Posted 10:07 a.m. March 5

by Shaphan Marwah
U-WIRE (DC BUREAU)

(U-WIRE) WASHINGTON – States’ 11th Amendment right to immunity in federal court came under attack last week in a Supreme Court case involving a professor who was accused falsely of sexually harassing a student in 1997.

Opening arguments were heard Feb. 25 in the case Lapides, Paul v. University of Georgia Board of Regents involving a professor at Kennesaw State University in Georgia.

Lawyers for the plaintiff are questioning whether states can waive immunity when appealing a court case to federal court.

“The issue raised is one of legal probity,” according to Jonathan Seigel, associate professor of law at the George Washington University, “when a state agrees to have a case against it removed from state court to federal court, is the state thereby waiving its immunity from suit in federal court?”

Paul Lapides filed suit against his employers at Kennesaw State University shortly after he was vindicated of the harassment charges in 1997. According to Lapides, a female student accused him of sexually harassing her, a claim she later denied. The student then blamed another faculty member for pressuring her into devising the harassment scheme.

Following the university’s investigation, Lapides claimed his reputation was tarnished because of negligent behavior by the university, which he argued violated his 14th Amendment right to due process.

“Lapides alleged that his employer placed unfavorable information in his personnel file without appropriate process, thereby harming his ability to practice his profession,” Seigel said.

Lapides filed suit in the Georgia State Court, and the Georgia Attorney General’s Office removed the case to federal court on the university’s behalf. Once in federal court, the state claimed its 11th Amendment right to immunity and moved to have the case thrown out.

“The state removed the case to federal court, and then asserted that it is immune from suit by virtue of 11th Amendment state sovereign immunity,” Seigel explained.

The federal court ruled in favor of Lapides.

The university appealed the district court’s decision in the 11th Circuit Court of Appeals, winning a unanimous ruling. The Supreme Court granted certiorari, or agreed to review the case, in October 2001.

The case is now in the hands of the High Court, but the justices will not hear any evidence of the alleged sexual harassment or defamation. Instead, their ruling will focus on a legal loophole that some experts, including Seigel, consider unconstitutional.

“It hardly makes sense for a defendant to take a case out of state court to federal court and then to complain about the federal court’s exercising jurisdiction,” Seigel said.

The High Court seemed to agree at last week’s hearing, with Associate Justices Ruth Ginsburg and Antonin Scalia calling the state’s tactic a “sham” and “absurd.”

If Lapides is successful in the Supreme Court, it will prevent states from using this controversial maneuver.

“States will know that if they invoke federal jurisdiction they can’t then complain that they shouldn’t be sued in federal court,” Seigel said.

A date for further court proceedings has not been determined.