                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 05-1826
MICHAEL JOSEPH,
                                            Plaintiff-Appellant,

                               v.

BOARD OF REGENTS        OF THE      UNIVERSITY    OF   WISCONSIN
SYSTEM,
                                           Defendant-Appellee.
                         ____________
           Appeal from the United States District Court
              for the Western District of Wisconsin.
            No. 04-C-740-S—John C. Shabaz, Judge.

                         ____________
 ARGUED DECEMBER 9, 2005—DECIDED DECEMBER 27, 2005
                    ____________



  Before FLAUM, Chief Judge, and RIPPLE and WILLIAMS,
Circuit Judges.
  FLAUM, Chief Judge. Plaintiff Michael Joseph attended
college at the University of Wisconsin (“University”). He has
completed his studies, but still owes the University over
$18,000 in tuition. He alleges that the University violated
his constitutional rights by charging him out-of-state
tuition while he was a student. He also claims that the
tuition reciprocity agreement between Wisconsin state
colleges and Minnesota state colleges is unconstitutional.
2                                              No. 05-1826

The defendant, the Board of Regents of the University of
Wisconsin System, claims that the suit is barred by the
Eleventh Amendment, or, in the alternative, that it is
without merit. The defendant has also moved to sanction
the plaintiff’s attorney for filing a frivolous appeal.
  The district court ruled that Joseph’s suit was barred by
the Eleventh Amendment. For the following reasons, we
now affirm the district court’s judgment and deny the
defendant’s request for sanctions.


                     I. Background
  Michael Joseph attended high school in Colorado. He
attended the University of Wisconsin for five semesters. He
was charged the nonresident tuition rate of $9,000 per
semester. Joseph has paid $27,000 to the University, but
still owes approximately $18,500 in back tuition.
  During the period when Joseph attended the University,
the tuition for Wisconsin residents was approximately
$2,500 per semester. Tuition for Minnesota residents,
because of a reciprocity agreement between the two states’
university systems, was only slightly higher.
  Tuition rates for the University are set by the Board of
Regents of the University of Wisconsin System (“the
Board”). The Board is composed of seventeen members.
Fifteen of those members are appointed by the governor of
Wisconsin with the advice and consent of the state senate.
The Board has the primary responsibility of governing the
state university system, consistent with the mandates of
Wisconsin statutes. The Wisconsin State Treasurer is the
Board’s treasurer, and the Board must submit its biennial
budget to the State of Wisconsin Department of Administra-
tion to be incorporated into the state’s budget. This budget
is subject to legislative control during the state budget
No. 05-1826                                                  3

process, and the Department of Administration oversees the
University’s financial affairs throughout the year.
  Joseph sued the Board under 42 U.S.C. § 1983 (“§ 1983”),
claiming that the University’s tuition policy is unconstitu-
tional. Specifically, Joseph claims that the tuition policy
violates the Equal Protection Clause and Article I, Section
10 of the Constitution. The Board moved to dismiss the
complaint, under Federal Rule of Civil Procedure 12(b)(6),
for failure to state a claim upon which relief can be granted.
The district court granted the motion, ruling that the
Eleventh Amendment barred the suit. Joseph now appeals.
  The Board claims that it is immune from this suit under
the Eleventh Amendment. The Board argues in the alterna-
tive that Joseph does not have standing to bring suit, and
that the constitutional claims are without merit. The Board
has also moved for sanctions against attorney Joseph,1
under Federal Rule of Appellate Procedure 38, for filing a
frivolous appeal.


                      II. Discussion
A. Eleventh Amendment
  We find that the district court properly dismissed Jo-
seph’s complaint because it is barred by the Eleventh
Amendment of the United States Constitution. The Elev-
enth Amendment bars private litigants’ suits against non-
consenting states in federal courts, with the exception of
causes of action where Congress has abrogated the states’
traditional immunity through its powers under the Four-
teenth Amendment. The Supreme Court has held that state
agencies, as “arms of the state,” Kroll v. Bd. of Trustees of



1
  The plaintiff in this case is represented by his father, Joel
Joseph.
4                                                No. 05-1826

Univ. of Ill., 934 F.2d 904, 907 (7th Cir. 1991), and state
officials in their official capacities are also immune from
suit under the Eleventh Amendment. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 70-71 (1989). Additionally, the
Court has ruled that states and their departments are not
“persons” within the meaning of § 1983. Id. at 66, 71.
  The Board is an “arm of the state” for Eleventh Amend-
ment purposes. Romco Ltd. v. Outdoor Aluminum, Inc., 725
F. Supp. 1033 (W.D. Wis. 1989) (applying the factors in
Kashani v. Purdue, 813 F.2d 843 (7th Cir. 1987), to deter-
mine if the Board is an “arm of the state” for Eleventh
Amendment purposes, and holding that it is); see also
EEOC. v. Bd. of Regents of the Univ. of Wis. Sys., 288 F.3d
296, 299 (7th Cir. 2002) (“If this case was to be prosecuted
in federal court, the EEOC had to do it. The individual
charging parties were barred by the Eleventh Amendment
from suing the state (and therefore the Board of Regents of
the state university system).”).
   Joseph argues that Congress abrogated the Board’s
immunity when passing § 1983. He cites three cases in
support of his argument, none of which are convincing. The
first, Vlandis v. Kline, 412 U.S. 441 (1973), was a § 1983
suit involving a public university. That case does not,
however, “definitively rule[ ] that students have the right
under § 1983 to sue a state university,” as Joseph claims.
The plaintiffs in that case sued the director of admissions
as an individual, and therefore the Eleventh Amendment
was not implicated. Joseph misplaces his reliance on Gratz
v. Bollinger, 539 U.S. 244 (2003), as well. The plaintiffs in
that case sued under a law in which Congress has specifi-
cally abrogated the states’ Eleventh Amendment rights.
Gratz, 539 U.S. at 259 n.10; 42 U.S.C. § 2000d-7(a)(1). The
Supreme Court has expressly held that Congress has not
abrogated the states’ immunity in § 1983 suits. Quern v.
Jordan, 440 U.S. 332, 341-45 (1979). Finally, Joseph relies
on Monell v. Dep’t of Social Services, 436 U.S. 658 (1978), to
No. 05-1826                                                 5

support his position. The Court has been clear, however,
that Monell’s holding applies only to municipalities and not
states or states’ departments. Will, 491 U.S. at 70 (“[W]e
consequently limited our holding in Monell to local govern-
ment units which are not considered part of the state for
Eleventh Amendment purposes.” (internal quotation marks
omitted) (citing Monell, 436 U.S. at 690, n.54)).
  Because the Board is an “arm of the state” and Congress
has not abrogated its immunity in § 1983 actions, this suit
is barred by the Eleventh Amendment.


B. Sanctions request
  Although we recognize that the Board’s request for
sanctions is not without basis, in the exercise of our discre-
tion, we decline to grant it.


                     III. Conclusion
  For the foregoing reasons, the judgment of the district
court is AFFIRMED and the request for sanctions is DENIED.
  A true Copy:

       Teste:


                        ________________________________
                         Clerk of the United States Court of
                           Appeals for the Seventh Circuit




                   USCA-02-C-0072—12-27-05
