MEMORANDUM OPINION AND ORDER
Before the Court is Defendants’ Motion to Dismiss Plaintiff Steven Salaita’s Complaint for failure to state a claim under Rule 12(b)(6) [ECF No. 32]. For the reasons stated herein, the Motion is granted to the extent that Counts VI, VII, VIII, and IX are dismissed with prejudice, and denied as to the rest.
I. BACKGROUND
. This case involves Dr. Steven Salaita’s employment status with the University of Illinois following controversial statements he made via Twitter. The following facts are culled from the Complaint, which the Court must accept as true in deciding a
Because the letter is the source of most of the parties’ disagreements, the Court reproduces the relevant portions of it here in full:
Dear Professor Salaita:
Upon the recommendation of Professor Jodi Byrd, Acting Director of the American Indian Studies, I am pleased to offer you a faculty position in that department at the rank of Associate Professor at an academic year (nine-month) salary of $85,000 paid over twelve months, effective [August 16], 2014. This appointment will carry indefinite tenure. This recommendation for appointment is subject to approval by the Board of Trustees of the University of Illinois.
At the University of Illinois, like at most universities in this country, we subscribe to the principles of academic freedom and tenure laid down by the American Association of University Professors (AAUP). The Statement on Academic Freedom and Tenure of the [AAUP] has been since 1940 the foundation document in this country covering the freedoms and obligations of tenure .... I am enclosing copies of these documents for your information, and commend them to your attention.
We would appreciate learning of your decision by 10/14/2013. I have included an enclosure describing some of the gen-
eral terms of employment at the University. If you choose to accept our invitation, we would appreciate your returning a photocopy of this letter with the form at the bottom completed and signed. When you arrive on campus, you will be asked to present proof of your citizenship and eligibility to work (see the 1-9 form). If you are not a U.S. citizen, this offer will be contingent upon your being able to secure the appropriate visa status. Should you accept our offer, our Office of International Faculty and Staff Affairs is available to assist you with this process.
Please let me express my sincere enthusiasm about your joining us. The University ... offers a wonderfully supportive community, and it has always taken a high interest in its newcomers. I feel sure that your career can flourish here, and I hope earnestly that you will accept our invitation.
(Defs.’ Mem. in Support of its Mot. to Dismiss (“Defs.’ Mem.”), Ex. 1, EOF No. 33-1). The letter is then signed by Interim Dean Brian Ross and includes a place for Dr. Salaita to sign. The signature page says “I accept the above offer of October 3, 2013” and includes spaces for Dr. Salaita’s date of birth, citizenship status, and signature. Dr. Salaita signed this page and returned it on October 9, 2013, and the parties agreed that Dr. Salaita would start in his new position on August 16, 2014. The University also assigned Dr. Salaita two courses for the fall semester, assigned him an office, and provided him a University email address.
With the expectation that he would be starting at the University in August, Dr. Salaita resigned his position at Virginia Tech and started the process of moving his family to Illinois. The University paid a majority of Dr. Salaita’s moving expenses. During this time, a skirmish between Pal
Dr. Salaita’s tweets soon garnered media coverage, which prompted the University to respond publicly regarding Dr. Sa-laita’s employment. In response to one newspaper’s request for comment, a University spokesperson said that “Professor Salaita will begin his employment with the University on Aug. 16, 2014. He will be an associate Professor and will teach American Indian Studies ■ courses.” (Compl., ECF No. 1 ¶ 69). The spokesperson went on to tout the University’s policy of “recognize[ing] the freedom-of-speech rights of all our employees.” (Id. (emphasis added)).
Despite the initial show of support, however, the University soon changed its tune. Letters and emails obtained via Illinois’ Freedom of Information Act revealed that students, alumni, and donors wrote to the University’s Chancellor, Phyllis Wise (“Wise”), to voice their concerns over Dr. Salaita joining the University. One writer in particular claimed to be a “multiple 6 figure donor” who would be ceasing support of the University because of Dr. Salai-ta and his tweets.
Two other specific interactions are critical to Dr. Salaita’s Complaint. The first involves an unknown donor who met with Chancellor Wise and provided her a two-page memo about the situation. (Compl., ECF No. T ¶80). Wise ultimately destroyed the memo, but an email Wise sent University officials summarized it as follows: “He [the unknown donor] gave me [Chancellor Wise] a two-pager filled with information on Professor: Salaita and said how we handle the situation will be very telling.” (Id.) The second interaction involves a particularly wealthy donor who asked to meet with Chancellor Wise to “share his thoughts about the University’s hiring of Professor Salaita.” (Compl., ECF No. 1 ¶ 79). The meeting took piace on August 1, 2014, but what was said during the meeting is currently unknown at this early stage in the litigation. What is known, however, is that Chancellor Wise sent Dr. Salaita a letter on the same day stating that Dr. Salaita’s “appointment will not be recommended” and that the University would “not be in a position to appoint [him] to the faculty of the University.” (Defs.’ Mem., Ex. A, ECF No. 33-1).
The University’s Board of Trustees met on September 11, 2014 to vote on new faculty appointments. The Board unanimously and summarily appointed 120 new faculty members in a single vote, and then voted separately on Dr. Salaita’s appointment. Chancellor Wise stated that, despite the earlier letter affirming that Dr. Salaita would be recommended' for ap- • pointment, she was not recommending him. The Board then voted eight-to-one to deny Dr. Salaita’s appointment. The vote occurred one month after the start of the semester, when the other. appointed professors had already started teaching, and one month after Dr. Salaita’s agreed-upon start date. According to the Complaint, this is the first time in the University’s history that something like this has happened.
Following the Board’s vote, Dr. Salaita filed this lawsuit. The Complaint contains nine counts against various Defendants. Count I alleges that the Board of Trustees, Chancellor Wise, and the University’s President and Vice President violated § 1983 by retaliating against Dr. Salaita for exercising his First Amendment free
II. LEGAL STANDARD
A motion to dismiss for failure to state a claim under Rule 12(b)(6) challenges the legal sufficiency of a complaint. Hallinan v. Fraternal Order of Chi Lodge No. 7,
The overriding focus in the Court’s analysis is notice — that is, whether the factual allegations in the complaint “give the defendant fair notice of the claim for relief and show the claim has ‘substantive plausibility.’ ” Runnion ex rel. Runnion v. Girl Scouts of Greater Chi. and Nw. Indiana,
III. ANALYSIS
The crux of this case involves the agreement between Dr. Salaita and the University. . Dr. Salaita. claims that, by signing and returning the University’s offer letter, he entered into an employment contract that the University violated by firing him because of his political speech. According to the-University, Dr. Salaita was never an employee and the parties, never had a valid contract because Dr. Salaita’s appointment was “subject to” the Board of Trustees’ approval. Many of the parties’ arguments hinge on whether there is a contract; thus, the Court will start with the breach of contract and promissory estoppel claims and then consider the remaining arguments.
A. Breach of Contract (Count V)
The "University’s central argument is that the parties never entered into a valid contract. The University claims that the “subject to” language in its initial letter made its offer conditional on the Board’s approval, and thus Dr. Salaita’s acceptance was likewise only conditional. Dr. Salaita argues that the condition, if any, was a condition on performance under the contract, not on the offer itself. Moreover, Dr. Salaita argués that the condition was' a mere formality and that the Board’s approval was ministerial in nature.
Under Illinois law, the elements for a breach of contract claim are: “(1) offer and acceptance, (2) consideration, (3) definite and certain terms, (4) performance by the- plaintiff of all required conditions,
The Court’s first task is to interpret the contract, and “Illinois uses in general a ‘four corners’ rule in the interpretation of contracts.” Bourke v. Dun & Bradstreet Corp.,
Under the four corners rule, “the threshold inquiry is whether the contract is ambiguous,” and a contract term is “ambiguous only if the language used is reasonably or fairly susceptible .to having more than one meaning.” -Bourke,
As to the offer in this case, the basic terms are about as unambiguous as they •could possibly be. The offer letter says that the University is “pleased to offer [Dr. Salaita] a faculty position.” The offer then sets forth the important, relevant terms in plain English. The offer is for a salary of $85,000 and the position includes indefinite tenure. Finally, the University used unambiguous terms in drafting the means by which Dr. Salaita could7 accept: “I accept1 the above offer of October 03, 2013.” Nothing about the actual offer, nor the mode of acceptance, indicates that no contract would be formed until after the Board’s approval.
The University points solely to the “subject to” language as, evidence that there was no contract, but that term, read in light of the other contract terms, is at least plausibly a term of, performance. That term says that, the University would recommend Dr. Salaita’s. appointment to the Board, but that the Board would have ultimate say on whether to ■ appoint Dr. Salaita as a professor. The other concrete terms make clear that the parties had a contract, but that the University might be
Better still, the “subject to” provision could have used the word “offer,” which courts have found “telling” when deciding whether an offer is conditional. Allen,
Moreover, to the extent that the “subject to” language is ambiguous as to whether it applies to contract formation or performance, the Court would look to extrinsic evidence to interpret the contract. Bourke,
Also, the University’s argument, if applied consistently, would wreak havoc in this and other contexts. What if a professor took the University’s money to move to
Under the University’s reading of the law, however, any “subject to” term in a contract is a talisman that offers the drafter a get-out-of-contraet-free card. But the cases the University relies upon are distinguishable. In Allen, discussed above, the drafter explicitly referenced “this offer” when drafting a “subject to” condition. Allen,
Here, in contrast, Dr. Salaita is not arguing that he “accepted” the job by submitting an application for it. Instead, he argues that, by signing the University’s letter that said “I accept the above offer,” he was, in fact, accepting the above offer. In short, the cases the University relies on involve contracts where the condition was, without question, a condition to contract formation. In this case, at the very least, there is a reasonable argument that the condition went to performance and not formation, which precludes dismissal.
' In a related argument, the University asserts that, even if the basic elements of a contract ’ exist here, Dean Ross had no actual or apparent authority to make á binding offer. The University also argues that under Illinois law, apparent authority cannot apply to bind the State of Illinois, which the University is a part of. The Court can quickly reject these arguments for two reasons.
First, Dr. Salaita’s Complaint contains facts indicating that the University gave “the faculty departments and dean” the actual authority to make binding job offers.' (Compl., ECF No. 1 ¶¶ 48-51). Although Dr. Salaita has not alleged precisely how or' when the University gave Dean Ross actual authority, ’ the facts alleged make it plausible that such a delegation occurred. For example, the Board ultimately voted on Dr. Salaita’s appointment pursuant to Dean Ross’s offer tetter; even though Chancellor Wise had already decided she did not want Dr. Salaita to join the
Second, to the extent that actual or apparent authority is a disputed issue, the issue is best resolved at trial or on a motion for summary judgment. See, Schoenberger v. Chi. Transit Auth.,
In sum, Dr.;Salaita has pleaded an adequate breach of contract claim. -
B. Promissory Estoppel (Count IV)
Dr. Salaita’s Complaint also mon-tains a promissory estoppel count in the alternative to his breach of contract claim. Under Illinois law, a plaintiff may plead both breach of contract and promissory estoppel but cannot pursue both once a contract is found to exist, either by judicial determination or by the parties’ admission. Discom Int’l, Inc. v. R.G. Ray Corp., No. 10 C 2494,
To establish a promissory estop-pel claim, a plaintiff must prove that “(1) defendant made an unambiguous promise to plaintiff, (2) plaintiff relied on such promise, (3) plaintiffs reliance was expected and foreseeable by defendants, and (4) plaintiff relied on the promise to its detriment.” Newton Tractor Sales, Inc. v. Kubota Tractor Corp.,
The University’s key arguments are that any alleged promise was either (1)
C. First Amendment (Count I)
Count I in Dr. Salaita’s Complaint alleges that certain Defendants violated his First Amendment free speech rights in violation of § 1983.' In order to state a First Amendment retaliation claim. Dr. Salaita must allege fact showing that: “(1) his speech was constitutionally protected, (2) he has suffered a deprivation likely to deter free speech, and (3) his speech was at least a motivating factor in the employer’s action.” Massey v. Johnson,
The University’s Motion does not1 dispute that Dr. Salaita’s speech was constitutionally protected or that he suffered a deprivation in the form of either being fired or not hired. Instead, the University argues first that Dr. Salaita has not pleaded facts that implicate the specific Defendants named in Count I. The University also argues that Dr. Salaita was not fired because of his constitutionally protected speech, and that even if he was, the University’s interest in providing a safe and disruption-free learning environment outweighs Dr. Salaita’s free speech interest under the balancing test in Pickering v. Bd. of Educ.,
1. Claims Against the Individual Defendants
As to the University’s first argument, “[a]n individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional deprivation.” Wolf-Lillie v. Sonquist,
The University argues that Dr. Salaita has not stated a claim against the
The University also argues that Dr. Salaita has failed to state a claim against President Easter, Vice President Pierre, or Chancellor Wise. As for Chancellor Wise, the Complaint contains more than enough allegations to state a claim against her, and the University’s arguments go more to the merits than the sufficiency of the complaint. Although Chancellor Wise might ultimately win on the merits, the Court must view the allegations in Dr. Salaita’s favor, and those allegations state that Chancellor Wise fired or failed to hire Dr. Salaita because she and various donors disagreed with his political speech. These facts demonstrate that Chancellor Wise facilitated, approved, and condoned the conduct that led to Dr. Salai-ta’s deprivation, which is enough to state a claim. See, id.
The allegations against President Easter and Vice President Pierre, however, are not as abundant. The only allegations in the Complaint that relate to President Easter concern his attendance at a July 24, 2014 meeting where the Board and the other individual Defendants decided to fire, or at least not hire, Dr. Salaita. As to Vice President Pierre, the only allegations against him demonstrate that he was also at the July 24 meeting and that he joined Chancellor Wise in sending the letter that informed Dr. Salaita he was fired or at least not being hired. These allegations are sparse indeed, but they are just enough to raise a plausible inference that President Easter and Vice President Pierre condoned, or at least turned a blind eye, toward the decision to fire Dr. Salaita because of his political views and speech. See, id.
2. Sufficiency of Dr. Salaita’s First Amendment Claim
The University’s second argument is that its action was not motivated by the content or viewpoint of Dr. Salaita’s tweets, and that even if it was, its interest in providing a disruption-free learning environment outweighs Dr. Salaita’s free speech interest under the balancing test in Pickering. The first part of the argument is premature; summary judgment or trial will reveal the University’s actual motivation, but the facts viewed in Dr. Salaita’s favor amply support a claim that the University fired Dr. Salaita because of disagreement with his point of view. The University’s attempt to draw a line between the profanity and incivility in Dr. Salaita’s tweets and the views those tweets presented is unavailing; the Supreme Court did not draw such a line when it found Cohen’s “Fuck the Draft” jacket protected by the First Amendment. Coken
The University next argues that the Court should apply the balancing test in Pickering and find that under no set of facts could Dr. Salaita prove that his First Amendment rights were violated. This argument is also premature. “Normally, application of the Pickering balancing test will be possible only after the parties have had an opportunity to conduct some discovery.” Gustafson v. Jones,
Additionally, even if the Court were to apply the balancing test, it would still have to view the facts in Dr. Salaita’s favor. And when the plaintiffs speech “more substantially involve[s] matters of public concern,” the defendant must make a “stronger showing” of potential disruption. Connick v. Myers,
Dr. Salaita’s . Complaint alleges facts showing that he was fired or not hired because of the University’s disagreement with his personal speech in a public forum on a matter of public concern.. This is enough to survive., a motion to dismiss. D. Procedural Due Process (Count II)
A procedural due process claim has two elements:' “(1) deprivation of a protected interest, and (2) insufficient procedural protections surrounding that deprivation.” Michalowicz v. Vill. of Bedford Park,
As an additional basis for alleging a due process violation, Dr. Salaita alleges that the University deprived him of his liberty interest when it made unflattering public statements about him. Because Dr. Salai-ta’s due process claim survives dismissal based on the property interest discussed above, the Court need not address the parties’ arguments related to this issue.
E. Conspiracy (Count III)
Count III alleges that Defendants conspired to deprive Dr. Salaita of his appointment to the University faculty. The University argues that the claim is facially deficient and that the intra-corporate conspiracy .doctrine applies to bar Dr. Salai-ta’s conspiracy claim.
The Seventh Circuit has noted that, even before Twombly and Iqbal, “conspiracy allegations were often held to a higher stándard than other allegations.” Cooney v. Rossiter,
Dr. Salaita’s Complaint alleges facts that give a conspiracy claim substantive plausibility. The parties are clearly identified as the Board and its members and various administration officials. The facts in the Complaint, viewed in Dr. Salai-ta’s favor, detail the dates of the alleged conspiracy and its general purpose: to retaliate against Dr. Salaita because of his tweets. The University makes much of the lack of allegations regarding precisely what words were said in forming the alleged conspiracy, but Dr. Salaita cannot know that information without discovery. See, Loubser,
The University also argues that the intra-corporate conspiracy doctrine bars Dr. Salaita’s claim. The general thrust of that doctrine is that “managers of a corporation jointly pursuing its lawful business do not become ‘conspirators’ when acts within the scope of their employment are said to be discriminatory or retaliatory.” Wright v. III. Dep’t of Children and Family Servs.,
Without Seventh Circuit authority on point, both parties claim that a majority of district courts support their position. Dr. Salaita relies on § 1983 police misconduct cases, where a majority of courts, including this Court,, have refused to apply the intra-corporate conspiracy doctrine. See, Hobley v. Burge, No. 03 C 3678,
. Taking the facts in the Complaint as true, Defendants actions were far from routine — they were unprecedented. At a minimum, the University’s conduct here was not routine in relation to the other professors who were all appointed summarily and without individual consideration. The Complaint alleges that never before has the Board or University singled
F. Tortious Interference with Contractual and Business Relations (Counts VI and VII)
Dr. Salaita alleges that currently unknown John Doe Defendants demanded that “the University terminate [Dr.] Salai-ta’s employment ... or else risk losing their financial contributions to the University.” (CompL, ECF No. 1 11133). The University’s main argument for dismissing these counts is the lack of a contract, which the Court discussed above and need not discuss again. The University also argues that the Complaint does not allege facts satisfying the elements of the two claims and that, even if it did, the unknown donors’ speech is protected by the First Amendment.
Dr. Salaita first argues that the University does not have standing to seek dismissal of these counts. This is so, according to Dr. Salaita, because the donor Defendants have not yet been named or appeared in this case, and Counts VI and VII apply only to those Defendants. But, as the University correctly responds, the Court may dismiss any count sua sponte if it is obviously deficient on its face. Ledford v. Sullivan,
To state a claim for tortious interference with contractual relations, the plaintiff must allege “a legally enforceable contract of which the defendant had knowledge, and the defendant’s intentional interference inducing a breach by a party to the contract, resulting in damages.” TABFG, LLC v. Pfeil,
Aside from disputing the existence of the contract, the University does not seriously dispute that the Complaint alleges facts generally establishing tortious interference. Rather, the University argues that the claim cannot survive because the alleged conduct, La, the donors’ threats to withhold donations, is protected by the First Amendment. The Court agrees. Courts cannot apply state tort laws if doing so violates the First Amendment. Nat’l Org. for Women, Inc. v. Scheidler, No. 86 C 7888,
The court analyzed the contours of the First Amendment and found that the defendant’s speech was protected from a tor-tious interference claim. Id. at *31. The court found that “nonviolent campaigns that are (1) politically motivated, and (2) waged against an entity by a commercial noncompetitor are protected under the First Amendment.” Id. Because the defendant only threatened peaceful protest, and because the defendant was not a commercial competitor seeking to eliminate competition, the court found that the First Amendment protected the defendant from a tortious interference claim. Id. at *30-31.
Moreover, the defendant’s speech was protected, even though it was posed as a quid pro quo threat. Id. Regarding the importance of being able to influence the government, the court noted:
“It is inevitable, whenever an attempt is made to influence legislation by a campaign of publicity, that an incidental effect of that campaign may be the infliction of some direct injury upon the interests of the party against whom the campaign is directed. To hold that the knowing infliction of such injury renders the campaign itself illegal would thus be tantamount to outlawing all such campaigns.”
Id. at *28(quoting Missouri v. Nat’l Org. for Women, Inc.,
This ease is no different than Scheidler. The donor Defendants exercised their First Amendment rights by contacting the University to express their displeasure with Dr. Salaita’s hiring. Similar activity was found to be protected in Scheidler, and the Court sees no reason to rule differently here. Dr. Salaita tries to distinguish Scheidler by characterizing the donor Defendants’ speech here as a quid pro-quo demand, but this distinction is without merit. As noted above, the letter in Schei-dler was also of a similar quid pro quo nature. Because it is clear on the face of the Complaint that the donor Defendants’ allegedly tortious activity is protected by the First Amendment, Dr. Salaita cannot possibly prevail on his tortious interference claims. The First Amendment is a two-way street, protecting both Dr. Salai-ta’s speech and that of the donor Defendants. The Court therefore dismisses Counts VI and VII.
G. Intentional Infliction of Emotional Distress (Count VIII)
Dr. Salaita alleges that he suffered severe emotional distress after Defendants induced him to resign his prior job and move to Illinois before ultimately firing him. To state a claim for intentional infliction of emotional distress, Dr. Salaita must allege that (1) Defendants’ conduct was “truly extreme and outrageous, (2) Defendants intended that their conduct would inflict severe emotional distress or at least knew that there was a “high probability” that the conduct would cause severe emotional distress, and (3) that the conduct “in fact cause[d] severe emotional distress.” McGrath v. Fahey,
As to the conduct, it must be “‘so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency.’ ” Pub. Fin. Corp. v. Davis,
The facts in the Complaint, even viewed in Dr. Salaita’s favor, do not demonstrate conduct that is beyond all bounds of decency. Although the Complaint states First Amendment and breach of contract claims, the mere fact that an employer violated the law does not, by itself, constitute sufficiently outrageous conduct. See, id. The Court does not doubt the severity of harm Dr. Salaita suffered to his career and reputation, but the University’s decision to fire him, even if illegal, is not the type of conduct that justifies an emotional distress claim. See, e.g., Milton v. Ill. Bell Tel. Co.,
H. . Spoliation of Evidence (Count IX)
In this count, Dr. Salaita alleges that Chancellor Wise wrongfully destroyed a two-page memo, and possibly other evidence, that would have been helpful to Dr. Salaita in pursuing his claims. Unlike, some states, Illinois “does not recognize a tort for intentional spoliation of evidence.” Borsellino v. Goldman Sachs Grp., Inc.,
Dr. Salaita has not explained what claims in this suit he is unable to prove due to the lost memo. Rather, he generally alleges that the destruction “interfered with [his] ability to prove his claims, thereby causing him further damages.” (Compl., ECF No. 1 ¶ 145). This is insufficient to state a negligent spoliation claim, especially to the extent that the evidence was intended to help prove claims that the Court already dismissed above. Boyd,
Furthermore, the Complaint’s allegations do not demonstrate that Chancellor Wise owed Dr. Salaita a duty at the time she destroyed the memo.. Dr. Salaita claims that the duty arose from the State
Finally, any harm caused by the loss :of the memo is at least minimized by the fact that Chancellor Wise sent an email to University officials briefly summarizing what was in the memo. Although- this is not as. helpful as having the actual memo, Dr. Salaita has at least some idea of what was in the memo and will be able to explore, that topic further in discovery.
In sum, because Dr. Salaita has not established that Chancellor Wise owed him a duty to preserve the memo or that he was damaged by the destruction, Count IX must be dismissed.
I. Immunity Issues
The University’s final argument is that various Defendants are immune from suit, either on sovereign immunity grounds or qualified immunity grounds. The Court will consider each argument in turn.
1. Sovereign Immunity
Dr. Salaita’s Complaint implicates two sovereign immunity issues. The first is whether the Eleventh Amendment bars all of Dr. Salaita’s claims — state and federal— against the Board and the individual De--fendants in their official capacities. If the - Eleventh Amendment grants those Defendants immunity, the inquiry is at an end and those, Defendants, would be dismissed. If, however, the Eleventh Amendment poses no obstacle to this lawsuit in general, the issue then becomes whether this Court has jurisdiction to hear Dr. Salaita’s state law claims, in light of the Illinois Court of Claims Act, 705 ILCS 505/1 et seq. The Court has already dismissed Dr. Salaita’s state law claims in Counts VI, VII, VIII, and IX, so the only remaining state law claims potentially at issue would be Count IV (promissory estoppel) and Count V (breach of contract).
Two additional factors make things much more complicated here. First, the Eleventh Amendment issue applies to all of Dr. Salaita’s claims, state and federal. Benning v. Bd. of Regents of Regency Univs.,
The Eleventh Amendment provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” Despite its plain language, “the amendment has been construed to forbid suits prosecuted against a state by its own citizens as well.” Id. (citing Hans v. Louisiana,
Though the parties have spilled much' ink on this issue, the Court need not reach it for several reasons. First, the Eleventh Amendment does not bar claims seeking injunctive relief like Dr. Salaita seeks here. See, Mutter v. Madigan,
Second, the Eleventh Amendment only bars “unconsenting” states from suits in federal court, Benning,
Turning to the state law issue directly, the University argues that the ICC possesses exclusive jurisdiction over Dr. Salai-ta’s state law claims. In Illinois, “[t]he doctrine of sovereign immunity was abolished ... by the 1970 Constitution ‘[e]x-cept as the General Assembly may provide by law.’” Id. (quoting Ill. Const. 1970, art. XIII, §4). Shortly after abolishing constitutional sovereign immunity, Illinois adopted statutory sovereign immunity when the General Assembly enacted the State Lawsuit Immunity Act, 745 ILCS 5/0.01 et seq. Id. The statute provides that “the State of Illinois shall not be made a defendant or party in any court,” “except as provided in the ... Court of Claims Act.” 745 ILCS 5/1. The Court of Claims Act, in turn, gives the ICC exclusive jurisdiction over several matters, including “[a]ll claims against the State founded upon any contract entered into with the State of Illinois” and “[a]ll claims against the State for damages in cases sounding in tort.” 705 ILCS 505/8(b), (d).
The University argues that this statutory language covers Dr. Salaita’s breach of contract and promissory estop-pel claims and that he must therefore bring those claims before the ICC. But the Illinois Supreme Court has made clear
The court in Leetam ultimately found that the ICC did .not have exclusive jurisdiction when the plaintiff alleged that the University violated his due process rights in investigating academic misconduct. Id.,
The University argues that the Board and its members were acting within their authority whey they voted against Dr. Sa-laita’s appointment. But Dr. Salaita has alleged in his state-law counts that the Board and its members violated the First Amendment in acting within that authority. If the plaintiff in Leetam could seek injunctive relief outside the ICC based on the University’s allegedly unconstitutional conduct in investigating academic dishonesty, Dr. Salaita can pursue similar injunc-tive relief here based on the Board’s alleged violation of the First Amendment in voting against his appointment. See, id. Thus, at least as to his claims for injunc-tive relief, Dr. Salaita can proceed in federal court.
That leaves Dr. Salaita’s state-law claims for damages. This is the thorniest issue because Dr. Salaita’s Complaint falls squarely between two competing principles. On the one hand, the Illinois Supreme Court has said repeatedly that “sovereign immunity affords no protection when agents of the State have acted in violation of ... constitutional law” (the “No Protection Principle”). Id. (emphasis added). This language is broad and implies that, so long as there are allegations of constitutional misconduct, a state-law claim can proceed in any venue. On the other hand, that court has also made clear that there is a difference between seeking damages and an injunction, and claims for damages against the state belong in the ICC (the “Damages Principle”). See, id., 392 IlLDec. 275, 32 N.E.3d at .598. Thus, Illinois law is clear regarding the two extremes. First, if a state-law claim alleges constitutional violations and seeks only an injunction, the No Protection Principle allows the claim to proceed outside the ICC without violating the Damages Principle. Second, if a claim alleges no constitutional violation and seeks monetary damages, the Damages Principle requires the claim to proceed in the ICC without violating the No Protection Principle.
This case, however, pits the two principles against each other. Under the No Protection Principle, Dr. Salaita’s claim can proceed outside the'ICC because his breach of contract and promissory estop-pel claims allege constitutional violations.
Although Illinois law is not clear on this issue, the reasoning in past cases indicates that the No Protection Principle likely wins over the Damages Principle. In Healy, a case cited with approval in Leetaru,, the Illinois Supreme Court looked to the “basis for the ... action” to determine whether it belonged in the ICC. Healy,
As to the administration Defendants, the University argues that Dr. Salaita cannot sue them in their official capacities because they do not have the authority to provide what Dr. Salaita seeks: reinstatement. According to the University, only the Board has that power. The University is correct that Dr. Salaita’s claims are no good against any Defendant who does not have the power to grant him the injunctive relief he seeks. See, Mutter,
In sum, neither the Eleventh Amendment nor the Illinois Court of Claims Act prohibits Dr. Salaita’s state-law claims for injunctive relief. As 'for his claims for damages, the ICC does not have exclusive jurisdiction because Dr. Salaita’s Complaint alleges that the Board acted in violation of the Constitution.
2. Qualified Immunity
Lastly, the University argues that the individual Defendants are all entitled to qualified immunity to the extent that they are sued in their individual capacities. “The doctrine of qualified immunity protects government officials from liability for civil damages. insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan,
Although there are instances where qualified immunity is decided at the motion to dismiss stage, see, e.g., Danenberger v. Johnson,
This case is a prime example of why qualified immunity would be inappropriate at the dismissal stage; the Court would have to go well beyond the facts alleged in the Complaint to resolve the qualified immunity issue here. Part of the University’s argument is premised on the assumption that it will win on the merits of Dr. Salaita’s First Amendment claim. As discussed above, Dr. Salaita has adequately pleaded such a claim. ‘ Thus, to resolve the qualified immunity issue in the University’s favor at the motion to dismiss stage would be akin to predetermining that the University will ultimately win on the merits. This, the Court cannot do. Thus, the Court finds that the qualified immunity issue is best left for summary judgment or trial.
IV. CONCLUSION
For the reasons stated herein, the University’s Motion to Dismiss [ECF No. 32] is granted to the extent that Counts VI, VII, VIII, and IX are dismissed with prejudice. The Motion is denied as to the remaining counts.
IT IS SO ORDERED.