Is Your State Board of Nursing an “Arm of the State”?

State boards of nursing (BONs) establish criteria for approval and termination of nursing éducation programs. In Louisiana, an approved nursing education program must have a minimum pass rate of 80% or higher for candidates taking the National Council Licensure Examination-Registered Nurse, or NCLEX-RN, for the first time in any one calendar year. In 2015, the Louisiana BON terminated a state university school of nursing for failing to meet the pass rate for 3 consecutive years. A student in the program filed action against the state board, claiming violation of the antitrust acts and asserting that sole reliance on the pass rate for termination created an illegal restraint on trade. In response, the BON filed several motions, including a motion to dismiss for lack of subject matter, citing Eleventh Amendment immunity, barring lawsuits by private citizens against the state without the state's permission. This article reviews the case with a focus on the court's analysis and resolution of whether a BON should be considered an “arm of the state.”