KING, Circuit Judge:
The City of New Iberia, Louisiana (the City) removed the plaintiff-appellant David Delahoussaye (Delahoussaye) from its civil service re-employment list as a result of information indicating that Delahoussaye may have engaged in homosexual activities in the University of Southwestern Louisiana's (the University's) restrooms several years before Delahoussaye began his employment with the City as a police officer. Delahoussaye sued the City and the University, alleging that the City's decision not to rehire him violated, inter alia, his rights to procedural due process, substantive due process, and equal protection guaranteed by the Fourteenth Amendment to the United States Constitution, and that the University violated these same rights by revealing information concerning these incidents to the City. The district court granted summary judgment in favor of the University because it found that the University is an arm of the state and therefore is immune from suit under the Eleventh Amendment. The district court granted summary judgment in favor of the City because it concluded that the City's action in removing Delahoussaye from its re-employment list was rationally related to a legitimate governmental purpose. We affirm.
Prior to Delahoussaye's employment as a police officer by the City of New Iberia in late November, 1985, he had been detained twice by the University of Southwestern Louisiana's campus police with regard to alleged homosexual activity in the University's public restrooms. On each occasion, the University placed a record of Delahoussaye's detention in its "banned" box but released Delahoussaye without bringing charges.
Delahoussaye sued the City of New Iberia and the University, alleging, inter alia, that the University violated his rights to due process and equal protection by revealing information concerning the detentions to the Department, and that the City violated these same rights by removing his name from its re-employment list.
The district court reasoned that the University was an arm of the state of Louisiana and entitled to immunity from damages under the Eleventh Amendment. Because Delahoussaye sued the campus police officer only in his official capacity, the district court concluded that Delahoussaye's action against the officer also must fail.
On review of a grant of summary judgment, we apply the same substantive standard as the district court. Our task is to determine whether a genuine issue exists concerning any material fact, and if not, whether the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; City of Madison, Miss. v. Bear Creek Water Ass'n, Inc., 816 F.2d 1057, 1059 (5th Cir.1987). The parties do not dispute the essential facts in this case, and the only question before this court is whether the University and the City were entitled to judgment as a matter of law.
A. Eleventh Amendment
1. Suit against the state
"The Eleventh Amendment to the United States Constitution bars suits in federal court by citizens of a state against their own state or a state agency or department."
Delahoussaye seeks actual and compensatory damages for lost wages and other employment benefits, costs, and attorney's fees. The University argues that any damages awarded to Delahoussaye would be paid from public funds. Such an award is prohibited by the Eleventh Amendment, the University reasons, unless the state through the University's Board of Supervisors waived its Eleventh Amendment immunity. The state has not given an express waiver of its immunity from suit under the Eleventh Amendment. La.Rev.Stat.Ann. § 13:5106. Delahoussaye, however, argues that the University is independent of the state and contends that the district court had no evidence before it that an award against the University would be paid from the state treasury.
The University asserts that the state is the real party in interest because the University is an arm of the state. We have stated that "[a] federal court must examine the particular entity in question and its powers and characteristics as created by state law to determine whether the suit is in reality a suit against the state itself." Laje v. R.E. Thomason General Hospital, 665 F.2d 724, 727 (5th Cir.1982) (citations omitted). The following factors must be examined to determine whether an entity is an arm of the state:
Minton v. St. Bernard Parish School Bd., 803 F.2d 129, 131 (5th Cir.1986) (footnote omitted) (quoting Clark v. Tarrant County, 798 F.2d 736, 744 (5th Cir.1986)). We agree with the district court's conclusion that these factors establish that the University of Southwestern Louisiana is an arm of the state.
(1) Whether state law characterizes the agency as an arm of the state
State law created the University of Southwestern Louisiana, see La.Rev.Stat.Ann. § 17:3217, although that fact alone is not conclusive.
(2) The source of funds for the entity
"[B]ecause an important goal of the Eleventh Amendment is the protection of state treasuries, the most significant factor
The University points out, however, that the Board also receives funding from the State of Louisiana as an agency within the executive branch. Although the Board may seek additional sources of funding, state law requires that "the board employ the proceeds of all donations, grants, subscriptions and bequests to a university, or to any school, [or] college ... so as to effectuate the purposes and in accord with the terms and conditions of such donations, grants, subscriptions and bequests." La.Rev.Stat.Ann. § 17:3351(B)(2)(d). In addition, all monies borrowed, notes, bonds or certificates issued by the Board must be in accordance with law and with the approval of the State Bond Commission, La.Rev.Stat.Ann. § 17:3351(A)(4). Finally, the La. Const. art. 12, § 10(C) requires that any judgment against the state or one of its agencies be paid from state funds. Thus the district court correctly concluded that a judgment against the University would be paid from the state treasury.
(3) The degree of autonomy the entity enjoys
The Governor of Louisiana appoints, and the state Senate approves, the members of the Board of Trustees for State Colleges and Universities, the body with the authority to supervise and manage the University. La.Rev.Stat.Ann. §§ 17:3218, 17:1831. The Board in turn appoints the President of the University, who holds office at the pleasure of the Board. La.Rev.Stat.Ann. § 17:3302(A). Various other state boards, commissions, and branches of state government also have authority to supervise and manage certain functions of the University. For example, the Board of Regents supervises the general powers of the Board, La.Rev.Stat.Ann. § 17:3351(A), and the State Bond Commission controls the issuance of notes, bonds or certificates of indebtedness, La.Rev.Stat.Ann. § 17:3351(A)(4).
(4) Whether the entity is concerned primarily with local, as opposed to statewide, problems
Louisiana law states that the University's purpose is to provide for the education of the people of Louisiana. La.Rev.Stat.Ann. § 17:3220. Although the University is only one component of the State Colleges and Universities system, a similar statute to La.Rev.Stat.Ann. § 17:3220 formed the basis for our conclusion in Darlak that the DHHR was concerned with statewide health problems and therefore a state agency. Darlak, 814 F.2d at 1060.
(5) & (6) Whether the entity has the right to sue and be sued in its own name; whether the entity has the right to hold and use property
Although the Board has the right to sue and be sued in its own name, and to hold and use property, the University does not.
2. Suit against Albert Davis
Delahoussaye named Albert Davis, the campus police officer who informed the New Iberia Police Department of the incidents in the University's restrooms, as a defendant. Delahoussaye, however, named Albert Davis as a defendant only in his official capacity as an employee of the University. Thus, as Delahoussaye concedes, Albert Davis is immune from suit under the Eleventh Amendment if the University is immune.
B. Due Process and Equal Protection
The Fourteenth Amendment to the United States Constitution protects individuals from arbitrary and unreasonable government actions. Thompson v. Gallagher, 489 F.2d 443, 446 (5th Cir.1973). In many cases, of which this is one, the specific clause of the Fourteenth Amendment under which we test the government action makes little difference. Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954); Gallagher, 489 F.2d at 447. Because Delahoussaye does not assert the infringement of a fundamental right, and does not contend that he is a member of a protected or suspect class, we subject the government action only to the most minimal scrutiny.
The City argues, and the district court found, that the City removed Delahoussaye from its re-employment list in order to protect the police department from acts "prejudicial to departmental service and contrary to the public interest."
The leading case in this area is Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 (1957), in which the State of New Mexico attempted to prohibit Schware from taking the bar examination because of his past membership in the Communist Party and his previous arrest record. The Supreme Court, employing a rational basis test, concluded that Schware's arrest record was wholly insufficient
Schware, 353 U.S. at 241, 77 S.Ct. at 757.
Although the Supreme Court's decision in Schware contains broad language stating that an arrest, standing alone, is not proof that the individual actually engaged in misconduct, the Court also considered the circumstances surrounding Schware's arrests. The Court noted that no indication existed that Schware actually was guilty of the offenses for which he had been arrested. Id. at 242, 77 S.Ct. at 758. The first arrest was for violation of California's "very broad and vague" criminal syndicalism statute. Id. at 242, 77 S.Ct. at 758. The Court noted that the California police conducted mass arrests under this statute during a strike in which Schware participated in the 1930s, and the Court observed that the record did not indicate that Schware had been arrested because the police suspected that he actually violated this statute.
Schware also had been arrested for violation of the Neutrality Act of 1917 because he allegedly recruited persons to go overseas to aid the Loyalists in the Spanish Civil War. Id. The Supreme Court noted that "[f]rom the facts in the record it is not clear that he was guilty of [this statute's] violation," and that "even if it be assumed that the law was violated, it does not seem that such an offense indicated moral turpitude — even in 1940." Id.
In the instant case, unlike Schware, the circumstances surrounding Delahoussaye's detentions indicate that the campus police detained Delahoussaye on suspicion that he committed illicit acts. In his affidavit, Chief Davis does not state that the City refused to re-employ Delahoussaye merely because he had been questioned by another police department. Chief Davis states that the City's decision to remove Delahoussaye "from the civil service re-employment list was a result of information obtained relative to the actions of David Delahoussaye in connection with the detentions/arrest by the University Police." In other words, Chief Davis indicates that Delahoussaye was not re-employed because he engaged in conduct prejudicial to the department on the occasions on which he was detained and not merely because of the detentions themselves.
Because, as the parties agree, Delahoussaye had a protected property interest in his name being retained on the City's civil service re-employment list, however, the Fourteenth Amendment also required the City to provide Delahoussaye with procedural due process. Procedural due process requires that an individual receive notice of a proposed action and an opportunity to present his side of the story. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48 L.Ed.2d 684 (1976) (procedural due process requires only that a plaintiff with a protected property interest be given notice and an opportunity to be heard prior to termination); Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Delahoussaye's hearing, we note, "though necessary, need not be elaborate." Loudermill, 470 U.S. at 546, 105 S.Ct. at 1495.
Delahoussaye does not dispute that he received notice that the City proposed to remove his name from its re-employment list and that he attended a pre-disciplinary hearing accompanied by an attorney. Subsequent to that hearing, the City informed Delahoussaye that his name had been removed from the re-employment list. Delahoussaye appealed that decision to the Civil Service Board, which denied his appeal as untimely because the fifteen day appeal period had expired. On appeal to this court, Delahoussaye has not argued that these procedures were inadequate under the Fourteenth Amendment. Because the City's conclusion that Delahoussaye may have engaged in conduct prejudicial to the Department and the public interest was not wholly arbitrary or irrational, and because Delahoussaye received all of the process due him, the district court properly rejected Delahoussaye's claims against the City.
For the foregoing reasons, we affirm the judgment of the district court.
Delahoussaye does not dispute that the University placed investigative materials concerning his detentions in the "banned box," but he denies that the University denied him access to the campus.
Although the amendment does not explicitly bar suits against a state by its own citizens, the Supreme Court consistently has "held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State." Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 1355-56, 39 L.Ed.2d 662 (1974).
Although the record does not reveal the precise scope of the City's investigation, it presumably included at least an examination of the University's investigative reports. The University, in its Memorandum in Support of its Motion for Summary Judgment, stated that "the New Iberia Police Department requested Delahoussaye's file from the [the University] police pursuant to authorization by Delahoussaye [on his application for employment with the New Iberia Police Department]." In addition, in the University's Statement of Uncontested Material Facts, the University states that "[i]nformation concerning the plaintiff's alleged criminal activities at the University of Southwestern Louisiana was exchanged between the Campus Police Department and the New Iberia Police Department." Far from disputing these factual statements, Delahoussaye admits in his memorandum in opposition to the University's motion for summary judgment that "[t]he moving defendants are correct that there [are] no genuine disputes about material facts related to the claim against them." Delahoussaye defended solely on the grounds that the University had not shown that it was entitled to judgment as a matter of law. The investigative reports show that the campus police believed that Delahoussaye engaged in improper conduct on the occasions at issue and support the City's conclusion that Delahoussaye had engaged in conduct prejudicial to the Department and the public interest.