BOCES is not an "arm of the state" under the 11th Amendment

Little known fact for the non-lawyers out there: with some exceptions, you can't sue an arm of the State of New York in federal court for a civil rights violation. An easy example is that John Smith can't sue the Department of Health in federal court for age discrimination. Harder cases turn on whether the defendant is an arm of the state. We now know this: BOCES is not an arm of the state for Eleventh Amendment purposes.

The case is Gorton v. Gettel, decided on January 28. Collecting its recent cases in this area, the Court of Appeals (Jacobs, Walker and Calabresi) says that "[A]s a general rule, state governments may not be sued in federal court unless they have waived their Eleventh Amendment immunity. Eleventh Amendment immunity extends to “state agents and state instrumentalities that are, effectively, arms of a state.” The uninitiated might think that BOCES is an arm of the state since it enforces state educational policy. But it's not so simple. The case law identifies a multi-part standard for solving this puzzle:

(1) how the entity is referred to in its documents of origin; (2) how the governing members of the entity are appointed; (3) how the entity is funded; (4) whether the entity’s function is traditionally one of local or state government; (5) whether the state has a veto power over the entity’s actions; and (6) whether the entity’s financial obligations are binding upon the state.

Got that? The ultimate issue in these cases is whether the lawsuit threatens the state's fisc. Put another way, if the plaintiff wins, who pays the damages? If the money comes out of the state treasury, then the defendant is an arm of the state. Since the Second Circuit has previously held that local school districts and school boards are NOT arms of the state even though they execute state educational policy, that militates against finding that BOCES is an arm of the state, since BOCES shares common features with school boards and school districts.

As the six part test points in different directions as to BOCES, the ultimate question is whether this suit would threaten the state treasury. The Court of Appeals finds that it does not, and the panel concludes, "Sullivan County BOCES is a locally run entity affiliated with local school districts; its liability would not reflect adversely on New York State. And a judgment in this case would not be paid directly from the New York State treasury."