Lapides, Paul v. University of Georgia Board of Regents (05/13/2002)

Questions presented: Does a state waive its 11th Amendment immunity from suit in federal court by its affirmative litigation conduct when it removes a case to federal court and then seeks a dispositive ruling?

BY SARA BROCKDORF, MEDILL NEWS SERVICE

In August 1997, Kennesaw State University in Georgia began an investigation of one of its professors, Paul Lapides, after a student accused him of sexual harassment. The university investigation concluded the allegation was unfounded, and the student later withdrew the accusation.

Lapides sued the university and particular individuals, claiming that letters by faculty colleagues contained defamatory statements about him, that were disseminated and included in his personnel file, and that his employment and promotional opportunities were compromised. The complaint filed in state court alleged that university officials deprived him of his due process rights and his liberty and property interests, in violation of the 14th Amendment.

The Georgia Attorney Generals office, on behalf of the university, removed the case to federal court and moved to dismiss the suit, arguing that the 11th Amendment immunizes the state from such suits.

The universitys argument was that its Board of Regents is an arm of the state, and under the 11th Amendment, the state cannot be sued by its own citizens. The amendment reads: "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 district court found for Lapides, ruling that the state had waived its 11th Amendment immunity by removing the case to federal court and invoking its jurisdiction.

"The issue is whether a states removal of a case to federal court constitutes a waiver of 11th Amendment immunity," Judge Charles Wilson wrote for a unanimous 11th Circuit Court of Appeals panel. "We decide that it does not."

The appeals court first noted that the authorization to the states Attorney General to defend the state when it is sued is not a delegation by the state legislature to the Attorney General to waive immunity on the states behalf. More would be needed to provide the express waiver implicit in the 11th Amendment.

Noting that the court was "troubled by the [states] seemingly inconsistent positions" of seeking federal court jurisdiction and claiming immunity from suit, Wilson nonetheless distinguished between cases in which a state actively files suit or initiates a cause of action and this case, in which the only action Georgia took in federal court was defense of a suit.

"The present case did not find its way into our courts because of a state initiated cause of action, rather Lapides filed suit and the State removed to theoretically take advantage of our superior knowledge of the federal questions involved in the case," Wilson wrote.

Lapides attorney David Bederman said that in calling on the 11th Amendment, the state is trying to "bite both sides of the apple." He added, "If they win, you don't hear anything about immunity."

"The Supreme Court has recognized this as a problem," he said. "The time has come that its going to be resolved."

On Oct. 29, 2001, the U.S. Supreme Court granted certiorari in the case.

For the courts, this case is an 11th Amendment issue, but for Paul Lapides, a professor of management and entrepreneurship, its been much more -- over four years of struggle.

"Every aspect of my life has been devastated," he said in a telephone interview.

Lapides said that after teaching at Columbia University and New York University, he was one of more than 200 applicants for a position at Kennesaw State. He was hired, and is now the director of the Corporate Governance Center at Kennesaw State's Coles College of Business.

He said his first two years of teaching were so exemplary, that in his third year, he was featured in the Wall Street Journal.

Then one day, a student accused him of sexual harassment, an accusation she later withdrew. He recounted that the student swore an oath that a Kennesaw State professor, whom she later said was also her boyfriend, along with other university officials had convinced her to make the accusation.

"There was an orchestrated effort," Lapides said.

Since, Lapides said, he has been threatened, reassigned, and denied promotion for no reason. Now, more than four years later, the battle is still going and his funds are waning.

"When I passed $250,000, I definitely started flinching," he said.

On May 13, 2002, the Court found unanimously for Lapides, holding that a state waives its 11th Amendment immunity when it voluntarily invokes federal court jurisdiction by removing a case from state court to federal court. The opinion was written by Justice Stephen Breyer.