Eleventh Amendment

Most state-supported institutions of higher education are considered to be arms of the state for purposes of the Eleventh Amendment. Consequently, an understanding of the Eleventh Amendment and the U.S. Supreme Court's interpretation of it is particularly important for higher education attorneys, administrators, and legal scholars when confronted by the threat of litigation.

Essentially, “sovereign immunity of the states” means that private individuals or corporations cannot sue the states, state agencies, state institutions, or state officials in their official capacities. Therefore, if state colleges and universities are considered “arms of the state,” then both the entities and their administrators generally are immune from litigation. 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 cannot enforce federal law. Rather, sovereign immunity simply prevents private parties from enforcing certain federal claims against states. Sovereign immunity does not bar a suit by the federal government or another state. By ratifying the Constitution, the states surrendered their sovereign immunity for these claims.

Moreover, even with respect to private parties, sovereign immunity is not absolute. There are three exceptions. First, as discussed in more detail below, Congress may abrogate sovereign immunity in some limited circumstances—notably whenever a statutory claim also involves a violation of the Fourteenth Amendment. Second, a state—in the exercise of its sovereignty—may choose to waive its sovereign immunity for certain claims. However, such waivers must be clear and unambiguous and may include limitations as to both the amount that can be recovered and the forum where suits must be brought. Third, under the doctrine of a 1908 U.S. Supreme Court case, Ex Parte Young, private parties generally—but not always—can obtain an injunction to stop state officials from engaging in ongoing violations of federal law. The Young doctrine rests on the theory that no state would violate federal law, and any official who does so is no longer acting as the state, but is in fact a rogue officer who must be stopped. The availability of injunctive relief under the Young doctrine effectively means that sovereign immunity is limited to damages claims. As long as private parties are able to enforce a federal law, the parties will be able to obtain injunctive relief.

Under the terms of 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 Supreme Court itself used the term “Eleventh Amendment immunity” to describe this immunity. Yet “sovereign immunity” is the more accurate term. As the Supreme Court recently observed,