On August 20, 2021, Washington Governor Jay Inslee issued Proclamation 21-14.1 (Proclamation). The Proclamation required healthcare providers, employees in educational settings, and state employees to receive a COVID-19 vaccination by October 18, 2021, unless they received a medical or religious exemption. The Proclamation provided that employees who qualified for an exemption were entitled to reasonable accommodation under federal and state law unless the accommodation would impose an undue hardship on the employer.
The University of Washington (UW), a public university that operates healthcare facilities, was subject to the Proclamation and adopted a vaccination policy implementing the Governor’s directive. The plaintiffs were UW employees who requested religious or medical exemptions from the vaccination requirement. UW determined that they were eligible for exemptions but then had to consider whether it could accommodate their unvaccinated status in their respective positions. UW determined that doing so would impose an undue hardship and that it could not accommodate the plaintiffs through reassignment or telework. Because none of the plaintiffs received the vaccine, UW terminated their employment.
The plaintiffs sued UW and two of its human resources officers in federal district court, alleging that their terminations violated federal and state law. The plaintiffs asserted claims under 42 U.S.C. section 1983 alleging that UW violated their rights under the First and Fourteenth Amendments. The parties filed cross-motions for summary judgment on the section 1983 claims.
The district court concluded that UW qualified as an arm of the State of Washington under the three-factor test the Ninth Circuit had articulated in Kohn v. State Bar of California. Because an arm of the state is not a “person” subject to suit under section 1983, the district court granted summary judgment to UW and dismissed the section 1983 claims against it.
The plaintiffs appealed to the Ninth Circuit. They argued that UW was not an arm of Washington State and instead constituted a legally independent entity that could be sued under section 1983. Among other things, they relied on UW’s history, arguing that its territorial predecessor had been created as a corporation before Washington achieved statehood and that its corporate character continued after statehood. UW, in turn, sought affirmance of the district court’s judgment and maintained that it qualified as an arm of the state.
While the appeal was pending, the United States Supreme Court decided Galette v. New Jersey Transit Corp., which addressed the arm-of-the-state analysis. The intervening decision required the Ninth Circuit to determine whether Galette displaced the three-factor test the en banc Ninth Circuit had previously articulated in Kohn. The Ninth Circuit concluded that Galette did not displace Kohn but instead refined and rebalanced the test. It then applied that refined framework to determine whether UW qualified as an arm of Washington State.
The Ninth Circuit addressed the plaintiffs’ remaining claims, including their claims against the individual defendants, in a concurrently filed unpublished memorandum disposition. The published opinion addressed whether UW qualified as an arm of the state and therefore could be sued under section 1983.
The Ninth Circuit began with the rule that section 1983 creates a cause of action against a “person” who, acting under color of law, deprives another of constitutional rights. States and governmental entities that qualify as arms of the state, however, are not “persons” within the meaning of section 1983 and therefore cannot be sued under that statute.
The Ninth Circuit explained that the essential question in determining whether an entity is an arm of the state is whether the state structured the entity to enjoy immunity from suit. In Kohn, the Ninth Circuit had directed courts to consider three factors: (1) the state’s intent regarding the entity’s status, including the functions the entity performs; (2) the state’s control over the entity; and (3) the entity’s overall effects on the state treasury. Under Kohn, the factors appeared to carry equal weight, with no single factor dispositive.
The Ninth Circuit next considered the Supreme Court’s intervening decision in Galette v. New Jersey Transit Corp., which held that the New Jersey Transit Corporation was not an arm of the state. The Supreme Court framed the ultimate inquiry as whether the state structured an entity as part of itself or as legally independent. In making that determination, the Supreme Court considered the entity’s treatment under state law, the state’s formal liability for the entity’s obligations, and the state’s degree of control over the entity.
The Ninth Circuit concluded that Galette did not displace Kohn because the two decisions considered substantially the same three factors. Instead, Galette refined the considerations relevant to those factors and clarified their relative weight.
The Ninth Circuit first addressed the first Kohn factor: the state’s intent as to the status of the entity. In Galette, the Supreme Court framed the inquiry as whether the state structured the entity to be legally separate. The Supreme Court stated that the corporate form provided the clearest evidence that a state created a legally separate entity. The Supreme Court also clarified that whether an entity performs traditional governmental or public functions is not relevant. Instead, the question is whether the state chose to perform those functions through its own apparatus or through a legally separate entity.
Applying the first Kohn factor to UW, the Ninth Circuit rejected the plaintiffs’ argument that UW was legally independent because its territorial predecessor had been created as a corporation before Washington achieved statehood. The Ninth Circuit concluded that the Legislature created modern-day UW as a new legal entity in 1890 rather than continuing the territorial corporation. Unlike its predecessor, UW was not created as a corporate body and did not receive the full range of traditional corporate powers, such as an express right to sue and be sued. Although Washington later granted UW additional powers, state law continues to treat UW as a state agency, including under the Administrative Procedure Act, Open Public Meetings Act, and Public Records Act. Washington law subjects lawsuits against UW to procedures governing claims against the state and extends sovereign immunity to UW in state court. The Ninth Circuit therefore concluded that the first factor favored finding that UW is an arm of the state.
The Ninth Circuit next addressed the second Kohn factor: the state’s control over the entity. In Galette, the Supreme Court characterized state control as “not especially probative” because a state retains ultimate control over every entity it creates, including legally independent entities. The Ninth Circuit therefore concluded that state control remains part of the Kohn analysis but carries the least weight.
Applying the second Kohn factor to UW, the Ninth Circuit noted that the Governor appoints UW’s regents with the Senate’s consent. Although the regents exercise substantial control over UW and its property, their authority remains subject to state oversight. For example, UW cannot sell certain university lands without legislative approval. No Washington law expressly declares UW independent from state supervision. Given the substantial body of Washington law regulating UW, the Ninth Circuit concluded that this factor, although not particularly probative, weighed slightly in favor of arm-of-the-state status.
Finally, the Ninth Circuit addressed the third Kohn factor: the entity’s overall effects on the state treasury. In Galette, the Supreme Court narrowed this inquiry to whether the state is formally liable for the entity’s judgments, debts, or other liabilities. The Supreme Court distinguished formal legal liability from the entity’s practical financial relationship with the state, such as its receipt of state funding or an expectation that the state would cover its judgments if necessary.
Applying the third Kohn factor to UW, the Ninth Circuit noted that UW maintains and funds a separate self-insurance account for its defense costs, claims, and judgments, but found indications that the account nevertheless contained state money. The Ninth Circuit tentatively viewed the fund as state money but noted that the record did not confirm or refute that conclusion. Washington had also expressly disclaimed liability for certain UW bonds, but not for all UW obligations, suggesting that Washington may remain formally liable for some liabilities. Given these uncertainties, the Ninth Circuit concluded that the third factor was neutral.
The Ninth Circuit held that Galette refined and rebalanced, but did not displace, the three-factor arm-of-the-state test established in Kohn. Applying the rebalanced test, the Ninth Circuit concluded that UW is an arm of Washington State. The first and most important factor favored arm-of-the-state status, the formal-liability factor was neutral, and the control factor weighed slightly in favor of arm-of-the-state status. The Ninth Circuit therefore concluded that Washington structured UW as part of the State itself rather than as a legally independent entity.
Because UW is an arm of the state, it is not a “person” subject to suit under 42 U.S.C. section 1983. The Ninth Circuit therefore affirmed the district court’s grant of summary judgment dismissing the section 1983 claims against UW. The court resolved the plaintiffs’ remaining claims, including their claims against the individual defendants, in the concurrently filed unpublished memorandum disposition.
Nilsen v. Univ. of Wash. (9th Cir. Aug. 13, 2026, No. 24-7460) 2026 LX 440752.