State Agencies Are Not “Persons” for § 1983, § 1981, or ACRA Claims; Title VII Claims May Proceed Against the Agency

Arkansas Highway Police, a Division of the Arkansas State Highway and Transportation Department v. Raunona Mays, 2026 Ark. 57 (Apr. 9, 2026)

I. Introduction

In Arkansas Highway Police v. Mays, the Arkansas Supreme Court addressed how sovereign immunity interacts with employment-discrimination claims pleaded under multiple civil-rights regimes. The plaintiff, Officer Raunona Mays—an African American woman and AHP Sergeant employed since 2004—alleged she was denied four promotions (2022–2023) in favor of Caucasian male candidates or “inferior” candidates, and that AHP retaliated after she filed an internal grievance and an EEOC charge.

Mays sued only the Arkansas Highway Police (AHP), asserting claims under Title VII, 42 U.S.C. § 1981, 42 U.S.C. § 1983, and the Arkansas Civil Rights Act (ACRA), and seeking damages, a lieutenant position, and injunctive relief. AHP moved to dismiss on sovereign-immunity grounds; the circuit court denied the motion, and AHP pursued an interlocutory appeal under Ark. R. of App. Proc. Civil 2(a)(10).

The key issues were (1) whether Mays’s pleadings fit within exceptions to Arkansas sovereign immunity for “illegal, unconstitutional, or ultra vires” acts, and (2) whether the specific statutory causes of action she invoked can be maintained against a state agency.

II. Summary of the Opinion

Chief Justice Baker and Justice Womack concurred in part and dissented in part, disagreeing with aspects of the sovereign-immunity analysis—especially as applied to federal claims and the scope of Arkansas’s “never means never” doctrine rooted in Board of Trustees of the University of Arkansas v. Andrews, 2018 Ark. 12.

III. Analysis

A. Precedents Cited and Their Influence

5. The separate writings: “never means never” and Supremacy Clause limits

• Board of Trustees of the University of Arkansas v. Andrews, 2018 Ark. 12: Chief Justice Baker invoked Andrews and its “never means never” reading of Ark. Const. art. 5, § 20 to argue exceptions (including ultra vires) were not contemplated and that state-law claims should be barred accordingly.
• Ark. Oil & Gas Comm'n v. Hurd, 2018 Ark. 397, and Land v. BAS, LLC, 2025 Ark. 107: Cited by Chief Justice Baker as part of the Andrews “progeny” reinforcing the strict approach.
• Thurston v. League of Women Voters of Ark., 2022 Ark. 32: Cited by Justice Womack (dissenting in part) to illustrate his view of the proper textual reading of sovereign immunity and the limited set of express constitutional exceptions.
• Haywood v. Drown, 556 U.S. 729 (2009), Testa v. Katt, 330 U.S. 386 (1947), and Howlett v. Rose, 496 U.S. 356 (1990): Justice Womack used these Supremacy Clause cases to argue Arkansas cannot categorically close its courts to federal causes of action based on state sovereign immunity where state courts otherwise entertain analogous claims.

B. Legal Reasoning

1. Interlocutory posture and the “plead facts” gatekeeping function

The court framed the appeal narrowly: whether AHP was entitled to dismissal as a matter of law on sovereign-immunity grounds, reviewed de novo (Banks v. Jones). Yet, because Mays invoked the “illegal, unconstitutional, or ultra vires” pathway around immunity, the court emphasized Arkansas’s fact-pleading requirement: allegations must be factual, not conclusory (Williams v. McCoy).

2. § 1983 fails because the defendant is not a “person”

The majority treated defendant identity as dispositive. Section 1983 provides a cause of action against “[e]very person” acting under color of state law. Relying on Will v. Mich. Dep't of State Police, the court held a state agency is not a “person” under § 1983, making Mays’s decision to sue only AHP (and no individuals in their individual capacities) “fatal” to the § 1983 claim. As a result, the claim could not survive AHP’s sovereign-immunity challenge and was remanded for dismissal.

3. § 1981 fails due to state immunity from § 1981 liability

For § 1981, the court relied on Singletary v. Mo. Dep't of Corr. for the proposition that Congress has not abrogated state immunity for § 1981 claims, and cited Alden v. Maine to underscore that state sovereignty concerns are at least as strong (and, in the majority’s view, stronger) in state courts. Thus, because the state agency would be immune in federal court, the court concluded the § 1981 claim “cannot survive a sovereign-immunity challenge in state court.”

4. ACRA fails because it too is limited to “persons,” construed in harmony with § 1983

ACRA’s operative liability provision, Ark. Code Ann. § 16-123-105, applies to “[e]very person” acting under color of state law. The statute expressly authorizes courts to look to § 1983 decisions for guidance (Ark. Code Ann. § 16-123-105(c)), and the court invoked Harmon v. Payne to reinforce that interpretive approach. Using the same “state agencies are not persons” logic applied under § 1983, the court held AHP is not a “person” under ACRA and reversed for dismissal.

5. Title VII survives because Congress defined “person” to include governmental agencies—and Mays pleaded a prima facie case

Unlike § 1983 and ACRA, Title VII defines “person” to include “governmental agencies” and targets discriminatory employment actions by “employers.” The court then assessed whether Mays pleaded sufficient facts (at the motion-to-dismiss stage) to state a Title VII claim under the McDonnell Douglas Corp. v. Green / Torgerson v. City of Rochester prima facie framework. It held she did: she alleged protected-class status (African American female), qualification for open positions, denial of promotion, and selection of candidates outside her protected class. Accordingly, AHP was not entitled to sovereign immunity as to the Title VII claim, and the denial of dismissal was affirmed on that point.

6. Fault lines exposed by the concurrences/dissents

Chief Justice Baker’s writing reflects continuing institutional disagreement about whether Arkansas recognizes any non-textual exceptions to sovereign immunity after Board of Trustees of the University of Arkansas v. Andrews. Justice Womack’s dissenting analysis focuses on a different axis: the ability of a state to use its own sovereign-immunity doctrine to “categorically disable” federal causes of action in state court, relying on Haywood v. Drown, Howlett v. Rose, and Testa v. Katt. The majority did not adopt those Supremacy Clause arguments, but their presence signals continued debate about Arkansas sovereign immunity’s interface with federal rights.

C. Impact

1. Claim-structuring consequences for Arkansas civil-rights plaintiffs

• § 1983 and ACRA: Plaintiffs who sue only a state agency (rather than “persons” in the legally cognizable sense) risk immediate dismissal. The opinion effectively requires careful defendant selection for these theories (consistent with the court’s “person” analysis).
• § 1981: The decision reinforces that damages claims under § 1981 against a state agency face immunity barriers; plaintiffs must anticipate dismissal on that basis in Arkansas courts.
• Title VII: The opinion confirms Title VII remains a viable vehicle against a state agency in Arkansas state court, and that a well-pleaded prima facie set of facts will generally survive an immunity-based motion to dismiss.

2. Doctrinal consolidation: ACRA “personhood” aligned with § 1983

While Arkansas courts have long looked to § 1983 for ACRA guidance, this decision crystallizes the consequence: if a state agency is not a “person” for § 1983 purposes (Will v. Mich. Dep't of State Police), it is likewise not a “person” under Ark. Code Ann. § 16-123-105. That alignment will likely narrow the practical reach of ACRA in suits targeting state entities.

3. Litigation-stage significance

The court’s approach also demonstrates that, in immunity appeals, Arkansas courts may resolve threshold statutory-coverage questions (e.g., whether the defendant can be sued under the statute at all) as part of the sovereign-immunity inquiry. The separate writings warn that the scope of what can be decided in an Ark. R. of App. Pr.-Civ. 2(a)(10) appeal will remain contested.

IV. Complex Concepts Simplified

• Sovereign immunity (Ark. Const. art. 5, § 20): A constitutional rule that the State cannot be sued in its own courts when the lawsuit would control state action or impose liability—unless an applicable exception applies.
• “Illegal, unconstitutional, or ultra vires” acts: A recognized pathway around immunity in Arkansas cases; it means the government allegedly acted unlawfully, contrary to the constitution, or beyond its legal authority.
• Fact pleading: Arkansas requires specific factual allegations—not just labels like “discrimination” or “retaliation”—especially when a plaintiff is attempting to avoid sovereign immunity.
• “Person” under civil-rights statutes: Some statutes impose liability only on a “person.” Under § 1983 (and, here, ACRA by analogy), a state agency is not a “person,” so the statute does not authorize suit against the agency itself.
• McDonnell Douglas framework: An evidentiary structure for proving discrimination without direct evidence. At the pleading stage, the plaintiff typically must allege facts supporting the prima facie elements (protected class, qualification, adverse action, and replacement/selection outside the protected class).
• Eleventh Amendment / abrogation: Federal-law doctrines that often shield states from certain federal claims unless Congress unmistakably removed (“abrogated”) the immunity; the court used this to reject § 1981 claims against the state agency.

V. Conclusion

Arkansas Highway Police v. Mays draws a sharp, practical boundary for employment civil-rights litigation against Arkansas state entities: (1) § 1983 and ACRA claims cannot proceed against a state agency because those statutes apply to a “person,” and the agency is not one; (2) § 1981 claims against the agency are barred by state sovereign immunity as applied by the court; but (3) Title VII expressly reaches governmental agencies as employers, and a plaintiff who pleads the prima facie facts of discriminatory denial of promotion will survive an immunity-based motion to dismiss. The separate writings highlight ongoing constitutional and federalism disputes about the scope of Arkansas sovereign immunity—disputes likely to reappear in future cases where federal statutory rights intersect with Arkansas’s “never means never” immunity debates.