     Case: 09-20732 Document: 00511367666 Page: 1 Date Filed: 02/01/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                          February 1, 2011

                                       No. 09-20732                         Lyle W. Cayce
                                                                                 Clerk

TOBIE B. ROSS, JR., President Board of Trustees; ALLEN PROVOST, Vice
President; T. MARIE MCCALL, Secretary; ALBERT L. LEMMONS,
Assistant Secretary; SILVIA BROOKS WILLIAMS; CHARLES H. TAYLOR;
BARBARA A. GATSON; BOARD OF TRUSTEES FOR NORTH FOREST
INDEPENDENT SCHOOL DISTRICT,

                                                   Plaintiffs - Appellants
v.

TEXAS EDUCATION AGENCY, STATE OF TEXAS,

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:08-CV-3049


Before KING, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       The Texas Education Agency (TEA) decided to temporarily suspend the
responsibilities of the Board of Trustees for the North Forest Independent School
District (Trustees) and replace the Trustees with a board of managers
(Managers), pursuant to § 39.102 of the Texas Education Code. The Trustees


       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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                                 No. 09-20732

filed a request for a temporary restraining order (TRO) and temporary
injunction in a state district court. After the state law claims were dismissed,
TEA replaced the Trustees with the Managers. The Trustees subsequently filed
suit against the TEA and the State (collectively, the State) in federal court,
seeking to vacate TEA’s decision to appoint the Managers. They asserted claims
for violations of 42 U.S.C. §§ 1973 and 1973c (the Voting Rights Act of 1965), as
well as violations of the Equal Protection Clause and Due Process Clause of the
Fourteenth Amendment (collectively, constitutional claims). The district court
granted the State’s motion for summary judgment. The Trustees appealed.
      On appeal, the Trustees challenge only the district court’s judgment
regarding the Trustees’ constitutional claims. For the following reasons, we
AFFIRM the district court’s judgment as the State and TEA are entitled to
Eleventh Amendment sovereign immunity.
                                       I.
      For several years, North Forest Independent School District (hereinafter
the school district) has suffered from persistent academic and financial
deficiencies, as well as problems complying with federal and state program
requirements. Notably, TEA auditors have determined that, since 2001, the
school district has misappropriated more than $12.5 million in construction bond
proceeds to pay general operating expenses.        During the 2005-2006 and
2006-2007 school years, the school district overreported its average daily
attendance—a critical number used to calculate state funding—resulting in an
overpayment of $4.5 million and $5.7 million, respectively, by the State. The
Trustees’ financial mismanagement caused the school district to experience an
acute budget and cash-flow crisis, including operating fund deficits in excess of
$5 million in 2007 and more than $7 million in 2008 and a cash-flow deficit in
excess of $13 million in 2008. These deficiencies have resulted in a number of



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                                    No. 09-20732

interventions by the Texas Commissioner of Education (Commissioner) and
TEA.
       Initially, TEA intervened only to a minor degree by sending auditors in to
investigate mismanagement, sending TEA representatives to attend board
meetings, and conducting other on-site investigations. In 2007, TEA sent a
conservator to the school district to assist it in regaining its financial stability.
A few months later, TEA assigned another conservator to direct the actions of
the school district in matters related to academic improvement and program
compliance. During that time, TEA began an accreditation investigation of the
school district, which resulted in TEA withholding the school district’s
accreditation until the investigation was complete. In May 2008, TEA sent the
preliminary findings of its investigation to the school district. TEA determined
that the “lack of proper internal controls to ensure the efficient and effective
operation of the district . . . resulted in serious and persistent deficiencies in both
the academic and financial performance of the district.”
       On July 31, 2008, TEA began the procedures for appointing a board of
managers. As required by § 5 of the Voting Rights Act, the Commissioner sought
preclearance from the United States Department of Justice (DOJ) to assign a
board of managers to manage the school district’s affairs. See Texas v. United
States,   523 U.S. 296, 298–99      (1997) (explaining that “Texas is a covered
jurisdiction under § 5 of the Voting Rights Act of 1965, and consequently, before
it can implement changes affecting voting[, i.e. replacing school board members,]
it must obtain preclearance from the United States District Court for the District
of Columbia or from the Attorney General of the United States”). The same day,
the Commissioner sent notice of his proposed order to the school district. The
Commissioner received preclearance from DOJ on October 6, 2008.
       In his letter, the Commissioner notified the Trustees of his decision to
appoint the Managers, pursuant to § 39.131(a)(9) of the Texas Education Code

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and title 19, § 97.103 of the Texas Administrative Code. The Commissioner
explained that he was requesting preclearance from the DOJ for the temporary
suspension of the Trustees’ powers and duties.           He also explained: “In
accordance with 19 TAC §97.1037(a)(3), the district may request a record review
related to the assignment of [the] board of managers.”         Subsequently, the
Trustees requested a record review.
      The record review was initially set for September 9, 2008, but was
continued by agreement of the parties to September 25, 2008. For reasons
disputed by the parties, the date of the record review was again rescheduled and
set for October 2, 2008. On that day, a representative appeared on behalf of the
Trustees, but the parties dispute what happened at this meeting. Also on
October 2, 2008, the Trustees sought a TRO and injunction in state court to halt
the record review. See N. Forest Indep. Sch. Dist. v. Tex. Educ. Agency, No.
D-1-GN-08-003589 (53rd District Court, Travis County, Tex. Oct. 2, 2008).
However, the trial court dismissed the Trustees’ requests.
      Thereafter, the Trustees filed suit against the State in federal court,
seeking to vacate TEA’s decision to appoint the Managers. They asserted claims
for violations of the Voting Rights Act of 1965, as well as violations of the Equal
Protection Clause and Due Process Clause of the Fourteenth Amendment. The
State filed a motion to dismiss, which the district court treated as a motion for
summary judgment.      The district court granted the motion and held that the
State had not violated the Voting Rights Act because it properly sought
preclearance from the DOJ and the Trustees failed to show by a preponderance
of the evidence that the State’s actions constituted voter dilution. The district
court also held that the Trustees’ constitutional claims, pursuant to 42 U.S.C.
§ 1983, were barred by sovereign immunity under the Eleventh Amendment.
The Trustees appealed. We AFFIRM the district court’s judgment as the State
and TEA are entitled to Eleventh Amendment sovereign immunity.

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                                               II.
       We review Eleventh Amendment sovereign immunity determinations, as
we do other questions of subject matter jurisdiction, as a question of law de novo.
United States v. Tex. Tech. Univ., 171 F.3d 279, 288 (5th Cir. 1999).
                                              III.
       The Eleventh Amendment provides that federal courts cannot exercise
jurisdiction over “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.”         U.S. C ONST. amend. XI.            This provision works as a
jurisdictional bar to suits brought against state governments and their agencies
in federal courts. P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 144 (1993). This applies to a party’s § 1983 claims against a state or its
agents. Quern v. Jordan, 440 U.S. 332, 341(1979) (explaining that § 1983 does
not “override the traditional sovereign immunity of the States”). For a party to
properly bring a suit against a state or its agency, either a state must waive its
sovereign immunity, or Congress must, pursuant to § 5 of the Fourteenth
Amendment, intentionally abrogate the state’s immunity. Will v. Mich. Dep’t of
State Police, 491 U.S. 58, 66 (1989).
       The district court correctly held that the Trustees’ constitutional claims
pursuant to § 1983 are barred by sovereign immunity.1 Section 1983 explains
that “[e]very person who . . . subjects, or causes to be subjected, any citizen of the



       1
         Although the Trustees did not raise § 1983 claims in their filings to the district court,
the district court properly characterized the Trustees’ constitutional claims as § 1983 claims
because that is the vehicle for enjoining the implementation of an allegedly unconstitutional
statute. See Pietzsch v. Mattox, 719 F.2d 129, 132 (5th Cir. 1983) (“[P]laintiffs have sought
declaratory and injunctive relief under 42 U.S.C. § 1983 with regard to the facial
unconstitutionality of these statutes.”); see also Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d
644, 649 (6th Cir. 2007) (“Plaintiffs brought this action under 42 U.S.C. § 1983, alleging that
the statute and rules violate the First, Fifth, and Fourteenth Amendments, and requesting
declaratory and injunctive relief.”).

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United States or other person . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party
injured.” Id. (emphasis added). In cases where a party seeks to enjoin the state
pursuant to § 1983, the Supreme Court explained that sovereign immunity bars
a party from doing so because neither the state nor its agency is a “person” for
purposes of § 1983. Quern, 440 U.S. at 341. The Trustees do not claim that the
State has waived its sovereign immunity.2 Thus, because the Trustees seek to
enjoin the State’s actions pursuant to § 1983, their claims are barred by the
Eleventh Amendment. See Quern, 440 U.S. at 341. This also applies to TEA as
it is a state agency. See P.R. Aqueduct & Sewer Auth., 506 U.S. at 144; see also
Coggin v. Longview Indep. Sch. Dist. 289 F.3d 326, 330 n.9 (2002) (recognizing
that TEA is an agency of the state), vacated on other grounds by 337 F.3d 459
(5th Cir. 2003).
                                            IV.
       Accordingly, we AFFIRM the district court’s judgment as the State and
TEA are entitled to Eleventh Amendment sovereign immunity.




       2
         The Trustees do not address the district court’s sovereign immunity holding in their
brief to this court. Moreover, because the Trustees did not file a reply brief, they have not
countered the State’s sovereign immunity arguments, which are raised in the State’s response.
At oral argument, the court asked the Trustees’ counsel to respond to the sovereign immunity
argument. Counsel requested the opportunity to file supplemental briefing, which the court
agreed to permit. However, no supplemental briefing was filed.

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