## F I L E D United States Court of Appeals Tenth Circuit 

### OCT 20 1998 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

PAULA M. BUCHWALD, Plaintiff - Appellee, v. UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE, UNIVERSITY OF NEW MEXICO BOARD OF REGENTS, UNIVERSITY OF NEW MEXICO SCHOOL OF MEDICINE COMMITTEE ON ADMISSIONS; DIANE KLEPPER, M.D., individually and as Co-Chairperson, Committee on Admissions; ALONZO C. ATENCIO,Ph.D., individually and as CoChairperson, Committee on Admissions, Defendants - Appellants. Nos. 96-2121 & 96-2129

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-95-753-LH)

Paul R. Ritzma (Paul M. Schneider with him on the b riefs), New Mexico Legal Bureau/RMD, Santa Fe, New Mexico, for Defendants - Appellants. Christina J. Bruff, Law & Resource Planning Associates, Inc., Albuquerque, New Mexico, for Plaintiff - Appellee.- 2 -

Before BRISCOE , McKAY and LUCERO , Circuit Judges.

LUCERO , Circuit Judge.

The University of New Mexico School of Medicine (“UNMSM”) has a stated policy that, all other things being equal, i t will favor long-term residents over short-term residents in its admissions process . The district court first found this preference to violate “clearly established” law concerning the fundamental right to travel and therefore ruled that the indivi dual defendants, Doctors Klepper and Atencio, were not entitled to qualified immunity. A week later, the district court issued an injunction prohibiting UNMSM from c onsidering length of residency in future admission decisions. This inte rlocutory appeal followed. The questions before us on appeal are: (1) does Ms. Buc hwald have standing to seek the injunction entered by the district court in its second order; (2) did the district court err in finding that no defendants are entitle d to Eleventh Amendment immunity; and (3) did the district court err in fin ding that Klepper and Atencio are not entitled to qualified immunity in their ind ividual capacities? We reverse in part and affirm in part.
I The facts relevant to this appeal are undisputed. Paula Buchwald moved to New Mexico in 1991. She submitted an application t o UNMSM seeking- 3 -

admission to the 1993-94 entering class. Unsuccess ful, Buchwald re-applied the following year for the 1994-95 class. When that ap plication was denied, she reapplied for admission to the 1995-96 class. Once a gain, she was rejected. After each denial, Buchwald interviewed with UNMSM to asc ertain how she might strengthen a future application. At each interview , Buchwald’s relatively short residency in the state of New Mexico was cited as an obstacle to her admission. Defendants do not dispute that UNMSM uses duration of residency as a “plus factor” in evaluating applicants. In fact, according to UNMSM’s “Admissions Policy Statement”: An important non-performance factor in considering students for admission . . . is the residency status of the student. As astate-supported institution in a state where health care needs are great, the m edical school feels strongly that most of the accepted applicants shoul d be residents of New Mexico. Further, the Committee on Admissions tends to give preference to long-term residents of the state and graduates of N ew Mexico high schools, other qualifications being equal. Appellants’ App. at 91. The Policy Statement justi fies favoring long-term residents in part by pointing to the “unique proble ms in the delivery of health care” present in the state of New Mexico. See id. at 92. After her third rejection, Buchwald filed the insta nt action against UNMSM, its Regents, the Committee on Admissions, an d the two chairpersons of the admissions committee seeking compensatory damag es as well as declaratory and injunctive relief. She claims that defendants’ admissions policy violates the- 4 -

Commerce Clause of the United States Constitution, as well as her equal protection and due process rights. The focal pointof Buchwald’s claims is the alleged violation of her “fundamental right to interstate migration.” Defendants filed for summary judgment, arguing that the offici al defendants are entitled to Eleventh Amendment immunity and the individual defe ndants, Klepper and Atencio, to qualified immunity. The plaintiff coun terfiled for summary judgment as to her claim for declaratory relief. On May 23, 1996, the district court ruled that UNMS M, its Regents, the Committee on Admissions, and the two individual def endants sued in their official capacity were immune from plaintiff’s dama ges claim. However, the district court refused to extend qualified immunityto Klepper and Atencio in their individual capacities because it found, first, thatUNMSM’s consideration of length of residency in its admissions policy violat ed clearly established law and, second, that plaintiff raised a genuine issue of fa ct as to whether Klepper and Atencio violated that right. One week later, the d istrict court found UNMSM’s durational residency criterion constitutionally inf irm and enjoined the school from any further use of that admissions factor. Defendants appeal.
II Plaintiff challenges our jurisdiction to hear this case due to the absence of a final judgment. Appeal is not generally permissibl e until after the district court- 5 -

has issued a final decision, see 28 U.S.C. § 1291, but there are limited exceptions to that rule. A defendant may immediately appeal “[i]nterlocutory orders of the district courts of the United States . . . granting . . . injunctions.” 28 U.S.C. § 1292(a)(1). Although the plaintiff’s concerns about the potential for delay are understandable, we have jurisdiction to review the injunction issued on May 30,
1996. We may also review the district court’s denial of q ualified immunity to Klepper and Atencio. When a plaintiff brings an ac tion against a government official in his or her individual capacity, “that o fficial is generally provided with a qualified immunity against civil damages liability.” Anderson v. Creighton , 483 U.S. 635, 638 (1987). In order to avoid summary ju dgment based on a defendant’s assertion of qualified immunity, a plai ntiff must show not only that the defendant violated her rights, but also that th e rights violated were “clearly established” at the time of the violation. Id. at 639. A denial of qualified immunity may be immediately appealed because immunity protects defendants not only from liability but also from having to endure the “burdens of litigation.” See Behrens v. Pelletier , 516 U.S. 299, 306 (1996). The rule is not absolute; we have no juris diction to review a denial of qualified immunity when the interlocutory appeal fo cuses in whole or in part on the resolution of factual issues. See Johnson v. Jones , 515 U.S. 304, 313 (1995);- 6 -

see also Mitchell v. Forsyth , 472 U.S. 511, 530 (1985) (holding denial of a cla im of immunity “immediately appealable” to the extent that it turns on an issue of law). In this case, the district court denied qual ified immunity because it found that the contours of the right to travel were “clea rly established” and that plaintiff raised a genuine issue of material fact as to wheth er UNMSM had violated that right. Under Johnson , therefore, we may review the district court’s fin ding that plaintiff has such a right or that such right was “clearly established.” See Behrens , 516 U.S. at 313.
III UNMSM argues on appeal that plaintiff lacks standin g to seek her requested relief. “Standing is a jurisdictional is sue that may be raised by the court at any time.” Wilson v. Glenwood Intermountain Properties, Inc. , 98 F.3d 590, 592-93 (10th Cir. 1996). In order to satisfy Article III standing, plaintiff must establish three elements: (1) “injury in fact” —meaning “the invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical”; (2) “a causal relationship between the injury and the challenged conduct”—meaning that the “injury fairly can be traced to the challenged action of the defendant”; and (3) “a likelihood that the injury will be redressed by a favorable decision”—meaning that the “prospect of obtaining relief from . . . a favorable ruling is not too speculative.” Northeastern1 This does not resolve the issue of whether defe ndants are immune from

civil damages liability. See infra Section IV. - 7 - Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville , 508 U.S. 656, 663-64 (1993) (internal citations andquotations omitted). We do not address the merits of plaintiff’s claims in ourdetermination of standing because “[t]he fundamental aspect of standing is th at it focuses on the party seeking to get his complaint before a federal courtand not on the issues he wishes to have adjudicated.” Flast v. Cohen , 392 U.S. 83, 99 (1968). A. Relief Sought in Complaint Injury in fact in an equal protection case like t his may simply be the existence of a government-erected “barrier that mak es it more difficult for members of one group to obtain a benefit than it is for members of another group.” City of Jacksonville , 508 U.S. at 666. It is not necessary for plainti ff to show that she would have received the benefit but for the operation of the policy, because the injury is the imposition of the barrier itself. See id. Here, defendants admit favoring long-term over short-term residents, all other qualifications being equal, which by itself is therefore a sufficient de monstration of injury in fact. Because it is clear that defendant’s stated policy “caused” the plaintiff to compete at a disadvantage vis-a-vis long-term residents, we have little doubt that, were the district court to award damages, plaintiff’s injury would likely be redressed. 1 In- 8 -

addition, given that the district court found a gen uine issue of material fact as to whether the disputed preference was the dispositive factor for plaintiff’s rejection, plaintiff also has standing to seek a pr ospective injunction ordering her admission to the school. Cf. Wilson , 98 F.3d at 593 (“[A] person who fails to satisfy lawful, nondiscriminatory requirements or q ualifications for the benefit lacks standing to raise claims of discrimination inthe denial of the benefit.”). Accordingly, plaintiff has standing to pursue these forms of relief.

B. Relief Granted by District Court Although the district court had not yet determined whether Buchwald was entitled to an injunction ordering her admission to the school, it did grant her a different form of prospective relief—namely, a perm anent injunction prohibiting UNMSM from considering duration of residency in future admissions decisions and a declaration that the present admissions policy is unconstitutional. We are not persuaded, however, that plaintiff has standing to seek that specific form of prospective relief. Though seemingly paradoxical, plaintiff’s standing to seek an injunction ordering her admission to the school based solely on her allegations of past misconduct does not entail standing to seek an injunction prohibiting future use of the disputed preference. To receive forward-lookin g injunctive or declaratory relief of this latter type, it is insufficient for Buchwald to claim that she was2We leave to the district court’s discretion whe ther plaintiff may amend

her complaint on remand to include a prayer for a f uture prohibitory injunction

(continued...) - 9 - harmed by the policy in the past. See Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 210-11 (1995); Phelps v. Hamilton , 122 F.3d 1309, 1315 (10th Cir. 1997) (citing Facio v. Jones , 929 F.2d 541, 544 (10th Cir. 1991)). Critically, she is additionally required to demonstrate the “immine nce” of her injury by making “an adequate showing” that she will re-apply to UNM SM and will thus be evaluated under the disputed policy again “in the r elatively near future.” Adarand , 515 U.S. at 211. In her complaint, plaintiff see ks a declaratory judgment that defendants’ policy violates her const itutional right to interstate travel, an injunction placing her in the 1995-96 en tering class at UNMSM, and compensatory damages. Yet, the substance of her co mplaint deals only with her three past rejections. There is no evidence in the record on appeal that plaintiff will continue to apply to UNMSM in the near future or otherwise. Accordingly, we must conclude that Buchwald fails to demonstrate a “real and immediate threat that [she] would again suffer similar injury in the future.” See id. (internal quotation omitted). We must therefore vacate the d istrict court’s order inasmuch as it enters an injunction against UNMSM prohibitin g any further consideration of duration of residency and forward-looking declarato ry relief that defendants’ current policy violates the constitution. 22(...continued)

and supplement the record to demonstrate that she i ntends to continue applying to UNMSM.

3 Specifically, plaintiff concedes that the insti tutional defendants are “arms of the state” for Eleventh Amendment purposes and that, although the Eleventh Amendment does not apply to her claims forforward-looking injunctive and declaratory relief against Klepper and Atencio in their official capacities, those officials are entitled to immunity from her damages claims. Though that concession is not binding on this court, see In re American Ready Mix, Inc. , 14 F.3d 1497, 1499 (10th Cir. 1994), it is well taken in the circumstances of this case. To determine whether an entity is eligible f or Eleventh Amendment immunity, we engage in a two-part inquiry: (1) what“degree of autonomy [is] given to the agency, as determined by the character ization of the agency by state law and the extent of guidance and control exercise d by the state”; and (2) to what extent does the agency rely on funding from the state treasury as opposed to independent funding. V-1 Oil Co. v. Utah State Dep’t of Pub. Safety , 131 F.3d 1415, 1420 n.1 (10th Cir. 1997) (quoting Haldeman v. Wyoming Farm Loan Bd. , 32 F.3d 469, 473 (10th Cir. 1994)). Although the applicability of the Eleventh Amendment is a question of federal law, that determ ination may only be made after “considering the provisions of state law thatdefine the agency’s character.” Regents of the Univ. of Cal. v. Doe , 117 S. Ct. 900, 904 n.5 (1997). The University of New Mexico is defined as a “state educational institution” under the New Mexico Constitution, N.M . Const. art. XII, § 11, which further provides that “[t]he . . . universities . . . provided for by this constitution (continued...) - 10 - IV UNMSM, its Regents, the Committee on Admissions, an d the two individual defendants sued in their official capaci ty argue on appeal that the district court erred in failing to provide them with Eleventh Amendment immunity against all plaintiff’s claims. Because the distri ct court granted all the official defendants Eleventh Amendment immunity against the damages claims in its May 23 order, which determination is not challenged by plaintiff, 3 the only remaining3 (...continued)

shall forever remain under the exclusive control of the state,” id. § 3. In addition, New Mexico law defines “state agency” as “any department, institution, board, bureau, commission, district or committee of govern ment of the state of New Mexico and means every office or officer of any of the above.” N.M. Stat. Ann. § 6-3-1. Moreover, UNMSM relies extensively on appro priations from the state in order to fund its educational and extracurricular programs. See, e.g. , General Appropriation Act of 1998, 1998 Adv. Legis. Serv. c h. 116, § 4 (setting forth appropriations for the 1999 fiscal year). Conseque ntly, we have no doubt that UNMSM, its Regents, and the Committee on Admissions are “arms of the state,” entitled to Eleventh Amendment immunity. See Korgich v. Regents of the N.M. Sch. of Mines , 582 F.2d 549, 551 (10th Cir. 1978) (analyzing NewMexico state law and concluding that Board of Regents of New Mex ico School of Mines, as institution of higher learning, is entitled to Eleventh Amendment immunity); see also Watson v. University of Utah Med. Ctr. , 75 F.3d 569, 575 (10th Cir. 1996) (“Our cases have consistently found state universit ies are arms of the state.”). Moreover, we agree with plaintiff that Klepper and Atencio in their official capacities are immune from her damages claims. See Kentucky v. Graham , 473 U.S. 159, 169 (1985); V-1 Oil , 131 F.3d at 1421; see also California v. Deep Sea Research, Inc. , 118 S. Ct. 1464, 1470 (1998) (“According to this Court’s precedents, . . . a state official is immune from s uit in federal court for actions taken in an official capacity.”) (citing Smith v. Reeves , 178 U.S. 436 (1900)).

4Defendants argue on appeal that the district co urt reversed its grant of summary judgment with respect to damages one week a fter it had so ordered when it refused to grant summary judgment as to all clai ms and granted plaintiff “declaratory and injunctive relief against all defe ndants.” Appellants’ Br. at 31. We disagree. The May 30 order, which entered the p rohibitory injunction against defendants, did nothing to alter the court’s previo us ruling. The institutional defendants and the individual defendants sued in th eir official capacity remain immune against all claims for damages. Any appeal of that ruling is not properly before this court. See Clemens v. Kansas , 951 F.2d 287, 288 (10th Cir. 1991) (no interlocutory appeal from a grant of Eleventh Amend ment immunity). - 11 - immunity issue is whether the district court erred in refusing to hold that the Eleventh Amendment bars plaintiff’s request for dec laratory relief and an injunction ordering her admission to UNMSM. 45 Defendants argue that because Buchwald seeks on ly to remedy past

wrongs—i.e., UNMSM’s refusal to admit her—the relie f requested is exclusively non-prospective. We disagree. The existence of a past harm does not convert a prospective injunction into retrospective relief barred under the Eleventh Amendment. See Russell v. Dunston , 896 F.2d 664, 668 (2d Cir. 1990). Just as claims for reinstatement are treated as prospective relief when the plaintiff alleges that he or she was terminated for unconstitutional reasons, see id. ; Warnock v. Pecos County , 88 F.3d 341, 343 (5th Cir. 1996), so is the claimfor an injunction seeking admission to a school that has allegedly de nied admission on unconstitutional grounds, cf. Regents of the Univ. of Cal. v. Bakke , 438 U.S. 265, 320 (1978) (affirming order directing plaintiff’s a dmission to the medical school because school could not establish that plaintiff w ould have been denied admission but for the unlawful special admissions p rogram). - 12 - To the extent that plaintiff seeks a declaration th at defendants violated her rights by not admitting her to UNMSM, her claims ar e barred by the Eleventh Amendment. See Johns v. Stewart , 57 F.3d 1544, 1553 (10th Cir. 1995) (holding that Eleventh Amendment bars federal court from ord ering notice or declaratory relief in a suit against the state “unless it is an cillary to a judgment awarding prospective injunctive relief”) (citing Green v. Mansour , 474 U.S. 64, 70-74 (1985)). Plaintiff has requested more than declaratory relief, however; she also seeks a prospective injunction ordering her immediate placement into UNMSM. 5 In that regard, plaintiff argues that the exception enunciated in Ex Parte Young , 209 U.S. 123 (1908), allows her to pursue prospecti ve equitable relief when there is an ongoing constitutional violation. Ex Parte Young recognizes an exception to Eleventh Amendment immu nity under which a state officer may be enjoined from “t aking any steps towards the6Another, more recent, limit to the Ex Parte Young doctrine prohibits us

from granting prospective equitable relief when that relief “‘implicates special sovereignty interests’” of the state. ANR Pipeline Co. v. LaFaver , Nos. 96-3250 & 96-3345, slip op. at 27 (10th Cir. July 21, 1998) (quoting Idaho v. Coeur d’Alene Tribe , 117 S. Ct. 2028 (1997)). This is an exception to the rule that a plaintiff who seeks prospective relief against indi vidual state officers in a federal forum based on a federal right is not barred by the Eleventh Amendment. See Coeur d’Alene , 117 S. Ct. at 2038 (principal opinion of Kennedy, J. (joined by Rehnquist, C.J.)); id. at 2045 (O’Connor, J., concurring in part and conc urring in the judgment (joined by Scalia and Thomas, JJ.)); id. at 2048 (Souter, J., dissenting (joined by Stevens, Ginsburg, and Breyer , JJ.)). In those unique circumstances where a plaintiff’s action affects th e sovereign interests of a state that the Eleventh Amendment was meant to protect, see id. at 2041 (majority holding that plaintiff’s action would in effect div est state of sovereign control over its submerged lands); ANR Pipeline , slip op. at 36 (“[I]t is impossible to imagine that a state government could continue to e xist without the power to (continued...) - 13 - enforcement of an unconstitutional enactment, to th e injury of complainant.” 209 U.S. at 159. The exception enables federal courts “to vindicate federal rights and hold state officials responsible to ‘the supreme authority of the United States.’” Pennhurst State Sch. & Hosp. v. Halderman , 465 U.S. 89, 105 (1984) (quoting Ex Parte Young , 209 U.S. at 160). The Ex Parte Young exception, however, is a narrow one. First, there must be an “ongoing violation of federal law.” Johns , 57 F.3d at 1552. Second, “[i]t applies only to prospe ctive relief” and may not be used to obtain a declaration that a state officer h as violated a plaintiff’s federal rights in the past. Puerto Rico Aqueduct , 506 U.S. at 146. Finally, it “has no application in suits against the States and their a gencies, which are barred regardless of the relief sought.” Id. 6 In this case, plaintiff has alleged an ongoing6(...continued)

tax.”), the Ex Parte Young exception does not apply. Here, there is no sugge stion that plaintiff’s requested relief will affect the c ore aspects of New Mexico’s sovereignty. There is certainly no threat that the New Mexico government would cease to exist without UNMSM’s disputed policy. See ANR Pipeline , slip op. at 36. Moreover, most government policies do not affe ct core aspects of a state’s sovereignty. See Coeur d’Alene , 117 S. Ct. at 2040 (majority holding that Tribe’s suit “unusual” because it “implicates special sover eignty interests”). We therefore see no reason to extend the Coeur d’Alene exception to the situation at hand.

7Because the district court did not reach this i ssue below, we express no view on the merits of plaintiff’s claim for an inju nction. The only issue before us is whether—or which—defendants are entitled to Elev enth Amendment immunity.

8 Were plaintiff to receive declaratory relief th at is “ancillary” to the injunction she seeks, that declaration would be subject to the same Ex Parte Young analysis as the injunction. See Johns , 57 F.3d at 1553. - 14 - constitutional violation in the form of her continu ed exclusion from UNMSM. Thus, although the Ex Parte Young exception does not permit plaintiff to subject UNMSM, its Regents, or the Committee on Admissions to suit because they are state agencies, plaintiff may maintain an action against the indi vidual defendants in their official capacities to the extent she seek s a prospective injunction ordering her admission into UNMSM. 7We therefore conclude that Klepper and Atencio are not immune from plaintiff’s claims inso far as she is seeking a future injunction ordering her admission to UNMSM. 8- 15 - V State officials performing discretionary functions are generally immune to civil damages liability when sued in their individual capacities. See Anderson , 483 U.S. at 638. This doctrine of qualified immuni ty protects “government officials performing discretionary functions . . . from ‘liability for civil damages insofar as their conduct [did] not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Wyatt v. Cole , 504 U.S. 158, 166 (1992) (quoting Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982)). The doctrine is meant to “provide[] ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs , 475 U.S. 335, 341 (1986). To survive summary judgment “[w]hen a defendant rai ses the defense of qualified immunity, plaintiff must show the law was clearly established when the alleged violation occurred and must come forward wi th facts or allegations sufficient to show the official violated the clearly established law.” V-1 Oil Co.
v. Means , 94 F.3d 1420, 1422 (10th Cir. 1996). The distric t court rejected the defendants claim to qualified immunity because it f ound that the law concerning the right to travel was “clearly established in 198 2” and there were genuine issues9 Plaintiff also argues defendants violated her due p rocess rights and the

dormant Commerce Clause. It is unclear from the di strict court’s May 23 opinion whether summary judgment on qualified immunity was granted or denied with respect to these theories. However, Buchwald’s due process claim does not allege a violation and thus cannot have validly served as a basis for denial of qualified immunity. Plaintiff relies on Vlandis v. Kline , 412 U.S. 441 (1973), to support her due process claim. In Vlandis , the Supreme Court held “a permanent irrebuttable presumption of nonresidence . . . is v iolative of the Due Process Clause.” Id. at 453. Although this circuit has not employed th e “irrebuttable presumption” doctrine, we have made it clear it is appropriately applied only in cases where a controlling factual question is decid ed against the plaintiff by a conclusive presumption. See Mogle v. Sevier County Sch. Dist. , 540 F.2d 478, 484-85 (10th Cir. 1976). Although defendants admitthe duration of plaintiff’s New Mexico residency was considered in determining the likelihood she would stay and practice medicine in New Mexico upon gradu ation, plaintiff does not contend, and the record does not support the assert ion, that defendants conclusively determined she would leave New Mexico upon graduation based on her short-term residency. Additionally, plaintiff argues that defendants’ act ions violate the dormant Commerce Clause. This claim fails to state a const itutional violation that could abrogate qualified immunity. The University of NewMexico’s educational activities constitute participation in the market f or educational services, not regulation of that market. Thus the policies in qu estion fall under the “market participant” exception to the dormant Commerce Clause. See Reeves, Inc. v. Stake , 447 U.S. 429, 436-39 (1980).

- 16 - of material fact concerning whether defendants had violated that right. 9See Appellants’ App. at 209-10. We review that decision de novo. See Liebson v. New Mexico Corrections Dep’t , 73 F.3d 274, 275 (10th Cir. 1996). To demonstrate that a right is clearly established, plaintiff must show that “[t]he contours of the right [are] sufficiently cle ar that a reasonable official would understand that what he is doing violates that right.” Anderson , 483 U.S. at 640- 17 -

(emphasis added); see Hannula v. City of Lakewood , 907 F.2d 129, 131 (10th Cir. 1990) (“The plaintiff must demonstrate a substantia l correspondence between the conduct in question and prior law allegedly establi shing that the defendant’s actions were clearly prohibited.”); see also Malley , 475 U.S. at 341 (holding that immunity should be recognized if officials of “reas onable competence could disagree on this issue”). Reviewing the relevant decisions of the Supreme Cou rt and our Circuit, we conclude that Buchwald fails to establish that defe ndants violated clearly established law. We reach that conclusion for two reasons: (1) a competent administrator could reasonably believe that UNMSM’s policy would be subject only to rational basis review, and thereby be legal ly sustainable; and (2) under the Supreme Court’s decision in Regents of the Univ. of Cal. v. Bakke , 438 U.S. 265 (1978), it was not unreasonable to believe that usi ng duration of residency as a plus factor in the admissions process is constituti onally permissible.
A “When a state distributes benefits unequally, the d istinctions it makes are subject to scrutiny under the Equal Protection Clau se of the Fourteenth Amendment. Generally, a law will survive that scrutiny if the distinction rationally furthers a legitimate state purpose.” Hooper v. Bernalillo County
Assessor , 472 U.S. 612, 618 (1985). However, “classificati ons affecting10 “It has been variously assigned to the Privileg es and Immunities Clause

of Article IV, to the Commerce Clause, and to the P rivileges and Immunities Clause of the Fourteenth Amendment. The right has also been inferred from the federal structure of government adopted by our Constitution.” Soto-Lopez , 476 U.S. at 902 (plurality opinion) (internal citations omitted). - 18 - fundamental rights are given the most exacting scrutiny.” Clark v. Jeter , 486 U.S. 456, 461 (1988) (internal citation omitted). Here, plaintiff argues that UNMSM’s policy violates her fundamental right to travel. It is not a simple task to determine whether a stat e policy implicates the right to travel. In general, “a state law implicat es the right to travel when it actually deters such travel, when impeding travel i s its primary objective, or when it uses any classification which serves to penalize the exercise of that right.” Attorney Gen. of N.Y. v. Soto-Lopez , 476 U.S. 898, 903 (1986) (plurality opinion) (internal quotations and citations omitted ). Right to migrate cases, like the one at bar, are typically reviewed under the latter, indirect approach because they create distinctions that result in the unequal distribution of rights and benefits to bona fide residents. See id. However, decisions involving the fundamental right to travel have not firmly established its origins or textual bases. See id. at 902. 10 This failure to ground the right in a textual source has created uncertainty in its application. See Zobel v. Williams , 457 U.S. 55, 73 (1982) (O’Connor, J., concurring) ; Gregory B. Hartch, Wrong Turns: A Critique of the Supreme Court’s Right to Travel Cases ,11 In finding that the law “was clearly establishe d in 1982,” the district

court relied on the statement in Zobel that permitting “the states to divide citizens (continued...) - 19 - 21 Wm. Mitchell L. Rev. 457, 463 (1995); see generally William Cohen, Discrimination Against New State Citizens: An Update , 11 Const. Commentary 73 (Winter 1994) (arguing that the “doctrinal confusio n” surrounding the right to travel cases would be eliminated by grounding the analysis of the right in the Citizenship Clause of the Fourteenth Amendment). T he determination of whether a disputed policy actually penalizes the right to t ravel is therefore open to debate due to the scant consensus on the values the right is meant to protect. See Cohen,
supra , at 77-78. As a consequence, the Supreme Court has been reluct ant to identify when a state-created classification penalizes the right to travel. Instead, it has avoided the question either by determining the purposes adv anced by the government are illegitimate or, if legitimate, that the created di stinction does not even rationally further the stated goal. See, e.g. , Hooper , 472 U.S. at 622-23 (concluding that state had not advanced any legitimate purpose for d rawing distinction between long- and short-term residents); Zobel , 457 U.S. at 61-63 (holding that state’s desire to reward past contributions of its citizens is not legitimate state purpose and concluding that legitimate purposes proffered w ere not rationally related to distinction based on duration of residency); 11 see also Soto-Lopez , 476 U.S. at11 (...continued)

into expanding numbers of permanent classes . . . w ould be clearly impermissible.” 457 U.S. at 64. That statement, h owever, can be understood as limited to the context of the state purposes considered by the Zobel court. Zobel focused on the impermissibility of allowing a state to distribute benefits unequally simply to reward its long-term citizens for “past contributions.” See id. (“Alaska’s reasoning could open the door to state apportionment of other rights, benefits, and services according to length of resid ency.”). Here, however, defendants’ proffered purpose is entirely unrelated to rewarding long-term citizens. Indeed, its ultimate purpose—to protect public health—is manifestly of benefit to all residents of the state, no matter how recently-arr ived or longestablished. - 20 - 912-13 (Burger, C.J., concurring) (criticizing plur ality for adopting a strict scrutiny standard without first determining whetherdisputed classification would survive rational basis review); see generally Ashutosh Bhagwat, Purpose Scrutiny in Constitutional Analysis , 85 Cal. L. Rev. 297, 312 & n.54 (1997) (gathering right to travel cases that engage in purpose scruti ny). In the same manner, the Court has upheld durational residency classificatio ns when impressed by the legitimacy of the purposes advanced. See, e.g. , Sosna v. Iowa , 419 U.S. 393, 406 (1975) (distinguishing durational residency cases i n which “budgetary or recordkeeping considerations . . . were held insuff icient to outweigh the constitutional claims of the individuals”). In this case, defendants argue that the distinctionwas employed as a proxy for selecting those candidates likely to return to the state of New Mexico and supply needed medical care to underserved areas of the state. Contrary to- 21 -

plaintiff’s argument, we conclude that this justifi cation is not only legitimate, but also compelling. See Bakke , 438 U.S. at 310 (“It may be assumed that in some situations a State’s interest in facilitating the h ealth care of its citizens is sufficiently compelling to support the use of a sus pect classification.”) (Powell, J.). New Mexico’s policy seeks to provide medical care to all residents of the state, regardless of their duration of residency. Given the evenhandedness of this purpose, and the strong role that the purpose plays in right to travel analysis, it cannot have been unreasonable for Klepper and Atenc io to believe the policy would not be subject to heightened scrutiny. Furth er, although the record contains evidence that duration of residency is not the best predictor of where a physician will choose to establish a practice, see Appellant’s App. at 102 (Dep. of Dean Paul Roth), such evidence hardly makes it irrational to use duration of residency in this manner.
B Even were we to conclude that Zobel clearly establishes UNMSM’s policy is subject to strict scrutiny, plaintiff still woul d not prevail because competent administrators could reasonably disagree on whetherUNMSM’s admission policy would withstand such scrutiny. See Malley , 475 U.S. at 341. To survive strict scrutiny, the disputed policy must be narrowly tail ored to serve a compelling government interest. See Smith v. Paulk , 705 F.2d 1279, 1284 (10th Cir. 1983).- 22 -

Given our conclusion that public health is a compelling government interest, see Bakke , 438 U.S. at 310, the only question before us is w hether a competent administrator could believe that UNMSM’s policy was narrowly tailored to promote the goal of admitting applicants likely to practice in New Mexico. Defendants argue that the Bakke decision authorizes the use of durational residency as a “plus” factor to select candidates l ikely to improve public health in the state. The district court disagreed, stating that the Bakke Court was “exceptionally divided,” that four members of the C ourt never reached the constitutional issue, and that four other justices only approved the use of race and ethnicity as a subfactor when needed to “‘remedy di sadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies wit h competence to act in this area.’” Appellant’s App. at 210-11 (quoting Bakke , 438 U.S. at 325). The question before us, however, is not whether defendant’s policy is permissible under Bakke ; rather, the issue is whether defendants could rea sonably have relied on Bakke to adopt the preference at issue in this case. Bakke holds that a university may not set aside a certai n number of admission places on the basis of race or ethnicity in an attempt to diversify its student body. See 438 U.S. at 319-20. Discussing viable alternative s to a strict set-aside, however, Justice Powell concluded that, so long as every applicant was12 Although the district court found a genuine iss ue of material fact as to

whether duration of residence was the dispositive f actor with respect to plaintiff’s rejection , there is no dispute that defendants consider oth er factors in their admission decisions. - 23 - permitted to compete for every seat, an admissions plan under which an applicant received a “plus” for racial or ethnic background w ould be narrowly tailored to achieve a school’s compelling interest in diversity. See id. at 318-19. Four justices agreed with Powell to the extent that his opinion “affirms the constitutional power of Federal and State Governments to act affirmatively to achieve equal opportunity for all.” Id. at 324 (Brennan, J., concurring in part and dissenting in part). Despite the absence of a clear majority opinion, Bakke remains the leading jurisprudential authority in th is area and there is no Tenth Circuit authority that provides further guidance. Here, we are faced with a Bakke -type admissions plan. Each applicant may compete for every available seat and duration of re sidence is no more than a plus factor. 12 As a consequence, it was not unreasonable for the defendants to believe that using duration of residence as a plus factor t o gauge an applicant’s propensity to practice in New Mexico was a constitutionally pe rmissible means to increase the provision of medical care to underserved portio ns of the state.
VI- 24 -

Because we find plaintiff lacks standing to seek aninjunction prohibiting UNMSM from favoring long-term residents in future a dmissions decisions or a forward-looking declaration that such practice is u nconstitutional, the injunction entered by the district court in its May 30 order is VACATED . Moreover, because we conclude the institutional defendants ar e immune from suit under the Eleventh Amendment, the district court’s judgment is REVERSED to the extent that it permits plaintiff to proceed with any actio n against UNMSM, its Board of Regents, or its Committee on Admissions. We AFFIRM the district court to the extent that it permits plaintiff to seek injunctive relief under the Ex Parte Young exception against Klepper and Atencio in their offi cial capacities that would place her in the immediate entering class at UNMSM. However, we REVERSE the district court’s decision to the extent that it per mits plaintiff to seek a declaration that the disputed policy violated her rights in the past. Finally, we REVERSE the district court’s denial of Klepper and Atencio’ s motion for summary judgment on the grounds of qualified immunity because we con clude that the law was not clearly established. This action is REMANDED to the district court for further proceedings consistent with this opinion.