14‐1042‐cv Carol Leitner v. Westchester Community College, et al.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

August Term 2014

(Argued: September 22, 2014 Decided: February 25, 2015)

Docket No. 14‐1042‐cv

CAROL LEITNER,

Plaintiff‐Appellee,

v.

WESTCHESTER COMMUNITY COLLEGE, JOSEPH HANKIN, in his personal and official capacity as President of Westchester Community College, CHET ROGALSKI, in his personal and official capacity as Dean and Vice President of Academic Affairs, JIANPING WANG, in her personal and official capacity as Associate Dean of the Arts and Humanities, GABRIELLE MILLER, in her personal and official capacity as Curricular Chairperson of the Communications and Media Arts Department,

Defendants‐Appellants,

WESTCHESTER COMMUNITY COLLEGE FEDERATION OF TEACHERS LOCAL 2431,

Defendant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

Before: LEVAL, CHIN, and CARNEY, Circuit Judges.

Interlocutory appeal from an order of the United States District

Court for the Southern District of New York (Seibel, J.), denying in part

defendants‐appellantsʹ motion to dismiss plaintiff‐appelleeʹs first amended

complaint. The district court held that defendants‐appellants ‐‐ a community

college and certain of its administrators ‐‐ are not ʺarms of the stateʺ entitled to

Eleventh Amendment sovereign immunity.

AFFIRMED.

CURTIS B. LEITNER (Catherine M. Foti, on the brief), Morvillo Abramowitz Grand Iason & Anello P.C., New York, New York, for Plaintiff‐Appellee.

DENISE M. COSSU (John M. Murtagh, on the brief), Gaines, Novick, Ponzini, Cossu & Venditti, LLP, White Plains, New York, for Defendants‐Appellants.

‐ 2 ‐ CHIN, Circuit Judge:

In this case, plaintiff‐appellee Carol Leitner was an adjunct professor

at Westchester Community College, a community college in the State University

of New York (ʺSUNYʺ) system. She was fired, purportedly for making offensive

comments in class. She sued Westchester Community College and certain of its

administrators (collectively ʺWCCʺ), claiming that they violated her state and

federal constitutional rights.

The district court (Seibel, J.) granted in part and denied in part

WCCʹs motion to dismiss. In relevant part, the district court concluded that

WCC was not entitled to sovereign immunity under the Eleventh Amendment.

We agree. Accordingly, we affirm.1

STATEMENT OF THE CASE

A. The Facts

For purposes of this appeal, the facts alleged in Leitnerʹs first

amended complaint are assumed to be true. In addition, the organizational facts

relevant to the sovereign immunity question are set forth in the governing

statutes and are largely undisputed.

1 Leitner also sued her union, Westchester Community College Federation of Teachers Local 2431 (the ʺUnionʺ), for breach of its duty of fair representation. The district court denied the Unionʹs motion to dismiss, and it is not a party to this appeal.

‐ 3 ‐ 1. WCC

SUNY is a higher education system established by the New York

State Education Department, and WCC is a community college within the SUNY

system. By statute, SUNY is comprised of four university centers, various

technical and specialized colleges, ʺand such additional universities, colleges and

other institutionsʺ as are ʺacquired, established, operated or contracted to be

operated for the state by the state university trustees.ʺ

(3).

New York law defines ʺcommunity collegesʺ as ʺ[c]olleges established and

operated pursuant to the [New York Education Law] . . . and receiving financial

assistance from the state.ʺ

(2).

The laws of Westchester County provide that WCC is a ʺcounty

department.ʺ Laws of Westchester County § 164.71. WCC is locally sponsored

by Westchester County and is predominately operated by and accountable to

county authorities. See

, 6306. WCCʹs Board of Trustees is

composed of ten members: four are appointed by the governor of New York, five

are appointed by the Westchester County Board, and one is appointed by WCCʹs

student body. WCCʹs Board appoints WCCʹs President, adopts the curriculum,

and prepares the annual budget, all subject to approval by SUNYʹs Board. N.Y.

‐ 4 ‐ Educ. Law § 6306(2). Judgments against WCC are paid out of its budget, one‐

third of which is provided by the state. See

(1).

WCC has adopted a three‐step procedure for disciplining faculty

members, which is memorialized in a WCC memorandum written in 1983. The

memorandum states that if the administration learns of ʺsome difficulty with the

performance or decorum of a faculty member,ʺ the following disciplinary

procedures are followed: (1) an informal meeting with the associate dean,

department chairperson, and union representative, followed by a letter

summarizing the meeting; (2) if the problem recurs, a second meeting with the

parties, after which an administrator will draft a letter detailing the problem and

course of remediation; and (3) if the problem persists, a hearing with the parties

and WCCʹs dean, after which the dean may recommend termination of the

faculty member. June 3, 1983 Memorandum of John F.M. Flynn.

2. Leitnerʹs Employment at WCC

In 1981, Leitner began working as an adjunct professor at WCC, and

for thirty years, she regularly taught classes in ʺSpeech Communicationʺ and

ʺVoice and Diction.ʺ In 2004, Leitner had a step‐one meeting to address WCCʹs

criticism of ʺher refusal to lower her academic standards.ʺ App. at 504. In 2007,

‐ 5 ‐ Leitner had a step‐two meeting to address a number of student complaints that

Leitner made offensive remarks during class. After this meeting, WCC directed

Leitner not to use ʺany language that [could] be construed as abusive, belittling,

humiliating, or insultingʺ and to ʺtreat every student with courtesy and respect.ʺ

App. at 505.

In the fall 2010, an incident during one of Leitnerʹs classes led to her

step‐three meeting, and, ultimately, WCCʹs termination of her employment.

During a class discussion after a studentʹs recitation of a poem, Leitner expressed

her approval of Arizonaʹs controversial immigration law and her doubts about

the fairness of spending taxpayer money on public services for illegal

immigrants. In June 2011, Leitner had a step‐three hearing. Based on what WCC

contended was a pattern of student complaints and Leitnerʹs continued failure to

comply with previous directives to follow WCCʹs speech code, WCC dismissed

Leitner, effective July 6, 2011. Leitner contends that her termination ʺwas the

culmination of the administrationʹs longstanding campaign of retaliation against

her.ʺ App. at 519.

‐ 6 ‐ B. Proceedings Below

On May 11, 2012, Leitner filed a complaint against WCC alleging

that WCC improperly retaliated against her in response to her constitutionally

protected in‐class speech. Leitner pled First Amendment retaliation claims and

as‐applied vagueness and overbreadth claims pursuant to

and

Article I, Sections 6 and 8 of the New York State Constitution. In her amended

complaint, Leitner added claims against the Union for breach of duty of fair

representation and against WCC for violating her rights under the collective

bargaining agreement.

WCC moved to dismiss Leitnerʹs complaint under Federal Rules of

Civil Procedure 12(b)(1) and 12(b)(6) arguing, in relevant part, that the court

lacked subject matter jurisdiction, the complaint failed to state a claim upon

which relief could be granted, and that WCC was entitled to immunity. Ruling

from the bench on March 24, 2014, the district court, in relevant part, held that

WCC was not entitled to sovereign immunity under the Eleventh Amendment.

On April 4, 2014, WCC filed this interlocutory appeal challenging the district

courtʹs denial of sovereign immunity.

‐ 7 ‐ DISCUSSION

A. Applicable Law

1. Jurisdiction and Standard of Review

Our jurisdiction is generally limited to hearing ʺfinal decisions of the

district courts.ʺ

. We do, of course, have jurisdiction to hear

appeals from the small class of non‐final ʺcollateralʺ district court orders that

ʺfinally determine claims of right separable from, and collateral to, rights

asserted in the action, too important to be denied review and too independent of

the cause itself to require that appellate consideration be deferred until the whole

case is adjudicated.ʺ Cohen v. Beneficial Indus. Loan Corp.,

(1949).

District court orders rejecting Eleventh Amendment sovereign immunity claims

fall within this small class of collateral district court orders. Hence, we have

jurisdiction to hear this appeal. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf

& Eddy, Inc.,

(1993); Woods v. Rondout Valley Cent. Sch. Dist. Bd. of

Educ.,

(2d Cir. 2006).

In considering whether a governmental entity is entitled to

Eleventh Amendment sovereign immunity, we review the district courtʹs factual

findings for clear error and its legal conclusions de novo. McGinty v. New York,

‐ 8 ‐

(2d Cir. 2001). All Circuits to have considered the question,

including our own, require the party asserting Eleventh Amendment immunity

to bear the burden of demonstrating entitlement. Woods,

.

2. Eleventh Amendment Sovereign Immunity

The Eleventh Amendment generally bars suits in federal court by

private individuals against non‐consenting states. Port Authority Trans‐Hudson

Corp. v. Feeney,

(1990). This immunity from suit encompasses

not just actions in which a state is actually named as a defendant, but also certain

actions against state agents and instrumentalities, including actions for the

recovery of money from the state. See Regents of the Univ. of Cal. v. Doe,

(1997); Hans v. Louisiana,

(1890). The question is whether

the state instrumentality is independent or whether it is an ʺarm of the state.ʺ See

Alden v. Maine,

(1999). Sovereign immunity does not, however,

extend to local governments or municipalities. See

The Supreme Court has not articulated a clear standard for

determining whether a state entity is an ʺarm of the stateʺ entitled to sovereign

immunity, and the Circuits have applied different tests for establishing sovereign

immunity. The Supreme Court has emphasized, however, that ʺthe Eleventh

‐ 9 ‐ Amendmentʹs twin reasons for beingʺ ‐‐ preserving the stateʹs treasury and

protecting the integrity of the state ‐‐ ʺremain our prime guide.ʺ Hess v. PATH,

, 47‐48 (1994). The first factor, ʺthe vulnerability of the Stateʹs purse,ʺ

is ʺthe most salient factor in Eleventh Amendment determinations.ʺ

.

3. The Second Circuitʹs Tests for Sovereign Immunity

The Second Circuit has applied two different tests to determine

whether government entities are ʺarms of the stateʺ entitled to sovereign

immunity under the Eleventh Amendment. The district court noted that, in this

case, ʺit seems the outcome would be the same under either test.ʺ Spec. App. at

22.

In 1996, in Mancuso v. N.Y. State Thruway Auth.,

(2d Cir.

1996), we applied a six‐factor test to determine whether a government entity was

an arm of the state: ʺ(1) how the entity is referred to in the documents that

created it; (2) how the governing members of the entity are appointed; (3) how

the entity is funded; (4) whether the entityʹs function is traditionally one of local

or state government; (5) whether the state has a veto power over the entityʹs

actions; and (6) whether the entityʹs obligations are binding upon the state.ʺ Id.

at 293 (citing Lake Country Estates, Inc. v. Tahoe Regʹl Planning Agency,

‐ 10 ‐ (1979)). If all six factors point in one direction, the analysis is complete. See

If

the factors point in different directions, a court must focus on the two main aims

of the Eleventh Amendment, as identified by the Supreme Court: preserving the

stateʹs treasury and protecting the integrity of the state. See id.; Hess,

.

In Mancuso, we found the factors relating to the New York State

Thruway Authority to point in different directions, and ultimately held that it

was not entitled to sovereign immunity because, while closely identified with the

state, it was generally self‐funded and not under significant state control. 86

F.3d at 296. We have applied this test in cases involving school boards and local

school districts, concluding that such entities were not arms of the state entitled

to sovereign immunity. See, e.g., Gorton v. Gettel,

, 62‐64 (2d Cir. 2009)

(per curiam) (holding that board of cooperative education services was not

entitled to sovereign immunity); Woods, 466 F.3d at 243‐51 (holding that board of

education was not entitled to sovereign immunity); Fay v. S. Colonie Cent. Sch.

Dist.,

, 27‐28 (2d Cir. 1986), overruled on other grounds by Taylor v. Vt.

Depʹt of Educ.,

, 786 (2d Cir. 2002) (holding that school district was

not entitled to sovereign immunity); cf. McGinty, 251 F.3d at 95‐100 (holding that

‐ 11 ‐ New York State and Local Employeesʹ Retirement System was entitled to

sovereign immunity).

In 2004, in Clissuras v. City Univ. of N.Y.,

, 82 (2d Cir.

2004) (per curiam), we applied a two‐factor test to ʺguide the determination of

whether an institution is an arm of the state: (1) the extent to which the state

would be responsible for satisfying any judgment that might be entered against

the defendant entity, and (2) the degree of supervision exercised by the state over

the defendant entity.ʺ Id. (quoting Pikulin v. City Univ. of N.Y.,

(2d Cir. 1999) (per curiam)) (internal quotation marks omitted).

In Clissuras, we held that the New York City College of Technology,

a senior college that by statute was part of the City University of New York

(ʺCUNYʺ), was an arm of the state entitled to sovereign immunity because: (1)

the comptroller of the state is responsible for money judgments against a senior

CUNY college; and (2) ultimate control over how CUNY is governed and

operated rests with the state. 359 F.3d at 81‐82. We did not cite Mancuso or

discuss the six‐factor test, and while we have not applied the two‐part test in a

subsequent precedential opinion, we have continued to cite it in summary

orders. See, e.g., Shibeshi v. City Univ. of N.Y., 531 F. Appʹx 135, 135 (2d Cir. 2013)

‐ 12 ‐ (summary order) (affirming finding that CUNY was entitled to sovereign

immunity, citing Clissuras); Gengo v. City Univ. of N.Y., 479 F. Appʹx 382, 383 (2d

Cir. 2012) (summary order) (same); Skalafuris v. City of New York, 444 F. Appʹx

466, 468 (2d Cir. 2011) (summary order) (citing Clissuras to support proposition

that CUNYʹs senior colleges are entitled to sovereign immunity); Sank v. City

Univ. of N.Y., 112 F. Appʹx 761, 763 (2d Cir. 2004) (summary order) (affirming

finding that CUNY and City College of New York were entitled to sovereign

immunity, citing Clissuras).

At the same time, we have continued to apply the Mancuso six‐part

test. See, e.g., Gorton,

; Walker v. City of Waterbury, 253 F. Appʹx 58,

60‐61 (2d Cir. 2007) (summary order). District courts have continued to apply

both tests. See, e.g., Gengo v. City Univ. of N.Y., No. 07‐CV‐681,

,

at *3 (E.D.N.Y. Mar. 29, 2011), affʹd, 479 F. Appʹx 382 (applying the Clissuras two‐

part test); Innis Arden Golf Club v. Pitney Bowes, Inc.,

(D.

Conn. 2007) (applying the Mancuso six‐part test). Hence, there is a lack of clarity

as to whether the Mancuso six‐part or the Clissuras two‐part test governs, or

whether both can serve simultaneously as useful guides.

‐ 13 ‐ 4. Sovereign Immunity for SUNY Community Colleges

While we have held that SUNY itself is entitled to sovereign

immunity because it is ʺan integral part of the government of the State,ʺ Dube v.

State Univ. of N.Y.,

, 594 (2d Cir. 1990) (internal quotation marks

omitted), we have yet to decide whether sovereign immunity extends to SUNYʹs

community colleges. Although the district courts in this Circuit have, on several

occasions, found that different SUNY community colleges are entitled to

sovereign immunity, the cases provide little guidance as to the appropriate

analysis. Several district courts have simply cited our finding from Dube that

SUNY is entitled to sovereign immunity before similarly finding that a SUNY

community college enjoys sovereign immunity. See, e.g., Davis v. Stratton,

(N.D.N.Y. 2008), revʹd on other grounds, 360 F. Appʹx 182 (2d

Cir. 2010); Staskowski v. Cnty. of Nassau, 05‐CIV‐5984,

, at *1

(E.D.N.Y. Nov. 16, 2006); Fabio v. Nassau Cmty. Coll., 02‐CV 6237 (E.D.N.Y. Feb.

26, 2004). One district court explicitly applied the two‐part Clissuras test to hold

that SUNY Rockland Community College was entitled to sovereign immunity.

Kohlhausen v. SUNY Rockland Cmty. Coll., No. 10‐CIV‐3168,

, at

*8 (S.D.N.Y. Feb. 9, 2011).

‐ 14 ‐ Other Circuits examining the question whether a particular stateʹs

community colleges are entitled to sovereign immunity have conducted detailed

inquiries into those collegesʹ fiscal and governance structures. As in our own

Mancuso and Clissuras tests, such inquiries have focused on how much funding a

community college receives from its state government, whether a money

judgment against the community college will be borne by the state treasury, the

balance between local and state control over the community college, and relevant

distinctions that state law draws between community colleges and other

governmental entities traditionally entitled to immunity. Given the state‐specific

nature of these questions, federal courts have unsurprisingly concluded that

community colleges in some states are entitled to Eleventh Amendment

immunity, while community colleges in other states are not.2 In general, where a

2 See, e.g., Williams v. Dist. Bd. of Trustees of Edison Cmty. Coll.,

, 1192‐94 (11th Cir. 2005) (finding Eleventh Amendment immunity where all members of Florida community collegeʹs board of trustees were appointed by governor, and where state was liable for money judgments against community college); Hadley v. N. Ark. Cmty. Technical Coll.,

, 1439‐42 (8th Cir. 1996) (finding Eleventh Amendment immunity where Arkansas state legislature identified community college as ʺstate agencyʺ and where state appropriations accounted for 75.1% of collegeʹs operating expenses); Mitchell v. L.A. Cmty. Coll. Dist.,

(9th Cir. 1988) (finding Eleventh Amendment immunity where state law identified California community colleges as ʺdependent instrumentalities of the state,ʺ where collegesʹ funding came exclusively from state appropriations and tuition fees set by state, and where some of those tuition fees were re‐appropriated by state (internal quotation marks omitted)); Hander v. San Jacinto Junior Coll.,

, 278‐79 (5th Cir. 1975) (finding no Eleventh Amendment immunity where Texas junior collegeʹs board of trustees was locally elected and had the power ʺto issue revenue bonds and to levy . . . taxes,ʺ and where state appropriations only supplemented local funding); see also Griner v. Se. Cmty. Coll.,

, 1059‐60 (D. Neb. 2000) (finding no Eleventh Amendment immunity where Nebraska community collegeʹs general operating funds did ʺnot come primarily from

‐ 15 ‐ community college is predominantly or exclusively dependent on state

appropriations rather than local funding, or where the state government controls

the collegeʹs board of trustees, courts have found the college to be an ʺarm of the

stateʺ and thus entitled to Eleventh Amendment immunity. Absent these

conditions, courts have generally declined to extend immunity to community

colleges.

B. Application

We apply both the Mancuso and Clissuras tests. In the end, as we

have seen in our review of the cases, the tests have much in common, and the

choice of test is rarely outcome‐determinative. The Clissuras test incorporates

four of the six Mancuso factors. To the extent that the Clissuras factors point in

different directions, the additional factors from the Mancuso test can be

instructive. Here, we address the Clissuras factors first and then look to the

additional Mancuso factors.

the state treasury,ʺ and where there was ʺneither evidentiary nor statutory evidence that the state of Nebraska would necessarily be liable for payment of a judgment rendered againstʺ college (internal quotation marks omitted)) (distinguishing Nebraska law from Arkansas law analyzed by Eighth Circuit in Hadley); Gardetto v. Mason,

, 1543‐44 (D. Wy. 1994) (finding no Eleventh Amendment immunity where Wyoming state legislature had defined ʺcommunity college districtsʺ as form of ʺlocal government,ʺ where collegeʹs trustees were elected by local voters, and where the collegeʹs board had independent power to raise revenue (internal quotation marks omitted)).

‐ 16 ‐ 1. Stateʹs Responsibility for WCCʹs Financial Obligations

The first Clissuras factor, and the most important factor in

determining whether a state entity is entitled to sovereign immunity, is ʺwhether

a judgment against the entity must be satisfied out of a Stateʹs treasury.ʺ Hess,

. This condition is also reflected in the third and sixth Mancuso

factors, which address how the entity is funded and whether the entityʹs

obligations are binding upon the state, respectively. These considerations weigh

against a finding that WCC is entitled to sovereign immunity. WCC receives

one‐third of its budget from New York State, but the state is not otherwise

responsible for WCCʹs debts or for satisfying judgments against WCC. Rather,

Westchester County, which appoints half of WCCʹs Board of Trustees, has the

power to issue bonds and levy taxes to raise funds for WCC. See

(1)(c). Additionally, if WCC exceeds its budget, the excess is borne by

local, not state, sponsors. See

(1)(c)(3).

Receipt of government funding is relevant in determining whether

the state is responsible for judgments against a state entity like a community

college. The district court in Kohlhausen reasoned that ʺ[t]he absence of an

express payment authorization provision suggests that judgments rendered

‐ 17 ‐ against the SUNY community college or its employees or trustees in their official

capacities are simply paid out of the community collegeʹs operating budget, to

which the state contributes one‐third.ʺ

, at *7. Thus, the district

court held, ʺthere is some indication that responsibility for money judgments

against [the college] rests with the state.ʺ

While WCC ‐‐ like the SUNY

community college in Kohlhausen ‐‐ also obtains one‐third of its budget from the

state, this fact alone is not sufficient to establish state responsibility for a

community collegeʹs financial obligations.

We have repeatedly held that a school boardʹs receipt of funds from

state appropriations is not equivalent to satisfaction of a judgment against the

board from the state treasury. See Woods,

; Rosa R. v. Connelly,

, 437‐38 (2d Cir. 1989); Fay v. S. Colonie Cent. Sch. Dist.,

, 27 (2d

Cir. 1986), overruled on other grounds by Taylor v. Vermont Depʹt of Educ.,

(2d Cir. 2002). Indeed, we did not extend sovereign immunity to the school

board in Woods, which received 39.9% of its funding from the state.

. New York Education Law § 1709(26) clearly provides that where local funds

are insufficient to satisfy a judgment against a local board of education,

additional funds are obtained not from the state treasury but from levying a local

‐ 18 ‐ property tax. See Woods,

. While the Education Law provisions

governing community colleges are not as explicit, they similarly require local

sponsors to levy taxes if a collegeʹs budget exceeds the maximum costs allowed

by the state.

(3) (stating that college is not prohibited from

exceeding stateʹs budget so long as ʺthe excess costs over such prescribed limits

or allowances shall be borne and paid for or otherwise made available to or by

such [local] sponsorsʺ);

(5‐a) (stating that community

college shall ʺprovide for the raising of taxes required by such budgetʺ).

We thus conclude that the first Clissuras factor ‐‐ the stateʹs

responsibility for satisfying judgments against WCC ‐‐ weighs against a finding

that WCC is entitled to sovereign immunity.

2. State Control Over WCC

The second Clissuras factor, the extent of the stateʹs control over a

community college, also weighs against a finding that WCC is entitled to

sovereign immunity. This condition is also reflected in the second and fifth

Mancuso factors, which consider how the governing members of the entity are

appointed and whether the state has veto power over the entityʹs actions,

‐ 19 ‐ respectively. WCC has not demonstrated that these considerations favor a

finding that WCC is entitled to sovereign immunity.

WCC is not substantially controlled by the state. The governor

appoints four of WCCʹs ten board members, while the Westchester County Board

appoints five members and WCCʹs student body elects one member. This

balance between state and local appointment differs from that at issue in

Clissuras, where ten of CUNYʹs seventeen board members were appointed by the

state. 359 F.3d at 82. While it is certainly conceivable that the stateʹs control of

four votes could yield control of WCCʹs board, WCC has not met its burden of

demonstrating such effective control over board decision‐making.

Further, as the district court here emphasized, there is no indication

in the record that the state has control over WCCʹs day‐to‐day operations. While

WCCʹs officers, curriculum, and budget are subject to board approval and SUNY

provides the standards and regulations governing WCCʹs organization and

operation, such powers are not dispositive for sovereign immunity. See

;

, 600.2. We have

held that state approval, or state veto power, over a state entity is not dispositive

for the purpose of sovereign immunity. See Gorton,

(holding that,

‐ 20 ‐ while applying Mancuso test, board of cooperative educational services was not

entitled to sovereign immunity in spite of stateʹs ʺsubstantial veto powerʺ over

boardʹs decisions); Woods,

(concluding that Commissioner of

Educationʹs broad power to remove school officers, withhold funds, and review

actions by school board ʺdoes not unequivocally equate to veto authorityʺ).

Similarly, the stateʹs oversight of WCC here does not equate to state control and

thus does not weigh in favor of sovereign immunity. See Connelly,

(stating that state stewardship of education does not transform entity into

ʺalter ego of the stateʺ (quoting Fay, 802 F.2d at 27)).

We thus conclude that the second Clissuras factor ‐‐ the degree of the

stateʹs control over the entity ‐‐ weighs against a finding that WCC is entitled to

sovereign immunity. WCC is not an arm of the state entitled to sovereign

immunity under the Clissuras test.

3. Additional Mancuso Factors

The additional Mancuso factors support the conclusion that WCC is

not entitled to sovereign immunity.

The first Mancuso factor ‐‐ how the entity is referred to in the

documents that created it ‐‐ weighs against a finding that WCC is entitled to

‐ 21 ‐ sovereign immunity. While SUNYʹs website designates WCC as part of SUNY,

the New York Education Law creates community colleges separately from its

creation of SUNY. See

, 352. In a case involving the

Fashion Institute of Technology (ʺFITʺ), which is statutorily categorized as a

SUNY community college, we affirmed the district courtʹs holding that FIT is

properly categorized as a community college, statutorily distinct from SUNY.

Mostaghim v. Fashion Inst. of Tech., 01‐CIV‐8090,

, at *2‐3

(S.D.N.Y. Dec. 3, 2001), affʹd sub nom. Mostaghim v. Fashion Inst. of Tech. Student

Assʹn, 57 F. Appʹx 497 (2d Cir. 2003) (summary order). Here, WCC is also a

community college created separately from SUNY by the governing statutory

framework.

The fourth Mancuso factor ‐‐ whether the entityʹs function is state or

local ‐‐ similarly weighs against a finding of sovereign immunity. The New York

Court of Appeals has held that operation of SUNY community colleges serves a

municipal function. See Grimm v. Rensselaer Cnty.,

(1958). The

New York legislature has also acknowledged the local function of higher

education by vesting control of community colleges in boards of trustees that are

accountable to local governments rather than the state. See N.Y. Educ. Law

‐ 22 ‐ § 6302. Additionally, the New York Court of Claims, which has exclusive

jurisdiction over suits against the state, does not have jurisdiction over SUNY

community colleges, as such claims ʺcannot be characterized as being against the

State of New York.ʺ Amato v. State,

(Ct. Cl. 1986). All of

these considerations confirm that WCC is not a state entity.

* * * * *

We conclude that a finding of sovereign immunity for WCC would

not serve the twin aims of the Eleventh Amendment: immunity would not

further the stateʹs interest in preserving its treasury, nor would it protect the

integrity of the state. Accordingly, we hold that WCC is not an arm of the state

entitled to sovereign immunity under the Eleventh Amendment.

CONCLUSION

Accordingly, the decision of the district court is AFFIRMED.

‐ 23 ‐