IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-20732

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

United States Court of Appeals

Fifth Circuit

F I L E D

February 1, 2011

Lyle W. Cayce

Clerk

 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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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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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. CONST. 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. Section 1983 explains

1

that “[e]very person who . . . subjects, or causes to be subjected, any citizen of the

Although the Trustees did not raise § 1983 claims in their filings to the district court, 1

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. Thus, because the Trustees seek to

2

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.

The Trustees do not address the district court’s sovereign immunity holding in their

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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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