The opinion of the court was delivered by: Susan Webber Wright United States District Judge
Memorandum Opinion and Order
Before the Court is a motion to dismiss filed by the State Defendants Kenneth James, Director*fn1 of the Arkansas Department of Education; the Arkansas State School Board Commission*fn2 ; and Dr. Calvin King, Dr. Ben Mays, Shelby Hillman, Diane Tatum, Dr. Naccaman Williams, Randy Lawson, Dr. Jeannna Westmoreland, Sherry Burrow, and Mary Jane Rebick, all members of the Arkansas State Board of Education. Plaintiffs responded to the motion. For the reasons stated below, the motion is granted.
Plaintiffs are all residents of Phillips County, Arkansas, and were employed by separate defendant Helena-West Helena School District ("the District") in non-certified positions. They are all African-Americans. According to the State Defendants, on April 11, 2005, the Arkansas State Board of Education declared that the District was in "fiscal distress," see Ark. Code Ann. § 6-20-1904 (Supp. 2005), and on September 8, 2005, pursuant to § 6-20-1909 (Supp. 2005), the Arkansas State Board of Education suspended the District's School Board. The Arkansas Department of Education took over the operation of the District, and plaintiffs subsequently were fired by separate defendant Rudolph Howard, the State-appointed superintendent of the District.
Plaintiffs sue the Commissioner James, the Arkansas State Board of Education, and the members of the Arkansas State Board of Education in their official capacities, asserting violations of their civil rights and voting rights as guaranteed by the Fourteenth and Fifteenth Amendments. They bring these claims "as guaranteed by the qualification of 42 USC 1981, 42 USC 1982, 42 USC 1983." See Compl. at ¶ 8. Plaintiffs also assert the State Defendants violated the Voting Rights Act, 42 U.S.C. § 1973. The State Defendants move for dismissal pursuant to Fed.R.Civ.P. 12(b)(6).
In deciding a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, all facts alleged in the complaint are assumed to be true. Doe v. Northwest Bank Minn., N.A., 107 F.3d 1297, 1303-04 (8th Cir. 1997). The complaint must be reviewed in the light most favorable to the plaintiff, McMorrow v. Little, 109 F.3d 432, 434 (8th Cir. 1997), and should not be dismissed unless it is clear beyond doubt that the plaintiff can prove no set of facts thereunder which would entitle him or her to relief. Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996). The Court may grant a motion to dismiss on the basis of a dispositive issue of law. Neitzke v. Williams, 490 U.S. 319, 326 (1989).
A motion to dismiss is not a device for testing the truth of what is asserted or for determining whether the plaintiff has any evidence to back up what is in the complaint. ACLU Foundation v. Barr, 952 F.2d 457, 467 (D.C. Cir. 1991). The issue is not whether the plaintiff will ultimately prevail but whether the plaintiff is entitled to offer evidence to support the claims, irrespective of a judge's disbelief of a complaint's factual allegations or a judge's belief that the plaintiff cannot prove what the complaint asserts. Id. See also Hickman v. Tosco Corp., 840 F.2d 564, 565 (8th Cir. 1988); Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982). Thus, a motion to dismiss should be granted "as a practical matter . . . only in the unusual case in which a plaintiff includes allegations that show on the face of the complaint that there is some insuperable bar to relief." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
To the extent that plaintiffs seek monetary damages from the State Defendants, those claims are denied. The Eleventh Amendment protects state officials sued in their official capacities from all claims except for certain forms of prospective equitable relief.
2. Section 1981 and 1982 Claims
Section 1981 bars discrimination in the making and enforcing of contracts. As amended by the Civil Rights Act of 1991, it provides in relevant part:
(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens. . . .
(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
42 U.S.C. § 1981. "A federal action to enforce rights under § 1981 against a state actor may only be brought pursuant to § 1983." Artis v. Francis Howell North Band Booster Ass'n, 161 F.3d 1178, 1181 (8th Cir. 1998). Therefore, plaintiffs' ...