Jennifer Jones
Civil Rights Outline
CIVIL RIGHTS
OUTLINE
Professor Wright
Spring Semester 2000
I. THE §1983 CAUSE OF ACTION
• Limited, but the claims are quite broad. Title 7, more limited in scope, but can assert against
anyone.
• Other important statutes: AIDS discrimination in employment statute (S.C. said cannot apply
against state government b/c 11th Amendment).
• §1983 protects federal rights, but only those under color of state law.
• Drawn from post-Civil War. Originally from the KKK Act (1871), but not limited to matters
of race. Not significantly used rights away after enactment until 1961 (Monroe v. Pape).
Challenges w/§1983:
1. Doesn’t refer to what kinds of recovery. How do you figure remedies? Punitive damages?
2. No statute of limitations.
3. Nothing explicit about defenses/immunities! Do you infer?
Terminology
• How do you know whether a  is “acting under color of state law”?
• “Every person” – not very narrow, doesn’t have to be a citizen. Can it be a corporation, etc.?
• “State” is not a person. Congressional intent is the basis. Thus, generally, under §1983 you
can sue the city, but not the state. Complication: counties part of the state = may be outside.
Color of State Law Issue
• Very hard problem that has not really been solved.
• Often, it is very close if not the same to state action. [State action - when you can say that the
government is somehow responsible (partly).]
• Private people can act under color of state law.
• Someone that works for the state. The bad thing that happened was furthered by their badge.
Examples:
• City cop beats someone up (may/may not be). If no uniform (p.j.) – Probably
not.
• If walking down the street w/your yo-yo and a police cruiser drives up w/gear
on, etc. and drives off w/you and beats you up . . . Probably action under state law. It
was furthered by your reliance on his incidences of being an official cop. It wouldn’t
have happened. Look at it from victim’s point of view: luring? But go a little further . .
• Middle Range – same as above, but lurking in the bushes and leaps out and beats you.
Action under color of state law? NO! Although wearing outfit, no causal connection
b/n outfit and beating. No furtherance. Order by superior to beat civilians!! Victim
did not know, that might kick in state law.
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• Not everything that government empowered do is under color of state law.
• What if it is not a real cop? Not action under color of state law. It’s possible for individual to
act under color of state law, but usually in concert w/state (i.e., going w/sheriff to repo.).
Hogh case: Public defender. Client unhappy w/performance and sues under §1983. Action
under COSL when defending you. Easily argue that it is. SC says NO! WHY? Opposing the
state (opposing the prosecutor) therefore how can it be action under COSL. Wrights says real
reason is to prevent these types of suits against PD (but not w/o remedy).
*Also covers customs or usages. (not just law).*
Monroe v. Pape: Includes more than just state law, but possible that other kinds too. Expands the
scopes of possible §1983 actions (ie, a rogue cop, misjudgment, etc.). Must show policy, etc to
sue city.
Can sue the entity or individual actor under §1983. Advantages and disadvantages to each.
Different defenses.
Differences b/n suing someone in their official capacity vs. their personal capacity.
 Example: Elroy and Judy in official capacity suing the government that they work for in the
abstract. Ed, the dog catcher, in official capacity  suing Mountain Brook only. Thus 2 ways
to sue Mountain Brook: name OR employee in its official capacity. If sue Judy and Elroy in
personal capacity, under §1983, still have to show COSL. Different defenses/immunities, less
money and assets (which may be limited). Often contract for suits in personal capacity, which
the city ends up paying.
To collect against the city: Bad thing that happened must have been does pursuant to authority
of the highest responsible individual (custom/policy).
Rogue Cop: Have to show deliberate indifference and failure causally connected on very specific
level. A city is generally not liable for bad actions just on a respondeat superior basis.
City employee: have defenses under §1983 (not in text). Separate immunities/defenses. Will
have either absolute immunity or qualified immunity in their discretionary actions.
Absolute: judges, jurors, etc. (not always).
Qualified: more employees (governors, cops, teachers, etc.).
 Harder to specify.
 No entity has it.
 What does it take to get past this? Personal capacity.
 What did you as a  under COSL, would a reasonably objective person believe acting under
the law.
 If  can argue that, then qualified immunity kicks in (even if wrong). The law is not always
clear and is sometimes factually unclear whether permitted.
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§A.
“. . . Rights, Privileges, or Immunities Secured by the Constitution . . .”
The state itself cannot be a  under §1983. But can sue people (probably) if asking declaratory.
But can sue people in personal capacity.
 State actor can raise the qualified immunity defense.  Could a reasonable person acted as the
state actor did  even if wrong. Maybe no money damages.
 QID maybe unclear in cases.
 More objective now.
 “Good faith” test  don’t use.
 May depend on how generally/specifically phrase the Q.
 Court says what you have to show that what they did at a specific level, they should have
known.
 Generally, the more specific, the more likely the cop reached one level than at the other.
 If not clear that what you did was wrong – QID.
 SC has given some guidance. Find a close case precedent. Go to other circuits – may/may not
work.
Also possible to win on other grounds – “prior case that establishes the right, and case  was
worse than client’s behavior.”
Just about any federal right, it looks like we can bring §1983 action w/some exceptions. Doesn’t
have to be a constitutional right. “Laws: has been interpreted as federal statutory rights Federal
administrative/regulatory right. Even if no constitutional right at stake.
Two Minor Limitations:
1. Hortatory right – no a real right written in statute. Symbolic rights. Federal statutory rights
that cannot sue under §1983.
2. W/n statute have enforcement and remedial scheme (detailed, comprehensive) intended to
replace/not supplement §1983 remedies.
BRAWNER v. IRVIN (1909), p. 65
Assault by chief of police.
• Do we have a state action? Court said not 14th Amendment b/c relates to a state. No state
action even though police is involved!?!?
• No complaint of state action.
• Personal assault/trespass. Doesn’t reduce to condition of 13th Amendment (does not require a
state action). Arrest/whipping is not a condition of slavery!!
• Woman left to state law. Only remedy is a battery remedy.
• Today, might find state action.
• Some of the earlier cases  not clear, especially if illegal. WHY? State told them not to.
Expanding to include though.
• Wright: no reason why you couldn’t plead in the alternate.
MONROE v. PAPE (1961), p. 70
Scope expanded of liability.
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Basic idea: all those federal constitutional rights made binding into due process laws (14th), they
count as rights that you can enforce in a §1983.
§B.
“Under Color of” Law
1.
Two Views of “Under Color of” Law
MONROE v. PAPE (1961), p. 71
Is it possible for a state official to knowingly violate state law to act under color of state
law?
• Court broadened, the cop can still be liable for acting under color of state law, even if
you know are violating.
• On the other hand. §1983 is not just situated where the state law itself is repressive.
Useful whether state remedy is adequate/enforceable. Can be used in a supplementary
manner.  doesn’t have to exhaust the state administration process. Good law on
books – not enforced.
• Misuse of power can be actionable under color of state law.
• Similar to the facts in Bivens (discussed later, dealt w/color of federal law 
constitutional violations).
• State actors as  acting under state law.
• In order to be under color of state law, do you need a state statute, custom, or policy?
No, not for a §1983 action against the individual. Nor do you have to show that there’s
adequate state remedy. §1983 supp. state law. No exhaustion requirement.
• Even if a state actor has misused authority . . . Brownie troop in jail (but no statute, etc.)
but if sheriff is clothed w/authority and this led to it (never would have happened if it
weren’t for clothing).
SCREWS v. UNITED STATES (1945), p. 76
DISSENT!
• Lanier seems to call into question the majority in this case.
• Color of state law  §242 criminal counterpart of §1983.
U.S. V. LANIER (1997)
Civil chancery judge of wills and estates. Sexually assaulted employees/litigants. 12
counts under §242. Judge claims that he did not act under color of state law. If not under
§242, can still claim under something else.
 Qualified Immunity  was not established that the actors violated protected rights
under §242.
 Phone calls or went to office. Judges sometimes have absolute immunity if w/n
jurisdiction (colorly w/n scope).
 Can argue that this is not absolute immunity b/c not w/n jurisdiction. Job interview and
discussing case  arguably, color of state law.
 There’s qualified immunity for some administrative actors. How can there be any
qualified immunity? How could he not know that sexual assault was a crime.
 Ok, but violation of state law (assuming COS). Must be a violation of a federally
protected right. Deprivation of SDP (primary) liberty interest of the women. Also
equal protection maybe.
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 Step 2: Also have to show that this right was clearly established at federal level at the
time of the act. Can we say that any reasonable person should have realized that it was
a violation?
 Before this, no other cases!! Too obvious! He should have known! It’s worse than X
case. Sufficient notice.
 Argue that it is obvious on its face OR worse than this X case.
 FN: Court did not address whether there was action under COSL. Overturn Screws.
Re-visit. Only concerned w/qualified immunity.
 Apply same qualified immunity tests for §§242, 1983 and Bivens.
 Clearly established that it was a violation of federally protected rights. Let them off: if
reasonable person could have believed ok.
 Notice  fair warning needed!!! Strictly construe, avoid vague statutes. What bothers
Wright is that this is not a fair notice case as to whether it is a crime. HAZY!!
 It’s not as though the judge is concerned about innocent/criminal behavior.
 Defense: Knew it was a violation of state law, but not federal law. Wright loses
sympathy for lack of notice complaint.
2.
The Relationship Between Action “Under Color of Law” and State Action
LUGAR v. EDMONDSON OIL CO. (1982), p. 81
• Distinguish state action and color of state law.
• Rare to have one w/o the other.
• 14th Amendment cause of action.
• Sued under §1983  not a state actor on his own. Link to state?
• In general, action under color of state law similar to state action  roughly, the state is
implicated partial responsibility.
• Related!! Reach a conclusion that based on facts action under color of state law.
Concert w/sheriff and clerk – state action. “But for” satisfied. State action – 14th
Amendment.
• Color of state law - §1983 purposes – Broad so that anything that constitutes a state
action = color of state law.
State action – if we can say the state was responsible. State action is good if we should
blame the state. “Fairly attributable.”
“Fairly Attributable” Test: P.88 – Deprivation caused by:
1. State created right that’s extinguished.
2. Can we say the p.p.  is a state actor or significantly aided – so that fairly chargeable
to p.p.? Here? YES!!
Marsh v. Alabama – free speech. Company town that’s privately-owned. Don’t forfeit
your basic freedoms and rights. Private property is a bundle of rights and cannot dictate.
Public function test.
Nexus Test (Jt. Action Test): Private diner in a public garage. State action if diner
violates? YES!! Symbiosis. State could have set forth a non-discriminatory provision in
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lease. Profits go to state. Procedural scheme – invokes aid of state actor. State action.
Joint participation.
Problem: Anytime you pursue a legal right you act under color of state law.
Card party example: Party more responsibility on the part of the state actor to act. In
Edmonson, the responsibility is on the creditor.
Polk County v. Dodson (1981), p. 96: Public defender. Not an action under color of state
law – opposing the prosecutor then not under color of state law. Wright: state employee
acting under color of state law. Don’t want criminal  suing their attorneys, Too much
trouble (logistics, etc.).
Shelly v. Kraemer: private racially restrictive covenant. Judicial enforcement of it is a
state action. Racial discrimination  courts are more likely to find state action. WHY?
Important in which the state has assumed a fair amount of responsibility.
*Gravity of harm affect degree of responsibility, etc.
DeShaney: No action under color of state law. No state action. Unless in custody of the
state. No §1983 action.
§C.
The Scope of §1983 After Monroe v. Pape
1.
Rights Protected
MAINE v. THIBOUTOT (1980), p. 107
Rights protected – federal statutory rights too. Don’t have to be standard federal rights
(even if not equal protection, civil rights, etc.)
• Involves federal statutory rights.
• State have some 11th Amendment immunities.
• §1983  states cannot be  (whether state or federal OR consents).
• WHY ? 1980 case and truth not established until Well (1989). Exceptions.
Will – state and state actors were not persons () for §1983 actions.
Injunctive relief (can be sued for) – in their official capacity.
Even though states may not be liable, official  not really the state. Why would the state
violate federal law in the future (injunction)? No harm done if individual in official
capacity.
Melo case – But individual can be sued in the personal capacity or money damages. But
that person can raise the QID.
Where federal statutory rights can be the subject under §1983 (except hortatory rights and
remedial scheme set up in statute).
 See p. 114-17: Jurisdictional § that accompanies §1983 – gives federal courts
jurisdiction (§1343).
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 Note 1, p. 177: appears to be narrower than §1983. “Equal Rights” sub. statute seems
to include ER issues. Well tough!! What happens is if there’s a fuss: argue not only
§1343, but a general federal jurisdictional claim arising under §1331 (all constitutional
violation/federal statute). Very Broad.
 Note 2, p. 118: Hague (1939) – used §1983. Don’t have to be a person (trade union,
abstract person, corporation).
 Note 4, p. 119: Pennhurst – hortatory right, tried to sue – NO!!
 Middlesex, p. 120: detailed remedial scheme. Should it imply that you can’t also use
§1983? YES!! Comprehensive, exclusive exhaustive remedial scheme! Congressional
intent to use it.
GOLDEN STATE TRANSIT CORP. v. CITY OF L.A. (1989), P. 122
Whether the NLRA granted petitioner rights enforceable under §1983.
 Court allowed an employer to sue a state government over an underlying labor dispute
w/union.
 Withhold till you settle.
 If the city says withhold licenses till settle w/employees – illegal interference
w/employer’s right to use tactics, etc.
Problem: that forces the city to guess what it is allowed to do. Guess wrong  §1983
action. No qualified immunity (kind of like strict liability). But maybe that’s the only
way to make employer whole (can’t be under NLRA).
See p. 129, Note 1: It’s possible to bring a §1983 action against some state official if
federal right is the commerce cause. Not so for Supremacy Clause b/c does not create
rights.
2.
State of Mind & Due Process Claims
DANIELS v. WILLIAMS (1986), p. 131
Prisoner seeks damages for falling down stairs. He slipped on a pillow negligently left in
the stairwell, and this negligence allegedly deprived petitioner of his “liberty” interest in
freedom from bodily injury.
 §242 is the criminal counterpart to §1983. §1983, unlike §242, contains no state-ofmind requirement independent of that necessary to state a violation of the underlying
constitutional right.
 Depriving prisoner of property w/o due process. What sort of mens rea does the  have
to show for due process?
 Overrules Parrat. Did not want to turn everything into a §1983. Cutting back the
scope. While the Due Process Clause of the 14th Amendment obviously speaks to some
facets of this relationship, we do not believe its protections are triggered by lack of due
care by prison officials.
 Most of the harm that §1983 is really aiming to address  intentional harm.
 FN 3, p. 134: Negligence isn’t enough. But doesn’t specify what would be enough.
§D.
Actions Against Federal Courts
Injunctive actions against state and federal officials rest on foundations independent of §1983.
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 Ex Parte Young – may go after state officials (injunction) on other grounds.
Three things for federal officials (gov./off.) for civil rights things (have to look at all 3 b/c
interrelated):
1. FTCA.
2. Related federal statute – FELRTCA (p. 157).
3. Bivens case.
The Federal Tort Claims Act: damages actions, in particular, suit against the U.S. Exclusive
jurisdiction  district courts. Has nothing to do w/suits against individual federal actors (will
see in FELRTCA and Bivens). Have to show that it would have been a tort if private party under
your state law. Must exhaust administrative remedies (unlike §1983). You cannot get a prejudgment interest or punitive damages (looting Treasury. Not deterring bad conduct). No
recovery for due care under a statute (even if invalid), if employer was exercising a discretionary
function (even if abuse). Don’t try to get money from the U.S. if not a tort if a private party.
 See p. 156 for list of torts that are included and excluded.
 Exhaust appropriate remedies, no juries, no punitive. Some exceptions. Some provisos.
 Another limitation: Federal Emp. Liability and Tort Comp. Act. Exclusive remedy is under
FTCA, against U.S. not on employers. All you can sue is the U.S. for money damages.
 Monumental limitations and loopholes: Bivens actions (violations of the Constitution). Don’t
feel bound by FTCA. Can also sue employee if the statute permits suit of a federal actor even of
not constitutional violation.
 If the federal government violates your rights (freedom of speech) – hard to believe no remedy.
Whether it might be an injunction or money damages. Sometimes just want symbolic judgment.
BIVENS v. SIX UNK. NAMED AG. OF FED. BUR. OF NARCOTICS (1971), p. 157
6 narcotics agents entered a resident and searched and arrested .
Whether violation of that command by a federal agent acting under color of his authority gives
rise to a cause of action for damages consequent upon his unconstitutional conduct. YES!!
 Similar to injuries suffered in Monroe v. Pape.
 If no probable cause, can argue need for Civil Rights remedies here.
 What about state tort law? Ok, there are some present (trespass, humiliation, etc.) But, we’re
not sure that it would be available.
 The fact that they were acting under COFL might evoke an actual consent. Trespass? No, b/c
consent. May limit viability of a state law claim or two.
 Claim was under 4th Amendment, but no reference in 4th Amendment to a remedy.
 Court feels that it applies to other constitutional violations (1st Amendment).
 The very essence of civil liberty certainly consists in the right of every individual to claim the
protection of the laws whenever he receives an injury.
SCHWEIKER v. CHILICKY (1988), p. 168
Whether the improper denial of social security disability benefits, allegedly resulting from
violations of due process by government officials who administered the Federal Social Security
program, may give rise to a cause of action for money damages against those officials.
 Court said remedy unavailable.
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 May be argue Bivens for procedural due process (5th Amendment).
 Court wants to say no Bivens type remedy in this kind of case. Not going to judicially invent it
b/c Congress has already established an elaborate statutory scheme.
 Limitations on Bivens cases. WHY? Congress created a scheme. Reminds us that you don’t
get §1983 if Congress has established a comprehensive remedial scheme (Middlesex).
[hortatory and scheme  not available!!]
 Parallels this when suing federal officers.
 In this case, the remedial scheme is not adequate. No remedy for emotional distress and
hardship from delay of social security checks. Like student loan checks.
 Court says too bad!!! It just has to be meaningful, not necessarily complete.
Carlson v. Green (1980), p. 176: the court found that a remedy under the FTCA did not preclude
Bivens relief for a federal prisoner alleging constitutional violations.
 Bivens actions are recoverable against federal individual actors. Maybe holds down damages
awards.
 Deterrents: actors may be a little more careful if the action can be brought against actors. If it
could be brought against the U.S., employer could put in employee’s files.
 Contract: federal government pick-up expenses – sort of limits the deterrence factor.
 Punitive damages available in a Bivens action.
 §1983 punitive damages available against individual actors.
 Jury in a Bivens action.
 FTCA only get recovery depending on state tort law. Haveto show analogy of what would
happen in state court if private party. Yet you could argue w/regards especially to
Constitution. Ability to recover varies from state to state. Makes federal liability vary from
state to state.
 So if federal actor intervenes w/worship  should not vary w/state to state.
 So why not have federal constitutional rule regarding freedom of religion, not depending on
local state law.
II. DEFENSES & IMMUNITIES OF INDIVIDUALS
Two general possible lines:
1. Absolute – no liability for anything.
2. Qualified – some think to extensive.
In some cases, complicated to determine which immunity is applicable across the board.
Prosecutor may have absolute immunity for some things and qualified for others. Do different
things.
Functional Test: What function is the government agent undertaking?
 How do you know if supposed to have immunity?
 Have to think in practical terms of what we are protecting, etc.
 Costs and benefits of either. Don’t want them to make their decisions based on whether they
are worried about liability, etc.
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Justices Scalia and Thomas  state of mind of drafters. Historical inquiry. Often difficult to tell
who had what immunity hundred years ago.
Sometimes passage w/immunity . . . . (constitutional provision).
§A.
Legislative Immunity
1.
Federal Legislators
GRAVEL v. U.S. (1972), p. 193
Pentagon Papers, confidential information regarding Vietnam. Sub-committee meeting
on Public Buildings and Grounds. Later published.
Whether and to what extent Senator Gravel himself is exempt from process or inquiry by
a grand jury investigating the commission of a crime.
 Constitutional provision (Article I, §6, cl. 1) – how broad? Problem was aimed at in the
course of their official capacities. Off the hook at sub-committee meetings.
 What about a bribe? NO!! An offer of a bribe is not protected.
 The heart of the Speech and Debate Clause must be an integral part of the deliberative
and communicative processes by which members participate in committee and House
proceedings w/respect to the consideration and passage or rejection of proposed
legislation or w/respect to other matters which the Constitution places w/n the
jurisdiction of either House. The privilege has been extended the matter beyond pure
speech and debate in the Houses only when necessary to prevent indirect impairment of
such deliberations.
 What if . . . (p. 196)  Senator directed illegal arrest on the floor? Speech immuned,
but arrest prosecuted.
 Shouldn’t you protect the work that protects the immuned work. Elbow Aids. Some of
the protection is extended to aids (org. meetings). Even if it turns out to be illegal. Pp.
197-98. Go beyond  lose immunity. Confined to those services that would be
immune legislative conduct if performed by senator himself (p. 198). Publishing,
arranging w/publisher not immune. General immunity w/relation to house for
committee business.
 If you lose the immunity  Argue for Free Speech!!
Doe v. McMillan (1973), p. 202: the Court held that submission and use of the report w/n
Congress was protected by the speech or debate clause. The Superintendent of
Documents and the Pubic Printer were not immune from suit for public dissemination of
the report.
 Found the blue-collar workers liable; like they had a lot of choice.
 The fat cats get off the hook.
 Too far removed (blue-collar workers) from the S/D clause.
2.
State & Local Legislators
Think about historical immunity for federal  constitutional protection.
TENNEY v. BRANDHOVE (1951), p. 208
Should we recognize immunity for state legislators?
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 Court should recognize a fairly broad immunity. Administrative – generally qualified.
Have to look at the function.
 Intent to reduce freedom of speech.
 Further removed  from what should have done –
Better for  (b/c not w/n scope of purpose), but make be so far that not acting under
color of state law.
 B/n a rock and a hard place.
 Authority, but also so removed from what you should have been doing  no qualified
immunity.
 Good functional reasons to protect as w/federal.
 Courts are not appropriate places for controversy. Should just ask whether acting w/n
province (scope/balance of what supposed to do).
 Example: enjoin plane to wait for you – would be outside immunity.
 In most instances, cut legislators some slack.
 Should city council have immunity? Often not as broad.
 State legislators are absolutely immune from suit under §1983 for actions “in the sphere
of legitimate legislative activity.”
LAKE COUNTRY EST., INC. v. TAHOE REG. PLANNING AG. (1979), p. 212
Petitioners own property in Lake Tahoe area and filed complaint alleging that TRPA
(Tahoe Regional Planning Agency), the individual members of its governing body, and
its executive officer, had adopted a Land Use Ordinance and General Plan, and engaged
in other conduct, that destroyed the economic value of their property.
 State legislator – absolute immunity under §1983 as long as engaged in legislative
duties. For example, would not cover hiring.
 Think about roles that legislator might engage in. Legislator – legislates, solicits
publishers, speak, etc. What counts? Bearing in mind the core – some legislative
activity. If not, opening a Pandora’s Box. Disincentive, etc.
 Have to do the same thing w/judges and prosecutors.
 Big governing body immune against federal damages . . . .
 Don’t seem concerned about control of board, nor fuss whether officials were
elected/appointed.
 Could argue that elected do not need – disincentive (can vote).
 Some that are not elected that we give absolute immunity.
 City councils? Personnel decisions done in a legislative manner, could argue that
should not have the same immunity.
§B.
Judicial & Prosecutorial Immunity
STUMP v. SPARKMAN (1978), p. 220
Mother petitioned the court to have surgery to get her daughter’s tubes tied. The daughter was
15yrs. old at the time was described as “somewhat retarded.” She was hanging out w/boys and
the mother was scared that she might become pregnant.
 The petition was approved by the judge, ex parte. Not filed, not assigned a docket, etc.
 Surgery was conducted under appendix pretense. Daughter found out 2yrs. later; her and her
husband were trying to have children.
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 No statutory basis for judge’s decision. Committed a number of procedural errors.
 Assume that it is a constitutional violation.
 Forget absolute immunity. Qualified immunity (Lanier) – no established precedent.
 But can rebut so egregious, that no reasonable judge would have done that.
 Court said entitled to absolute immunity (w/the exception of administrative duties, etc. 
hiring violates federal right – no immunity). Have to draw a line.
 Wright thinks may very close to what a judge should know they should not do.
 P. 222: Take a stab at drawing a line. Judge not deprived of immunity b/c the action he took
was in error, was done maliciously (controversial), or was in excess of his authority; rather, he
will be subject to liability only when he has acted in the “clear absence of all jurisdiction.”
 If barely misconstrued federal jurisdiction (could make a technical mistake).
 [Case law also saying not to do it.]
 What’s on the other side?
 If Judge Stump starts acting crazy, at what point do we say that’s worse b/c outside, but then
you killed your case (not under COSL). Don’t have immunity defense, but also loss element of
your case.
 Made a jurisdictional boo-boo, but didn’t lose b/c not entirely w/o jurisdiction.
 See FN 7, p. 222 for distinction.
 Epstein argument: In the vast majority  not as bad as Stump. Immunity is the right result to
avoid problematic decisions.
 Better off  absolute rule.
BUCKLEY v. FITZSIMMONS (1993), p. 231
Petitioner seeks damages from respondent prosecutors for allegedly fabricating evidence during
the preliminary investigation of a crime and making false statements at a press conference
announcing the return of an indictment.
Issue: Whether respondents are absolutely immune from liability n either or both of these claims.
 Prosecutors in some respects will get immunity, but in other respects will not. Maybe there’s
qualified immunity.
 Prosecutors do many things: prosecutes, occasionally a press statement to address a case,
actively involve themselves in investment cases, talk to and select witnesses, administrative
duties too (qualified immunity, probably w/respect to the last item).
 If lead raid, what immunity does the prosecutor has.
 State Prosecutor: Acting under COSL. Product of false evidence, among other things. Not as
malicious as it sounds (boot/boot print). Need expert witness. Doesn’t go w/the first expert.
Maybe not shopping, but want someone reasonable. If that is the case, then do you want to
take away absolute immunity? Put it in context? –
Imbler v. Pachtman (1976), p. 233: held that a state prosecutor had absolute immunity for the
initiation and pursuit of a criminal prosecution, including presentation of the state’s case at trial.
 Have absolute immunity in §1983 for initiating, pursuing, present state’s case in criminal.
Burns v. Reed (1991), p. 233: prosecutor gives legal advice to cops, qualification immunity.
Probable cause question  same standard as cop (qualified) Actual part: in probable cause 
absolute immunity.
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 ASK: Is it clear? Is it right?
 Sounds good, but argue: usually a good idea for prosecutor to give advice to cops. So why not
encourage it? Probably get better outcomes. Lose the benefit of prosecutor’s advice.
 Cops just get qualified immunity  even if checked w/prosecutor. Never going to win against
a cop in §1983.
Search/Seizure: has to be legal. In order to be legal, has to be reasonable. Underlying legal
statement. Reasonable test.
Qualified Immunity – higher level of reasonableness gives you more insulation. Protects the
cop in some cases where he/she does something illegal. Just have to be half-way of half-way
reasonable. Don’t have to get it, just pretty close. Reasonable mistake about reasonableness.
Trying to draw distinctions:
Press statement: Qualified.
Investigating case: Qualified.
Prepare for trial: Absolute.
Not clear  So Argue!!!
See p. 238 (top) Presumption  Qualified Immunity.
KALINA v. FLETCHER (1997)
Prosecutor takes part in the evidentiary process. Certify facts and factual representation.
Therefore, acting like a witness.
 Prosecutor: alleges no leg. business on school grounds. Pick  out of photo line-up.
  in §1983 accuses prosecutor of violating their right.
 Good summary of prosecutor immunity cases.
 Look at role!!
Advice to police  Qualified.
Court  Absolute.
Investigating evidence  Qualified.
 Prosecutor does not really have to do it. Really acting like a complaining witness. Maybe
deserves some immunity, but not absolute.
 Tort of malicious prosecution – can go after comp. witness.
 Bad consequence? Different from police advice situation. Gets info. 2nd – never observes.
PULLIAM v. ALLEN (1984), p. 242
Case raises issues concerning the scope of judicial immunity from a civil suit that seeks
injunctive and declaratory relief under §1 of the Civil Rights Act and from fee awards made
under the Civil Rights Atty.’s Fees Awards Act.  claimed that magistrate’s practice of
imposing bail on persons arrested for nonjailable offenses under VA law and of incarcerating
those persons if they could not meet the bail was unconstitutional.
Issue: whether the award of atty.’s fees against her should have been barred by the principles of
judicial immunity. NO.
 Violation of due process and equal protection.
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 Stop it! No money damages. Attys. fees. §1988.
 Never been an established rule that says you can’t get injunctive relief against judges. You
can!!
 FN 16, p. 246 – racial deal. Voting rights on racial grounds. No absolute immunity for state
judge in injunctive relief.
 Case relied upon the essence of civi rights statutes. Narrow case.
 Will you always want to have the same result for these? What if just a legal error, not like
judge in Stump.
 Prevention of praying – money damages, maybe nominal. Attys. fees substantial probably.
Maybe more intimidating. In a way, absolute immunity is (in a way) out the door foe judges
(threat of atty. fees).
Butz v. Economou (1978), p. 253: court held that an agency attorney who arranges for the
representation of evidence on the record in the course of an adjudication is absolutely immune
from suits based on the introduction of such evidence.
 Not only state court judges, but administrative law judges.
 Also the prosecutors at the agency.
 Attys. at the agency.
 Probably state judges too (state/federal usually parallel)
 Government and president don’t have the same.
§C.
Qualified Immunity for Members of the Executive Branch
1.
Defining the Defense
HARLOW v. FITGERALD (1982), p. 258
Worked for government during Nixon Administration. Testifies truthfully in front of
Congress. Acknowledge/accusing rest of the dept. – bad management. Not accusing
anyone of anything illegal. Called to testify truthfully (under oath). Fired after
testimony.
 Doesn’t have to show right. At will makes no difference.
 What does qualified immunity mean?
 Doesn’t really have two parts. 1 objective part. P. 263 – why is it wrong?
 The idea is if subjective or good faith – defeat the which purpose o having it in the first
place. Not just dragging officials through it Also to avoid cost. Subjective
requirement – drag through. “Some degree of malice”  dep. Discovery for state of
mind.
 If absent state of mind, never get summary judgment.
 What we mean has nothing to do w/state of mind. But generally what a reasonable
gov’t action would not do.
Scheuer v. Rhodes (1974), p. 267: representatives of three students killed by the OH
National Guard at Kent State University sued the Governor of OH and other state
officials.
 The Court declined to grant the Governor absolute immunity. It was found that the
§1983 cause of action was designed to shield individuals from constitutional violations
of those w/official authority.
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 Qualified immunity is available to officers of the executive branch of the government,
the variation being dependent upon the scope of discretion and responsibilities of the
office and all the circumstances as they reasonably appeared at the time of the action on
which liability is sought to be based.
 It is the existence of reasonable grounds for the belief formed at the time and in light of
all the circumstances, coupled w/good faith belief .that affords a basis for qualified
immunity of executive officers for acts performed in the course of official conduct.
ANDERSON v. CREIGHTON (1987), p. 271
FBI agent Anderson conducted a warrantless search of Creighton’s home b/c the agent
believed that a bank robbery suspect might be found there.
 You must have:
1. probable cause; and
2. exigent circumstances.
 Or at least come reasonably close to these where a reasonable agnt could have
reasonably believed that he/she had the above elements.
 Foreseeability:
1. Broad – more likely for.
2. Narrow – less likely for.
   legal rule broad  if can do it, surely agent would/should have known and loses
qualified immunity.
   narrowly/specific.
 Whole point  we are not going to leave it at that general point but take it to a different
level – look at facts, etc.
 Can win in two ways:
1. Right; OR
2. Reasonable agent might have believed he had probable cause and exigent
circumstances.
th
 11 Circuit – very broad. Hard to lose qualified immunity.
2.
When is Behavior Clearly Unconstitutional?
MITCHELL v. FORSYTH (1985), p. 281
The case presents 3 issues: whether the AG is absolutely immune from suit from actions
undertaken in the interest of national security; if not, whether the district court’s finding
that petitioner is not immune from suit for his actions under the qualified immunity
standard of Harlow is appealable; and if so, whether the district court’s ruling on
qualified immunity was correct.
 Illustrates that the law has to be facially established.
 The AG’s wire tap  made clear only later that it was illegal.
 Qualified immunity retained b/c it has to be clear that the act is unconstitutional.
 The law has to be clear at the time of the act. Is that necessary? What if only a week?
 Arguably, the AG should look at advance sheets to see what is illegal, unconstitutional,
etc.
 But what about others. Should we hold 4th grade teachers to the same standard?
Reporters come out months later. Is this realistic?
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 Should we perhaps base it on what the public official should know? Instead of whether
the law exists.
 How do we know law is clear? If official in AL. Decision in CA. Is the law clear?
Not really sure. Does the Supreme Court have to speak it? What if there’s a split.
LASSITER v. AL A&M UNIV. (1994)
 Most important: we want to notice the generosity in granting qualified immunity to .
 Fired w/o a hearing. Have to show, for due process, some general expectation of
continuing, a property right.
 Court says property right, but wasn’t clearly established.
 Means that government actors are not always required to act w/caution.
 If do away  then officials to be passive.
 Only in exceptional circumstances will the official lose qualified immunity.
 FN: Cases not on point, but still obvious.
 Qualified immunity: can be raised more than one time as a defense. Denial of qualified
immunity is generally, immediately appealable if most facts known. Generally, if try
for summary judgment, generally goes on.
JENKINS v. TALLADEGA CITY BOARD OF ED. (1997)
Lawsuit brought by 2nd grade minors against teachers. Two children were accused of
taking another child’s money ($7). The two children were strip searched twice by adults
of their own gender.
 Here, the court said qualified immunity.
 2nd grade teachers  how much legal knowledge?
 Think about what it is like to be 8yrs. old and have to remove clothes in school.
 Could make a difference in “reasonableness” of the search.
 Is it possible that the child did not even bring the $7 to school/
 Was the overall search reasonable? Ceased to be reasonable at a certain point. Could
you argue that the whole search was unreasonable? So if 4th Amendment violation, do
they lose their qualified immunity.
 TLO case – does it apply?
NJ student allegedly smokes and purse is searched for cigarettes. Peer admits, TLO
does not. Purse is searched and marijuana is found, together w/a list of people that
owed her money. Was this a legitimate search? Just a violation of school rules. Court
in Jenkins used this case b/c it was the closest. The cases are not close. Are s saying
that s should have known b/c of TLO? Too many differences, just helps the   too
many differences. Humiliation of teenagers. Kids don’t care (may argue that
humiliating to 8yr. old to be accused).
 Not sure that the key should be a close case, but maybe common sense.
 Limitation on school authority but leaves a lot of room for qualified immunity.
 FN: what kinds pf cases to look for . . . look to qualified immunity cases by SC, 11th
Cir., highest state court. Look at federal law  who cares what AL Supreme Court
thinks? State court  can’t go to federal court on state claim. Can look to merely
persuasive cases. Consensus  majority. Has to be an uncontradicted body of
authority.
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RICHARDSON v. MCKNIGHT (1997)
Should private actors be entitled to qualified immunity in the first place? Can they ever
have it?
 Possible to sue parties under §1983 as long as under COSL.
 Private prison case (a lot of public services are not privatized).
 NO!!! Hard to say that you should qualify for it if performing traditionally government
function. Garcia.
 Court look to history/tradition and public policy on the other hand.
None!! Whether closely
supervised or not!!
Why would you want to? No terribly strong reasons to do
it. State can control by contract. Don’t have that much
discretion. Prison could get sued, along w/individual too,
SO!?!?
 won’t get distracted.
 marketplace competition.
 charge for risk.
[not entirely clear that it would be COSL.]
Private utility company  no state action. The state
doesn’t approve of everything you do!!
 Simplest  it was wrong!!
 [Privilege no t necessarily action under COSL.]
 Worry About: supervisory liability and municipal liability.
 Generally, the courts will not accept vicarious liability, respondeat superior liability in
supervisory liability and especially municipality liability.
 Theory: statute §1983 – only liable if you cause . . .
§D.
Supervisory Liability Under §1983
City Liability (even though no “city” in §1983, falls under “person”): The city does not get
qualified immunity. It’s not easy to win against the city though. Going to have to show some
custom/policy. Difficult to overcome. Why does the Court impose this when not in §1983:
 Monroe – can’t sue the city at all (1961).
 J. Brennan wants to overrule this, but Monroe rule. In order to get overruling, Brennan has to
politic!!! Ok, but has to limit the city’s liability. Agreed to custom/policy requirement.
Monell case.
 Who speaks for the city?
 Court seems to agree that strict liability can’t be vicarious liability or respondeat superior.
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 Can go after supervisor if part of the rights violation. Also liable if ratified after the effect.
McCLELLAND v. FACTEAU (1979), p. 288
Filed suit against 5 s who allegedly deprived the  of his constitutional rights during arrest and
custody. The police chiefs did not personally participate, but charged w/inadequate supervision
and training of the other s and w/failure to act in the face of knowledge of prior misconduct by
the other s.
 Even w/o respondeat superior theory liability,  may recover.
 Some sort of defectiveness (unclear)
 failure to properly hire.
 failure to adequately train.
 failure to adequately supervise.
 failure to have adequately police.
 Levels of stringency would vary.
 May could be a negligence standard or may be ok, as long as not wanton/willful.
 p. 289 – raises further questions.
 §1983 – to be a , had to cause deprivation of rights. Have to cause someone to be subjected.
 Don’t actually have to be directly involved  lifeguard example. Can do it even by sitting in
your office.
 Failure to act: any act? sufficient act?
 Free of knowledge: oral, not even official.
 Prior misconduct: does it have to be the same conduct? What if prior conduct is just a bad or
worse? What of know about the group in general, then .
 Causation: may look like its easy to meet. Difficult to show. Have to show causal linkage.
Can’t just show standard. Can be difficult to show. Anderson v. Fowler (rape case – COSL).
 p. 291 – seems to go for standard. Notice/”should have known.” Notice of isolated incidents
not enough.
 p. 292 – certain things. Rumors – depends. Vague, isolated, too old, too sate, not enough,.
Sufficient – clear, serious, recent, often – enough.
 Sometimes says “no written complaints,” but many times oral complaints are the “tip of the
iceberg.”
 Should not make it an incentive not to know!!
SCOTT v. VANDIVER (1973), p. 292
Scott told to get in truck driven by sheriff deputies, while looking for a shooting suspect. Scott
did not look like the suspect. Instead of getting in the truck, Scott ran when he saw the gun.
And the sheriff’s deputies shot at him Scott fell and hurt his shoulder. Brother came out of the
house armed and asked why they were shooting; w/o an explanation the deputies left. The
deputies were unmarked, unidentified, etc. Scott sues sheriff.
 Don’t insist on a negligence standard! Why doesn’t it? It looks to South Carolina law.
 Q: what standard if  goes after sheriff?
 McClelland: loose negligence standard.
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 Court said look to state law. §1983  made vulnerable to dramatic variance depending on
state location. Perverse borrowing. Allow state based defense for §1983. The origin was for
those who wouldn’t get fairness w/state tort law. Obvious potential problem.
 South Carolina – sheriff responsible for sub. Not technically respondeat superior or strict
liability. Not to be left off b/c sub. acted. Great for . But not in all cases will the state law be
so -friendly b/c then why would we have §1983.
ANDREWS v. FOWLER (1996)
Rape case. Cop fraternizing w/women, including minors. Reputation. Supervisors have heard.
Informal complaints. No written complaints. Written file missing. Happen before. Terminated
though.
 Wait till something happens  not working, why?
 Re-occurring pattern. Doesn’t give women any assurance.
 Slight difference b/n liability of city and supervising officer.
Need for city liability: policy or custom (very unclear and murky). Not in §1983 text. Wright
think compromise language.  failing to act on similar patterns in the past. Broad, wellestablished policy of city not to act on similar complaints. Broad policy/custom of looking the
other way. Notice and deliberately failed to take remedial action against similar conduct.
Training/hire  Liable for bad policy. Have to show inadequate, deliberate indifference to
rights of others. Also have to show a causal relationship.
 If unpredictable behavior, then NO!!  city gets off the hook.
 Have to show not a swell guy, in a way very close to problem.
No city liability in this case!!!
But maybe supervisory liability.
Disagreeing w/Vandyer and McClelland. Mere negligence for city not enough.
Standard looks similar to city, but opens up to individual liability:
1. Had notice (not knowledge);
2. Would have to show deliberate indifference/tacit authority. But key: don’t have to show
policy/custom or wide range of pattern.
3. Insufficient remedial action.
4. Causation.
Easier than city b/c no widespread of policy/custom and prior abuses.
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III. DEFENSES & IMMUNITIES OF GOVERNMENTAL ENTITIES
§A.
Liability of Municipalities
MONELL v. DEPT. OF SOCIAL SERVICES (1978), p. 299
Sued city officials and agencies under §1983 seeking back pay and injunctive relief, charged that
as matter of official policy the Board and the Department had compelled pregnant employees to
take unpaid leaves of absence before such leaves were required for medical reasons.
 Overruled Monroe v. Pape  cities can be liable!
 See p. 307, asterik.
 Court not looking to state law.
 No respondeat superior liability.
 Requirement of causation, p. 308.
 No absolute immunity/qualified immunity for cities. Often violation, w/no . What’s the
point so no immunity. Dispersion of loss.
 See case for more requirements (causation, custom, etc.).
 County may be subject to §1983, but another may not depending on how closely tied to state.
OWEN v. CITY OF INDEPENDENCE (1980), p. 314
Petitioner was chief of police, and a handgun that was supposed to be destroyed turned up in a
felon’s possession. He was dismissed and received negative publicity. Results of the
investigation were never released to the public. Sued the city, city manager, and the present
members of the city council in their official capacities as s in this suit. Alleging that he was
discharged w/o notice of reasons and w/o a hearing in violation of his constitutional rights to
procedural and substantive due process, sought declaratory and injunctive relief.
 Qualified immunity – not for a city.
 Hard though, have to show:
 Final policy makes did something bad.
 Causation.
City defense
 Deliberate indifference.
 Can get atty. fees, but not punitive in city suit (Newport).
Just raise taxes, forget about it!
CITY OF ST. LOUIS v. PRAPROTNIK (1988), p. 323
Respondent received good job evaluations, but complained about requirement to consent before
taking on private clients. He was suspended, then transferred, then laid off.
Issue: define the proper legal standard for determining when isolated decisions by municipal
officials/employees may expose the municipality itself to liability under §1983.
 Begin putting limits on suing the city. Maybe worse than qualified immunity.
 May want to sue an actor and don’t know where in the hierarchy.
 Can go after cities (changed Monroe in Monell) but only after official sanctioned/order some
illegal activity. The city doesn’t have to take the initiative (city may ratify the sub.’s act).
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 Only those that have final policymaking authority! How do you know? Not easy to tell.
Someone may be in charge, but delegated, etc. Look to state law to determine who makes
policy! City could pick someone. Easy to avoid liable.
 Problem w/following state law  origin of §1983 – distrust of states.
 Have to show policy that has been adopted or custom/practice that is widespread and one
would have known. p. 330.
 Not enough ratification.
 Liability if:
 Policy.
 Sub.  custom/usage, supervisor must have been aware!! (If supervisor goes w/flow…
no city liability.) Just adopting a policy is not enough . . . might end up w/custom.
See City of Canton v. Harris.
BD. OF COUNTY COMMISSIONERS v. BROWN (1997)
Husband and wife traveling to OK (their home) from TX. In OK, roadblock, truck (driven by
husband) turns around. Speeding, then pulled over. Wife doesn’t get out of the car (2x). Then
pulled out by officer (w/questionable background), and hurts her knees. Can go after officer,
supervisor, but city?  Have to show policy to use excessive force (not likely).
 Can go about by “training.” Inadequacy of “hiring/screening.” (used by ). Officer was a
relative of the sheriff’s and not examined fully by sheriff. Only did a cursory background
check.
 Background of officer: DUI – sheriff didn’t say/give details how known, public drunkenness,
resisting arrest, A/B, and probation.
 No inquiries  probably just hired b/c kid was a relative.
 Could it have put you on notice of hired him? YES!! Several things sheriff doesn’t seem to
notice.
 Standard that the court wants to apply: deliberate indifference to public welfare. Could argue
that the lack of notice/action was deliberate indifference.
 All you have shown is common sense understanding.
 Have to show that this bad act was predictable and sheriff indifferent.
 KEY: Even if you look at whole arrest record the cop engage in this bad act? NO!! College
fight different.
 Sheriff may have been negligent, but not deliberately indifferent.
 Must be deliberate indifference to predictable, certain act!! Sheriff ignorant, no indifference.
Need causal relationship.
 Example: sexual assault on record, commits sexual assault after hire. Causal relationship.
 Nothing there to put him on notice to show that cop would have done it.
CO. OF SACRAMENTO v. LEWIS (1998)
Illustrates degree of protection afforded to civil employees by the Civil Rights Act. High speed
police chase. Most places illegal b/c dangerous. Motorcycle pursued and tips. Police officer
hits the passenger.
 Violation of SDP, reckless/deliberate indifference to life, thereby violating SDP of escaping
suspect.
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 Court says not enough!! In a fleeing suspect., high speed chase. It must shock the conscious!!
 Difficult to collect evidence against cops in this type of claim.
 11th Amendment!! Both narrower/broader than actually written. Text is grossly misleading.
 Sovereign immunity based in 11th Amendment (what it would give you immunity from). Just
talking about federal courts and states (state entities, people that are the states).
 Individual suing the states.
 11th – nothing to do w/federal government suing a state. May do so  no bar!!
 Broader than §1983: Possibly to sue a state  in state court (11th Amendment has nothing to
do w/it).
 11th Amendment – another limitation, consent of the state (waives 11th Amendment rights).
 Text says citizen of another state cannot sue the 1st state in federal court. According to Haus
case, it means much more than that!!
 Haus – state protected from citizens of other states. But also, cannot be sued in
federal court by their own citizen.
Why interpret this way?
Look at early history. Assumed that it was an important restriction on how the states could be
jerked about. Don’t typically fear your own state (Jefferson – VA). We trust the states. You
want protection against federal government. Protect state sovereign immunity. Too humiliating
 degrade the state.
Need compensation. Jurisprudence states to get weird. (counter-balance).
§B.
Sovereign Immunity
2.
Where Does Sovereign Immunity Come From?
WELCH v. STATE DEPT. OF HGWYS. & PUBLIC TRANS. (1987), p. 343
Whether the 11th Amendment bars a state employee from suing the state in federal court
under the Jones Act.
 Limits the power of federal/state.
 Bars suits of state’s own citizens.
 Also recognize idea of consent (very clear) – 11th Amendment waived.
 Ongoing controversy. 14th Amendment §5.  Congress has the power to make laws to
carry out the equal protection clause, which would bind the states (and other rights in
the 14th Amendment).
 Could be some degree of conflict – Congressional power would override the 11th
Amendment immunity (if statute properly passed . . . .).
 Need to know how clear/far does congressional intent have to be to know that the 11th
is overridden? Can we infer? Or very explicit/clear?
 Is the only amendment that Congress uses to override 11th Amendment? What about
commerce power?
 Not just about §1983. Always a matter of ascertaining intent.
 11th – bowl work of state sovereignty.
 Haus case – expands 11th Amendment to persons w/n your state w/o consent of state!!
Although doesn’t seem to, it should!! Absurd on its face if otherwise.
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 Even state consented to suit under §1983, can’t be sued b/c not a person (congressional
intent).
 §5/14th Amendment – allows Congress to carry-out the 14th Amendment. One way is to
override the 11th Amendment immunity of states. Congress can pass a mere statute
under §5/14th Amendment allowing suit against state (overriding 11th Amendment).
 Does Congress have the power elsewhere to override 11th Amendment? Commerce
Clause power? Very broad!! Open question.
 Age discrimination – no strict scrutiny. Not a suspect class Supreme Court decided.
Can Congress go beyond this? Jones says no! SC has spoken. Legislation w/teeth 
go beyond constitutional rights. Fine, but wouldn’t be through 14th Amendment/§5.
Goes beyond minimal scrutiny  beyond constitutional rights. Not authorized under
14th Amendment/§5. Not binding on the states, if you’re going to bind states beyond
your authority.
 Jones Act – doesn’t allow suit if states. Overrule must be very clear and explicit
[congressional intent].
 States can waive immunity. No effect in §1983. States can waive immunity in state
courts.
3.
Determining When a Suit is Against the Sovereign
EX PARTE YOUNG (1908), p. 367
Railroad SH brought a SH’s derivative suit in federal court and obtained a preliminary
injunction restraining the RR from complying w/an allegedly unconstitutional Minnesota
statute that reduced the RR’s rates.
What looks like a state may not be a state. How do you know you are really suing the
state? Official  not the state.
Presumption: Why would a state want to violate federal constitution? Rogue, outcast
state. No state behind actor that seeks to violate (rogue). Maybe just alternative under
COSL  but just against actor.
Despite what the 11th Amendment say, people in/out state can successfully win as long as
injunctive relief (prospective). WHY? Theory – no state would want to violate federal
law. Why would they object to future law?
In this case – against the state. Despite 11th Amendment  permitted to go forward.
 Loophole in 11th Amendment.
 Prospective – basically for a citation for contempt (violation of injunction).
 Underlying – owners of RR confiscation authority. Don’t like it.
 Enjoin state AG. AG collects tax anyway. Contempt  upheld by SC.
 Not asking for money.
 Difference b/n state and responsible state official.
Unconstitutional act – lose “official”
state statutes. Violating oath.
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Stripped of official capacity (11th
A.). Subject to suit.
How can you be enjoined? Just need
action under COSL!! Still acting
under COSL!! Don’t share state’s
immunity. (§1983) Tied in w/state
enough to be acting under COSL.
EDELMAN v. JORDAN (1974), p. 373
Complaint charged that Illinois s were operating under regulations and improperly
authorizing grants to commence only w/the month in which the application was approved
and not including prior eligibility months for which an applicant was entitled to aid under
federal law. Also not processing w/n time limits.
 Who are you trying to collect from? State treasury? NO!
 General Rule: regardless of who you name, can’t collect past money damages from the
state. Can get prospective injunctions. Can sometimes collect it even if it requires the
state to pay money from state treasury.
 The theory is complying in the future w/valid federal law, not defying future federal
law.
MILLIKEN v. BRADLEY (1977), p. 378
Michigan and Detroit officials had been found to have operated an intentionally
segregated public school system.
 Has to pay a lot of money. Not money damages, this is a prospective injunction. Costs
money to desegregate, but must be done to make it right.
 Does this distinction make a difference?
Prospective: involve complying w/law. State can’t object to compliance. Easier to
plan, prepare, budget for prospective costs.
4.
Abrogation & Waiver of Sovereign Immunity
FITZPATRICK v. BITZER (1976), p. 383
Benefit plan discriminated against all retired male employees of the State of CT, on the
basis of their sex, and therefore contravened Title VII.
 Talk about key civil rights.
 How/when you know Congress has abrogated sovereign immunity.
 Title VII – can’t discriminate in employment. Valid and effective against not only a
private employer, but state action. Can go after them and monetary damages. Can go
after state as an employer. Congress has explicitly abrogated state’s immunity under
11th Amendment.
QUERN v. JORDAN (1979), p. 387
Whether federal court may, consistent w/the 11th Amendment, order those state officials
to send a mere explanatory notice to members of the  class advising them that there are
state administrative procedures available by which they may receive a determination of
whether they are entitled to past welfare benefits.
 Congress’ power under commerce clause.
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 11th Amendment override for §1983  no! But §1988 does and allows for atty. fees.
No explicit, clear language.
Will v. Michigan Dep’t of State Police (1989), p. 394: the Court addressed the question of
state liability under §1983 in state court.
 State and officials not persons under §1983.
 Can’t consent, still not a person.
 Can’t sue in state court, still not a person.
 Except, based on legal fiction  prospective injunctive relief. Not really against the
state (if going after official).
 See FN #10, p. 397.
5.
State Law Claims in Federal Court
LARSON v. DOMESTIC & FOREIGN COMMERCE CORP. (1949), p. 401
 sued the head of the War Assets Admin. alleging that the Admin. had sold surplus coal
to  but that the Administrator refused to deliver it b/c the Administrator had entered into
a contract to sell the coal to others.  sought injunction prohibiting the Administrator
from selling/delivering the coal to anyone other than the  and for a declaration that the
sale to the  was valid and the sale to anyone else was invalid.
 Allow for specific relief against sovereign, and in other cases it does not.
 In this case, sometimes ask official to not do something that is beyond powers. May be
able to enjoin. Being told not do it by federal court  not so humiliating.
PENNHURST STATE SCHOOL & HOSPITAL v. HALDERMAN (1984), p. 404
Precatory rights – vaguely related to litigation. Going after state official for prospective
injunction.
 NO!! Don't get it b/c asking on grounds of state law, solely. Court says this kind of
claim cannot be brought in federal court.
 balance tips in favor of the 11th Amendment. B/c no federal interest and rights at stake.
Too insulting to join a state into federal court for something as trivial as a state claim.
Lincoln v. Luning (1890), p. 428: a Nevada country was sued for nonpayment of a debt.
It defended in part on the ground that the 11th amendment deprived the federal courts of
jurisdiction to hear the suit.
 Counties – can sue under §1983? If so, what are the rules?
 Generally, sufficiently different to not share sovereign immunity of a state. So
dependent on state, not the state.
 Generally, counties are liable for their own messes.
McMILLAN v. MONROE CO, AL (1997)
Country sheriffs. What if they do something bad? Are they representatives of the state?
 Highest policy-maker for state in that regard  share sovereign immunity or country
actions?
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 County sheriffs are elected and paid locally. Equipped locally. No state command.
Suggests that they are county workers.
 Majority said (5-4) that AL sheriffs when participating on law enforcement functions –
state employed. Share state immunity.
1. Show sheriff has the highest policy-making authority.
2. Have to show for country, not state.
Q of law (state).
Q of law (state) of sheriffs in this particular capacity.
If look at AL Constitution and decisions  generally, sheriffs are treated as arms of the
state.
Dissent:
1. Varies from state to state. Immunity varies too. Even though federal.
2. Major incentive to change constitution if concerned about liability and make
representative of the state.
D: No state take advantages and get §1983 by making them state reps.
AL system was set up in place before our jurisprudence. Think there'd be limit to this!
We'll see manipulation.
IV. RELATIONSHIPS BETWEEN STATE & FEDERAL COURTS
§B.
Exhaustion of Remedies in Civil Rights Cases
PATSY v. BOARD OF REGENTS (1982), p. 491
Issue: whether exhaustion of state administrative remedies is a prerequisite to an action under
§1983.
Don't have to exhaust state administrative remedies in a §1983 action (generally).
Exemptions  narrow for adult prisoners.
Reasons against/for exhaustion.
Pro-Required Exhaustion:
 Lower burden on federal courts if required (cost concern).
 State administrative agency has more expertise.
 Could build a better record for the court.
 Also certain respect due agencies b/c can change policy.
First, the court looks at the history. Born out of distrust of the states (judicial and
administrative). So if the idea historically that you distrust, then doesn't make sure to go through
then. Bypass that nonsense (close to the logic of §1983). What about those that don't have
anything to do w/§1983? BROAD. Silly to decide issue based on attitudes towards race, etc.
130-20 yrs. Ago Silly to distrust that state nowadays.
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If you are going to have a non-exhaustion requirement, you have to specify. P. 496.
HECK v. HUMPHREY (1994), p. 501
Issue: whether a state prisoner may challenge the constitutionality of his conviction in a suit for
damages under §1983.
 Possibility of attacking an underlying criminal conviction as a §1983 action.
 Sometimes have to show something very legally wrong to show §1983 (i.e. no atty.).
 Can you bring a §1983 action w/o showing that conviction was bogus? NO!! Must already
establish that conviction was bogus.
V. REMEDIES FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS
§A.
Damages
Text of §1983 doesn't tell us anything.
CAREY v. PIPHUS (1978), p. 587
Two public school students claimed that they had been suspended from school w/o being
furnished adequate procedural due process. They sought substantial nonpunitive damages from
school officials and the 7th Cir. held that the students were entitled to such damages.
 Procedural due process, what kind of damages.
 Court held the denial of procedural due process should be actionable for nominal damages
without proof of actual injury.
 Even if just nominal damages and prevailing  - can get atty. fees.
 Sometimes hard to measure monetary damages.
 What do you have to show to get more than nominal?
 Common law – defamation . . . damages presumed. Immediate and difficult to prove loss of
reputation. Know that damages are likely to be out there. Best answer is sometimes/
 Is procedural due process like that? NO! Lose analogy b/c court argues that procedural due
process is itself a tricky area. Goldberg v. Kelley (8/9 factors). If you do  probably not know
till atty. and probably not so hurt as defamed. Not psychologically terrifying.
 Not every violation of DP will be seen as an insult.
 Secondly, even if feel bad, court says that likely it is bad to air dirty laundry (unconstitutional
or violation of DP).
 So no presumption that the are damages. Must show an injury.
§B.
Attorney Fees
Calculating what is reasonable is complex. Difficult formulas, etc.  want to include,  wants to
un-include. Also, it is not always obvious when a party has prevailed (multi-count claim).
Prevailing s rarely get atty. fees. Can't get atty. fees for US, WHY? Wouldn't it be an
incentive. What about frivolous non-§1983 action where US is a ? NO!
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EVANS v. JEFF D. (1986), p. 596
Ethical issues somewhat involved. Atty. fees. Action brought by civil rights atty under certain
fee statute. Has to do w/ education and treatment of kids w/emotional and mental handicaps.
Lawsuit doesn't go to trial.
 Prevailing parties can get atty fees. If settle, can that be prevailing? YES, depending on
settlement terms.
 What happens if civil rights activists have a conspiracy meeting and civil rights attys out of
business.   figure out  relief they could expect from trial than offer exactly that
recovery/or slightly beyond and save their attorneys from doing work. But waive atty fees.
What should you be thinking is deserve atty fees. I'm a prevailing party. But  will get more
than at trial. If turn down, conflict of interest. Dilemma!! Client will say YES!! Eventually
out of business.
 SC doesn't see this. We can't say as a matter of law that the agreement should be prohibited. If
rule otherwise,  may not settle as often or as much.
§C.
State Law in Federal Civil Rights Cases
ROBERTSON v. WEGMANN (1978), p. 616
Kennedy assassination suspect files suit and dies before trial starts and leaves no close relatives.
 State law (action abate – you/family both have to die) should it be allowed to influence
§1983. LA has a free-standing abatement statute. Doesn't abate if  dies b/c typically someone
survives them in their family. Abatement rule off b/c bad thing (re: lit.) killed .
 Abated!! Should we allow that result. Due to LA law. Doesn't follow from federal law.
 Would it be inconsistent to adopt the LA statute?
 Not crazy to consider – hierarchy. §1983 doesn't provide all answers. Go as far as you can
w/the federal law. Apply §1983 and other law till it runs out/inapplicable/insufficient. Then can
supplement by using state statute (forum state common law  not clear statute?) as modified by
forum state statute and constitution.
 But, not always going to do this, only when we need to. Only when consistent w/federal
constitution, federal policy, etc.
 Is the statute inconsistent? Yes, even though it causes  to lose doesn't show that it undercuts
policy of §1983. Not perfect uniformity.
Does it violate underlying
1983 policy?
See Note 1, p. 622 – Punitive Damages.
Smith v. Wade (1983) – can vary. Doesn't have to have intent, violate, etc. Have to attempt to
analogous. Not the case.
Wilson v. Garcia – for §1983 statute of limitations (must be consistent). Use SOL for general,
personal injuries. Don't further break it down.
FELDER v. CASEY (1988), p. 629
Wisconsin state statute provides that before suit may be brought in state court against a
state/local government entity or officer, the  must notify the governmental  of the
circumstances, amount, intent, etc. Failure to comply constitutes grounds for dismissal.
 SC held that these requirements are preempted as inconsistent w/federal law.
 Won't tolerate state procedural requirements b/c inconsistent.
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 Not bad for Title VII maybe, but §1983 doesn't require anything like this.
 Unlike Robertson, more suspicious. No notice  §1983 COA-barred. SOL different than 120
day notice requirement  very strict.
 Even though maybe a good idea, incompatible w/§1983 b/c doesn't contain anything remotely
like notice.
 Preempted (notice) by §1983 federal law b/c obstacle to federal law, otherwise it would thwart
the purpose of §1983.
 Consistent w/Robertson? Both even-handed and neutral.
§D.
Equitable Relief
O’SHEA v. LITTLETON (1974), p. 646
Pattern of illegal sentencing, bond-setting, and fee for jury trial.
Standing type case.  don't have it so deny injunction. No specific threat. Threat of injury too
remote.
RIZZO v. GOODE (1976), p. 651
Asking for odd sort of relief. Problem w/cops in PA. Doesn't seem to be a systematic problem.
Want a complaint board (civilian review board).
 But how close does it violate your federal rights to not have this Board set up by the city.
 To speculative that a cop may violate.
MISSOURI v. JENKINS (1990), p. 673
Aftermath of a successful lawsuit. Desegregation of school. Relief not appropriate in this case.
 Don't forget basic equitable maxim  the court's inherent equitable powers devise a remedy
may be as broad as violation.
 Nothing wrong w/injunctive orders/tax increase always.
 The court in devising the remedy went a little bit deeper than the violation itself.
 P. 676 – court orders a property tax increase, Also capital improvement bonds. Too specific!
Too intrusive! Comity  not respecting state government. Could have just ordered
appropriate (enough to cover remedial decree) tax increase. Prospective.
 Can also set aside any state law that makes increase unlawful.
 Idea would be more discretion for state government.
 Rule 65 (Salas says trap!!) – maybe try to be specific re: goal, but general about the means.
This is Wright's resolution.
VI. PROVISIONS PERTAINING TO HOUSING
& CONTRACTUAL RELATIONS
§A.
Sections 1981 and 1982
§1981 – focuses on mostly on contracts, and other things vaguely related to property rights.
§1982 – focuses on property rights.
What is the scope of each?
 Some things covered by §1982, not in §1981. Overlap too.
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Whose protected? Confined to something like race.
Doesn't seem that there's any state action required (as we can tell from the text). If right, then we
have to justify constitutionally these statutes in another way. Maybe, since we are dealing
w/race  13th Amendment. Or maybe commerce clause.
Have too think about damages too!!
Bottom of p. 789: "We hold that §1982 bars all racial discrimination, private as well as public, in
the sale or rental of property, . . . .
Dissent – rights of white citizens. Not very broad. Example: white citizens can't sell/but
w/someone that doesn't want to do the same w/them. Don't want to rent to you! Possible that
right transfers to other races> Try to rent and can't. But maybe on the basis of race.
Bottom Line Majority: we have to have a broader right somehow.
Does it matter if seller is white/black? No, interpret it to cover race.
If white and discriminate b/c white – can sue under §1982.
Now that race is the key (not "white person" language). What does race involve? Definition has
changed over time. Scientific theory of race OR ordinary definition of race? Definitions also
vary from era to era.
Way to beat the statute (§1982)  I discriminated in the basis of religion. May run afoul of a
statute elsewhere.
Advantage to old legislation: some have uncapped damages. No exhaustion requirement like
Title VII. New laws have come up, but it is important to know old ones.
JONES v. ALFRED H. MAYER CO. (1968), p. 789
Refusal to sell a house to an African-American w/n a particular community.
 "Same rights as enjoyed by white citizens." What does this mean?
 Don't have to show state action. Some limitations on this statute.
 If you limit §1982 to just race, it may be able to fly under 13th Amendment. Only refers to
race, not national origin. Distinguishes it. Race doesn't have to be a scientific, technical terms.
Refer, back then, to almost everything as "race!"
 §1982 doesn't prohibit ads from having discriminatory language. NY Times v. Regan (later) not
covered. Fair Housing Act.
 Don't refer to remedies or SOL.
 Do allow remedies damages, though.
 The Court held that §1982 bars all racial discrimination, private as well as public, in the sale or
rental of property, and that the statute, thus construed, is a valid exercise of the power of
Congress to enforce the 13th Amendment.
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RUNYON v. McCRARY (1976), p. 800
Exclusion of children on basis of race. Private school that wants to discriminate for no good
reason.
 Focus is on contract rights. Some reference to property rights.
 Main point: §1981  to go after private as well as public. No state action needed. Whether
Congress intended.
 Terms have to be equal: can't even offer different, tougher terms  still §1981 violation. Can't
discriminate.
 School: Freedom of Association and the Private Rights to direct kid's education. SC – FOA
doesn't appear in Constitution, only assembly. Assembly usually meaning political.
 Difference b/n beliefs and conduct. Can have opinion, but can't engage in illegal conduct.
 Katzenbach v. McClure – Ollie's BBQ.
 Education – can't conspire to violate other's rights. Must be some limitation.
Dissent: different construction. At time §1981 was enacted, did whites have a right to enter into
a contract w/one who doesn't want to contract w/you. Statute gives rights of white citizens, but
don't have right to enter into contracts w/unwilling party.
Patterson v. Mclean Credit Union (1989), p. 809 – a black woman alleged that her credit union
employer, in violation of §1981, has harassed her, failed to promote her, all b/c of her race.
 Congress passed a number of significant amendments overruling SC precedents. Made sure
§1981 was broadly construed. Overruled Patterson's holding that racial harassment in
employment claims were not covered by §1981.
 Before only contracts, actual making. Now, termination, terms, amendments, etc. Much more
useful than SC was saying for awhile as in the Patterson case.
1.
Groups Protected
McDONALD v. SANTA FE TRAIL TRANS. CO. (1976), p. 817
Bottom line – despite the literal language, "white citizens," it can be used by white
persons.
ST. FRANCIS COLLEGE v. AL-KHAZRAJI (1987), p. 821
US Citizen born in Iraq, was an associate prof. At college. Applied for tenure and denied
and sought administrative review of denial, which was denied also. Alleged
discrimination based on race, although under current racial classifications Arabs are
Caucasians.
 Objecting to employment treatment. Discrimination based on race if race is what it
means in §1981. Arab/Iraqi. Don't want to get too close to national origin.
 Why not sue under a statute that allows for national origin? Title VII requires you to
exhaust administrative remedies. If under Title VII, better think of all  and COA at
the time of initiation. Don't think you can do it later. Can't stop and say I've got a new
theory. Too late then.
 Court affirmed the lower court that held that he could maintain the §1981 claim citing
legislative history indicating that Congress intended to forbid "at the least, membership
in a group that is ethnically and physiognomically distinctive." Aimed at those persons
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discriminated against solely b/c of their ancestry or ethnic characteristics. Doesn't have
to be classified as racial in terms of modern scientific theory.
 Arab – may now be considered Caucasian. There's a difference.
 Some categorically protected, others are not. Sometimes categories are correlated
(close correlates) of the not protected. Creates a terrible problem. Can discriminate
against Iraqi (national origin), but not Arabs (race). Employers could always say
discriminating b/c Iraqi.
 Can't discriminate on the basis of age, but can on basis of a close correlate: seniority.
Just be so dumb as to say I don't want old people working for me. Say need fresh, not
young, ides.
 SC has said that firing an older person b/c of pension is not age discriminate. Close
correlate.
SHAARE TEFILA CONGREGATION v. COBB (1987), p. 825
 Jewish – may encompass many categories. Religion, but went beyond  religion!
 Possible to discriminate against groups for more than one reason of religion or race.
Even though no DNA. Typically considered race back then, like Arabs.
MISC.Casey Martin case  allowed golfer to ride cart, would not fundamentally change the game.
Even though it is arguably an endurance test.
“Public Accommodation”  Broad!! PGA tour event, even though there’s a narrowing window.
2.
The Prima Facie Case
GENERAL BLDG. CONTRACTORS ASS’N v. PA (1982), p. 829
 §1981 requires proof of intent on the part of the .
 Sort reminds us of the Equal Protection clause.
 Strict Scrutiny requires intent (Washington v. Davis – police officer test).
 Here, saying in effect, same thing w/§1981 (no statute needed).
 Not universally popular among judges.
 Some other statutes don’t require showing of intent (Fair Housing Act).
 Title VII of CRA of 1964 – doesn’t always require showing of intent.
 Griggs case – don’t need intent. Disparate impact vs. Disparate treatment.
 2nd Holding of the case: Generally no vicarious liability of employer for
employee/unions. Trouble is can’t really impute employee’s acts to the employer.
Generally, don’t want the employer giving orders to the Union.
 Minor FN on p. 830: what you do preliminarily w/EEOC complaint limits what you
may do later on.
 Absent a confession of discrimination – we are going to have to show intent through a
process of inference.
 Have to infer from effect!! Add up a lot of the effect!!
 Generally, how it is w/other areas of law (i.e., criminal law).
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 Don’t give up on showing intent. Courts will have different degrees of
inference.
 Requires a showing of intent, what that means though will differ!!!
§B.
The Fair Housing Act
2.
The Scope of Title VIII
METRO. HOUSING DEV. CORP. v. VILLAGE OF ARLINGTON HEIGHTS
(1978), p. 849
Religious order trying to give land for housing development. Won’t re-zone it through
for low  middle income.
 Need to show violation, but the court have says you don’t always need to show
discriminatory intent.
 Broader than Equal Protection Clause.
 Sort of reminds us of Griggs  discriminatory impact of employment law (Title VII of
1964).
 7th Circuit looks at what it takes if don’t need intent. Compromise b/n intent and bad
impact/effect/ Kind of hard to do!! What’s the middle ground (p.853).
 Title VIII of the 1968 CR ACT.
 If trying to use Equal Protection Clause/§1981  need intent.
Four Critical Factors (need some, if not all):
1. Discriminatory effect strength. The stronger, the more likely a violation (even w/o
intent).
[But the stronger, the more likely the intent, but don’t need.]
2. Some evidence of discriminatory effect (don’t need so much as Washington).
[Can’t we infer from #1 – won’t always be a clear line b/n the two.]
3. What is the ’s interest in taking the interest complained of.
[Vague]
4. Does  seek to compel  to affirmatively provide housing for members of minority
groups or merely to restrain the  from interfering w/individual property owners who
wish to provide such housing.
The case was remanded for further information.
RAGIN v. NY TIMES (1991), p. 860
Smart judge. Yale faculty.
The cases focus on advertisements.
 FHA: unlawful to publish an advertisement that indicates a preference based-on race.
 How do you “indicate?” Vague!!
 Perceptions of “an ordinary reader.” Not the most sensitive, but not obtuse either.
 What if 3 people in advertisement, all white, is that enough? NO!!
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 Not supposed to aggregate by different advertisers and get NY Times.
 WHY NOT? Statute  particular advertisers.
 Probably the only time you can go after the NY times – large # of models/advertisers
repetitively. Maybe if a different couple, but always white.
Title VII – covers more than just race!! Covers gender, national origin. Different ways
to go after employer. Requirement of 15 employees. Different ways to count.
 How do you show discriminatory in hiring, discharge, programs, etc.
IX. DISCRIMINATION IN EMPLOYMENT
§A.
Establishing a Prima Facie Violation of Title VII
1.
Unequal Treatment
McDONNELL DOUGLAS CORP. v. GREEN (1973), p. 909
 alleged failure to re-hire him b/c involvement w/CRM.  engaged in illegal activity
involving protesting the employer.
Don’t think this is the only way to show Title VII. Several ways (4) b/c Title VII is hard
to prove.
3 Part Test (burden shifting):
1.  establishes prima facie case.
2. 2nd Stage -  can offer non-discriminatory reason.
3.  shows reason proffered by  is not reason.
Other Ways:
 Can show through direct evidence.
 Griggs test.
 Other circumstantial ways to show.
McDonnell-Douglas is just one way to use circumstances to prove.
Don’t memorize McDonnell-Douglas test and assume that it is precisely used in every
case in the same manner. It should be varied depending on case. Obviously, you have to
vary test requirements depending on nature of the claim – hire, fire, re-hire, etc. Less
obviously, re-hire cases will also vary! Often doesn’t make a great deal of sense. When
it doesn’t, modify it!!
I. Prima facie case (p. 912):
1. racial minority
2. applied and qualified (minimal, may not need.)
3. rejected
4. position open and seeking applicants from persons of complaintant’s
qualifications.
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Does that prima facie case . . . .
 It’s more likely than not that  didn’t get job b/c somebody is better qualified.
 Just being able to make a prima facie case doesn’t really prove claim.
 Problems then w/summary judgment.
II. If  does nothing in terms of offering evidence (2nd step),  wins. Doesn’t even
have to credible. Weird though, b/c prima facie case is easy to establish. Gets
weirder, if  offers some sort of legitimate non-discriminatory reason. It doesn’t
have to be credible.  loses. Summary judgment.
III.  attempts to show that proffered evidence is not a motivator. Cuts the 
employer some slack here. Bogus, not in existence.
 Didn’t know about it, etc.
 Is  entitled to summary judgment at the time? Burden w/the .
Majority of the Supreme Court:  not necessarily entitled to summary judgment at this
time. WHY NOT?
 Doesn’t necessarily determine that  discriminated against . What if embarrassed,
trying to spare feelings.
 Can be another illegal reasons that doesn’t violate Title VII.
FURNCO CONSTRUCTION CORP. v. WATERS (1978), p. 914
Specialized brick layers. Hire people they’ve worked w/o recommendations/known to
employer.
 Employer only has to be non-discriminating. You don’t have to choose the application
method that would generate the most minority employees. The method used needs to
be non-discriminatory. That is it.
  - consequences if have to train. One mistake costly. Rather go w/people who’ve
been there.
 Two countervailing points: can’t destroy just by showing that percentage of employees
is representative of society. Doesn’t always suffice. But counts for something in
showing you don’t discriminate.
St. Mary’s Honor Center v. Hicks (1993), p. 920: Discredited reasons offered by 
Better than no reason at all. Not talking about credibility. Difference b/n what its takes
to set up a prima facie case and _____.  bears principle burden.
Price Waterhouse v. Hopkins (1989), p. 922: Mixed motive case. Two motives for
adverse action by employer. What do you do? i.e., genderism, but criminal record.
By itself,  not liable.
Start
A (licit)
B (illicit)
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Start
A (licit)
Bad Outcome
WHY NOT? Two motives. Either would motivate from start to outcome.
Here, significant. Motive. All it has to be is substantial factor.
1991 - §107 addressed this.
Congress:
 modified overrule Supreme Court. Didn’t understand.
 modified Price Waterhouse. All were going to ask for liability “a motivating factor.”
Even if other/stronger motivating factor that’s illegal of civil right.
Legitimate
Mixed
On p. 924 . . . .
 Non-discriminatory sufficient reasons for bad _______, if non-discriminatory reasons
are enough to motivate from start  go, not entitled to damages. Can't get job back,
money, hired, etc. Legitimate motive by itself  no damages.
WALLACE v. SMC PNEUMATICS (1997)
If  wants to avoid judgment under McDonnell-Douglas.
 Another applicant of another group, employer would have acted better, etc (hypo/real).
TROUPE v. MAY DEP'T STORES (1997)
, a female, works at a high-scale department store. Tardiness problem after pregnancy.
Reprimanded, put on probation. Cut back hours. Morning sickness is blamed. Day
before maternity leave, she is fired.  hears it is b/c of pregnancy.
 Pregnancy Discrimination Act, not just a Title VII gender violation.
 (Posner) Court: Timing is suspicious. Reason for firing someone. Enforce probation
policy (deterrent aspect).
  has to show that same case of a man in a comparable situation who was treated better
than her. Man tardy, etc.
 Relevantly similar.
 How reasonable is it to expect  to find? Professor Wright  unrealistic burden.
2.
Unequal Effects
GRIGGS v. DUKE POWER CO. (1971), p. 944
What is needed to prove intent.
What is needed to prove Title VII discrimination.
 Concerned w/statistical disparities and aptitude tests.
 Also concerned w/intent.
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Bottom Line:  doesn’t really have to prove intent in this type of case at all.
 Do have to infer from likely consequences (subtle, non-subtle, formal, informal,
circumstantial, etc.)
 Disparate impact, not disparate treatment needed. Disparate treatment infers intent.
See p. 944 for the exact holding and rationale.
In this instance, the passing score was set at a mean high school graduate level. Sounds
easy, but that means ½ high school would pass and ½ would fail. Further limiting device.
Nothing wrong w/tests under certain circumstances. Washington v. Davis – cop test ok.
History/timing of tests look like  is trying to evade Civil Rights Act of 1964. Before
Act, the company outrightly discriminated. The African-Americans could only work in
the labor department. This department pays the less. New test imposition  high school
and/or test.
  Burden to show test is not only professional development, but correlates w/job
performance. Significantly job related. Successful job performance can be provided by
the score on the test. So minorities are the ones at the bottom still. Not b/c of company
policy, but the result of the tests.
Is it possible for the employer to use a general intelligence test that doesn’t correlate
w/first jobs, but does w/next job up in the hierarchy. Test for “promotability.” That’s
what we are screening for.
 Wright says  depends what the job is.
 Want to drive a bus, not run the company. Not legitimate.
 But professorship to dean. Maybe not legitimate (maybe stop when full professor bc
few are deans).
Act says can’t be designed, intended to discriminate. Or used.
 Would be easy if just intent.
 Used is ambiguous.
1. One presumes intent.
2. Happens to have the effect.
Back to Griggs narrowness (p. 946).
Even neutral on face/neutral intent --> can’t freeze so that it goes back to prior
discriminatory policy --> What if it is a new company? The  may still win even if there
was no prior discrimination in situation.
RULE: Intent irrelevant, provided that employer is using built-in underwind
(substantial impacts) for minority groups and are unrelated to measuring job
capability.
P. 946: even though the court hints that intent is needed. Don’t need it!!!!
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Touchstone: Business Necessity --> If exclude African Americans, must show to be
related to job performance (substantially related).
 Business Necessity (sometimes sounds pretty demanding standard, but is not; don’t
read “necessity” to strongly) – whether under this case or another statute is often
touchstone for defense against disparate impact. Set aside intent. Disparate impact not
to due Business Necessity.
 Why less demanding test in disparate effect than disparate treatment? [disparate
treatment --> Bona Fide Occupational Qualification (BFQ)]. Not accusing the
employer in disparate effect, why not give employer an easy hurdle then (BN).
Disparate treatment is worse; there’s an intent to discriminate.
GRIGGS (revisited)
Stands most crucially for disparate impact, as opposed to disparate treatment.
 Impact is enough! On your group as opposed to other groups. Qualified. Statistical
showing, sometimes complex, sometimes not.
 You can have a facially neutral hiring test. We don't need any showing of intent at all –
disguised, facial, etc.  have to be able to point to something that has disparate impact.
 Operates as a headwind. No other alternative?
 Employer would have to show BN in order to keep test. Not strict necessity. Test
somehow advances a legitimate employer interest even if it has disparate impact.
Interest promoted by test. Will have to show that it is job-related. Doesn't have to
correlate/predict perfectly that outcome/job performance.
 Can show alternative w/less disparate impact, but furthers employer interest.
 Covers newer companies, even though the language refers to "old policy."
Is it possible to justify high school requirement for promotability? Correlates to the next
position.
 What if person only wants 1st job?
 Company wants an adaptable/promotable workforce.
 Answer  depends!! Depends on nature of the job.
NY CITY TRANSIT AUTHORITY v. BEAZER (1979), p. 949
NY Transit Authority refuses to employ persons who use methadone.
 Get flavor of BN. It's not all that demanding.
 BN is nowhere as strong as that of strict scrutiny.
 Methadone employees – no longer heroin addicts. May be again.
 Different jobs: trash, inspecting, host. Other jobs are dangerous.
 Wide variety – court said ok.
 Don't want former heroin users – can relapse.
 Enough job-relatedness to show practice justification. Not entirely clear that  has
shown disparate impact. Practice has to have disparate impact on a certain group. 
had no statistical data to show that it had an impact on African Americans or Hispanics.
 Healthcare program – can it be considered here too? Deal w/later. Something won't
effect men as much as women (10x).
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 BN – only apples in disparate impact cases! If intent is alleged, not implied. BFOQ
test applied. More rigorous, more demanding.
 Can tolerate job-related tests only b/c EEOC interpretation. B/c agency charged
w/carrying out statute. Even though not binding. Given great deference. Just agency
guesses! Agencies are experts, however.
Dothard v. Rawlinson (1977), p. 957: a female applicant for the position of AL prison
guard was rejected b/c she failed to meet the minimum 120-pound weight requirement of
an AL statute.
 Another AL prison system passed SC scrutiny.
 When doing disparate impact, can be a pattern. Going to have to compare. What are
we comparing?
 Don't be thinking that a good match-up are those that actually apply in all situations.
May be skewed, bias, etc. May not necessarily prove disparate impact. Reputation of
employer  may keep minorities from applying. Looking just at applicants may not
reveal anything.
HAZELWOOD SCHOOL DISTRICT v. US (1977), p. 959
What should we be looking at?
 Could look at minority applicant percentage and percentage of minority students.
Always talk about role model, etc. Court says not generally what to look at. Look at
fully qualified applicants in the relevant labor market.
 Often can be misleading if . . . .
 Also if specialized training then the court says can't look at general population statistic.
Not the employer's fault that minorities may not be as qualified.
 Look at qualifications! Pool of applicants!
 What do you do w/the fact that employees make-up meets racial composition of general
population  can't exempt from Title VII.
 But the Court says ethnic mirroring does count for something. But not necessary either.
WARDS COVE PACKING CO v. ATONIO (1989), p. 969
Salmon canneries in Alaska. Two positions w/employer:
1. Non-cannery  various different jobs (pre-dominantly Caucasian)
2. Cannery  In general, not the more desirable jobs. Seasonal. Paid a lot.
Alleged other problematic hiring practices – nepetism, rehire preference, physical
segregation of the two types of jobs, word of mouth hiring.
Compare racial breakdown of cannery/non-cannery (if allowed, not right and not a good
technique – fallacy). Not all cannery are qualified for non-cannery.
 Can't simply do this comparison.
 Need to look at qualified applicants.
 Who knows what labor markets (for BN purposes) this would be.
 Almost a planetarium job market.
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Even if  setups prima facie case of disparate impact, employer can offer how it serves a
legitimate business interest. Could be objective or subjective (personal interview phase) -> can be the sorts of things that result in a disparate impact.
Court says employer doesn’t really have to show BN, just has to offer some sort of BN
defense, but doesn’t have to bear the burden of persuasion. IF BN, goes back to  . . . it’s
not as narrowly tailored b/c I can think of a way to serve the interest w/less disparate
impact.
Widely speculative for  to say this! Is it common sense? How will we know that this
will promote the bottom line? Isn’t this just a guess? How do we know the ’s
suggestion will not harm another group that’s protected as much or more. What if
promotes interest almost as well?
Two Stages, 3 Things the  Can Do:
 can show no BN:
 practice doesn’t promote interest OR
 not a legitimate interest.
 But,  loses,  may say . . . Alternative!!!!
See p. 980 – stands until 1991 . . . puts more of a generalized burden on .
On BN defense, the  doesn’t just have to offer BN defense, but have to do more!! You
have to bear the BOP, bear the burden of persuasion on the existence of the BN defense.
BOP doesn’t lie always son  anymore.
DENNY v. WESTFIELD STATE COLLEGE (1987), p 982
Allegation that women receive lower salaries than similarly situated male faculty at WSC
due to illegal sex discrimination.
 What if all men are in higher paying jobs for other reasons?
 BL – can be various other reasons for wage disparity. Women score higher on SAT
verbal.
 If hire men and women for the same position for different amount --> DUMB!
 Women – don’t give them tenure. Women (few) make a lot.
 The Court held that the  sustained the BOP. Court awarded backpay.
4.
Seniority Systems
INTERN’L BROTHERHOOD OF TEAMSTERS v. US (1977), p. 1005
Seniority could freeze in previous discrimination programs. If you discriminate for a
long time, then stop and hire minorities. Senior system would lock-in.
 Last hired --> first fired. Neutral on face, in application, discriminatory.
 Cycle of hiring minorities than fire in economic downturn. B/c last hired. Then start all
over again.
 Post-Act: Pretty clear that even no talk about retroactive senior, if you as an employer .
. . part of CRA’s remedies – retroactive seniority.
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What if bona fide seniority system – tends to perpetuate freeze of pre-Act policy.
Sometimes court says ok. Doesn’t mean seniority system doesn’t trump Act. Obviously
can’t use system as a way to discriminate. But Court says entirely possible no intent, can
have good faith system that tends to lock in discrimination before bar of discrimination.
Trump remedy!!
Fairly typical pattern. Local and long distance.
May be as a result of pre-Act, long distance held by whites more minority in local.
Maybe seniority system locks it. The seniority system in this litigation is bone fide. It
applies equally to all races and ethnic groups. To the extent that it “locks” employees
into non-line-driver jobs it does so for all.
 See p.1011 – look at effects.
 Not as though those 100% effected by minority rule. Most of people adversely affected
are Caucasian. Suggests probably in good faith. Seniority system protected by Title
VII. Can’t litigate your way around. Reasonable accommodating – what counts may
be affected by seniority system. Also exercise of religion – can’t work on certain day
Nope! Seniority system. Have to go back to the line.
6.
Groups Protected & Entities Covered by Title VII
ESPINOZA v. FARAH MANUFACTURING CO. (1973), p. 1018
 had a policy against employing aliens and rejected the employment application of a
Mexican citizen who was a lawful resident of the US.
 Could be a close correlate. Sometimes all you have to be is clever enough to
discriminate against a group that is a close correlate w/another group that is protected
(other than race, gender). Maybe on the basis of may become pregnant (assume no
pregnancy act). Some women cannot become pregnant.
 Mechanism test – disparate impact --> prima facie case even if neutral.
 EEOC (See notes) in comparison, less than 4/5 can suffice rebuttable.
 Don’t want to employ aliens, illegal/legal. Does this policy, just in operation/on its
face, violate national origin. No legal protection for aliens (but now statute).
 SC – national origin doesn’t include by itself aliens/non-aliens.
 Does have an effect on aliens is discrimination on the basis of national origin. If using
as a close correlate --> that would be violative. If discrimination on the basis of alien
and has an effect of national origin --> violation of Title VII. Kind of like disparate
impact.
 Statistics in this case don’t help . Partly driving opinion. Not using as pretext to
screen out Mexican ancest. 96% - Mexican ancestry. Not as though they tolerate
people of Mexican ancestry. Not as if elite jobs are off-limits to Mexican ancestry
either.
 Claims discrimination against Mexican ancestry, but 96% of people in job she wants is
of Mexican ancestry. Makes claim less plausible. Statistical balance doesn’t mean you
have to win as , but doesn’t help  here.
 Can’t discriminate against alien worker/applicant that you have b/c of race, religion,
sex, national origin, etc. Even though alien not protected. Rejected not b/c alien, but
rejected on protected grounds.
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Civil Rights Outline
HYPO: 15 or more employees. Can’t speak anything but English on the job. Violates
Title VII? May be a good reason to have requirement. Safety requirements.
Communicate w/customers. Ok, what if someone says too broad b/c includes lunch and
breaks. Spun Steak – no violation. Lunch is free time. Not related to BN (maybe
BFOQ).
SIBLEY MEMORIAL HOSPITAL v. WILSON (1973), p. 1024
Male private duty nurse. Referral service. Go to hospital and present yourself. A or R.
Possible for female to say I want a female nurse.
 What counts as a good  under Title VII? Title VII has never been clear nor clear
today who is a good . Not really that much of a problem --> employer (15+
employees).
 Employer, the company, doesn’t actually do the act. Whose the ? Maybe those
w/total authority to speak. Some company (GE) have lots of layers! Immediate
supervisor may be low in company too. May not have authority, etc.
What of discrimination by  corporation, which is in reorganization. Assets claimed
mostly be secured creditors. Might want to get creative in filing a claim:
 President? High enough to speak and knew/should have known.
NO --> supervisor probably not employer. Covers those w/15+ employees. Supervisor
has no employees, don’t have 15 at least. Could pose problem.
Statute itself --> remedy – reinstatement, mainly backpay. But can supervisor do this?
Title VII allows remedy, but supervisor cannot grant. May not have authority. Probably
supervisor cannot count as employer.
 1991 CRA --> expended Title VII remedies money damages.
 If look at Title VII definition of employer, includes any employer and any agent of an
employer.
 Wright says mindboggling! Go back to agency law . . . .
Agent – too broad! Of course, why we you hired? Does that person become an
employer. SC never addressed. Lower courts have w/mixed results. Maybe mean
higher up, supervisory people that make policy.
In this case . . . .
 Only twice has he treated females. Has been prevented from preventing himself.
Presents and rejects, gets paid. Could have some sort of condition that might freak the
patient out.
 Undercut treatment given to patient.
 More typical, most patients are competent enough to handle decision process.
 But denied access. In a sense, discrimination on basis of sex.
 Has a problem, even though clear Sibley’s an employer.
 Maybe a mismatch: Sibley an employer in abstract, but not employer of .
 Point of statute to allow employees to file claim against employers.
 Done through registry and private patient hires.
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What do you do?
Court says see what you’re saying, but allow it. Employer, even though not for  On
notice. Taken on role here – use facility, made decision to block access through registry
process. Goes on to say . . . some damages hard for  to comply. Money damages ok
here.
Who else could be liable?
 Labor union – even though don’t hire.
 Employment service.
 Entities can be liable even if not straight up hire.
DOMM v. JERSEY PRINTING CO. (1994)
Whether high-ranking people could be liable especially when company is bankrupt?
Courts are split.
B.
Sex Discrimination & Title VII
2.
Defining Sex Discrimination
GENERAL ELECTRIC CO. v. GILBERT (1976), p. 1035
Employer’s disability plan does not cover pregnancy. Allegation of sex discrimination.
 What counts as sex discrimination?
 Not good law, overruled 2yrs. later by Congress, Pregnancy Discrimination Act,
§701(k) of Title VII.
 Good case still to look at for what counts as sex discrimination. Not always going to be
about hiring/firing.
 Excludes disability due to pregnancy for both men and women. In its evenhandedness,
not going to pay pregnancy cost whether you’re a male or female.
 So does this count as sex discrimination? Doesn’t really sound even-handed. Men
cannot get pregnant. Won’t affect some women. But, effect on women exclusively.
But nothing on this plan that is excluded on one plan that’s excluded on the other.
 Aren’t many health plans that excludes nothing. But if allowed to make exclusions,
have we down a different road? Some diseases that only men/women can get. Some
things that are exclusive occur more often in one sex than the other.
 No evidence in the record that the overall package is not more for males/females.
 What if dependents? Can’t the  argue that the wives of the male workers aren’t
covered, so no discrimination.
 Fine line b/n sex discrimination and cost-cutting.
 Mannifino case – close correlate. Stupid if employer says no regnant people. But if
you don’t hire anyone to take extended leave w/n a few months of work.
 What is insurance? What’s its purpose!!
LA DEP’T OF WATER & POWER v. MANHART (1978), p. 1042
Discrimination against women alleged, but not clear that it is discrimination. Women
live longer than men. Pension plan paid to employees. As a group, women contribute to
plan more money. Actuary calculation, to avoid discrimination, women must pay more!
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Civil Rights Outline
 The theory is that it doesn’t hurt women b/c set-off by the fact that women will be able
to collect more money. So the theory is that it is equal. Does the off-set justify more
payment? Court says NO! Generalization here, but true generalization. But it just
covers averages!! Doesn’t permit you to assume that every female will follow pattern;
they won’t.
 Black males retired about 65yrs., and average age of death – 65yrs. Subsidization
going on there, as w/any insurance plan.
 Court: permissible to make job discrimination on basis of anything other then sex
(longevity here). But don’t pay on basis of individual longevity. Only takes into
consideration – sex. Can’t be justifies as a factor other than sex.
 Court  let’s stop trying to separate.
 See p. 1043, FN 4 referral. But employer pays 110% more. So more into women’s
account. Not clear who is benefiting.
 KEY: group vs. individual.
 Make sex and gender irrelevant in this area.
WILLINGHAM v. MACON TEL (1975), p. 1050
What counts as sex discrimination? Is it sex-related? Employer doesn’t want women
who have kids – can argue discrimination even if employer has many women employees
In this case, long-haired applicant wants job. Title VII doesn’t protect hair length. But
treating males and females different for hiring. Discrimination on basis of sex.
 Company has to show BFOQ, b/c intentional.
 Women can wear their hair any length they want.
 The policy is acceptable standards in the business community. Newspaper says NO
discrimination!! The standard is equal. Must have hair in accordance w/business
community standards.
 Court says close call and there are cases going other way. Freedom of speech element.
Really no fundamental right here. Not really sex discrimination. Standard is the same
for males and females.
Title VII  inequality. Sexual harassment is included, but can’t necessarily be cleared
up w/equality Example – “all sexes report to boss’ office for sexual harassment.” But
this isn’t an inequality problem. Kind of different things. Use an inequality standard to
additional sexual harassment.
Two kinds of Sexual Harassment: useful distinction, but not in Title VII.
1. Hostile work environment: terms and conditions in employment so that woman/man
has to deal w/a workplace created by employer, co-worker, customers.
2. Quid pro quo: negative or positive. In exchange . . . . Harasser follows through
w/threat or was bluffing.
If employer cans you for QPQ, the courts will go a long way to finding COA. Theory –
company should be on notice (ie – fact that you were fired). But may nit be a trigger
effect if buff or women acquiesces. May find liable w/o an affirmative defense.
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Hostile Work Environment
Meritor – employer not always liable for HWE. W/o being barred by principles of
agency law, should be guided by it in determining employer liability. May suggest strict
liability. Sometimes it will be obvious! May be so flagrant that employer would have to
know. But, in subtle cases, acting w/n employment. Maybe a color of state law deal. Is
the HWE furthered by badge? Yes, wouldn’t have to tolerate, but for . . . . SC does not
accept that as enough to establish agency relationship, then employer would always be
liable.
ELLERTH & FARAGHER
There is a possible defense for HWE, if no tangible employment action, the employer can
raise an affirmative defense. Two parts:
1.  exercised reasonable care to prevent/immediately correct. Put sexual harassment
policy out and takes it seriously.
2.  unreasonably failed to take advantage of complaint system.
If employee does go through the proper channels,  dead. Ok of  wasn’t unreasonable
in not bringing claim b/c manual unreasonable -  died.
What does it take to prove?
Harris – does victim have to show that they suffered psychological impact? NO!! Must
show 2 things:
1. Subjective offense.
2. Objective (reasonable person) – sufficiently severe/pervasive!! So as to effect terms
and conditions of employment.
What will not suffice?
 mere offer
 few isolated events
Look at totalitarian of circumstances!!!
Title VII Damages
 Backpay, ER, atty. fees.
 But broader remedy now available – compensatory and punitive (malice, reckless
indifference to protected right; not from gov’t.)
 If ask for compensatory/punitive  jury trial.
 Some damages are capped/ltd. in Title VII. Based on size of business (# of employees).
 Past preliminary losses – uncapped.
4.
The Bona Fide Occupational Qualification as a Defense
Bona fide Qualified Occupational Defense: used when there’s an intent to discriminate.
Worse mens rea, so stricter test.
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INTERNATIONAL UNION v. JOHNSON CONTROLS, INC. (1991), p. 1082
Gender-based and intentional pattern of discrimination. Women not allowed to work in a
certain department due to heavy concentrations of lead. For risk, health, and future tort
reasons  no fertile females permitted.
 Held to be discrimination on basis of gender.
 BFOQ requires the following: if discrimination, you have to show. BFOQ reasonably
necessary to the operation of that basis.
 No BFOQ defense for race!!
 This defense is written narrowly!! Used narrowly in Title VII and age discrimination.
 Emphasized the heck out of “O” in BFOQ. Non-sterility doesn’t make you a better
battery maker.
 Wright: the court was thinking Roe v. Wade. Court: we are just being paternalistic. 3rd
party endangers, ok, that is w/n appropriate safety considerations (bystander, etc.). But
women can make decisions for themselves and potential offspring.
 Use occupation as a word that can limit what can be used as a BFOQ.
 See p. 1086, try to narrow even further!! Has to be somehow related to the
essence/central mission of the business. But many companies just want to make
money.
Retaliation Cases:
1.  files, whether win or not.
2. , generally an employer, takes adverse action against you.
3. Link adverse actions to filing of the charge.
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Prima Facie Case.