Labor & Employment Law Daily Wrap Up, PROCEDURE—9th Cir.: University of Washington is arm of state, can’t be sued for civil rights violations, (Aug 14, 2026)

By Ronald Miller, J.D.

The parties disputed whether the University of Washington was an arm of Washington State or a legally independent entity.

The Ninth Circuit affirmed a district court’s grant of summary judgment in favor of the University of Washington in a civil rights action brought by employees after they were terminated for failure to comply with the university’s COVID-19 vaccine mandate issued by the Governor of Washington during the pandemic. After surveying Washington law and the university’s history, the appeals court concluded that the university is an arm of the state. The state did not intend to create a separate legal entity. Further, the state has continued to treat the university as a state agency for all purposes, from public recordkeeping obligations to sovereign immunity in its own courts. Moreover, the state has stopped short of totally renouncing its responsibility for all of the university’s obligations (Nilsen v. University of Washington, No. 24-7460 (9th Cir. Aug. 13, 2026)).

Vaccine exemptions. On August 20, 2021, the governor of Washington issued a proclamation which required all healthcare providers, employees in educational settings, and state employees to be vaccinated against COVID-19 by October 18, 2021, unless they received a medical or religious exemption. The proclamation recited that exempt employees were entitled to reasonable accommodations under federal and state law, unless accommodating the unvaccinated employee would impose an undue hardship on the employer.

The University of Washington is a public university operating healthcare facilities. The university was subject to the proclamation and adopted its own vaccination policy implementing the governor’s directive. The employees in this lawsuit requested and received religious and medical exemptions from vaccination. But the employer determined that accommodating them in their respective positions would impose undue hardship and so denied many of the requested accommodations. None of the employees received the vaccine or could be accommodated through work reassignment or teleworking, so they were terminated.

The employees sued alleging that their terminations violated federal and state law. They brought claims under Section 1983 alleging that the employer violated their rights under the First and Fourteenth Amendments to the U.S. Constitution. The parties cross-moved for summary judgment on these claims. After concluding that the university was an arm of the state, the district court granted summary judgment to the employer on these claims and dismissed them. This appeal followed.

Arm of the state. Section 1983 creates a cause of action against any “person” acting under color of law who deprives another of their constitutional rights. But neither states nor governmental entities that are “arms of the state” are “person[s]” under Section 1983 and thus cannot be sued under that statute. A trickier question is whether an entity, such as a public university, may seek the same shelter as an arm of the state. Here, the parties disputed the university’s status.

Kohn factors. Whether an entity is an arm of the state boils down to one essential question: “whether the state structured the entity to enjoy immunity from suit.” In Kohn v. State Bar of California, 87 F.4th 1021 (9th Cir. 2023), an en banc Ninth Circuit directed courts in the circuit to consider three factors to answer that question: “(1) the state’s intent as to the status of the entity, including the functions performed by the entity; (2) the state’s control over the entity; and (3) the entity’s overall effects on the state treasury.” Under this test, the factors appeared to carry equal weight; that is, no one factor was dispositive.

The district court made its arm of the state determination under the test articulated in Kohn. But after appellate briefing concluded, the Supreme Court issued its opinion in Galette v. New Jersey Transit Corp., 607 U.S. 509 (2026), which addressed the “arm of the state” analysis.

Galette factors. Galette identified three factors: (1) how the entity is structured in relation to the state under state law; (2) whether the state is formally liable for judgments against the entity; and (3) the degree of control the state exercises over the entity.

In its review, the Ninth Circuit concluded that the Kohn test survives Galette, although Galette clarifies how much weight courts should give each factor. Under this reweighted three-factor test, which emphasizes who pays any judgment that might ultimately be rendered against the university, the appeals court held that the university is an arm of the state and affirmed the district court’s grant of summary judgment dismissing the Section 1983 claims against it under the Eleventh Amendment doctrine of sovereign immunity.

Impact of Galette factors. The Ninth Circuit concluded that Galette refines Kohn rather than displaces it. While using some different language, the Supreme Court considered substantially the same three factors as Kohn did. Despite the different labeling, the appeals court concluded that the first Kohn factor and first Galette factor inform the same consideration: did the state intend to create an entity that was part of itself or legally independent?

The second Kohn factor considers “the state’s control over the entity.” Galette found this factor “not especially probative” because the state retains ultimate control over every entity it creates, “even those that are not arms of the State.”

The third Kohn factor considers “the entity’s overall effects on the state treasury.” Galette narrows the scope of this factor by focusing only on who ultimately pays—whether the state is “formally liable for judgments” against the entity, or the entity’s other debts or liabilities.

Accordingly, the Ninth Circuit concluded that while Galette did not effectively overrule the Kohn test, it did refine and rebalance the test.

Application of test. Applying this refined test, the Ninth Circuit held that the University of Washington is an arm of Washington State and thus is not a “person” under Section 1983. It cannot be sued for civil rights violations.

Treatment under Washington law. The Ninth Circuit first considered whether the university’s form and treatment under Washington law showed an intent to create a legally independent entity. The appeals court found that the modern-day University of Washington is a legally different entity than the old University of the Territory of Washington. Further, unlike the Territorial University, the current university was not created in the corporate form. It lacks the express power to sue and be sued. Further, state law also treats the university as a state agency, subject to the obligations imposed on state agencies. Thus, the appeals court concluded that the state intended the university to be an arm of the state, not a legally separate entity.

Liability for university debts or liabilities. Next the appeals court considered whether the state is formally liable for the university’s debts or liabilities, including judgments against it. The appeals court found that this factor was neutral. It appeared Washington may be formally liable for some but not all of the university’s debts and liabilities. Accordingly, this factor did not tilt the balance either way.

Degree of control. Finally, the appeals court considered the degree of control the state exercised over the university. There is no provision of law expressly declaring the university to be “independent of any supervision or control by” any state department or officer or requiring it to “exercise independent judgment.” Thus, while the appeals court concluded that this factor was not particularly probative, it did weigh slightly in favor of finding the university is an arm of the state.

Accordingly, the district court did not err in granting summary judgment to the university dismissing the Section 1983 claims brought against it.

The case is No. 24-7460.

Judge: Tallman, R.

Attorneys: Nathan J. Arnold (Arnold Jacobowitz & Alvarado) for Patricia Nilsen, Anna Sandi, Avery Snyder, Carrie Ford, and Christen Rhodes. Timothy J. O’Connell (Stoel Rives) for University of Washington, Jennifer Petritz, Kristi Aravena, and Kathy Schell.

Companies: University of Washington

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