the stateʹs control over a
community college, also weighs against a finding that WCC is entitled to
sovereign immunity. This condition is also reflected in the second and fifth
Mancuso factors, which consider how the governing members of the entity are
appointed and whether the state has veto power over the entityʹs actions,
‐ 19 ‐ respectively. WCC has not demonstrated that these considerations favor a
finding that WCC is entitled to sovereign immunity.
WCC is not substantially controlled by the state. The governor
appoints four of WCCʹs ten board members, while the Westchester County Board
appoints five members and WCCʹs student body elects one member. This
balance between state and local appointment differs from that at issue in
Clissuras, where ten of CUNYʹs seventeen board members were appointed by the
state. 359 F.3d at 82. While it is certainly conceivable that the stateʹs control of
four votes could yield control of WCCʹs board, WCC has not met its burden of
demonstrating such effective control over board decision‐making.
Further, as the district court here emphasized, there is no indication
in the record that the state has control over WCCʹs day‐to‐day operations. While
WCCʹs officers, curriculum, and budget are subject to board approval and SUNY
provides the standards and regulations governing WCCʹs organization and
operation, such powers are not dispositive for sovereign immunity. See N.Y.
Educ. Law § 6306; N.Y. Comp. Codes R. & Regs. tit. 8, §§ 600.1, 600.2. We have
held that state approval, or state veto power, over a state entity is not dispositive
for the purpose of sovereign immunity. See Gorton, 554 F.3d at 63 (holding that,
‐ 20 ‐ while applying Mancuso test, board of cooperative educational services was not
entitled to sovereign immunity in spite of stateʹs ʺsubstantial veto powerʺ over
boardʹs decisions); Woods, 466 F.3d at 248 (concluding that Commissioner of
Educationʹs broad power to remove school officers, withhold funds, and review
actions by school board ʺdoes not unequivocally equate to veto authorityʺ).
Similarly, the stateʹs oversight of WCC here does not equate to state control and
thus does not weigh in favor of sovereign immunity. See Connelly, 889 F.2d at
437 (stating that state stewardship of education does not transform entity into
ʺalter ego of the stateʺ (quoting Fay, 802 F.2d at 27)).
We thus conclude that the second Clissuras factor ‐‐ the degree of the
stateʹs control over the entity ‐‐ weighs against a finding that WCC is entitled to
sovereign immunity. WCC is not an arm of the state entitled to sovereign
immunity under the Clissuras test.
3. Additional Mancuso Factors
The additional Mancuso factors support the conclusion that WCC is
not entitled to sovereign immunity.
The first Mancuso factor ‐‐ how the entity is referred to in the
documents that created it ‐‐ weighs against a finding that WCC is entitled to
‐ 21 ‐ sovereign immunity. While SUNYʹs website designates WCC as part of SUNY,
the New York Education Law creates community colleges separately from its
creation of SUNY. See N.Y. Educ. Law §§ 350, 352. In a case involving the
Fashion Institute of Technology (ʺFITʺ), which is statutorily categorized as a
SUNY community college, we affirmed the district courtʹs holding that FIT is
properly categorized as a community college, statutorily distinct from SUNY.
Mostaghim v. Fashion Inst. of Tech., 01‐CIV‐8090, 2001 WL 1537544, at *2‐3
(S.D.N.Y. Dec. 3, 2001), affʹd sub nom. Mostaghim v. Fashion Inst. of Tech. Student
Assʹn, 57 F. Appʹx 497 (2d Cir. 2003) (summary order). Here, WCC is also a
community college created separately from SUNY by the governing statutory
framework.
The fourth Mancuso factor ‐‐ whether the entityʹs function is state or
local ‐‐ similarly weighs against a finding of sovereign immunity. The New York
Court of Appeals has held that operation of SUNY community colleges serves a
municipal function. See Grimm v. Rensselaer Cnty., 4 N.Y.2d 416, 421 (1958). The
New York legislature has also acknowledged the local function of higher
education by vesting control of community colleges in boards of trustees that are
accountable to local governments rather than the state. See N.Y. Educ. Law
‐ 22 ‐ § 6302. Additionally, the New York Court of Claims, which has exclusive
jurisdiction over suits against the state, does not have jurisdiction over SUNY
community colleges, as such claims ʺcannot be characterized as being against the
State of New York.ʺ Amato v. State, 502 N.Y.S.2d 928, 929 (Ct. Cl. 1986). All of
these considerations confirm that WCC is not a state entity.
* * * * *
We conclude that a finding of sovereign immunity for WCC would
not serve the twin aims of the Eleventh Amendment: immunity would not
further the stateʹs interest in preserving its treasury, nor would it protect the
integrity of the state. Accordingly, we hold that WCC is not an arm of the state
entitled to sovereign immunity under the Eleventh Amendment.
CONCLUSION
Accordingly, the decision of the district court is AFFIRMED.
‐ 23 ‐