Sovereign Immunity: If You've Got It, Flaunt It

Sovereign immunity is a gift to states and state agencies, but not all sovereigns capitalize upon that gift.

Some, like the Indiana University School of Dentistry, actually squander it, according to the Seventh Circuit Court of Appeals.

Sung Yeun Park wanted to be a dental surgeon when she enrolled at the Indiana University School of Dentistry (IUSD), a public university program, in 2006. After a year at the school, Park began to experience a series of serious setbacks, including several failing grades and allegations of professional misconduct.

Eventually, the school concluded that Park had to be dismissed from the program.

Park appealed without success to various school committees and administrators to overturn this decision. Then she sued IUSD, alleging Equal Protection and Due Process violations, as well as claims for state law breach of contract.

A district court dismissed her case. The Seventh Circuit Court of Appeals affirmed that decision. Both courts agreed that IUSD didn't breach its contract with Park, or violate Park's federal rights to due process or equal protection of the laws.

But how did the case even get that far since IUSD is a public school?

The Seventh Circuit addressed the sovereign immunity issue before delving into the merits of the case, and acknowledged that Park was seeking damages from IUSD, (an arm of the State of Indiana).

The court noted that sovereign immunity didn't bar Park's claim because sovereign immunity is a waivable affirmative defense. Here, Indiana waived it.

As Judge Diane Wood points out in her opinion for the three-judge panel, Indiana "never once raised the issue of immunity before the district court, and even when prompted by this court at argument, counsel for IUSD declined to argue that sovereign immunity defeats Park's case."

IUSD clearly waived its sovereign immunity defense, so the Seventh Circuit didn't explore the issue.

Don't be the attorney known for squandering opportunities. If you're defending a state agency in a lawsuit, be sure to argue sovereign immunity.

Related Resources:

• Sung Park v. Indiana University School of Dentistry (Seventh Circuit Court of Appeals)
• Just Kidding: Ala. Dental Board Gets Sovereign Immunity After All (FindLaw's Eleventh Circuit Blog)
• No Sovereign Immunity for State USERRA Violations (FindLaw's Eleventh Circuit Blog)