PHOENIX (CN) -  In a challenge to the suspension of 20 Arizona State University students who protested U.S. involvement in the Israel-Hamas war, the Ninth Circuit asked whether Arizona has waived its 11th Amendment immunity from state law claims in federal court. 

The 11th Amendment generally prevents states from being sued by individuals in federal court without a "clear and unequivocal waiver" from the state. In July, U.S. District Judge John Tuchi rejected the state's motion to dismiss a state free speech claim filed under that principle. He reasoned that the Arizona Supreme Court's 2021 decision in Redgrave v. Ducey effectively waived that immunity. 

Before a three-judge panel in Phoenix on Thursday, the state said Tuchi misread the decision.

"It doesn't deal on its face with what plaintiffs argue it does," attorney Austin Yost said on behalf of the public university's governing body, the Arizona Board of Regents. "Plaintiffs argue that Redgrave rejects venue-based immunity. And on its face, it does not do that."

The high court's decision in Redgrave held that the state had not waived 11th Amendment sovereign immunity for federal claims in state court. Because the text of the decision does not directly address the inverse, the state argues Redgrave can't be applied in this case. 

"The law is clear that a state's consent to suit in federal court must be unequivocally expressed in the relevant statute and the statute must specify that the state intends to subject itself to suit in federal court," state attorney Josh Bendor told the judges. 

The plaintiffs argue the Redgrave decision waived the state's immunity against all state law claims, regardless of the venue, meaning their claims should be allowed to go forward in federal court. In that case, Arizona was immune from a federal damages claim because it fell outside the scope of the legislative waiver. In this case, where claims are based on Arizona statute, the opposite applies.

Plaintiff attorney Michael Yancey said what's important isn't whether Redgrave addressed state claims in federal court. It's the methodology the trial judge used to analyze the decision. 

"Redgrave held there was no waiver specifically because the claim arose from a federal statute," Yancey said. "Had the claim been based on an Arizona statute, based on Redgrave's own internal logic, it would have found that waiver existed for an Arizona statutory claim, which is this case."

U.S. Circuit Judge Andrew Hurwitz, a Barack Obama appointee, asked how the waiver could be "clear and unequivocal" if the Arizona Supreme Court did not directly say so.

"To find that it isn't, you'd have to ignore how Redgrave reached the decision it made," Yancey answered. 

Even if the decision does not use the "magic words," he said, there's no other way to interpret it. 

The judges appeared caught between the two arguments.

"Why don't we certify this case to the Arizona Supreme Court?" asked U.S. Circuit Judge Marsha Berzon, a Bill Clinton appointee.

Both sides said the court doesn't need to because the answer would obviously be in their favor. 

"I think it's an easy question of state law and you only certify hard questions of state law," Bendor said. "I'm not scared of you asking them, but I don't think you need to."

Still, the judges implied they would turn to the state court to clarify what it meant in the Redgrave case.

The 20 plaintiffs in the case were among more than 70 protesters arrested by university police in April 2024 during a campus sit-in objecting to the United States' continued military aid to Israel, which at the time had killed more than 35,000 Palestinians.

The 20 students, some of whom were set to graduate the following month, were suspended for violating the university's anti-camping law. The students sued to reverse their suspension but were denied a preliminary injunction to allow them to walk in their graduation ceremonies. They now request monetary damages and the formal reversal of all disciplinary actions taken against them. The case is now in discovery.

The panel, rounded out by U.S. Circuit Judge Ronald Gould, a Clinton appointee, did not indicate when it will rule. 

Source: Courthouse News Service