This section contains the nature of the case and procedural background.

Civil disorder on the campus of Kent State University in Ohio during May 1970 caused Ds to send in the National Guard who killed a number of students. Ps, personal representatives of the estates of three students who died in that episode seek damages against Ds, the Governor, the Adjutant General, and his assistant, various named and unnamed officers and enlisted members of the Ohio National Guard, and the president of Kent State University. The complaints allege a cause of action under the Civil Rights Act of 1871, 17 Stat. 13, now 42 U. S. C. §1983. The complaints allege that each of the named defendants, in undertaking such actions, acted either outside the scope of his respective office or, if within the scope, acted in an arbitrary manner, grossly abusing the lawful powers of office. The District Court dismissed them for lack of jurisdiction without the filing of an answer to any of the complaints. The court held that it was an action against the State of Ohio and thus barred by the Eleventh Amendment. The appeals court affirmed holding the individual defendants were entitled to executive immunity. The Supreme Court granted certiorari.

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