The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Sandra Carter ("Carter") has sued her employer, Illinois
Department of Commerce and Community Affairs ("Department"),
charging race-discriminatory employment practices in violation
of both Title VII of the Civil Rights Act of 1964 as amended,
42 U.S.C. § 2000e to 2000e-17 (Count I) and 42 U.S.C. § 1981
("Section 1981") (Count II). Department has moved to dismiss
Count II on sovereign immunity grounds. For the reasons stated
in this memorandum opinion and order, Department's motion is
Department is an agency of the State of Illinois, so that a
suit against Department stands in the same position as a suit
against the State itself for Eleventh Amendment purposes.
Though the Supreme Court has squarely decided the Eleventh
Amendment bars suit under 42 U.S.C. § 1983, Quern v. Jordan,
440 U.S. 332, 338-45, 99 S.Ct. 1139, 1143-47, 59 L.Ed.2d 358
(1979), it has not addressed the identical question as to
Section 1981. See the Court's most recent excursion into
Eleventh Amendment analysis in Pennhurst State School &
Hospital v. Halderman, ___ U.S. ___, 104 S.Ct. 900, 906-09, 79
L.Ed.2d 67 (1984).
But for a District Court the Supreme Court is not the only
source of controlling law. In a pre-Pennhurst but (more
importantly) post-Quern v. Jordan decision, Rucker v. Higher
Educational Aids Board, 669 F.2d 1179, 1184 (7th Cir. 1982)
our Court of Appeals held:
[I]t is undisputed that the Board — the only defendant in this
case — is a state agency. As such, it is immune from federal
damages liability by virtue of the Eleventh Amendment. See
Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114
(1978); Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59
L.Ed.2d 358 (1979). Rucker's section 1981 and section 1985
claims fail on the same ground.
As to Rucker Carter's counsel respond (Mem. 6):
Indeed, some federal courts have mistakenly done so ["extended"
the authorities on which Quern v. Jordan relied in part] to
conclude that the Eleventh Amendment similarly bars Section
1981 claims. See, e.g., Rucker v. Higher Educational Aids
Bd., 669 F.2d 1179 (7th Cir. 1982). The fallacy of such
argument is based upon the differences in origin of Section
1981 and Section 1983.
It is of course possible for a Court of Appeals to be mistaken,
but arguments against a square holding by that court must be
addressed to it and not to a District Court in the same
Circuit. Orderly jurisprudence compels that such a direct
precedent be followed by this Court.
This Court therefore will not indulge the historical excursion
invited by Carter. Count II is dismissed on the controlling
authority of Rucker.
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