Opinion
C. A. 3:24-1967-JFA-SVH
05-23-2024
Grace Smith, Plaintiff, v. Kershaw County School District, Defendant.
REPORT AND RECOMMENDATION
SHIVA V. HODGES, UNITED STATES MAGISTRATE JUDGE
Grace Smith (“Plaintiff”) sues her former employer Kershaw County School District (“Defendant”) asserting claims of failure to accommodate and retaliation in violation of the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. §§ 12101, et seq. (“ADA”). Defendant seeks dismissal of Plaintiff's claims, asserting sovereign immunity.
This matter comes before the court on Defendant's motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). [ECF No. 4]. Defendant's motion having been fully briefed [see ECF Nos. 8, 9], the matter is ripe for disposition.
Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civ. Rule 73.02(B)(2)(g) (D.S.C.), this matter has been referred to the undersigned for all pretrial proceedings. Having carefully considered the parties' submissions and the record in this case, the undersigned recommends the district judge deny Defendant's motion to dismiss.
I. Factual and Procedural Background
Defendant employed Plaintiff at Midway Elementary School. [ECF No. 1-1 ¶ 10]. Midway Elementary School is a Title I School, which is an underperforming school that receives funds from the federal government. Id. ¶ 35. Plaintiff began her employment with Defendant in August 2020. Id. ¶ 10. On December 18, 2020, Plaintiff became ill at work, and on or around December 22, 2020, she tested positive for COVID-19. Id. ¶¶ 14-15. After having COVID-19, Plaintiff was diagnosed with the following medical conditions: Systemic Lupus Erythematosus, Dysautonomia, Gastroparesis, Long Covid, Platelet Storage Pool/Bleeding Disorder, Iron Deficiency, and irritable bowel syndrome. Id. ¶ 17. Plaintiff also suffers from other conditions associated with COVID-19, including chronic headaches and inflammatory conditions, which have since been diagnosed as Chronic Intractable Migraines, Autoinflammatory Disease, and Inflammatory Poly arthropathy. Id. ¶ 18.
On January 14, 2021, Plaintiff's doctor submitted a letter to Defendant that said “due to her compromised immune system” Plaintiff should not return to face-to-face teaching and that she would be a good candidate for virtual teaching. Id. ¶ 21. After Plaintiff's doctor submitted this letter, Plaintiff began teaching her classes from home in January 2021. Id. ¶ 22. Plaintiff was able to complete all the essential functions of her job and excelled in her position as a third-grade teacher. Id. ¶ 27. On December 2, 2021, Plaintiff received an email from Kelly Wilder (“Wilder”), Defendant's Human Resources Specialist, saying: “Our district is no longer permitting virtual teaching as of this year.” Id. ¶ 32. During a December 2021 meeting, it was decided that Plaintiff could continue to teach from home beyond January 3, 2022, if necessary. Id. ¶ 38.
Plaintiff was denied a “continuing teaching contract” because she was working and teaching from home because of her qualified disabilities. Id. ¶¶ 41-42. A “continuing teaching contract” provides teachers with added security, typically coming in the form of a five-year contract to teach for Defendant District, rather than traditional one-year contracts. Id. Administrators at Midway Elementary School claimed that because Plaintiff was virtual, they could not get an accurate depiction of Plaintiff's teaching abilities. Id. ¶ 50. However, Defendant's representatives had videos and recordings of Plaintiff teaching, and she was personally observed by an administrator. Id. ¶ 51.
Toward the end of 2022, Plaintiff received a letter from Defendant that said Plaintiff's employment with Defendant would be terminated if she was not cleared to return to in-person teaching by December 9, 2022. Id. ¶ 56. Plaintiff alleges she had to resign from her position on January 4, 2023, the first day teachers came back from break following Defendant's letter because of the lack of accommodation for her qualified disabilities. Id. ¶¶ 59-60.
II. Discussion
A. Standard on Motion to Dismiss
Dismissal is appropriate under Fed.R.Civ.P. 12(b)(1) where the court lacks subject-matter jurisdiction and under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted. A motion to dismiss under Rule 12(b)(1) examines whether a complaint fails to state facts upon which jurisdiction can be based. It is the plaintiff's burden to prove jurisdiction, and the court is to “regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
A motion to dismiss under Rule 12(b)(6) examines the legal sufficiency of the facts alleged on the face of the plaintiff's complaint. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). To survive a Rule 12(b)(6) motion, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court is “not required to accept as true the legal conclusions set forth in a plaintiff's complaint.” Edwards, 178 F.3d at 244. Indeed, “[t]he presence of a few conclusory legal terms does not insulate a complaint from dismissal under Rule 12(b)(6) when the facts alleged in the complaint cannot support the legal conclusion.” Young v. City of Mount Ranier, 238 F.3d 567, 577 (4th Cir. 2001).
B. Analysis
“‘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.'” Constantine v. Rectors and Visitors of George Mason University, 411 F.3d 474, 480 (quoting U.S. CONST. amend XI). Under the Eleventh Amendment, federal courts are barred from hearing claims against a state or its agents, instrumentalities, and employees, unless the state has consented to the suit. Fauconier v. Clarke, 966 F.3d 265, 279 (4th Cir. 2020); Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997) (“It has long been settled that [the Eleventh Amendment's] reference to ‘actions against one of the United States' encompasses not only actions in which a State is actually named as the defendant, but also certain actions against state agents and state instrumentalities.”). Unless a state has consented to suit or Congress has waived a state's immunity pursuant to the Fourteenth Amendment, a state and its agencies may not be sued in federal or state court. Will v. Mich. Dep't of State Police, 491 U.S. 58, 66 (1989).
“Title I of the [Americans with Disabilities Act] protects workers with disabilities from discrimination and requires employers to make reasonable accommodations for them.” Passaro v. Virginia, 935 F.3d 243, 247 (4th Cir. 2019). “[A]lthough Congress purported to abrogate state sovereign immunity from lawsuits under Title I of the ADA, the Supreme Court has held that Congress exceeded its authority in doing so.” Id. (citing Board of Trustees v. Garrett, 531 U.S. 356 (2001)); see also McCray v. Maryland Dep't of Transp., Maryland Transit Admin., 741 F.3d 480, 483 (4th Cir. 2014) (“Sovereign immunity has not been abrogated for ADEA claims and ADA Title I claims.”).
Here, Defendant argues that it is an arm of the state such that it is immune from Plaintiff's suit asserting violations of the ADA. Plaintiff disagrees, arguing that pursuant to Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977) and Cash v. Granville Cnty. Bd. of Educ., 242 F.3d 219, 221 (4th Cir. 2001), Defendant is not an arm of the state and therefore Eleventh Amendment immunity does not apply.
In Mt. Healthy, the Supreme Court assessed whether an Ohio school board was immune from suit pursuant to the Eleventh Amendment, determining it was not as follows:
The bar of the Eleventh Amendment to suit in federal courts extends to States and state officials in appropriate circumstances but does not extend to counties and similar municipal corporations. The issue here thus turns on whether the Mt. Healthy Board of Education is to be treated as an arm of the
State partaking of the State's Eleventh Amendment immunity, or is instead to be treated as a municipal corporation or other political subdivision to which the Eleventh Amendment does not extend. The answer depends, at least in part, upon the nature of the entity created by state law. Under Ohio law the “State” does not include “political subdivisions,” and “political subdivisions” do include local school districts Petitioner is but one of many local school boards within the State of Ohio. It is subject to some guidance from the State Board of Education and receives a significant amount of money from the State. But local school boards have extensive powers to issue bonds and to levy taxes within certain restrictions of state law. On balance, the record before us indicates that a local school board such as petitioner is more like a county or city than it is like an arm of the State. We therefore hold that it was not entitled to assert any Eleventh Amendment immunity from suit in the federal courts.
429 U.S. at 280-81 (citations omitted).
In Cash, the Fourth Circuit was confronted with a similar decision, whether the North Carolina board of education enjoyed Eleventh Amendment immunity, with the Fourth Circuit holding that because the board “is more like a county than an arm of the State,” the board was not immune. 242 F.3d at 221. In so holding, and relying on the applicable test as previously articulated in Ram Ditta v. Maryland Nat'l Park & Planning Comm'n, 822 F.2d 456, 457-58 (4th Cir. 1987), the Fourth Circuit identified the following factors to be considered in this analysis:
The principal factor, upon which courts have virtually always relied, is whether a judgment against the governmental entity would have to be paid from the State's treasury .... To examine the nature of the entity and its relationship with the State, we keep the State treasury factor in the calculus and look to three additional factors: (1) the degree of control that the State
exercises over the entity or the degree of autonomy from the State that the entity enjoys; (2) the scope of the entity's concerns-whether local or statewide-with which the entity is involved; and (3) the manner in which State law treats the entity. Under this “sovereign dignity” inquiry, a court must, in the end, determine whether the governmental entity is so connected to the State that the legal action against the entity would, despite the fact that the judgment will not be paid from the State treasury, amount to “the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties.”Id. at 223-24.
As indicated in Cash, courts have historically referred to the first factor of the applicable test as the “state treasury” factor and the remaining three factors as the “sovereign dignity” factors. See, e.g., Grady v. Spartanburg Sch. Dist. Seven, C/A No. 7:13-02020-GRA, 2014 WL 1159406, at *3 (D.S.C. Mar. 21, 2014).
The Supreme Court then further addressed this issue in Fed. Mar. Comm'n v. S.C. State Ports Auth., 535 U.S. 743 (2002), explaining that “[w]hile state sovereign immunity serves the important function of shielding state treasuries and thus preserving the States' ability to govern in accordance with the will of their citizens, the doctrine's central purpose is to accord the States the respect owed them as joint sovereigns.” Id. at 765 (citations omitted); see also U.S. ex rel. Oberg v. Kentucky Higher Educ. Student Loan Corp., 681 F.3d 575, 580 n.3 (4th Cir. 2012) (“We note that although in the past we have referred to the first factor as “the most important consideration,” Ram Ditta, 822 F.2d at 457, more recent Supreme Court precedent suggests that the first factor does not deserve such preeminence, see, e.g., Fed. Maritime Comm'n v. S.C. Ports Auth., 535 U.S. 743, 765, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002).”).
Defendant argues that the applicable test as found in Cash has been modified by the Supreme Court's decision in Federal Maritime. [See ECF No. 4-1 at 3]. Indeed, this court has recognized this modification as follows:
[D]ue to “more recent Supreme Court precedent suggest[ing] that the first factor does not deserve [the] preeminence” of being considered the “most important” factor, U.S. ex rel. Oberg v. Kentucky Higher Educ. Student Loan Corp., 681 F.3d 575, 580 n. 3 (4th Cir.2012) (internal citations omitted), courts in this Circuit are trending away from a two-part inquiry and analyzing each factor separately. See, e.g., [S.C. Dep't of Disabilities & Special Needs v. Hoover Universal Inc., 535 F.3d 300, 305-07 (4th Cir. 2008)]; Hutto v. South Carolina Ret. Sys., 899 F.Supp.2d 457, 468-73 (D.S.C.2012); Thalle Const. Co., Inc. v. Spartanburg Water Sys., No. 7:06-1659, 2007 WL 1035001, at *1 (D.S.C. Mar. 30, 2007).Grady, 2014 WL 1159406, at *3.
In Grady, this court held Spartanburg school district is not entitled to Eleventh Amendment immunity, but also noted that “because there are conflicting opinions from the District of South Carolina on the issue of whether the school district is an arm of the state for purposes of Eleventh Amendment immunity, the inquiry must be done on a case-by-case basis.” Grady, 2014 WL 1159406, at *3 (collecting cases).
With this direction in mind, the court assesses the following four factors to determine if Defendant is entitled to Eleventh Amendment immunity: (1) whether a judgment against Defendant would have to be paid from the State's treasury, (2) the degree of control that the State exercises over Defendant or the degree of autonomy from the State that Defendant enjoys; (3) the scope of Defendant's concerns-whether local or statewide- with which Defendant is involved; and (4) the manner in which State law treats Defendant.
To the extent that Defendant is arguing that the first factor-the state treasury factor-is no longer a significant consideration postFederal Maritime [see, e.g., ECF No. 4-1 at 4-5], the court disagrees. As stated by the Supreme Court in Federal Maritime, “state sovereign immunity serves the important function of shielding state treasuries ....” 535 U.S. at 765; see also, e.g., Cooper v. Se. PA Transp. Auth., 548 F.3d 296, 302 (3d Cir. 2008) (“As noted, the Court has stressed the centrality of state dignity to the Eleventh Amendment. But state dignity does not preclude consideration of an entity's financial relationship with the state and its degree of autonomy.”). Thus, the court will assess all four relevant factors, consistent with the Fourth Circuit's ongoing practice. See, e.g., Ortiz v. Higgs, No. 23-1102, 2023 WL 8251314, at *1 (4th Cir. Nov. 29, 2023).
1. Effect on State Treasury
As to this factor, Defendant argues as follows:
Given the complex nature of school finance, the District does not concede that a money judgment against it could not possibly result in an impact on state funds. Indeed, it is difficult to see how the state treasury would not be impacted if the Plaintiff in the instant action is ultimately successful. The Plaintiff seeks a presumably large damages award from the District, which is funded in part by State funds.
[ECF No. 4-1 at 4-5].
Plaintiff disagrees, arguing that this issue is the same that the Fourth Circuit addressed in Cash. [ECF No. 8 at 7]. In Cash, the Fourth Circuit cited to N.C. Gen. Stat. ¶ 115C-40 in holding that North Carolina would not be legally obligated to pay any judgment rendered against the defendant in that case:
The School Board is a corporate entity that can sue and be sued, and no State law indicates that a judgment against it can be enforced against the State. See N.C. Gen. Stat. § 115C-40. Indeed, the School Board is unable to identify a provision in State law that would authorize it even to use, for the purposes of satisfying an adverse judgment, funds allocated by the State for specific educational purposes. Similarly, the School Board admits that the record “does not demonstrate that the State's allocation of funds would increase to cover a judgment in a FLSA suit.”
N.C. Gen. Stat. ¶ 115C-40 provides as follows:
The board of education of each county in the State shall be a body corporate by the name and style of “The ..........County Board of Education,” and the board of education of each city administrative school unit in the State shall be a body corporate by the name and style of “The .......... City Board of Education.” The several boards of education, both county and city, shall hold all school property and be capable of purchasing and holding real and personal property, of building and repairing schoolhouses, of selling and transferring the same for school purposes, and of prosecuting and defending suits for or against the corporation.
Local boards of education, subject to any paramount powers vested by law in the State Board of Education or any other authorized agency shall have general control and supervision of all matters pertaining to the public schools in their respective local school administrative units; they shall execute the school laws in their units; and shall have authority to make agreements with other boards of education to transfer pupils from one local school administrative unit to another unit when the administration of the schools can be thereby more efficiently and more economically accomplished.
Plaintiff notes in South Carolina the General Assembly has passed a similar law, SC Code of Laws § 59-17-10, that provides as follows:
Every school district is and shall be a body politic and corporate, by the name and style of __(a descriptive name may be designated by the county board of education or legislative act) School District No __(such number may be designated by the county board of education or legislative act), of County __(the name of the county in which the district is situated), the State of South Carolina. In that name it may sue and be sued and be capable of contracting and being contracted with to the extent of its school fund and holding such real and personal estate as it may have or come into possession of, by will or otherwise, or as is authorized by law to be purchased, all of which shall be used exclusively for school purposes.
Here, Defendant has offered no non-speculative argument, statute, or case law indicating that South Carolina would be legally obligated to pay any judgment rendered against it in this case. See Cash, 242 F.3d at 225 (on summary judgment, holding “[t]he speculative, indirect, and ancillary impact on the State treasury that a judgment against the School Board in this case would have does not give rise to Eleventh Amendment protection”). As in Cash, and as evidenced by S.C. Code Ann. § 59-17-10, Defendant “is a corporate entity that can sue and be sued, and no State law indicates that a judgment against it can be enforced against the State.” 242 F.3d at 224. Also as in Cash, Defendant “is unable to identify a provision in State law that would authorize it even to use, for the purposes of satisfying an adverse judgment, funds allocated by the State for specific educational purposes.” Id.
Although Cash was decided on summary judgment, different from the posture of the instant case, the reasoning provided in Cash applies where the Fourth Circuit sought statutory support regarding the state treasury factor.
Although Defendant argues that Cash should not impact the court's decision [ECF No. 9 at 1 (“the decision in Cash analyzed how North Carolina school systems are organized and did not consider or decide this issue for the South Carolina public school districts”)], Cash is not so distinguishable. Cash remains binding precedent including the direction it provides that where the state's treasury will not be affected by a judgment against Defendant, it “counsels against a finding of immunity.” 242 F.3d at 225 (citation omitted); see also U.S. ex rel. Oberg v. Pennsylvania Higher Educ. Assistance Agency, 804 F.3d 646, 668 (4th Cir. 2015) (“And because Pennsylvania is neither legally nor functionally liable, the state-treasury factor therefore weighs heavily against holding that PHEAA is an arm of the state.”) (citations omitted)); see also, e.g., Glover v. City of Norfolk, Virginia, 836 Fed.Appx. 139, 141 (4th Cir. 2020) (“Here, the City has conceded that the State will not pay a judgment in this case and, thus, this weighs heavily against finding it an arm of the State.”).
Based on the Fourth Circuit case law cited above, the court rejects Defendant's request, and cases cited in support, that postFederal Maritime, the court should find the first factor neutral even where there is no indication South Carolina will pay a judgment in this case. [See ECF No. 4-1 at 5]. Likewise, the court is not persuaded by Defendant's case law holding certain South Carolina school districts to be arms of the state, decided prior to much of the Fourth Circuit case law relied on within, particularly where these cases did not address or declined to assess the state treasury factor. [See, e.g., ECF No. 9 at 2-3 (citing Smith v. Sch. Dist. of Greenville Cnty., 324 F.Supp.2d 786, 792 (D.S.C. 2004); Eldeco, Inc. v. Skanska USA Bldg., Inc., 447 F.Supp.2d 521, 524-26 (D.S.C. 2006); Calef v. Budden, 361 F.Supp.2d 493, 497 (D.S.C. 2005); Stewart v. Larens Cnty. Sch. Dist. No. 55, No. 6-92-1603-3, 1992 WL 12014673, at *3-4 (D.S.C. Oct. 2, 1992))].
This factor therefore weighs in favor of denying immunity.
2. Extent of the State's Control
When analyzing the factor of the extent of the state's control in Cash, the Fourth Circuit concluded “North Carolina law establishes local school boards with a sufficient degree of autonomy and independence that any judgment rendered against a local school board would not, in our judgment, affront the dignity of the State,” noting the following:
As the parties acknowledge, school boards in North Carolina are independent corporate bodies within each county that may sue and be sued, and, to respond to the risk of being sued, they are authorized to purchase liability insurance to answer for any judgments against them. See N.C. Gen. Stat. §§ 115C-40, 115C-42. This independent will of local school boards is further confirmed by provisions in North Carolina law authorizing school boards to retain private counsel without permission of the State's Attorney General. See id. § 114-2.3. Indeed, in this case, the School board is represented by its private counsel, and not by the Attorney General .... Members of the local school boards are locally elected, not appointed by the State, see id. § 115C-35; and vacancies can be filled locally, see id. § 115C-37(c).
242 F.3d at 226. In addition to the above, the Fourth Circuit also noted the school boards' ability to purchase, hold, repair, sell, and transfer real and personal property, to enter into interlocal cooperative agreements, to declare bankruptcy, to generally control and supervise matters pertaining to public schools, to enforce the school law in their respective units, to enforce rules for certification of teachers and core curriculum rules, and to administer state-imposed educational programs. See id.
As to this factor, Defendant provides extensive argument, with supporting South Carolina statutes, as to some of the categories addressed in Cash to show “[s]everal important indicia of state control that are or were lacking in the North Carolina public education system, as discussed in Cash, are present in the South Carolina system and confirm the District's arm of the state status,” including, for example, South Carolina's superior control, versus North Carolina's, over school property, school transportation, school finance, and school education matters. [ECF No. 4-1 at 6-15, see also ECF No. 9 at 2 (“As noted in Defendant's Initial Memorandum, several legislative enactments have continued to give the South Carolina Department of Education even more direct control over school districts. In particular, legislation regarding charter schools, accountability, construction of school buildings, disposition of school property, state enforcement mechanisms, and increased authority of the Governor significantly add to the level of state control over South Carolina school districts.”)].
In response, Plaintiff refers to the Fourth Circuit's test applicable to this factor and accompanying warning as found in Maryland Stadium Auth. v. Ellerbe Becket Inc., 407 F.3d 255, 261 & n.10 (4th Cir. 2005):
We analyze the second Ram Ditta factor, the operational autonomy of the entity, by considering whether the state retains a veto over the entity's actions, the origins of the entity's funding, and who appoints the entity's directors ....
The Supreme Court has noted that “[g]auging actual control . . . can be a ‘perilous inquiry,' ‘an uncertain and unreliable exercise.'” Hess v. Port-Auth. Trans-Hudson Corp., 513 U.S. 30, 47, 115 S.Ct. 394, 130 L.Ed.2d 245 (1994). We believe the three factors analyzed in Lake Country Estates make for a less perilous journey. We encourage district courts to analyze these three factors rather than engaging in a free-wheeling inquiry into the “autonomy” of the state entity in question.See also Child Evangelism Fellowship of S.C. v. Anderson Sch. Dist. 5, 438 F.Supp.2d 609, 619 (D.S.C.) (applying three-prong Ellerbe Becket test to determine the extent of North Carolina's control over a North Carolina school district)), reversed on other grounds, 470 F.3d 1062 (4th Cir. 2006).
The Fourth Circuit has repeatedly noted the relevant inquiry for this factor is “the degree of autonomy exercised by the entity, including such circumstances as who appoints the entity's directors or officers, who funds the entity, and whether the State retains a veto over the entity's actions.” Lawson v. Union Cnty. Clerk of Ct., 828 F.3d 239, 250 (4th Cir. 2016), as amended (July 8, 2016) (citing Hoover, 535 F.3d at 303)); Oberg v. Pennsylvania, 804 F.3d at 650-51 (citing same); Ellerbe Becket, 407 F.3d at 261.
Plaintiff argues that based on the Ellerbe Becket test, Defendant is not an arm of South Carolina as follows:
Applying each prong of this test to Defendant, it is clear that Defendant is not an arm of the state. Rather than apply this direct test, Defendant has listed several S.C. Code sections in support of its argument and also generally argues that because education is a state-wide concern, the School District has statewide interests; this is merely a conclusory statement and is unsupported by law. In Child Evangelism, the court held that the school district did not proffer a convincing argument regarding the first prong of veto power. Instead, the defendant relied upon Smith, just like the Defendant in this case, arguing that “that the State's power to veto ‘is satisfied by this Court's finding [in Smith] of a degree of pervasive state control that would equate to a veto of school district decisions if district decisions were to come into conflict with numerous supervening requirements of state law and regulations.'” Child Evangelism at 619. However, the court was not convinced and looked to Cash for Fourth Circuit guidance, holding that “[j]ust as in Cash, the District is an independent body which may sue and be sued, purchase liability insurance, and retain private counsel, as it has in this case, without permission of the South Carolina Attorney General.” Child Evangelism at 619 (internal citations omitted).
Defendant receives funding from both the State of South Carolina and the United States government. Plaintiff worked in a Title I school, which is an underperforming school that receives federal funding. Defendant also has coverage through the Insurance Reserve Fund for allegations and claims like those at issue in this case, meaning Defendant District can sue and be sued and purchase liability insurance. Defendant has retained private counsel who filed the Motion to Dismiss and has, upon information and belief, done so without the permission of the South Carolina Attorney General, as considered in Child Evangelism.
Defendant School District is “directed” by the School Board. Members of the School Board are elected officials who oversee all policy and personnel decisions. Defendant District leadership is not appointed by the State of South Carolina, and the State has no bearing on the personnel and policy decisions of the District.
[ECF No. 8 at 10-11].
In response, Defendant argues that “the ability to sue or be sued is not dispositive of the sovereign immunity issue,” [ECF No. 9 at 4],and that compared to North Carolina as analyzed in Cash, South Carolina has superior control over Defendant's actions; however, Defendant's response is limited and does not specifically address the Ellerbe Becket test. See, e.g., Grady, 2014 WL 1159406, at *5 (“this Court agrees with the magistrate that the control analysis should not be examined for actual control; rather, the control analysis should focus on the sub-factors set forth in Ellerbe Becket”) (citations omitted)).
Defendant's argument that “[t]he Fourth Circuit has held that other South Carolina governmental entities that can sue and be sued are arms of the state” [ECF No. 9 at 3] does not address, however, the Fourth Circuit's and this court's holdings that the ability to sue and be sued is significantly different in this context, about whether a school district is entitled to Eleventh Amendment immunity.
For example, Defendant does not appear to dispute that South Carolina does not appoint Defendant's director, does not address directly Plaintiff's argument that South Carolina has no bearing on Defendant's personnel and policy decisions, and does not address that, as found in Cash, Defendant is an independent corporate body that is authorized to purchase liability insurance and can retain private counsel, as Defendant has done so in this case. As in Grady, Defendant also “has not pointed to any specific provision to support the argument that the state retains any veto power over the District.” 2014 WL 1159406, at *18.
Relying primarily on Smith, decided in 2004, Defendant also does not address the numerous cases decided since Smith, specifically addressing arguments made by Defendant here, that any veto power held by South Carolina over South Carolina school districts is limited. Most recently, this court held as follows on this issue:
As reasoned in Child Evangelism Fellowship and Grady, the Court finds that the Fourth Circuit's analysis in Cash weighs in favor of finding that the District has sufficient autonomy such that a judgment against Defendants would not affront the dignity of the State .... Further, though South Carolina appears to retain veto power over some school district decisions, such as requiring prior approval before the districts may buy or sell real property or begin construction, that ultimately does not undermine the conclusion that the District retains autonomy. Finally, neither party has argued how the State could have vetoed the District's decisions and policies at issue here. In sum, the Court finds that, despite South Carolina's veto power over some aspects of the District's affairs, the District has failed to show that the State's veto power deprives it of the substantial autonomy it has in administering the policies and standards of the State.See, e.g., S.H. v. Bd. of Trustees of Colleton Cnty. Sch. Dist., C/A No. 2:22-243-RMG, 2022 WL 2276575, at *3 (D.S.C. June 22, 2022); see also Anderson v. Dorchester Cnty., C/A No. 2:20-2084-DCN-MGB, 2021 WL 1186637, at *9 (D.S.C. Mar. 30, 2021) (“The District Defendants have not presented any evidence or substantive arguments demonstrating that the District is an arm of the state under the relevant law. Instead, the District Defendants, in their objections, do little more than regurgitate excerpts of Judge Duffy's opinion in Eldeco .... The Fourth Circuit recently made explicit that the party asserting sovereign immunity bears the burden to prove it applies. Hutto, 773 F.3d at 543 .... Because the District Defendants have not overcome that burden by a long shot, the court denies the motion to dismiss on that basis.”).
Defendant does not address Plaintiff's argument that it receives funding from both South Carolina and the federal government, and neither party specifies what percentage of funding Defendant receives from the state.
Based on the above, this factor weighs in favor of denying immunity.
3. Scope of Concerns
Defendant argues that public education in South Carolina “is a direct and exclusive function and responsibility of the State through the General Assembly and not of local government,” citing South Carolina appellate court cases holding that it is the requirement of the state to provide a public education. [ECF No. 4-1 at 16-17].
However, as the Fourth Circuit has stated, and Defendant has not addressed:
The evidence relevant to this factor clearly points to local concerns as the School Board's jurisdiction is limited to Granville County. The fact that education is a statewide concern does not indicate otherwise. Just as law enforcement can be thought of as
a statewide concern, we have nevertheless concluded that a county sheriff's duties in North Carolina can be primarily local.Cash, 242 F.3d at 226.
For similar reasons, Defendant's invocation of Ellerbe Becket in this context does not assist it where the defendant in that case engaged in higher education across the entire state, unlike Defendant:
It is undisputed that the University is engaged in an area of statewide concern-educating the youth of Maryland. The University has branch campuses located across the state, from Frostburg State in the Cumberland Valley to the University of Maryland Eastern Shore. Higher education is an area of quintessential state concern and a traditional state governmental function. And the University's mission, providing higher education for Maryland's youth, is clearly an area of statewide concern.
407 F.3d at 265 (citations omitted).
Defendant has not cited to, nor is the court aware, of case law holding a school district's concern is statewide versus local. See, e.g., Smith, 324 F.Supp.2d at 795 (“The scope of each Defendant school district is more local than statewide.”); see also Grady, 2014 WL 1159406, at *19 (“The case law has been uniform in finding that school districts deal with local and not statewide concerns.”).
Accordingly, this factor weighs in favor of denying immunity.
4. State Law Treatment
The final factor concerning treatment under state law “overlaps with [the] analysis of State control versus local autonomy.” Cash, 242 F.3d at 226. Defendant makes numerous arguments in support of its position that South Carolina treats school districts as “quasi-state agencies.” [ECF No. 4-1 at 1723].
First, elaborating on the court's holding in Smith, 324 F.Supp.2d at 795-96, Defendant argues the Home Rule Act-applicable to counties but not school districts-and South Carolina's extensive control over the governance structure of the districts, including the number of trustees to sit on a school board, the length of their terms, and date and manner of their elections, shows Defendant is an arm of the state. [ECF No. 4-1 at 17-20 (citing Moye v. Caughman, 217 S.E.2d 36 (S.C. 1975))].Defendant further notes public school district employees are included in the state employee benefits plan and retirement system, and “South Carolina's reciprocal sick leave transfer provisions for school district and state employees further demonstrate legislative recognition of school districts as arms of the state, rather than purely local entities,” where school district employees are allowed to transfer sick leave from county to county. Id. at 20-21. Finally, Defendant argues that the way in which school districts are treated under both the South Carolina Torts Claim Act (“SCTCA”), SC Code Ann. § 15-78-10, et seq., and the South Carolina Administrative Procedures Act (“SCAPA”), SC Code Ann. § 1-23380, et seq., illustrates school districts are treated as state agencies.
Defendant also notes that in South Carolina, school boards have no authority to redistrict themselves, whereas counties do. [ECF No. 4-1 at 1920 (“The South Carolina General Assembly controls the redistricting of each school district separately, and the State itself is the ‘submitting authority' to the United States Justice Department for such changes.”)].
The court has previously and persuasively addressed these issues:
The Moye Court was not faced with the issues presented in this case and did not conduct the arm-of-the-state analysis. Moreover, the Moye Court took judicial notice that some school districts encompass more than one county and as a result it would be difficult for the county to make rules and decisions, 217 S.E.2d at 37-38; however this argument does not apply in this case as the Defendant School District at issue does not span multiple counties. This Court agrees with the Moye Court that the State has an interest in education, however the numerous examples listed above, such as the School District's ability to sue and be sued, make contracts, own property, carry liability insurance, and be represented by counsel, reveal that the magistrate properly found it compelling that South Carolina treats the School District as an autonomous entity.
Furthermore, as the magistrate correctly pointed out, South Carolina law [in the SCTCA] regards school districts as a political subdivision, rather than as a state agency or instrumentality. See S.C. Code Ann. §§ 15-78-30(h) (“‘Political subdivision' means the counties, municipalities, school districts, . . .”); 15-78-30(a) & (e) (omitting school districts from the definitions for “Agency” and “State”). In addition, this Court has examined the statutes regarding the School District's employees having access to the State retirement system and their ability to transfer sick days, and finds Defendant's objections to be without merit as there are clear distinctions between employees of the State and school district employees. See S.C. Code Ann. §§ 1-11-710, 8-11-46, 9-110, 9-1-20. Thus, after considering all of the evidence, the Court finds that the School District failed to meet the final prong of the
analysis and that the magistrate properly concluded this factor weighs in favor of a finding that the School District is not immune.Grady, 2014 WL 1159406, at *8-9 (record citations omitted)); see also S.H v. Colleton Cnty. Sch. Dist., 2022 WL 2276575, at *4 (“Despite some noted differences, there are numerous factors listed above, such as the ability of the District to contract, to own property, and to carry liability insurance, which weigh in favor of finding that the District is treated more like a local entity than an arm of the State.”).
Accordingly, this factor weighs in favor of denying immunity.
Given the recommendation above, it is unnecessary to address the parties' argument as to Title II of the ADA. [See ECF No. 8 at 12, see also ECF No. 9 at 5].
III. Conclusion and Recommendation
For the foregoing reasons, the undersigned recommends the district judge deny Defendant's motion to dismiss. [ECF No. 4].
IT IS SO RECOMMENDED.
The parties are directed to note the important information in the attached “Notice of Right to File Objections to Report and Recommendation.”
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. “[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must ‘only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'” Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed.R.Civ.P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); see Fed.R.Civ.P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).