                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                            September 6, 2005
                                    TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 SCOTT MURRAY; MICHAEL
 SCHNEIDER; KEVIN JOSEPH, the class
 of all students at the University of
 Colorado at Boulder who are being
 charged out-of-state tuition despite being                  No. 04-1376
 residents and domiciliaries of the State of       (D. Ct. No. 03-WM-2668 (OES))
 Colorado,                                                     (D. Colo.)

               Plaintiffs - Appellants,

          v.

 STATE OF COLORADO; UNIVERSITY
 OF COLORADO BOARD OF
 REGENTS,

               Defendants - Appellees.


                              ORDER AND JUDGMENT*


Before TACHA, Chief Circuit Judge, EBEL, and McCONNELL, Circuit Judges.


      After examining the briefs and the appellate record, this three-judge panel has

determined unanimously that oral argument would not be of material assistance in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The


      *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
case is therefore ordered submitted without oral argument.

       Plaintiffs-Appellants Scott Murray, Michael Schneider, and Kevin Joseph, all of

whom are students at the University of Colorado, filed a claim against the State of

Colorado and the University of Colorado Board of Regents pursuant to 42 U.S.C. § 1983.

On behalf of a proposed class of students paying out-of-state tuition, the Plaintiffs

challenged the University’s out-of-state tuition policy as violating their rights under the

Fifth and Fourteenth Amendments, as well as their right to travel. The District Court

dismissed the suit for lack of subject matter jurisdiction. We AFFIRM.

                                    I. BACKGROUND

       The University of Colorado determines residency status for tuition purposes

according to Colorado’s Tuition Classification Statute, Colo. Rev. Stat. Ann. § 23-7-101

et seq. The statute provides a list of presumptions that determine a student’s residency

status “[u]nless the contrary appears to the satisfaction of the registering authority of the

institution at which a student is registering.” Colo. Rev. Stat. Ann. § 23-7-103(1). The

Plaintiffs all pay out-of-state tuition, and none has ever applied to pay in-state tuition.

       The Plaintiffs filed suit against the State of Colorado and the Board of Regents of

the University of Colorado arguing that the Defendants deprived them of the equal

protection of the laws, the right to travel, and property without due process of law, in

violation of 42 U.S.C. § 1983. They sought declaratory relief, injunctive relief, and a

partial tuition refund. The Defendants then moved to dismiss for lack of subject matter


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jurisdiction. See Fed. R. Civ. P. 12(b)(1). After determining that the State of Colorado

was entitled to Eleventh Amendment immunity and that the Plaintiffs did not have

standing to bring suit against the Board of Regents, the District Court granted the

Defendants’ motion.

                                    II. DISCUSSION

       Whether a defendant is immune from suit under the Eleventh Amendment and

whether a plaintiff has standing to sue are both questions of the federal courts’ subject

matter jurisdiction. See Thompson v. Colorado, 278 F.3d 1020, 1023–24 (10th Cir. 2001)

(Eleventh Amendment immunity); Lujan v. Defenders of Wildlife, 504 U.S. 555, 559–560

(1992) (standing). We therefore review the District Court’s dismissal de novo. Merrill

Lynch Bus. Fin. Servs. v. Nudell, 363 F.3d 1072, 1074 (10th Cir. 2004).

       We first review the court’s decision to dismiss the Plaintiffs’ claim against the

State of Colorado on the basis of its Eleventh Amendment immunity. The Eleventh

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.” The

Plaintiffs contend that the Eleventh Amendment does not apply in this case because they

are citizens of Colorado, as opposed to citizens of another state. The Eleventh

Amendment, however, has long been understood as standing for a principle broader than

its language: that the Constitution should not be construed to abrogate the traditional


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sovereign immunity of states in federal court, regardless of the citizenship of the plaintiff.

See Hans v. Louisiana, 134 U.S. 1 (1890). Therefore, Colorado is immune from suit

unless it has waived its immunity or consented to suit, or if Congress has validly

abrogated the state’s immunity. See Harris v. Owens, 264 F.3d 1282, 1290 (10th Cir.

2001). Here, the Plaintiffs do not argue that Colorado waived its sovereign immunity or

consented to suit, contending only that Congress has abrogated the state’s immunity

through the enactment of § 1983. It is well-established, however, that § 1983 does not

abrogate a state’s Eleventh Amendment immunity. See Quern v. Jordan, 440 U.S. 332,

341, 345 (1979). Nonetheless, the Plaintiffs cite Vlandis v. Kline, 412 U.S. 441 (1973), as

implicit authority that “students have the right under 42 U.S.C. § 1983 to sue a state

university.” The facts of that case do not support the Plaintiffs’ argument here. In

Vlandis, a group of University of Connecticut students challenged the university’s tuition

classification policy in a suit against the university’s director of admissions—not against

the state itself. Id. We therefore hold that the State of Colorado is immune from suit

under the Eleventh Amendment, and that the District Court properly dismissed the

Plaintiffs’ claim against Colorado for lack of subject matter jurisdiction.

       We next turn to the court’s decision to dismiss the Plaintiffs’ claim against the

University of Colorado Board of Regents for lack of standing. We need not address this

issue, however, because the Colorado Board of Regents is, like the state itself, entitled to

Eleventh Amendment immunity. See Buchwald v. Univ. of N.M. Sch. of Med., 159 F.3d


                                             -4-
487, 494 n.3 (10th Cir. 1998) (“[W]e have no doubt that UNMSM, its Regents, and the

Committee on Admissions are ‘arms of the state,’ entitled to Eleventh Amendment

immunity.”); Lujan v. Regents of Univ. of Cal., 69 F.3d 1511, 1522 (10th Cir. 1995)

(holding that the University of California’s Board of Regents is shielded from suit under

the Eleventh Amendment); Hensel v. Office of Chief Admin. Hearing Officer, 38 F.3d

505, 508 (10th Cir. 1994) (“[U]nder Oklahoma law, the Board of Regents of the

University is an arm of the state . . . .”); Hartman v. Regents of Univ. of Colo., 22 P.3d

524, 528 (Colo. Ct. App. 2000) (holding that the University of Colorado is an arm of the

state for purposes of sovereign immunity). Moreover, nothing in the record indicates that

the Board waived its immunity or that Congress has abrogated it.1 As a result, we affirm

the District Court’s dismissal of the Plaintiff’s suit against the University of Colorado’s

Board of Regents.




       1
        We also note that the fact that the Plaintiffs seek injunctive relief has no bearing
on the Board’s Eleventh Amendment immunity. See Ex Parte Young, 209 U.S. 123
(1908); Edelman v. Jordan, 415 U.S. 651 (1974) (permitting suits for prospective
injunctive relief against individual state officials in their official capacities). The
Plaintiffs in this case have not sued any individual Board member, instead naming only
the State of Colorado and the Board of Regents of the State of Colorado as defendants.
Therefore, because the Eleventh Amendment applies to all suits against the state and arms
of the state, regardless of the relief sought, see Higganbotham v. Okla. Transp. Com’n,
328 F.3d 638, 644 (10th Cir. 2003), the type of relief sought is not relevant to our
analysis in this case. See id. (“In the instant case, the plaintiff has directly sued the state
and its agencies seeking declaratory and injunctive relief, and Eleventh Amendment
immunity squarely applies in these circumstances.”).

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                                    III. CONCLUSION

       Because both the State of Colorado and the Board of Regents are entitled to

sovereign immunity under the Eleventh Amendment, we AFFIRM the District Court’s

dismissal of this suit for lack of subject matter jurisdiction.



                                            ENTERED FOR THE COURT,


                                            Deanell Reece Tacha
                                            Circuit Judge




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