CIVIL RIGHTS LAW OUTLINE
UNIT ONE: SUING THE GOVERNMENT AND ITS AGENTS
I. 42 U.S.C. 1983: Background and Statutory Elements
 Civil Rights Act of 1866 – Abolishes Black Codes, which forced slaves to work
for former masters
o Substantive rights are at the core of civil society – contractual
relationships, owning property, etc.
 Ku Klux Klan Act (1871) – State and local government were ignoring the Klan
and fostering violence
o 1. Civil and criminal liability for people who violate
o 2. Armed forces to suppress insurrection
o 3. Civil damage remedy that allows a person to sue an official who
violates these federal rights (§1983)
o Gave federal courts an important role in protecting federal rights
 Then nothing happens, 1983 litigation fizzles
o 1. It’s not clear what these rights are
 14th A privileges and immunities under Slaughterhouse is
determined to be national, not state
 Bill of Rights guarantees held only against the federal government
o 2. Assumption that you could only sue a government official who was
enforcing an unconstitutional law
 Ex; Brown v. Board, the principal was enforcing the current law
 §1983 – No substantive component, purely a vehicle
o It creates a cause of action, a rule of liability
o Doesn’t create jurisdiction, doesn’t say where you can file it
o Plaintiffs – 2 general categories
 US citizens
 Persons subject to the jurisdiction of the US (an immigrant
detained in prison is in the jurisdiction of the US)
o Defendants
 Government agents and maybe some private people who claim the
mantle of law
 Not for federal agents
o Under color of law
 If a person is authorized by a law it’s under color of law, if they’re
not it’s more difficult
 Ex; handcuffing someone to the stocks, not written down, but it
may still be an unwritten code of conduct
o Injuries
 Federal statutory rights, perhaps not all
 Rights secured by the Constitution
 Not state created rights, not state constitutional rights
o Liable to the party injured
 Primary purpose is monetary damages
 Punitive and compensatory may be there too, but not always
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 Declaratory and injunctive as well
o Any defenses to someone charged
 Assuming it really was a violation, there are no exceptions to the
rule of liability
 But the courts have created gaping exceptions regarding immunity
and qualified immunity, unwritten exceptions
II. “Under Color of” Law
A. Unauthorized Acts by Public Officials
 When a public official is liable under 1983
o When a public employee enforces an unconstitutional law
 Ex; Election supervisor, a public employee, is a viable defendant
when enforcing a law that prevented blacks from voting
 State actor enforcing an unconstitutional law
 Acting under color of law by doing so
 Ex; Brown v. Board of Education – The principal was enforcing an
unconstitutional law and is liable under 1983
o When a public official misuses authority and engages in conduct that is
not authorized
 Longstanding assumption for 1983 liability – §1983 reached only misconduct
either officially authorized or what amounted to “custom or usage”
o Acts of in violation of state law did not violate §1983
o Led to 1983 being used very infrequently at first
o The Civil Rights Cases
 14th A only prohibits state actions, not actions of private entities
 Held the Civil Rights Act of 1875 unconstitutional
 Broad language that formed assumptions on how 1983 might work
 Imported a limitation on “under color of” law – only people
who act pursuant to a law are liable
 Home Telephone & Telegraph starts to change this
o Rates the City set are so low as to deprive them of property without due
process
o Court concludes that the 14th A prohibits unconstitutional actions by state
actors, whether or not they are authorized by state law
o Being a state worker is state action enough
 United States v. Classic – When a government officer misuses his power, it’s only
possible because the wrongdoer is clothed with the authority of state law and it’s
action taken “under color of” state law
o Statutory state criminal law at issue here
 Screws v. United States – Under color of law means under pretense
o Reaffirmed Classic
 Monroe v. Pape – They sue the police officer and the City of Chicago for
unreasonable search and seizure under the 4th A, applicable via the 14th A
o Court concludes that Congress meant to give a remedy to parties deprived
of Con rights by an official’s abuse of his power under §1983
 Allows suits against government actors for unauthorized
misconduct with the cloak of the state
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Rejects claim that “under color of” law excludes acts of an official
that are made outside of state law, custom, or usage
o 3 Purposes majority states for §1983
 1. To override certain kinds of state laws
 2. Remedy where state law was inadequate
 3. To provide a federal remedy where the state remedy, though
adequate in theory, was not available in practice
o Monroe is the first time this interpretation of “under color of” law is used
for §1983 claims
 Criminal liability in Screws and Classic
 Constitutional in Telephone
o CONCURRENCE – Harlan
 Violations of federal Con rights are more serious and deserve a
different remedy – basically saying the federal forum is better
o Since Monroe, from less than 300 to 43,000 §1983 cases per year just after
 §1983 can be brought in state or federal
o Reality is they are rarely filed in state court, there is a general skepticism
o They do not have to pursue state remedies first, 1983 is supplementary
 Except for prisoners
 Prison Litigation Reform Act – Prisoners must pursue all
available remedies in the prison administrative system
before filing a 1983 claim
B. Acts by Private Parties
 If a government official enforces a law, or if they’re using their official capacity
and not acting under an actual law, they’re acting under color of law
o Public Defender is one exception
 They have an ethical duty to the client, a responsibility that is
adverse to the state’s interest, so we don’t treat them as acting
under color of law
o Guardian ad litem who engages in unauthorized misconduct
 Public defenders role is inherently adverse to the state, guardian ad
litem is working with the court
o Public official who does something bad in his off time
 Generally not liable
 Off duty police officer who claims he is a police officer and kills
someone in a bar fight was not held to be acting under color of law
 Very fact intensive
 Is there a reasonable pretense that this person is doing their
job?
 A policy that requires officers to be on duty at all times?
 Did he use a weapon he was required to carry?
o Very broad category of defendants under Monroe, with the carved out
exception for public defenders
 Private people DON’T act under color of law
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o However, there may be times where there are certain private citizens or
businesses who are not officially affiliated with the government but work
with them in some way
 SC – close nexus between the state and that private actor then it’s
fair to treat that actor as acting under color of law for 1983
3 main categories where private actors are liable
o 1. Private party is a willful participant in joint activity
 Mississippi Burning – Sheriff and Deputy arrest 3 civil rights
workers who go down to Mississippi regarding a burnt church,
then let them go, allowing 12 KKK members to kill them
 They are charged under the criminal counterpart to 1983
 Killen is convicted – he was acting under color of law, a
willful participant with a government EE, the Deputy
Sheriff
o 2. Private party who serves an exclusively and traditionally public
function
 Private company running a jail – the SC has assumed, but not
decided, that prison guards act under 1983
 Not just the fact that they are receiving state money that
transforms them into a suable actor, it’s the type of act
 Salvation army getting money to run a drug rehab program – it’s
not the money and some participation that transforms it
 Drug rehab is not exclusively public
 Mall security officer who detains you – It looks like they’re
performing police functions, but they’re really performing them on
behalf of their private ER
o 3. The government is so entwined with the private party
 Brentwood Academy (private school) – Private association fined
and suspended Brentwood for recruitment
 School tries to sue under 1983 and the Association says
they’re a private group
 SC says there was pervasive entwinement – 80% of the
people were from public schools, and while they didn’t
receive state payment, they got state retirement benefits
 No reason to claim unfairness when applying Con rights
 Look at private structure of these organizations and see if public is
so entwined with private that they should be treated as acting under
color of law for state purposes
III. “Person”hood – Possible Defendants
A. Suits Against Municipalities and Local Officials
a. Municipal Liability
 The term “person” in §1983 – we assume that a corporation is treated as a person
for purposes of the statute
 Under Monroe, municipalities are NOT liable under 1983
o Sherman Amendment – Would have imposed strict liability on
municipalities if there was mob violence in their jurisdiction
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Not related to §1983, pertained to it’s precursor, the Civil Rights
Act of 1871
o Under Monroe, blanket rule that the city is not liable
 It has led to strange results, and lower courts found ways around
the rule to hold municipalities liable
 Policy reasons why we might want to hold municipalities liable
 Incentivizes them, they have deeper pockets
 Monell v. New York City Department of Social Services – Female city EEs sue
the NY City Dept. of Social Services and the Board of Edu. regarding a policy
that forces them to take unpaid leaves of absence for pregnancy before necessary
o Municipalities include their sub-parts like the board of Edu.
o They sought injunctive relief and back pay
 City changes its policy, so injunctive relief becomes moot, but the
damages claim goes forward
o Court holds cities are not entitled to absolute immunity under 1983
 Municipal governments are persons subject to suit under 1983, and
Monroe is overturned on the issue of municipality liability
o But they CANNOT be sued under respondeat superior, vicarious liability
 Causal link that might not be present
 Might be bad for policy reasons to do so, very expensive
 Might be academic distinction anyway if the municipality
is paying the bill anyway
o The Court doesn’t really look at policy, they look to Monroe’s
understanding of the Sherman Amendment, saying they had too superficial
an understanding of why it was defeated
 It was defeated because imposing liability regarding mob violence
would have forced them to create police forces and they thought
Congress lacked the power to force states to create police forces
 But it’s ok for Congress to say they have to exercise the
police power in line with the Constitution
o DISSENT – Rehnquist
 Thinks they are going against precedent and stare decisis
 Monroe wasn’t clearly wrong and we shouldn’t overturn it
 It was a statutory question and Congress could have changed it
 Majority replies that he’s right, but Monroe was really
wrong and municipalities shouldn’t rely on it and think it’s
ok to violate Con rights (not good reliance)
 After Monell – whole new category of defendants, but with limitations
o Can only sue ordinances, policies of the municipality that are carried out,
and custom that may not have gone through formal municipal channels
 Custom – look to written policies and factual evidence, conduct
that is officially condoned, pattern of violations
 Today – Very complicated and 3 justices say we should revisit vicarious liability
B. Suits Against States and State Officers
a. 11th Amendment Basics
 Under 1983, can sue state municipalities and state employees
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o The doctrine of sovereign immunity bars States from liability
 Bared under the 11th Amendment and rulings that a state is not a
person in the meaning of the 1983 statute
th
11 A – The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the United
States by Citizens of another State, or by Citizens or Subjects of any Foreign State
o The text has been read to mean more than it says
o Chisholm v. Georgia – South Carolina citizen sues Georgia for breach of
contract and the SC says there is federal jurisdiction over the case
 State and citizen of another state
 Dissent (Iridell) – Read the judiciary act in light of common law
principles, only consenting states can be sued for damages at CL
th
o 11 A is introduced to overrule Chisholm
o Hans v. Louisiana – Citizen of Louisiana trying to sue Louisiana
 Doesn’t seem to be barred, but the Court holds that state immunity
is inherent
 Individual citizens, regardless of what state they’re from, cannot
sue states
o State Courts – CL sovereignty is read to bar suits against states in state
court as well as federal
Two ways around 11th A immunity
o 1. Can sue when the state consents
 Has to be the result of a clear, unambiguous, expressed waiver
 Must be a very specific statute (we hereby subject ourselves)
o 2. Can sue when the state immunity has been abrogated by Congress
 Certain circumstances where Congress can pass a law that allows
individuals to sue
 But only laws that are unambiguously and validly passed pursuant
to Congress’s section five powers under the 14th amendment
 A law under Congress’ commerce power is not enough
 Lots of recent litigation
 Americans with Disabilities Act is not a valid exercise of
Congress’ power to enforce 14th amendment
 Neither is the Age Discrimination and Employment Act
 Family Medical Leave act has been upheld
Cannot sue a state under §1983
o 1983 was not an unmistakably clear attempt to abrogate state immunity
o But, if a state passes an unconstitutional law, you can stop that behavior
by going to federal court by suing the state official who is responsible for
enforcing that law – Ex parte Young
Suing State Officers
Ex parte Young – Shareholders of RR sue Attorney General of Minnesota to
enjoin him from enforcing a confiscatory rate law as invalid under the 14th A
o They sue the official, not the same as suing the state
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o Once an official does something unconstitutional, he is engaged in
unconstitutional conduct and he is stripped of any immunity that the state
could impart to him
 Stripped of any official character, even though the official’s
conduct is still considered “state action” under the 14th A (without
which there would be no Con violation)
 An obvious fiction – Court is just giving people a vehicle
o Compared to Monroe v. Pape
 When a local government officer violates the constitution, he is
still acting under color of law and is suable under 1983
 But here a general is just doing his job and when he is attempting
to enforce an unconstitutional law, he is striped of immunity
 Both are ultimately engaged in unconstitutional conduct
o Individual versus official capacity
 You can sue state officers (State and municipal) in their individual
capacity for retrospective relief (money damages)
 You can sue them in their official capacity for prospective
injunctive relief
 You cannot sue them in official capacity for retrospective
relief (Edelman)
Edelman v. Jordan – Class action against the director of the department who was
mishandling welfare benefits in Illinois
o Plaintiffs sought an injunction and the money they would have received
o Supreme Court allows them the injunction, but no damages
 11th A bars suits that seek a judgment which must be paid from
state funds
 Not going to pretend anyone but the state would be paying
the damages when you sue a state officer
o Under the 11th A you cannot sue the state PERIOD
 But you can sue officer in official capacity for injunctive relief
 Line can get very shadowy between 11th A and Ex parte Young
 Milliken v. Bradley – Court upheld a desegregation order,
prospective decree to share funds in the future is not bared by the
11th A, not considered money damages
Will v. Michigan Department of State Police – Michigan state police secretly
monitored citizens regarding communist tendencies, years later P files are
released and P realizes he was passed up for a promotion because his brother was
in the files
o He sues Michigan Department State Police and the officer for damages
o Court holds – “Person” in 1983 does not include states or state officials
acting in their official capacity
o Prior to Will, some thought you could bring damage actions against states
in state court since you can file 1983 in state and federal court
 Court holds he cannot sue the state of Michigan or an official
acting in official capacity for money damages in state court
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Suing Director of the State Police is really a suit against the
official’s office and so a suit against the state itself
o Difference between Will and Ex parte Young is that the type of relief
sought is different
 Footnote 10 addresses the inconsistency – When suing a state
official, it hinges on the type of relief sought
 Injunction – OK to sue, they are persons under 1983
 Money damages – Cannot sue, they are not persons within
the meaning of 1983
 This might encourage states to comply with the Con but without
draining coffers
 3 important distinctions
o 1. Who you can sue
 Cannot sue the state
 Might be able to sue a state official
o 2. What relief you seek
 Injunctive or retrospective damages
o 3. What capacity do you sue the state actor in
 Personal or official
 Hafer v. Melo – Candidate for Auditor General receives a list of people who
bought their positions through donations, she fires them after being elected
o They sue her in her individual capacity for money damages for violating
due process
 She claims she is being sued for acting within authorized bounds
and for action in her official capacity
o Court says the focus is on the capacity in which you are sued, not the
capacity in which you acted
 By and large, just setting out that you are suing in the individual
capacity will be enough (might just be a mere pleading device)
 Court is silent on the premise of individual capacity
o Might really just be a fiction – doesn’t really protect the state coffers if
they are indemnifying the person
C. Suits Against Federal Officers and the Federal Government
a. Suing Federal Officers and Federal Agencies
 Cannot sue a federal official under 1983 – only for under color of any state law
 Al-Marri – Grad student charged with credit card fraud, then transferred to be
held by the military as an unlawful combatant and held in solitary for 5 years
o Eventually released and sentenced to 8 years in a federal court
o If all he wants is an injunction against the torture (solitary confinement) a
similar mechanism to Ex parte Young applies to federal officials
o If al-Marri wants damages, he can sue under Bivens
 Larson v. Domestic & Foreign Commerce Corp. – Can sue for injunctive relief
against a federal official under without triggering sovereign immunity
o Federal counterpart to Ex parte Young
 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics – P claims
the fed officers violated his 4th A rights with an unreasonable search and seizure
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o The Court had jurisdiction, but unlike 1983, there was no statutory cause
of action
 The Court implies a cause of action directly from the Con to say
that a person can sue a federal EE who violates his Con rights
o Having established the complaint stated a cause of action under the 4th A,
they held he was entitled to money damages for his injuries
 Bell v. Hood and Larson already allow injunctive, and there is no
reason not to allow damages here
o CONCURRENCE – Harlan
 An injunction won’t help him, the only viable remedy is money
damages
 The fact that the interest is protected by the Con rather than a
statute doesn’t mean federal courts can’t grant damages where
there is no explicit Congressional action allowing it
 Con violations require a unique remedy (continuing his same
theme from Monroe)
o DISSENTS – Burger, Black, Blackmun
 Congress didn’t create this cause of action
 It would add a lot of cases to the system, possibly frivolous
 Monetary damages could drain the government
 There are viable alternatives for the plaintiffs
o Bivens has been very controversial – Court has shown no inclination to
extend it, except in very limited circumstances
o Not all Con rights can be brought under Bivens
 4th, 5th, 8th A claims are ok
 Beyond that it’s not clear – Some say 1st and 9th too
o Bivens only applies to federal constitutional violations, not for federal
statutory violations
o Affirmative defenses for 1983 will be the same for those under Bivens
2 instances where Bivens would not be applicable
o 1. If Congress has provided an alternative remedy that they explicitly say
is an alternative and is an effective remedy, they can’t use Bivens
 Where Congress has already acted to prevent Con wrongs
o 2. Special factors counseling hesitation
 Any factual deviation from the Bivens case is going to give pause
Alternative Remedy
o Bush v. Lucas – NASA engineer made disparaging remarks and the
director demoted him but he got his job and back pay through the federal
administrative process, while at the same time suing under Bivens for
damages
 SC held his damages action was foreclosed – Now, if Congress has
provided any remedy to Con protection they must use that
 Congress doesn’t have to explicitly displace Bivens and it doesn’t
have to be as effective a remedy
o Civil Service Reform Act – provides a remedy for federal EEs with federal
constitutional claims for damages
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Might be one reason for little Bivens success since it precludes it
Note; state EEs have other remedies too, but are not precluded
from filing 1983 claims
 Special factors counseling hesitation
o Ok to sue an individual federal officer in federal court for money
damages, but cannot sue a federal agency
o FDIC v. Meyer – You cannot sue a federal agency, even where Congress
has waived sovereign immunity
 Purpose of Bivens is to deter the officer, not the agency
 Since Ps would prefer to sue agencies, rather than officers
who can assert qualified immunity, extending Bivens to
agencies would cause less suits against individuals and the
deterrent effects would be lost
 This is a special factor counseling hesitation
 Can argue there’s a behavioral element, they are not
indemnified if they go so far over the line, and
indemnification is not always promised
 It is after Bivens that it’s claimed it was for deterrence
o Correctional Services Corp. v. Malesko – Man has a heart attack in a
private half-way house after being refused the right to use the elevator
 Bivens doesn’t allow you to sue a private entity, even in a
traditionally federal role
 Like the agency in Meyer the difference in incentives is a
special factor counseling hesitation
 Even though Bivens and 1983 looks like parallel remedies,
it breaks down with private entities
 Dissent challenges the majority’s claim that imposing liability on
CSC would not serve Bivens’ deterrence rationale
 Argument it should only be limited to federal
 Bivens versus 1983 on private actors
o 1983 – Those performing traditional and exclusive public functions are
liable, with the assumption that private prison guards would be as well
o Bivens – Half-way house is not suable, but there is a Circuit split (9th and
4th C) on whether private prison guards at the federal level are
 It’s not just “under color of” law, it’s a judicially implied cause of
action and it has never been extended
b. Federal Tort Claims Act
 FTCA – permits recovery for the negligent or wrongful act or omission of a
government EE while acting within the scope of his employment
o It’s a limited waiver of US sovereign immunity, holding the US
responsible for the actions of its agencies and employees
 Like the 11th A says states can be sued in some instances, FTCA
allows the federal government to be sued for the torts of its EEs
 Suit itself is against the US, not the EE or agency
o Cannot bring an FTCA claim in state court, only federal after exhausting
administrative remedies
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o Citizens and non-citizens can sue
o It’s governed by the law of the state where the tort was committed
o Bars claims for intentional torts, except when committed by certain
officials such as law enforcement officers authorized to make searches,
arrests (Immigration official, DEA, prison official are ok to sue here)
 When a federal law enforcement officer engages in certain
intentional torts that look like free standing Con claims, might
have a Bivens claims against the officer and a FTCA against the
government
Ex; Kenyan woman beaten and tortured by Kenyan police is interrogated for 7
hours upon her arrival to an airport in the US
o She has no Con rights, but she can sue under the FTCA
o She is sent back to Kenya by immigration officials instead of being sent to
an asylum official as she is supposed to be
 Immigration regulation at issue was that the official had to refer
her to an asylum officer since she feared for her life
o Gaping hole in FTCA liability – Does not allow liability when they
exercise due care or when it’s based on a discretionary function
 Very powerful defense for FTCA claims – as long as she has some
discretion, it doesn’t matter if she abused that discretion, they are
not liable
o Here there was no discretion, she had to refer her to an asylum officer
 She wins, first time an asylum seeker won for negligence against
the government
IV. Immunities – Possible Defenses
A. Absolute Immunity
 Unwritten exceptions to 1983, certain government officials should not be liable
o Consider history, see if Congress intended to incorporate common law
immunity into the statute, and policy that suggests it makes sense to
continue the immunity or discontinue
o Defendant has the burden of claiming absolute immunity
 2 levels of immunity defenses
o Absolute immunity – when performing certain core functions, certain
officials are completely protected from suit
 4 categories
 1. Legislators
 2. Judges
 3. Prosecutors
 4. Witnesses
o Qualified immunity – much broader range of defendants, default rule
 LEGISLATORS
o Speech or Debate Clause – Can’t be sued in the House or Senate
o Tenney v. Brandhove – State legislators are absolutely immune from civil
liability for acts taken within their jobs
 The legislator is a person who acts under color of law under 1983,
but is immune for legitimate legislative actions
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State, federal, and local legislators are absolutely immune from
damages and suit for legislative activities
 Historical basis and policy reasons since we want legislators to be
able to speak their mind without being hauled into court
o Bogan v. Scott-Harris – Scott-Harris’ position is eliminated in a budget
cut, she sues the mayor and VP of the city council
 They are persons under 1983, but the Court holds they are immune
 History – State case law and treatises show that even local
legislators were immune from suit
 Policy – Shouldn’t be hampered by fear of suit, chilling them in
the exercise of their duties
 Here, local legislators are also more likely to suit, they are
closer to the actual community
 Court mentions the possibility of municipal liability under
Monell as an alternative mechanism for self-correction
 It might deter people from running at all, we don’t want to
punish people for acting in good faith
 They can also be voted out of office if they do wrong
 Mayor’s actions are still protected, even though he’s not a
legislator, because his actions were part of the legislative process
 They are immune from legitimate legislative activity
 Look to the nature of the act to determine this, not motive
or intent
 But when a legislator is not acting in a legislative capacity,
he or she only has qualified immunity
o Davis v. Passman – SC rejected congressman’s
claim of absolute legislative immunity under a
Bivens action when he fired a staff member for
being a woman
JUDGES
o Judges are absolutely immune from damage suits under 1983 or actions
within legitimate judicial activity, even when their actions are in excess of
judicial capacity and are malicious
 The intent/malice doesn’t matter for immunity purposes, it’s about
the function
o Stump v. Sparkman – Judge allows a mother to sterilize her daughter, who
later sues him, court sets out a test for determining his liability
 1. Liable when not performing a judicial act
 “Judicial” relates to the nature of the act itself
 (1) Is the act a function normally performed by a judge?
 (2) Did the parties expect or believe they were dealing with
the judge in his judicial capacity?
o Up until this point, it looks like a formal analysis,
but then they bring in opinion, the expectation or
belief of the party
o Subjective understanding is a very different analysis
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 Must be a judicial act before you get to jurisdiction
 2. Liable when they act with a clear absence of all jurisdiction
 Clear absence of jurisdiction versus merely acting in excess
of jurisdiction (Footnote 7)
o Absence – Probate judge ruling on a criminal case
o Excess – Judge in a criminal court convicting a D of
a nonexistent crime
 MAJORITY – Says it’s just an excess of jurisdiction since
technically he can hear such cases, even if it was decided wrong
 7th C – There is a grant of general jurisdiction, but nothing
in the law that allows tubal ligation, so no jurisdiction
 DISSENT – Stewart suggests 4 things to look for and says that
none of the reasons for judicial immunity were present here
 1. Was there a case, controversial or otherwise
 2. Were there litigants
 3. Could there be an appeal
 4. Did the judge engage in principled decision-making
o Archie v. Lanier – P has a custody dispute for her child in front of a judge
who is also applying to for a job, he threatens to take away her child if he
won’t have sex with her
 She and other women who he sexually assaulted sue under 1983
 Spark v. Stumpman test – his actions were not a judicial act
o Zarcone v. Perry – Judge who ordered a sandwich vendor to be
handcuffed and brought before him for selling “putrid” coffee held liable
for compensatory and punitive damages
 Sued under 1983, won in that this was not a function normally
performed by a judge
o Pierson v. Ray – Black ministers are arrested for using segregated
facilities and convicted before a municipal police justice
 On the ministers 1983 claim for damages, the justice is found to be
immune from suit at the Supreme Court because he only performed
a judicial function, even if it was in error
 First judicial 1983 action
o Immunity from prospective relief
 The rationales behind CL immunities for damages under 1983
don’t apply to actions for prospective relief
 Generally assumed that immunity from damages doesn’t
necessarily mean immunity from prospective relief
 Federal Courts Improvement Act of 1996 – amended 1982 to say
that injunctive relief against judges shall not be granted unless
declaratory relief is not available
PROSECUTORS
o Imbler v. Pachtman – Imbler is convicted and 9 years later released, partly
on the grounds that the prosecutor in his case had culpably used
misleading or false testimony at trail, he sues under 1983 for damages
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Court holds that due to historical immunity at common law and the
policy reasons for it, the prosecutor is immune
 Policy – don’t want tons of frivolous claims or to re-litigate
all these cases
 Prosecutors are absolutely immune for activities intimately
associated with the judicial process
o Case after Imbler
 Burns v. Reed – Prosecutor was absolutely immune from damages
liability based on positions taken in a probably cause hearing
 Not entitled to immunity for giving legal advice to the
police about the legality of an investigative practice
 Buckley v. Fitzsimmons – Prosecutor not entitled to absolute
immunity for making statements at a press conference
 Nor for conspiring with the police to create false evidence
 Kalina v. Fletcher – Prosecutors have only qualified immunity for
false statements in support of an arrest warrant
o Van de Kamp v. Goldstein – Prosecutor knew the key witness exchanged
a reduced sentence for testimony, under the 14th A they are required to
disclose all exculpatory evidence
 He cannot sue the prosecutor and get damages because he is
absolutely immune from suit
 So he sues the DA and the Chief Deputy, claiming they didn’t train
the prosecutor or establish an information system
 Court holds they are absolutely immune – those involved in these
actions had an administrative obligation that is directly connected
with the conduct of a trial
 What’s being protected is the function of the trial
WITNESSES
o Brisco v. LaHue – Alleged that police officers had given false testimony
leading to the conviction of a criminal defendant, 1983 suit for damages
 Court held they were entitled to absolute immunity
 1983 damages would not be available against private-party witness
 1. Not acting under color of law
 2. CL privilege protecting witnesses from damages liability
 CL provided absolute immunity from damages liability for all
persons who were integral parts of the judicial process
 Here they can either be viewed as immune similar to
private witnesses or as official persons performing a role in
the judicial process
Immunities for federal officials
o Butz v. Economou – federal officials sued under Bivens generally have the
same immunities as state officials
o Special instances for federal officials
 Members of Congress protected by the Speech or Debate Clause
 Nixon v. Fitzgerald – Pres. has absolute immunity against award of
damages within the “outer perimeter” of pres. responsibility
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Real tension in all of these between decision making and denying relief to people
whose Con rights have been violated
o Maybe should incorporate a more nuanced method where intent matters
b. Qualified Immunity
 Scheuer v. Rhodes – Kent State University shootings 1983 case, violation of 5th A
o The families sue the governor, adjunct general, assistant, and various
officers in their individual capacities for money damages
o Hafer v. Melo – capacity for our purposes is the one in which they’re sued
 If you sue a state official in individual capacity for money
damages, there is no 11th A problem
o D says the claims are in effect against the state of Ohio and even without
that, they are entitled to claims executive immunity
 Policy reasons for immunity
 Executive level officials have to make split second
decisions and we don’t want to hesitate
 Injustice of subjecting them to liability when they were
using their discretion in good faith
 Policy reasons against immunity
 Unfair to deprive the Ps
 If they’re immune, it provides bad incentives
 Con rights are uniquely important
o Court holds the P’s claims are not bared by the 11th A since they are suing
a state official (under Ex parte Young) and while Edelman bars damages
from the public treasury, they can sue them in individual capacity
o Legislators, prosecutors, judges, witnesses, the state are all immune
 Executive branch officials are left out – vast majority of actors and
those with whom people are most likely to be in contact
o Court holds they are entitled to qualified immunity
 1. Reasonable grounds for the belief formed at the time and in light
of all the circumstances
 2. Good faith belief
o Objective and subjective parts to this test
o From Sheuer on, the vast majority of Ds can assert qualified immunity in
1983 and Bivens claims
 Qualified immunity has evolved since Scheuer
o Wood v. Strickland – SC holds compensatory award only where a school
board member has acted with clear disregard for Con rights that it cannot
be characterized as being in good faith
o Harlow v. Fitzgerald – Re-crafted qualified immunity to permit the defeat
of insubstantial claims without resort to trial
 There are substantial costs to litigating a subjective good faith
claim and it’s hard to determine it by summary judgment
 Court drops the subjective part, leaving it with the purely objective
reasonable test
 It must be clearly established Con or statutory law
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Without the subjective branch of qualified immunity, the question becomes how
clearly established a Con right has to be
o Precise test – whether the actions clearly violated established Con rights
and the person reasonably knew
o Bottom line – Scheuer provides a very potent defense
Applying the Harlow rule of qualified immunity – proper order
o 1. Ask if the P has in fact alleged the deprivation of a Con right
 Essentially the same as 12b6 – over if not
o 2. If there was, ask if it was clearly established at the time
 Immune from suit if there is no clearly established law
Prong 2 – Without the subjective aspect, look to how you determine if a right is
clearly established, level of generality at which the inquiry takes place
o Anderson v. Creighton (1987) – Family sues FBI agent under 4th A for a
warrantless search
 Whether an official protected by qualified immunity may be held
personally liable generally turns on the objective legal
reasonableness in light of the legal rules that were clearly
established at the time
 Legal right must be sufficiently clear that a person would
know the conduct violates the Con
 But don’t need to show case law proving it, just that the
conduct would be apparent to a reasonable official
 Saucier articulates it slightly differently – clear to a reasonable
officer that his conduct was unlawful in the situation
o Prong 2 is legal in nature, but will revolve in large part around the facts
Wilson v. Layne (1999) – Police officers allow the media in with them while
executing an arrest warrant, couple sues the federal and state enforcement
officials in their personal capacities for money damages under Bivens and 1983
o Majority (Rehnquist) and Dissent (Stevens) are not asking the same Q
 M – Could a reasonable officer have believed that bringing the
media into a home was lawful?
 Seems to be looking for cases that would say brining the
media along with you is not ok
 D – Could a reasonable officer have believed that using official
power to bring the media into a home for reasons unrelated to the
arrest was lawful?
 Assuming it’s not ok, he looks for cases that would suggest
it’s ok to do so
 How you articulate the right will affect the qualified immunity
outcome
 You must define it within an appropriate level of specificity
o Once you define the rights violation, look to sources to decide the answer
to the clearly established question – hard to know what quantum we need
 If there’s a consensus of case of persuasive authority outside the
jurisdiction, that might be enough, or consensus in the jurisdiction
 Wilson Court, even one case in controlling jurisdiction is enough
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Consensus of cases from elsewhere, even if not in
controlling jurisdiction, is enough
 They also look to US Marshall policy here
 Harlow – Even if they violated clearly established Con right, if it
was an emergency situation and they weren’t clear on law, it’s ok
 What are we going to assume about the reasonable D?
 Court is just making this up as it goes
o Court concludes there was no clearly established rule
Wilson v. Layne and Saucier v. Katz the Court emphasized the importance of this
sequence in which the issues should be addressed…then VMI and Pearson
o Bunting v. Mellen (VMI 2004) – Cadets sued the superintendent for the
practice of praying before meals under 1983 1st A violation
 They’re granted declaratory relief, but superintendent has qualified
immunity because his arguments weren’t so wrong that a
reasonable official should have known he violated their rights
 Superintendent tried to get the SC to hear the lower courts’
determination that school sponsored prayer violated the 1st A
 He was the prevailing party so they denied Cert
 Scalia dissents – you should allow for appeal or allow judges to
decide issues in a different order
o Pearson v. Callahan (2009) – D sues regarding a warrantless search after
he is caught selling drugs to an undercover informant who he admitted on
the premises
 They claim the once-removed doctrine to apply the law to the
informant
 Court holds the same questions are applied but judges can reach
them in whatever order they deem appropriate
 Does away with strict Saucier order
 They had a strict order to help develop a body of Con law
 Departure from this because it is a waste of judicial
resources
 Leaves plenty of space to reach the merits and then clearly
established law
 Majority – the right is the right to be free in one’s home from
unreasonable search and seizure, unless an exception applies
 Consent to an informant does not apply
 SC refuses to resolve the issue, they punt and look purely to the
question of whether the right was clearly established
o It is now in the discretion of the court to determine which prong first
3 perspectives
o 1. How do you define the right at issue
o 2. What sources do you consult to determine if the right was clearly
established?
o 3. How specific do those sources have to be?
1. The way you pose the initial Q regarding the right for qualified immunity will
affect the sources of law you look to and the analysis
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o Brossuea v. Haugan (2004) – Officer shoots fleeing suspect in the back, he
files 1983 claim against her for excessive force
 Court looks only to the question of whether the Con right was
clearly established at the time
 Majority – Asks a very specific Q and looks to very particularized
precedent dealing with the facts at hand, very fact specific context
 Not just a fleeing person, but a disturbed felon who is
taking flight when there are persons at risk
o Groh v. Ramirez – Invalid search warrant because a typo, didn’t state the
items to be seized, Bivens action is brought for illegal search and seizure
 Majority – his 4th A right violated and officer not entitled to
qualified immunity, the mistake was clearly unreasonable
 Right was clearly established – no reasonable officer could
believe that a warrant that plainly didn’t comply with the
law was valid
 Dissent – Kennedy agrees the right was violated
 But poses a different question – whether an officer can
reasonably fail to recognize a clerical error and conclude
the warrant is valid
 He says the majority construes it as a mistake of law
o But qualified immunity protects mistakes of fact
and law, and this is a mistake of fact
 In Saucier Kennedy says prong two is really a mistake of
law, so he seems to be a little inconsistent
2. Court will look to various sources to determine if a right was established
o Non-court sources
 Groh v. Ramirez – Look to the Con itself, language of the 4th A
without looking to case law
 Wilson v. Lane – Media guide on ride-alongs
 Hope v. Pelzer – Looked to recommendation to stop using that
form of punishment
o Case law – jurisdiction and how specific the holdings have to be
 Wilson v. Lane – consensus of cases from outside the jurisdiction
 Other cases on ride-alongs, media in particular
 Brosseau v. Haugan – There aren’t any from the 9th C so they look
to 6th, 7th, 8th
 Two other cases that involve car chases
 Pearson v. Callahan – Court cited a 6th C case that approved
application of consent once removed doctrine, but it was decided
after the rights violation occurred
 Odd without further explanation why they would include a
case after the act
 Anderson v. Creighton – Don’t have to show the action has been
unlawful through cases, but in light of preexisting law it was
apparent
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Most look to the specific COA – some will look outside their
jurisdiction, but some only within, some only to higher fed courts
3. How specific those sources have to be
o Hope v. Pelzer – Alabama’s use of the hitching post for people in jail,
inmate brings 1983 suit against 3 guards under the 8th A
 SC reverses, holds they are not entitled to qualified immunity
 Prong 1 – Yes, his 8th A rights were violated
 Factual scenario – cuffing an inmate to a hitching post that
surpasses necessary amount to restore order violates the 8th
 Prong 2 – Yes, the law was clearly established so a reasonable
guard would know it violated the Con
 Court holds the lower courts’ “materially similar” standard
regarding previous cases is not appropriate
o Just need reasonably similar cases that would have
given warning
o Look to previous cases, rulings, dicta, DOJ report
 They take an additional step – the obvious cruelty inherent
in the practice should have provided them with notice
o Might be a safety valve to get at willfully bad actors
 Case doesn’t have to be materially similar, but we’re willing to
look to other sources and the obviously inherent cruelty
o McDonald v. Haskins – Officer holds a gun to a 9 year olds head while
searching the house, they bring 1983 claim for excessive force
 No cases on point, but the SC has cases that say excessive use of
force claims are valid when they shock the conscience
 Officer should know that unwarranted force against the 9
year old was wrong, and allowing it to be ok is just wrong
Saucier v. Katz – 1994 at the Presidio, animal rights protestor is grabbed and
thrown in a van, he sues under 4th excessive force
o Strange wrinkle in 4th A cases – reasonableness standard
 Prong 1 – Have to determine if the officer acted unreasonable,
heart of the 4th A inquiry
 Prong 2 – Was it reasonable for the officer to act unreasonably
o COA – qualified immunity is duplicative in excessive force cases and they
eliminate the second step where a violation can be found on the allegations
 Qualified immunity denials are open to interlocutory appeal,
except when based on very fact specific instances
 Here he was appealing a legal question – whether the
reasonableness of 4th A tracks the prong 2
o It was reasonable to pull him away, the only issue is the shove, but they
sue they wrong officer
 But not even the other officer would definitely be liable
 Graham v. Connor – not every push or shove violates the 4th and
an officer can in some instances reasonably, but mistakenly, use
more force than was needed
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o Reasonable mistakes as to facts (4th A) and reasonable mistakes as to law
(covered by qualified immunity)
 Case comes to them on the basis that Saucier violated the 4th A, so
they have to look to prong 2, legal reasonableness
 Qualified immunity deals with mistakes of law, what the
law allows you to do
 An officer might perceive all the facts, but mistake how
much force he can use
 The court allows engaging a more factual analysis on prong 2 in
this case, not as focused on the law as other cases we’ve seen
o Saucier has been overruled on the point that mandates the two prongs, but
otherwise it’s still good law
Crawford el v. Britton – Prison inmate sues based on retaliation for him
exercising his 1st A rights under 1983
o Have to show they intended to discriminate because of your race or
because you engaged in protected speech
 In these types of claims, subjective intent is relevant
 Concern, is this a way to get around the objective Harlow test?
o SC rejects the claim that the P should have to satisfy heightened pleading
on prong 1 with clear and convincing evidence of a discriminatory motive
 You just have to allege the subjective intent
o Dissent – Scalia hates Monroe v. Pape, thinks it shouldn’t be expanded
o Concurrence – Kennedy is worried there is too much 1983, but thinks the
solution lies with Congress, not the court
 Ashcroft v. Iqbal – Kennedy changes pleading standard
 Iqbal claims Ashcroft and FBI director discriminated
against him due to their policy of detaining Arab people
 Court says to get these two Ds in individual capacity, have
to show they intended to discriminate against you
o Allegation is conclusory, the court says, and a P in a
1983 or Bivens case needs to allege facts in the case
that allege a plausible inference of discrimination
 Qualified immunity is all about making sure they don’t
have to bear the burden of trial, so they wanted to change it
to make it less easy
 Departure from Crawford, tougher pleading standard to
insulate Ds
Other Categories of 1983 Defendants – Private actors
o 3 scenarios where they are deemed to be acting under color of law
 1. Working with the law (Mississippi Burning)
 2. Exclusive and traditionally government role (Private prison)
 3. Entwinement (Public school organization with private actors)
Private Defendants are not entitled to qualified immunity with 1983 liability for
invoking a state of replevin – very narrow holding
o Wyatt v. Cole (1992) – Cole wanted out of partnership, Wyatt didn’t, Cole
gets a writ of replevin to get cattle
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A private party with a writ of replevin is acting under color of law
Wyatt then brings 1983 action against Cole for seizing his property
without due process of law
 If the sheriff took it, he almost certainly would have
qualified immunity
 Court holds Cole CANNOT invoke qualified immunity
 Policy analysis – immunity considerations don’t work here,
incentives are different and don’t transfer to private parties
 Common law – no history of this category receiving some
kind of protection from suit
 Court leaves open possibility of affirmative defense of good faith
 Other decisions that removed the malice component should
not be extended to private defendants
o Original test from Shauer that Harlow rejected
 Private individuals regarding replevin only
o Richardson v. McKnight – Guards at a private correctional facility were
not entitled to the same qualified immunity of guards at state prisons
 History – no tradition of immunity for such guards
 Policy – not necessary to serve the goal of QI, market forces
provide private firms with incentives to avoid timid EEs
 Dissent – Price is the main factor which gives them
incentives to avoid lawsuits
o Two questions after Wyatt and Richardson
 Does it make sense to allow people to sue private parties who are
prison guards?
 Market forces can really be explained either way
 When there is no CL history, does it make sense to
contemplate immunity at all?
 Does it make sense under policy to allow good faith defense when
there is no CL reason to allow immunity?
 Maybe a good idea to go after people who act in bad faith
o Bottom line – individual who is not a government EE, who acts under
color of law, sued under 1983 cannot invoke immunity
 But they can claim they acted with good faith or probable cause
and that will provide some defense
 No one knows exactly how that would work out
c. Municipal Immunity
 Municipalities are the only 1983 Ds that are liable regardless of how clearly
established the Con right is
o Monell – local governments are persons and liable under 1983
 Only liable for an unconstitutional official policy, law, or custom
 Not vicariously liable
 Doesn’t deal with defenses, qualified immunity is open until Owen
 Owen v. City of Independence – Owen is fired at the same time the city releases
information about his alleged misconduct with the police evidence room
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o Suit against the city, mayor, and City Council members in their official
capacities for declaratory injunctive relief and money damages under 1983
o Two other cases declare a government EE is entitled to a public hearing if
he is fired from his job when there are false public allegations about him
 Deprivation of liberty without due process
 But these take place after the events of this case
o When the individuals are sued in their official capacity for money
damages they are treated as suits against the entity that employs you
 Suing a state governor in his official capacity for money damages
is treated as a suit against the state and 11th A applies
 Here it’s treated as a suit against the entity that employs them
 Qualified immunity is only available for being sued in
individual capacity for money damages
o Owen attempts to sue them in lots of ways
 City Council Members
 Official capacity – treated as a suit against the city
 Individual – they are absolutely immune
 Mayor Alberg
 Official – treated as a suit against the city
 Individual – won’t work either
 Left with City of Independence
o Regarding any immunity claim, the text of 1983 says nothing about
immunity so the court looks to two sources
 (1) To history and (2) if there’s a good policy reason
 Majority – Says there’s no history and no good policy reason
 If no historical support, should they even get to policy?
 Dissent – Powell thinks there were policy reasons and a tradition
of immunity
 Sherman Amendment – not related to 1983 but it would
have imposed strict liability on municipalities if there was
mob violence in their jurisdiction
 Doesn’t say anything about them being persons, but clearly
a concern about holding them liable for something they
couldn’t control
o 2 policy considerations for why immunity is not a good idea
 1. The point of government is to protect us, immunity subverts that
 2. Doing so forecloses compensation, we want one possible route
o Majority on fairness and deterrence which were mentioned in Scheuer
 Fairness – when a municipality is sued, fairness points in favor of
the P because their rights were violated
 Municipality can spread costs so not as worried about it
 Owen wouldn’t have another remedy
 Deterrence – Want them to feel free to make split-second decisions
 Personal liability is removed so that concern isn’t here
 Also gives incentive to create good, constitutional law
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o CONCLUSION – If there is a Con violation and it’s official policy, the
municipality has no immunity whatsoever when sued for damages
 In 2 years it goes from not liable to strictly liable
V. Municipal Liability
A. Determining What is a Policy or Custom
 Official written policy – easy by Monell standards
 Other types of officially promulgated policy
o Rules of general applicability
 Ex; During hurricane Katrina, the mayor issued a mandatory
evacuation order and ordered forces to forcibly remove all people
 Unresolved if forcing someone out was unconstitutional
 City, Mayor, and the actual sheriff potentially sued
o Sheriff who acts on it – qualified immunity
o Mayor who ordered it – he’s an executive officer
and will be able to invoke qualified immunity
o City of new Orleans – Look to LA state law to see if
the Mayor was authorized to make that general rule
o Ad hoc decision – one time decision with respect to a particular person
 They will be liable for anything that is a decision officially adopted
and promulgated by a body’s officers
o Court has tried to squeeze a lot of things under policy
 Pembaur v. City of Cincinnati – They sue the sheriff and the city for breaking
down the door to get in the medical clinic to arrest two EEs, saying the assistant
prosecutor for the country created policy by telling the officers to go in
o Sheriff – qualified immunity when sued in individual capacity because the
right was not established at the time
o Prosecutor who told them to go in – no absolute immunity, he’s advising
police which isn’t a necessary component of a court case (Imbler)
 Potentially qualified immunity because he’s acting as an individual
advising and the right wasn’t clearly established beforehand
o Municipality – cannot invoke immunity as a defense, even though the
right wasn’t clearly established until 4 years after, strict liability
 City’s defense – There was no policy, no rule of general
applicability
 Court – Look to state law to determine the power of the decision
maker in question, and under Ohio law, the sheriff and the
prosecutor have the power to make policy
o Court – while there was no other previous policy on the issue, the
prosecutor established policy and the city was liable
o Dissent – power to make policy does not mean that policy was made
 Whether policy was made should focus (1) on the nature of the
decision reached or action taken and (2) the process by which the
decision was reached or the action taken
o Concurrence – White says liability was proper only because the search
was not forbidden by applicable law at the time (very curious)
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If the decision had clearly violated the 4th A, it would not be policy
for which the municipality would be liable
 If the prosecutor violates clearly established Con law, then he
won’t get qualified immunity and will be individually liable
 So the P get’s money either way
o Take away – when state law designates someone as the final decision
maker for a topic, that decision is policy for which the municipality can be
liable
City of St. Louis v. Praprotnik – City architect who is pushed out due to problems
with superiors, he sues under 1983 for 1st A and due process claims
o Sues his original supervisor, and person who lays him off
 Series of one time decisions that he claims are unCon and are
policy decisions for which the city can be liable
o DC – Jury exonerated the individuals but holds the city liable
o Praprotnik – argues the final decision makers are his supervisors who laid
him off, not the Civil Service Commission or the mayor
 Single line of Pembaur – authority to make policy may be granted
by legislative enactment, or it may be delegated by an official who
possesses such an authority
 CSC has delegated that authority to the supervisors who
made that decision
o Plurality – They agree that delegation is an effective way to render
someone final policy maker since if they didn’t they could just delegate all
authority and never have the municipality liable
 Problem with that is that if you recognize a delegation theory and
you have lower ranking officials making these decisions, it starts to
look a lot like vicarious liability
 Can look to custom as well (might be a more principled way of
reconciling these one time decisions)
 2 ways to assess if a lower ranking official has truly been made the
final decision maker through delegation or if the statutorily made
decision maker has it
 Does that ratification actually take place?
 Are the discretionary decisions of lower ranking officials
restrained by other decisions?
 Look to state and local law to find that the Mayor and CSC can
make policy and they didn’t effectively and completely delegate
authority
 Statute says their power are open to review by the CSC
 Very deferential, but that review exists, so it’s not the final
authority
 The policy was not created or attributable to the city
o Concurrence – Brennan concurs in the result, these supervisors didn’t have
policy making authority, but thinks the holding is too narrow
 We can start at state law, but really we need to examine the actual
power structures in any municipal government
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If the power to review of the CSC is so deferential as to be
meaningless, then the supervisors have really been given the final
decision making power
 Allowing the city to write a statute that says the Mayor can review
all decisions effectively insulates everyone in the municipality
o Dissent – Stevens says the real question in these cases is not what is city
policy, but when should a city be liable for the acts of its agents
 So, it makes sense to include the single acts of high officials since
they bind the municipality in a way the misdeeds of lower officials
don’t
Rule after Pembaur and Praprotnik
o Under state law, is the decision maker empowered to make the decision
that he or she made, and if so, that decision is treated as policy
o Pembaur dissenters – it should be after a process, not single decision
o Stevens dissent – decisions of high-ranking officials, versus low ranking
City of Canton v. Harris – Harris has severe emotional ailments after being
brought to the police station and not being given medical attention
o She sues under 14th A due process and the Q comes down to whether the
city can be held liable for its failure to train its officers
o City policy – if someone is having a hard time you can admit someone to
the hospital with consent from supervisor
 The policy itself is constitutional
o Court crafts a rule – generally won’t hold a municipality liable for this
type of situation because that’s going to lead to vicarious liability
 BUT a city can be liable for an affirmative decision on their part,
such as a failure to train EEs to recognize these issues
o A failure to train EEs triggers Monell liability when it amounts to a
deliberate indifference to that person’s rights
 Must show fault and causation
o Fault
 1. Failure to train with respect to the relevant tasks
 Here it’s failure to train with regard to emotional illnesses
 2. Deliberate indifference to Con rights
 Need to show the city was a aware of the need to train EEs
to deal with emotionally disturbed people
 (1) Can show deliberate indifference by showing that the
need for training is so obvious
o Ex; train police with guns on matters concerning
excessive force – plainly obvious you need to train
him regarding gun use, even if no one has ever been
shot unnecessarily before
o “moral certainty”
 (2) Can also show deliberate indifference by pointing to
past instances of Con violations that amount to a pattern of
violations that put the city on notice
o Really hard to show this
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o Maybe look to complaints, formal requirements
with the city, internal jail records, affidavits, better
if you have court decisions
o Causation
 Must show the inadequacy caused the Con wrong
o Court holds claims such as respondent’s are cognizable under 1983 but
only where the failure to train reflects deliberate indifference to the Con
rights of its inhabitants
 Ex; Jail in Virginia, ward dies of kidney failure
o They were found to not meet med standards and has failed on multiple
occasions to not have provided for the safety of immigration detainees
there by a federal report
o 1 ½ years later another one dies of a bacterial infection
 Unclear if his survivors have a claim under past instances
o If the whole goal of Monell is to ensure cities have the correct incentives,
should we deem anything the jail knows about as notice that is relevant to
the deliberate indifference reference?
 But do they know these are CON violations?
 Board of County Commissioners of Bryan County v. Brown – Sherriff hires his
nephew’s son who uses excessive force against a woman whose husband had
driven away from a police checkpoint
o They sue the officer, the sheriff, and the County on theory that they are
liable for hiring him
o Rule – P must show a deliberate indifference and causation
 Fault – must show that the relevant policy maker failed to review
Burns’ record and that this evidences “deliberate indifference” to
the risk that a violation of a Con or statutory right will follow the
decision
 Inadequate screening is not enough to establish it
 Causation – Must show the Sheriff’s actions directly caused her
injuries
o Matters that might be relevant are the timing of prior conduct, similarity of
the conduct to the violation
 Burns has a record of assault, batter, public intoxication
 Had the sheriff read the record, it’s not clear that he would have
known that he would go on to violate someone’s rights by using
excessive force
 Circumstances might have to be more similar
o DISSENT – Thinks we should we go back and reexamine the legal
soundness of the distinction between liability on policy versus vicarious
 The fact that Congress hasn’t intervened since this started, might
mean they acquiesce or that they just don’t want to revisit it
 Harlan in a previous dissent talked about the need to have a special
remedy for these types of claims (as opposed to just tort liability)
VI. “Rights, Privileges, or Immunities Secured by the Constitution and Laws”
A. Constitutional Rights
26
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

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Procedural due process rights under 1983 have been limited by the court out of
concern that 1983 could be used for state tort law
In determining if there is a valid 14th Amendment claim
o 1. Did a governmental actor infringe on a protected right of life, liberty, or
property?
o 2. Was the plaintiff deprived of that interest by the government who acted
with intent, or at least recklessly?
o 3. Did the plaintiff receive due process?
1. Limiting the liberty and property rights of due process
o Paul v. Davis – He is arrested for shoplifting, not convicted and put on a
list of “active shoplifters” by the chiefs of police, then reproached by boss
 1983 claim under the 14th A for a deprivation of liberty
 Liberty – inhibited from entering stores, harming job
prospects
 Court is worried about turning all state tort claims into federal
1983 claims, state torts can be heard in state court
 Court – defamation by the government alone is not enough, must
show stigma + alteration of status
 Must make an additional showing that the government has
altered your legal status or deprived you of some state
granted benefit or entitlement
 Dissent – Interest in good reputation is clearly part of liberty
 Monroe v. Pape concern about a federal remedy for these rights
 Difference is that the Monroes had a clear 4th A right
violated, which cannot be narrowed
 But the court can narrow the 14th A as to exclude
defamation
o DeShaney v. Winnebago County Dept. of SS – Boy is beaten by father
into a coma after SS did nothing and kept him with his father
 Court – No substantive due process right to have the government
protect you from harm by private actors, no liberty right here
 Dissent – The state cut off private aid by their actions, similar to
prison situations, and should be found to have violated his rights
o Town of Castle Rock v. Gonzalez – Restraining order against husband, he
takes 3 children and kills them, police ignore her requests to find him
 1983 claim against the town, property interest in police
enforcement of her restraining order
 Court – Police action is discretionary, no personal claim to it
o Court has increasingly been answering liberty and property Qs with a “no”
2. Deprivation by the government – state of mind
o Parratt v. Taylor – In state prison, his hobby materials never reach him
 He files 1983 for deprivation of property without due process
 Court – He was deprived of property and negligent action can be
enough (overruled later), but he had due process (Q #3)
o Daniels v. Williams – Overruled part of Parratt that said negligence
actions could constitute “deprivations”
27
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
Due Process Clause was intended to protect from arbitrary exercise
of the powers of the government – doesn’t include negligent action
 Rehnquist reserved whether recklessness was enough
o Davidson v. Cannon – Negligence in allowing a prisoner to be assaulted
after being warned isn’t enough for property or liberty claims
 Dissents asserted that recklessness and deliberate indifference
deprives the person of liberty under the 14th A
o Must be intentional, maybe reckless, or deliberate indifference
 Must be something more than negligence
3. Did the plaintiff receive due process?
o Issues
 Difference between liberty and property?
 Difference between authorized and unauthorized act?
 Was the deprivation of due process before or after?
 Is it a remedy in theory ok, or must it be in fact available?
o Goldberg v. Kelly – Recipients of welfare benefits have a property interest
and before you can terminate those, you have to have a pre-deprivation
process
o Matthews v. Eldridge – property right in SS benefits but it does not require
a prior hearing to termination, more limited pre-deprivation process is ok
 The fact that there was no hearing doesn’t necessarily mean that
due process hasn’t been accorded
 3 part test for pre-deprivation remedy
 1. The private interest that will be affected by the official
action
 2. The risk of an erroneous deprivation of that interest
through the procedures used
 3. The government’s interest, including fiscal and
administrative burdens
o Parratt on adequacy of procedures
 The state postdeprivation tort remedy was sufficient to satisfy the
procedural demands of the 14th A, such that he doesn’t have a
substantive claim
 Where it’s not foreseeable, a post-deprivation remedy can satisfy
 Can’t foresee the harm in regard to this particular plaintiff
 Impractical to require a pre-deprivation process when you
can’t foresee, so no procedural due process claim
o Hudson v. Palmer – Prisoner’s pillow case intentionally ripped by prison
official, unauthorized but intentional act by a state officer
 Since the government can’t foresee this, it’s enough that they
provide a post-deprivation remedy
 He can’t allege he was deprived without due process since he has
post-deprivation remedy in state court
o Goldberg/Matthews – Act was according to state approved process - pre
 When the government has policy that it is acting under, it knows
how policy works and can foresee what will happen
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o Parratt/Hudson – Renegade official intentional acting – post
 Because the government cannot foresee this misconduct, it is
enough that the state provides some sort of post-deprivation
remedy in state court
 Zinermon v. Burch – P is admitted as a voluntary patient to a mental hospital and
held for five months, he is clearly psychotic and cannot voluntarily sign forms
o Ds are the private hospital, government doctors individually
 Private hospital can be sued because it’s performing a traditionally
and exclusively public function, state hospital is immune
o He has a clear 14th A procedural due process liberty interest, he claims it
was intentional, so the question is whether they gave him due process
 Liberty and property interests are treated the same
 He could have filed state claims, but he says those aren’t sufficient
and that he was entitled to a pre-deprivation process
o Majority makes the determination murkier
 Prior to this, if making a procedural due process claim, it’s either
challenging a government regulation or unauthorized conduct
 Government regulation – pre-deprivation process required
 Unauthorized conduct – post-deprivation is satisfactory
 2 situations where post deprivation remedy might be sufficient
 1. Matthews application – unless it’s unduly burdensome
 2. Hudson/Parratt if it’s unforeseeable
 He concedes he’s not challenging the regulation, so its hard to rule
for him, but they make foreseeability the lynchpin
 Foreseeability of this type of mistake means that the state
has to protect against it before it happens
o Dissent says since he’s not challenging the regulation so it’s unauthorized
conduct and can be satisfied by post-deprivation state remedies – thus due
process is satisfied
 Remedy in post-deprivation
o It’s enough if the P can get essentially the same type of relief in sate court
o If the P gets knocked out of court due to procedure like SOL, it won’t
render it constitutionally inadequate because he still had the opportunity
o If there is a state statute giving immunity to a type of D (as in Davidson),
it’s not relevant to the post-deprivation analysis
 Not 100% settled, but it seems that procedures the state sets up
aren’t going to render it inapplicable if fairly applied
B. Federal Statutory Rights
 What statutory violations can be remedied in a §1983 claim?
o What does “and laws” mean?
 Main v. Thiboutot – Family makes 1983 claim seeking injunction and
reimbursement, suing the state and Commissioner of Human Services
o Old case, cannot sue state under 1983 or a state officer in his official
capacity for retroactive damages
 Also, they had to sue in state because back then there was an
amount in controversy required for federal question jurisdiction
29
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
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o S.S. act doesn’t allow them to sue, so they look to 1983
 Does “all laws” mean all federal laws or all civil rights laws?
o Majority – It applies to all laws
o Dissent – This is way too broad
o Remains good law but laws enforced now have to be very specific
o This reading of 1983 can explode the number of federal statutory claims
Two options
o 1. Bring the suit under the statute itself
 Some allow a direct cause of action, others implied
o 2. After Thiboutot, bring 1983 as COA to vindicate statutory rights
Creating a cause of action under a statute
o Have to show 2 things and Alexander test
 1. P has burden to show that the statute create a private rights
 2. If there’s a right, P has the burden to show that the statute
contemplated and left space open for a private remedy
o Alexander v. Sandoval – 3 part test to determine whether statute creates a
private right
 1. Was P an intended beneficiary of the statute?
 Answer this by looking at language of statute and whether
it focuses on individuals “no person” language, or
government bodies “no agency shall”
 2. Are statutory interests the P asserts sufficiently concrete that
judiciary can enforce them, or are they too amorphous to enforce
 3. Does statute impose binding obligations on the government
Creating a cause of action under 1983
o Gonzaga v. Doe – Dean of school sends letter about sexual misconduct
that gets P a rejection on his teaching credential – barred by FERPA
 Court clarifying when a statute can be vindicated by 1983 action
 Private school brought under 1983 through willful participation in
joint activity with the state regarding who gets teaching credentials
 Could he have brought a procedural due process claim?
 3 factors – lib/prop interest, intentional action, due process
 But Paul v. Davis, you don’t have a liberty interest purely
in your reputation unless also deprived of state benefit too
 2 Part inquiry into whether a statute gives a private right
 1. Does the statute create a private right?
o P has burden of showing FERPA creates an
individual right to keep educational records private
 2. If yes, this creates a rebuttable presumption that the right
is enforceable under 1983
o City of Rancho Palos Verdes v. Abrams – clarifies
that the D has the possibility of rebutting the
presumption by showing that Congress intended to
displace 1983 with different enforcement scheme
 This analysis is meant to cut back on Thiboutot, which created the
problem of treating con and statutory rights as one in the same
30
 Court – Doe loses, FERPA doesn’t create an individual right
 Still easier to go with 1983 than implied COA
o City of Rancho Palos Verdes v. Abrams – Court agrees that the
telecommunications act creates a right, Q is how does the D overcome the
presumption that it’s enforceable under 1983
 If a statute creates an enforcement scheme to allow redress,
Congress didn’t intend 1983 right as well
 Key is whether the statute authorizes an individual to bring some
remedial action, no matter how limited
 Much better relief under 1983 than the statute, but the court
says that it doesn’t matter, not matter how limited, it shows
Congress didn’t intend it to fall under 1983
 Takeaway – hard to get 1983 to vindicate federal statutory rights
o Wright v. Roanoke Housing Authority – Clarifies that the burden lies with
the D to point to the existence of an alternative remedial scheme
 Not going to lightly conclude Congress intended to preclude
reliance under 1983, has to be clear evidence
o Range of cases where the court fluctuates in how strict this should be
 Sea Clammers and Rancho – any scheme is ok to preclude
 Wright – has to be really clear evidence to preclude
VII. “Redress”
A. Compensatory Damages
 1983 does not allow damages based on the value or importance of a Con right
o Memphis Community School District v. Statchura – School teacher
suspended for teaching methods on reproduction, then reinstated, sues for
deprivation of liberty and property and 1st A under 1983
 Q – how do you determine the value of a Con. right?
 Lower court had included the value of the right in society,
history
 SC holds that damages based on the “value or importance” of Con.
rights are NOT authorized by 1983 because they are not truly
compensatory
 Too unwieldy to allow it, no precedent for it
 Presumed damages – idea from the CL
 They are a substitute for compensatory harm, not
supplement
 Allows juries to attach a dollar value for an injury that
occurred but is difficult to establish
 They do operate in 1983 cases today, but invoked where
the Con violation results in some dignitary harm
o They are very hard to get – clear Con violation, but
no harm, some circuits say you can, others need
more harm
 Footnote 14 – Refers to Nixon v. Herndon, black man brings 1983
action under 14th A equal treatment after he’s told he can’t vote
31

He got damages for the money value of the particular loss
he suffered, it was not the value of the right to vote in
general
 Seems to leave open the possibility of presumed damages
 Con violation under 1983 but no actual injury – only nominal damages
o Carey v. Piphus – Student’s procedural due process rights were violated
when the principal suspended him for smoking pot without a predeprivation remedy
 But no real damage because he was actually smoking and would
have been suspended anyway
 So no compensatory damages
 He can get nominal damages, which means he’s eligible for
punitive damages, but not attorneys fees
 Punitive – designed to deter, not to compensate the P
 Note: can get punitive for individual government actors,
but they aren’t available for municipalities
o Compensatory or presumed damages – Con violation and actual injury
B. Punitive Damages
 Smith v. Wade – Guard puts 3 in a single cell, P gets assaulted, 8th A rights are
violated by guard, he gets compensatory and punitive damages in lower court
o Q – was he entitled to punitive damages?
 Court had instructed jury that it could award punitive damages if D
acted with reckless indifference or malice with regard to P’s rights
 D claims it has to be actual malicious intent
o Supreme Court
 Reckless of callous disregard for P’s rights is sufficient to trigger
jury’s consideration on punitive damages
 Punitive damages are NEVER an entitlement – if can show it’s
with deliberate indifference/bad intent it’s up to the jury to decide
 Punitive are a discretionary moral judgment on top of
compensatory, which are a question of fact,
 They are separate decisions, but can both be based on
reckless, punitive is not higher
o Policy debate on punitive damages
 Rehnquist – worried about over deterrence, he would have none
 They could be too big, arbitrary
 O’Connor – allow punitive only where D acted with actual malice
 City of Newport v. Fact Concerts, Inc.(1981) – City tried to get concert planners
license revoked because of “Blood, Sweat, and Tears”, they sue on 1st A, get
compensatory and punitive damages
o Q – Can a municipality be liable for punitive damages under 1983
 (Before Bogan v.Scott-Harris, which gives legislative immunity)
 Monell – Satisfied because mayor’s actions are official policy
decisions
 Owen – Municipalities have no immunity for compensatory
damages
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o Court – You cannot get punitive damages against a municipality
 Policy – punitive would punish taxpayers, not wrongdoers
 Tension between Owen and Newport – Court is willing to
spread compensatory, but not punitive
o In Owen it’s better on balance to ensure certain P’s
get compensated
o Footnote 29 – Possible exception where the taxpayers are directly
responsible for perpetrating an outrageous abuse of Con rights
Webster v. City of Houston – Police kill an unarmed teen, had a practice of
planting false evidence to take attention away from excessive force
o On appeal, court held punitive damage were not allowed
o But court still discusses why Newport analysis doesn’t hold here and how
punitive damages would serve as a deterrent
UNIT TWO: ATTORNEY’S FEES
I. §1988 and Fee Awards
 42 USC §1988 – reasonable attorneys fee as part of the costs, applies to 10
different types of actions including 1983 actions
o Incentivizes bringing cases and ensures that people can get lawyers who
otherwise couldn’t afford them
 Still get fees if you can afford it, not about financial situation
o 1988 uses the term discretion, but everyone agrees courts are pretty much
obligated to award them
 The exception is if you are a pro se plaintiff
 “Prevailing party”
o For the most part, the P is the prevailing party
 D can only get it when the case is frivolous
o Farrar v. Hobby – If a P formally prevails but the case serves no public
purpose or only nominal damages, they are not entitled to attorneys’ fees
 The judgment was so limited relative to the relief originally
sought – 17 mill in damages sought /$1 nominal damages awarded
 Buckhannon Board and Care Home v. W. Virginia Dept. of Health – Ps sue and
the state moots the case by changing the law
o Not a prevailing party if case is moot when judgment entered
 Hewitt v. Helms – Prisoner’s Con rights were violated, but he is
released and prospective relief claim becomes moot
 Not entitled to fees – must get some relief on merits
o Consent decrees (court ordered relief) may serve as the basis for an award
of attorneys fees
 Private out of court statements do not allow a “prevailing party”
 Even though the court isn’t ruling on the merits, there is judicial
involvement, which is key
 They render a P a prevailing party (Maher v. Gagne)
o Court here – Rejects “catalyst theory” and says there must be a judicially
sanctioned change in the legal relationship of the parties
33
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
Now, suits that only seek injunctive relief, D can moot the case
even on the eve of trial and remove them from the duty to pay
attorneys fees
o Catalyst theory – Ginsburg dissent, 3 part test
 1. Did the D provide at least some of the benefit sought?
 2. Was it a colorable claim, not groundless?
 3. Did the D change because they really though they would lose on
the merits?
o Ginsburg dissent – worried about incentivizing Ps to file civil rights suits
 PP should be a party in whose favor judgment is rendered
o Majority – Ginsburg’s definition of prevailing party is was too broad
o Scalia concurrence – Cynical view that attorneys fees could be used to
extort change, to make it moot
o Huge upset for P’s civil rights bar, lower courts had used catalyst theory
 Having a big impact today
Reasonable Fee
o City of Riverside v. Rivera – Whether an award of attorneys fees is per se
“unreasonable” if it exceeds the amount of damages recovered by Ps
 Court rejects strict proportionality rule
 Fees awarded do not have to be proportionate to the amount
of damages a civil rights P recovers
 Footnote 4 – Counsel should make a good faith effort to exclude
excessive or redundant hours, never submit entire bill
 Lodestar – Number of hours reasonably expended x reasonable
hourly rate
 Court isn’t bound by the fee submitted
 Can also adjust it up, but really almost never done
 A number of factors the court looks at for a reasonable fee
 Court is going to focus on the skill of the lawyering and
results obtained
 Results obtained:
 1. Did P get all of relief sought or only partial success?
 2. What was the damages amount?
 3. Additional public interest served by case
 Powell concurrence – In 1983 cases where damages is the purpose,
court should primarily take into account the amount sought as
opposed to the amount awarded
 Also ok to look at the public good done by the case
 Rehnquist – Market forces should apply
 Should never be higher than amount awarded, except in
certain circumstances
 Exception – Prison conditions lawsuits
 Amount of fee must be proportionately related to the award
 Other than that, Rivera rejects strict proportionality rule
 Court has a lot of discretion in attorneys fees cases
34

Purdue v. Kenny A. – Philadelphia class action against the state of Georgia
seeking injunctive relief (only) to reform the entire system, which they receive
o Consent decree reserved attorneys’ fees – lodestar is 6 mill., they ask for 7
 Court determines that the attorneys obtained the best result they’d
seen in 58 years and allow the upward enhancement
o SC reverses – upward enhancements are only available in rare and
exceptional circumstances
 But anything included in the lodestar calculation cannot be used
for upward adjustment
 Results cannot be included in the calculation
 Logic of a bonus for better results with lower fee doesn’t
hold – You haven’t taken a hit on the front end because it
was never assumed you would get a bonus if you
o Alito – concerned about how arbitrary it was to award 4 ½ million more
 Need to be careful about these awards, especially when tax payers
are paying
o Thomas – His sense that upward enhancements aren’t really available
 Decisional arc that bends decidedly against enhancement
o Dissenters don’t really take the majority to task on the idea of fees
 Just that they should have been enhanced in this case
 In lots of cases you have downward adjustments as requested by the defense
o Argument is that if you don’t allow upward adjustments, you’re going to
be systematically underpaying civil rights lawyers
 Want this to be an objective assessment no matter who hears the case
o Desire to have an objective measure, which isn’t really in line with
subjective enhancements
o Hard to know whether they’ve actually crafted a meaningful rule
o VERY hard to get enhancement – court has never seen one it likes
II. Settlement Negotiations
 Evans v. Jeff D. – Question is whether attorneys’ fees must be assessed when the
case has been settled by a consent decree granting prospective relief, but stating
the Ds won’t pay any attorneys fees
o Settlement gave Ps almost everything they wanted, but required the Ps to
waive any claims to attorneys fees
 Court had to approve the settlement under class action rules
 (Private settlements don’t = prevailing party after Buckhannon)
 Lawyer feels me must accept the offer for ethical reasons
o Majority – courts may refuse to award attorneys fees
 It may allow better outcomes for Ps who can use this to bargain
o Dissent – Court is interpreting it wrong, this goes against the purpose of
fee waivers to ensure lawyers will take these cases
 Purpose to create “private attorneys general”
 1988 – Court is increasingly allowing parties to get around paying the fees
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UNIT THREE: OTHER RECONSTRUCTION STATUTES
I. §1982 – Right to Property
 42 USC §1982 – All citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and personal property
 Shelly v. Kramer – Courts are not permitted to enforce the rationale of racially
restrictive covenant (asked to enforce a sale that violates 14th A, not ok)
o Under the Con – nothing to restrict a private individual from choosing not
to sell to a black person
o Shelley draws a distinction between courts intervening to block a sale and
enforce a sale – action/inaction
 Merely abstaining from action leaving private individuals fee to
impose such discrimination as they seem fit, is not constitutionally
problematic
 1981 and 1982 come from the Civil Rights Act of 1866 after the Civil War
o Black codes passed throughout South – restricted the rights of blacks
 1866 Act is intended to nullify the black codes
o But some questions about whether 13th A enforcement power was enough
 In response to this they pass the 14th A
 After ratification have 1866 Act recodified
 Hurd v. Hodge – Property owners sought to enforce racially restrictive covenants
against blacks, Court held that enforcing it went against §1982
o Restricting some sections of housing to whites, denied blacks the same
right as white citizens in dealing with personal property
o Case dealt with action of private citizens and federal court enforcing it, so
dicta seemed to say just private acts of discrimination don’t pose a
problem under 1982
 Jones reads this as not addressing the issue of private acts
 Jones v. Alfred H. Mayer Co. – Joneses are denied right to build a house on the
basis of race, a local group files suit on their behalf
o 14th A and 1982 bar state action enforcing these covenants
 Shelley suggested private discrimination is ok under the 14th A
 Hurd suggested private discrimination is ok under 1982
o Court holds – 1982 prohibits all discrimination, not just state, but private
as well in the sale or rental of property
o 1. Was 1982 intended to apply to private actors?
 Majority and dissent battle on 1866 act and how to interpret the
language and what that might mean regarding private acts
 Look to legislative history and language of statute
 Legislative history
 1. If the majority is right that means that since 1866 there
was a prohibition against racial discrimination; we don’t
seem to need much of subsequent civil rights acts
o If the statute goes as far as the majority says, it’s
rewriting civil rights law
 2. Trumbell probably didn’t have all this in mind
36
o Taking majority’s view, seems that a lot of
subsequent civil rights history rested on a mistake
 Odd on both ends – Encompasses too much on one end and
anticipates too much on the other
 Harlan dissent – Majority is way over reading 1982
 At most he thinks it covers private conduct that is
widespread where the government is turning a blind eye
 His view makes it hard on the Ps to prove widespread
o 2. Is it Constitutional, and if so, was congress allowed to pass this statute?
 Congress can address slavery and discrimination under 13th A
 Key phrase is “badges and incidents of slavery”
 Court – private acts of race discrimination are a badge of slavery
since they stem from the black codes which stemmed from slavery
 Not empowered deal with any discrimination, but they are
when they are badges of slavery
 Congress gets to determine what the badges and incidents are and
they get to determine how to remedy
 VERY broad grant of power
 One argument to make under sections of 13th A
 § 1 contemplates a bar on owning private slaves, so there
should at least be some subset that covers private property
 Court held congressional authority under § 2 contains
power to determine “badges/incidents” and legislate against
their perpetuation – BROAD power
II. § 1981 – Right to Contract
 § 1981 – All persons within the jurisdiction of the United States shall have the
same right in every State and Territory to make and enforce contracts, to sue, be
parties, give evidence, and to the full and equal benefit of all laws and
proceedings for the security of persons and property as is enjoyed by white
citizens…
 1. What is the scope of the right to contract?
o Runyon v. McCrary – Court holds §1981 prohibits private school
discrimination
 Court – 1981 bars discrimination by private actors in entering into
contracts and 1981 is constitutional as applied
 Required desegregation of private schools and no outcry
 Widely greeted as the right thing to do at the time
 Powell concurrence – if the slate was clean, he might agree with
the dissent, but there’s precedent
 Thinks certain personal decisions should be exempted from
1981
 Stevens concurrence – interest in stability and order, even if he
disagrees with the decision in Jones
 White dissent – It’s against legislative history to extend it to all
private acts, Congress never intended it
 Matter of interpretation
37

1981 was meant to deal with a society which denied the
right to blacks to enter into contracts
 Maybe read it in this light and not apply it to private
instances
 At the time the legislative debates said they didn’t mean to
bar laws that prohibited interracial marriage
o Title VII of the Civil Rights Act of 1964 – bars employment
discrimination on race, color, religion, sex, national origin
 Broader than 1981 in these categories
 But narrower than 1981 in that the ER must have more than 15
EEs VII
 Even though they have a sphere of coverage that’s the same, 1981
applies to a host of other things outside employment that VII
wouldn’t cover
 Can get attorney’s fees and equitable relief under VII now too
o Johnson v. Railway Express Agency, Inc. – P files a claim against REA
with the Equal Employment Opportunity Commission for discrimination
in seniority rules on the basis of race
 He also brings 1981, which would have been viable, but for the
SOL
 P argues he was required to exhaust administrative
remedies and the court should toll the 1981 claim
 Majority – SOL holds, he has the option of both statutes and the
price of having both is that you have to follow the rules for each
independently
 They are separate remedies and VII is not a prerequisite to
1981
 Dissent – Not tolling the SOL defeats the purpose of VII
conciliation
 Following the SOL would discourage recourse to
conciliation
 Can raise a claim under both VII and 1981 if alleging that it was
intentionally discriminatory
o General Building Contractors v. Pennsylvania – Court found the local
union was discriminating but the trade associations and ERs were unaware
 Court – 1981 requires a showing of intentional discrimination
 Must be intent, not just discriminatory effects
 Follows history and the 14th A as the rationale
 It was meant to deal with the Black Codes, which were
intentional types of conduct
 Court regards §1981 and §1982 as 14th A legislation
 Says CRA of 1866 and Enforcement Act of 1870 were the
forerunners to 14th A and §1981 was the successor to these
acts
 But in Runyon, they’re passed under the 13th A
38



In 1866 they pass CRA that contains 1981 and 82, but
they’re not entirely sure the 13th A is sufficient to create
these laws
 So they pass the 14th A and reenact these statutes in 1870
after the ratification of the 14th A
 Court kind of ignores that, deals with it in a footnote
What categories of persons are protected under 1981?
o 1981 as interpreted in Runyon and the McDonald leads to the conclusion
that people of all races are protected under 1981
o McDonald v. Santa Fe – White EEs charged with misappropriating
property from their ER were fired, black EE not fired
 Title VII prohibits racial discrimination against whites
 1981 applies to all races – including white persons
 “As is enjoyed by white persons” simply emphasizes the
racial character of the rights being protected
o Added to allay concerns that it could be interpreted
regarding women
 Everyone assumes that McDonald is correct and they don’t even
deal with Congress’s power to pass laws for white people
 Bottom line after McDonald it protects people of any race
o Saint Francis College v. Al Khazraji – Iraqi-Arabian professor says he was
denied employment on basis of his race brings 1981 claim
 Concept of race that governs is the concept they had in 1866 when
they passed that statute
 Even though that goes on now what we think of as national
origin discrimination, you have to plead it as race as was
deemed in 1866
 Not entirely clear there’s a functional difference
 If P can prove that he was subjected to intentional discrimination
based on the fact that he was born an Arab, rather than solely on
the place or nation of his origin, or his religion, he will have made
out a case under 1981
o Shaare Telfila Congregation v. Cobb – SC held discrimination against
Jews also fell within scope of 1981 and 1982, they have their own race
What’s the scope of the right to enforce contracts?
o Patterson v. McLean Credit Union – 1981 claim on the basis of racial
harassment and being ultimately discharged on the basis of race
 Question of whether Runyon should be overturned – Court leaves it
intact, unanimous in doing so
 Says on the job racial harassment is not covered by 1981
 Right to make and enforce contracts
 Making a K only extends to the formation of it, enforcing
only to the legal process
o Congress then passed the Civil Rights Act of 1991
 1981(b) overrules Patterson on harassment
39


Extends the statutory bar beyond discrimination in hiring to
on-the-job harassment
 1981(c) confirms that 1981 does cover private acts
 They don’t make this clear for 1982 purposes
 Jones remains good law, though
 Now can bring 1981 against any private D on any race and can
encompass racial harassment that’s on the job
o 1981 and 1982 refer to a set of CL rights
 They incorporate CL rights, but they also create a federal right to
non-discrimination
 1983 – doesn’t create any rights, just refers to a body of federal
rights and create a cause of action
 Jones through Runyon were about the scope of 1981 and 1982
 Everyone assumed the rights created by these included the
right to be free from discrimination by government as well
as private
 They do not explicitly create a cause of action
 Whether they create a COA was never litigated
 But the SC validates Ps who bring COAs under them
 The court hadn’t explicitly considered COA or where a
public entity is sued for money damages until Jett
Jett v. Dallas Independent School District – Former teacher and football coach
bring action against Dallas School District (municipality) and Principal in his
individual capacity
o Alleges 1st A violation, equal protection rights for firing him for being
white, procedural due process claim (interest in his job and he should have
procedurally been able to defend himself against charges that he’s racist)
 He can bring those Con claims under 1983
 His claim under 1981 was that he was forced out
 Federal statutory right violated by the same conduct
o BACKGROUND:
 2 ways to enforce them federal statutory rights violated
 1. Imply a cause of action directly under it
 2. After Main v. Thiboutot can use 1983 for COA
 Analysis of whether 1983 would serve as COA for 1981
 1. Gonzaga – does the statute unambiguously create a right
o Clear that 1981 and 82 do create a right
 2. If you can satisfy that, then that right is presumptively
enforceable via 1983
o But the D can show that Congress did not intend
that to be enforceable, that the statue creates an
alternative enforcement scheme
o 1981 says nothing about rights of going to court
 1983 clearly provides a cause of action for Jett, but it’s easier to
prove discrimination than proving a final decision maker was
responsible
40

o
o
o
o
o
o
1983, suing a municipality, you must satisfy Monell, that
they acted according to their own official policy
 For racial discrimination in job, might allege 1981 right to be free
from discrimination in contracting
 But can only vindicate substantive 1981 action under 1983
 1983 is the sole vehicle under which you can sue
municipality
 Bottom line – Even though you can bring 1981 against private Ds,
if you are asserting it was a municipal D that violated your right,
you have to bring that claim via a 1983 action and show that
Monell has been satisfied
P argues that Congress intended to create a COA for damages against
municipal actors and others who violated 1981 rights and that Congress
wished to adopt respondeat superior
1. Whether 1981 provides an independent federal cause of action for
damages against local gov entities (municipal gov)
 1981 here is only enforceable through the COA created by 1983,
then Monell rules also apply
 But in cases where private actors are sued, remedy appears to be
implied from 1981 itself
 His loss is a big win for municipalities
2. If yes, can the municipality be held vicariously liable
 No, local governments cannot be held liable based on respondeat
superior under 1981
Brennan dissent – Yes there’s a cause of action for damages under 1981
when suing a municipality and it does extend to vicarious liability
 But he sees those as separate issues
 He agrees that the right created by 1981 runs against public as well
as private
 But on cause of action – the governing rule in 1866 with respect to
whether a statute created an implied COA was that they simply
implied a COA for every statute with a right
 Not a big deal they didn’t create a COA, they assumed
there would be one
How does the majority explain that Runyon and Jones allowed a damages
remedy?
 Jones and Runyon dealt with private Ds and so of course, you’re
going to imply a COA under 1981 and 1982 because there’s no
other COA available to go after these private Ds
 But 1983 enabled people to sue under color of law when
they violate rights
 One remedial scheme for private, and 1983 against public
defendants
Jett does not extinguish the COA the court has always assumed existed
 Jones/Runyon was private citizens suing private Ds for substantive
rights under 1981 and 1982
41
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

III.

 Jett deals with public
Historical view:
o In 1866 – Right for both, but for a cause of action 
 Vs. private D – implied civil e/a vs. private D
 Vs. Pubic D  Court says they had an explicit criminal COA vs. public D
o 1874 – 1983 “and laws” – explicit cause of action vs. public D who
violates 1981
 They say civil only got added here
o Brennan probably gets it right – there was a right but no remedy against
municipality until 1874
o 1961 – Monroe v. Pape says that municipalities aren’t persons
 Until 1978 Monell when that’s overruled
o Brennan – in 1866 they created rights that ran against public and private,
with the assumption that there would always be an implied COA to
vindicate those
 At best, majority is claiming 1983 extinguished that, and we have a
strong presumption against extinguishment
 He has a real problem with the chain of logic the majority uses
Suing a municipality after Jett:
o Can sue them for violating equal protection right, VII rights, 1981 rights
o But if you’re alleging 1981 rights, you have to sue them under 1983
Suing a private D:
o You have 1981 claim, VII, no Con claim, but you can bring your 1981
claim directly
§ 1985
Last Reconstruction Era Statute - §1985 Conspiracy to Interfere with Civil Rights
o If two or more persons conspire for the purpose of depriving persons of
rights or privileges the party so injured or deprived may have an action for
the recovery of damages occasioned by such injury or deprivation, against
any one or more of the conspirators
 Civil COA for money damages, does not create any rights
 Can get money damages and attorney’s fees
 Court has held you can sue private as well as public under 1985
o There are four elements to COA:
 1. D was engaged in a conspiracy
 2. They had the purpose of depriving a person or class of persons
 Very particular motive – Must show they were motivated
by racial or otherwise class based invidious animus
 3. Overt act in furtherance of conspiracy
 4. P was injured
o It’s not clear that it refers to federal statutory rights
 Otherwise really dealing with Con rights
 Hitch is that if you’re suing a private D for theory to violate you
Con rights, you can only invoke Con rights that run against private
actors, which is a pretty limited subset
42
 Ex; trafficked women could use 1985 for violation of 13th A claim
o Seen infrequently or seen as an add on to 1983
UNIT FOUR: SEX DISCRIMINATION LEGISLATION
I. Title VII
 3 theories of liability for sex discrimination
o 1. Facially discriminatory
o 2. Disparate treatment
 Not as explicit as facial
o 3. Disparate impact
 Formally neutral policy that impacts a protected class
 Cannot bring 1983 action to enforce your Title VII rights
o VII provides its own cause of action
o You can bring 1983 action AND title VII though
 Title VII guarantee against sex discrimination
o It was meant to deal with race discrimination, sex discrimination is added
with an amendment (meant to kill the bill at the time)
o EEOC was very apathetic against sex discrimination in employment under
Title VII at the beginning
 Dothard v. Rawlinson – Woman attempts to get a job at prison and is denied
because of the height and weight requirement and no women in contact jobs
o She sues the Alabama department of correction under 1983 and VII
o Problem suing the state generally under 1983 due to state sovereignty
 Can sue under Title VII because it includes states within its ambit
 VII explicitly abrogates state authority on these and it has been
held to be a proper exercise
o Focus of the case is her Title VII claim – 2 theories of liability
 1. The height/weight requirement has a disparate impact on women
 2. Facially discriminatory policy prohibiting women
o 1. Disparate impact:
 a) The burden is on the P to first show the policy results in a
significantly disparate impact
 Statistically significant impact
 Majority assumes the relevant pool of people is the US
population (may have been better to look at subgroup)
 b) If she does, the burden shifts to D – business necessity test
 KEY language – D must show the neutral practice is job
related to the position in question and is consistent with
business necessity
 D says these are a proxy for strength, which is a necessary
component for the prison
o But no evidence to support this necessity
 c) Burden shifts back to P to show some other practice would work
as well
o Rehnquist concurrence – on strength as business necessity, the Ds didn’t
show enough of a nexus to rebut the inference
43
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
They should have argued that an equally job-related qualification
for prison guards is the appearance of strength
o 2. Facial discrimination claim:
 Title VII – bona-fide occupational qualification (BFOQ)
 Court characterizes it as a very narrow defense
 NOTE – There is no race BFOQ
 D argues it is the essence of a correctional officer’s job to keep
order, women are likely to be assaulted in these very dangerous
prisons – leads to chaos in the prisons
 They didn’t present any evidence that it was actually the
case that more women were attacked though the expert said
unsegregated sex offenders were dangerous
 State put on an expert who said women were more likely to
be attacked
 Expert who says women are not strict disciplinarians, more
likely to be taken advantage of
o Marshall concurrence/dissent – Disagrees with court’s application of
BFOQ defense here, should allow the individual woman to make that
choice for herself
 Other states allow such job opportunities, thus absolute
disqualification not reasonably necessary to normal operation of
max-security prison.
 Proper response: not to limit employment opportunities but to take
swift and sure punitive action against the inmate offenders
International Union v. Johnson Controls, Inc. – Hiring policy that women who are
pregnant or capable of bearing children can’t work there
o Company was worried about danger to the fetus, so they make a policy
that prevents women from taking jobs with exposure to lead
 Even though it’s a fetal protection policy, it’s a facial
discriminatory policy – saying women can’t get these jobs
 ERs motive isn’t relevant
o Pregnancy Discrimination Act says that discrimination on pregnancy is
squarely within Title VII
 Facially discriminatory – So D must prove that being male in this
job is a BFOQ, that it’s necessary for normal operation of business
 BFOQ is only defense to facially discriminatory
 Another way to think of it is to ask whether it’s reasonably
necessary for normal operation or business essence
o BFOQ exceptions:
 Occupational BFOQ – Objective, verifiable requirements must
concern job related skills and aptitudes
 There is no correlation between manufacturing batteries
and keeping fetuses safe
 Safety exception to BFOQ – D says it falls within this
 Very narrow exception
 Danger to a woman does not justify discrimination
44


Limited to instances in which sex or pregnancy actually
interferes with the employee’s ability to perform the job
 Not applicable here
 PDA creates it’s own BFOQ standard – Prevents ERs from
discriminating against a woman because of her capacity to become
pregnant unless her reproductive potential prevents her from
performing the duties of her job
 Cannot use risk of fetus to support BFOQ
o Court – Policy is sex discrimination forbidden under Title VII and doesn’t
fall within the BFOQ exception
 ER must direct its concerns about a woman’s ability to perform her
job safely and efficiently to those aspects of the women’s jobrelated activities that fall within the “essence” of the particular
business
o White concurrence/dissent – BFOQ defense isn’t so narrow that it could
never justify a sex-specific fetal protection policy, would be justified
under terms of statute if ER could show that exclusion was reasonably
necessary to avoid substantial tort liability
 For profit businesses: essence to make a profit and minimize costs
 PDA didn’t purport to eliminate or alter BFOQ defense
 Majority doesn’t rule out cost considerations entirely, add a
limiting principle - If it went to the level of threatening their
business
REMEMBER for sex discrimination
o 1983:
 Public ERs, but not private, and public officers for sex and race
under equal protection theory
o Title VII:
 1. Disparate impact on a protected class
 a) Statistics have to bear out that disparate impact
 b) Burden shifts to ER for business necessity
 c) Burden back to P to show other methods
 2. Facially discriminatory policy, hiring, promotion, assignment
 Protected class is excluded from a particular job
o Statistics don’t matter here
 BFOQ defense – very narrow defense
o D has to show the discrimination is necessary to the
essence of the business
o Distinctions on sex, religion, national origin
 No BFOQ for race
 Does it correctly leave out BFOQ for race?
 Ex; White officers brutalizing a black Haitian immigrant
and after the Police Dept. assigns more black Haitian police
officers to that area to restore good will
o Those assigned there sue, saying it’s a dead end job
o Should there be a BFOQ for race?
45
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

 Decision – race is qualitatively different than sex, religion
 3. Disparate treatment claims
 Typical ex; he was hired, I wasn’t, because I’m a woman
 P makes a prima facie case by showing he got the job and
D has to show a non-discriminatory reason
o Then P has to show that’s a pretense
Different type of disparate treatment – sexual harassment
o Quid pro quo
 Quid pro quo –I was fired/demoted after refusing to sleep with him
 Tangible discriminatory effect – threat which is carried out
 When a tangible employment action resulted from refusal to
submit to a supervisor’s sexual demands, he/she establishes that
the decision itself constitutes a change in the terms and conditions
of employment that is actionable under Title VII
 Court was initially hostile to such claims, but they started coming
around and decided quid pro quo was actionable under VII
o Hostile work environment
 P can’t show that she had been fired or demoted, but that she was
harassed and her workplace was hostile
 For sexual harassment preceding the employment decision to be
actionable it must be severe or pervasive
Meritor Savings Bank, FSB v. Vinson – Michelle Vincent is hired as a teller, is
sexually harassed and raped, She quits and files a VII claim
o 1st sexual harassment claim to reach the SC
o Court holds that when a supervisor sexually harasses someone on the basis
of their sex it’s actionable under Title VII
 Acknowledges hostile work environment (1st time)
 Same in 1981 in race, prohibit race discrimination in the
performance of contracts, racial harassment on the job
 But Title VII covers sex in a way 1981 doesn’t
o Standard – It must be sufficiently severe OR pervasive to alter the
conditions of the P’s employment and create an abusive working
environment
 P doesn’t have to show economic loss
 To make out a hostile work environment claim P has to show the
advances were unwelcome, not that they were criminal, or that she
did not voluntarily slept with him
 Existence of grievance process and her failure to use it does not
insulate the ER
o Court doesn’t issue a definitive rule on ER liability
After Vinson: sexual harassment is actionable under Title VII
o But they punt on when a business can be held liable
 Taylor could not be liable
 It applies to ERs with more than 15 people
 There is NO individual liability under Title VII, there is
corporate liability
46
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



o When can the company be held liable for the misdeeds of it’s EEs?
 Vicarious liability will not be the rule and no liability will not be
the rule
When is it severe and pervasive?
o Harris v. Forklift Systems, Inc. – P claims the president had engaged in
sexual harassment, Q of vicarious liability
 Test they use is a two prong standard
 1. Objectively, a reasonable person would find the
environment hostile
 2. Have to show subjectively that the P was in fact
offended, that she perceived the environment to be hostile
 Objective – Different factors to look at but none are dispositive
 Frequency, severity of the conduct, physically humiliating
or threatening, how did the conduct in question affect the
EE’s work performance
 No clear answer, just lots of factors to consider
 Scalia concurrence – not a good test, but the best we can think of
o EX: Pam brings suit against Michael for one time harassment
 One time incident might in fact give rise to VII sexual harassment
 Has to affect terms and conditions, so a one time offensive
act might not affect the meaning of the statute
 Seems to mean it has to include physical touching, but
unclear if something else might rise
Conduct out of the office
o Really we’re concerned about work place
 When you go to a social setting, the fact that you work together
doesn’t automatically give rise to VII, unless it relates directly to
the work place
o For the most part, courts have said truly voluntary outings don’t give rise
to sexual harassment
VICARIOUS LIABILITY OF EMPLOYERS
Burlington Industries, Inc. v. Ellerth – P claims boss’s boss is harassing her
o Court held that “tangible employment actions” gave rise to strict vicarious
liability of ERs for sexual harassment committed by their supervisors
 Tangible employment action taken by the supervisor against
subordinate becomes for Title VII purposes the act of the employer
Faragher v. City of Boca Raton – EE is harassed by mid-level supervisor
o Employer subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with immediate
authority over the employee
 Sets liability standard for employer in absence of a tangible
employment action
 Affirmative defenses would be possible, but no prospect of
presenting them in this case
 The city failed to disseminate its policy against sexual harassment
and officials made no attempt to keep track of supervisor’s conduct
47
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

Discriminatory conduct + tangible employment action = NO DEFENSE
o If a supervisor subjects a Title VII P to discriminatory conduct and takes a
tangible employment action in conjunction with that, the company has NO
affirmative defense (Tangible employment action – significant change in
employment status)
 Agency principles apply in this conduct – When a mid-level
supervisor takes a tangible action, the company is liable, no
affirmative defense
o Ex; Michael threatens to fire Angela if she doesn’t forward the emails
Only sued for severe and pervasive harassment (pure hostile work)
o If there is no tangible employment action, just harassment, company is
liable, BUT they can raise an affirmative defense:
 1. Company exercised reasonable care to prevent and correct any
behavior
 2. That the P unreasonably failed to take advantage of
opportunities provided by the ER
o First prong – reasonable care
 Show that they had a sexual harassment policy
 ERs are not required as a matter of law to have a
harassment policy
 Takeaway for companies is to have that policy on the books
o Second prong – unreasonably failed to take advantage
 Key for prong 2 – unreasonably fail to utilize it
 Where it only allows her to appeal to the one harassing her,
it’s not reasonable
 Takeaway for company here is that they should allow the P
to bypass the one harassing her
 Ellerth – P failed to utilize sexual harassment procedures by not
reporting it, but it would have been reported to the offender
o If a supervisor creates hostile work environment, EE complains and the
company takes corrective action, the company can still be liable
 Company is still going to fail because the P took reasonable steps
 Circuit split on this:
 One side – crazy to hold them liable when they took
measures
 Other side – the fact that they took corrective action means
they can’t satisfy prong two, we have to follow SC test
ER Liability will depend on the type of claim (tangible/non-tangible) and the
harasser (Co/Mid/High)
o 1. High level
 For tangible action or harassment the company is liable
 They are treated as acting on behalf of the co. for either
 No affirmative defense
o 2. Mid-level
 Tangible action – ER is liable, no defense
48
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


Hostile work environment – ER is vicariously liable, but if the
supervisor doesn’t take tangible action, there is a defense
 D can show they took reasonable care AND the P
reasonably failed to take advantage
o 3. Co-workers
 Hostile work environment, the ER is liable only under negligence
 Must show the ER knew or should have known of the harassment
and that the ER failed to take immediate and appropriate action
 Idea is that agency law principles apply
 Not strict liability
Leads to bigger question (Thomas Dissent)
o Affirmative defense holds too many ERs liable
 Do they strike the right balance holding this many liable?
o He was worried that by creating the affirmative defense they were creating
different liability between race and sex
 Correct at the time, but since Ellerth, the court has applied the
same standard to race and sex
 Now, P on account of race can bring the same type of claim as
sexual harassment
 Same approach to what hostile environment is and same liability
going up the chain from co-worker to high level
 Same exact analysis
o Court have also generally read liability the same in 1981 and Title VII
 But not clear the same framework of VII would apply
 If you have a municipal ER race harassment after Jett
 1981 claim is subsumed into 1983 and Monell rules apply
Title VII also provides a cause of action for same sex harassment
Oncale v. Sundower Offshore Services – Straight man who was sexually harassed
by men had a claim under Title VII
o Nothing in the statutory wording that limits it to opposite sex harassment
 Very broad, clearly protects both
 Not going to presume members of the same sex won’t discriminate
o We determine whether severe and pervasive conduct is on account of sex
by looking at:
 Differential treatment on account of sex (This is KEY)
 Objective severity that has to be judged from the perspective of a
reasonable person that takes into account the circumstances
o What about a boss who harasses everyone?
 Even if abusive to everyone, the conduct toward women is sexual
in nature, then it falls under VII and there’s still disparate treatment
 Concern with equal opportunity harasser, perhaps on the face no
separate treatment, but look a little deeper and maybe look at how
women and men were treated
 But what if there’s not really a difference in treatment
o Courts are very reluctant to hold these people liable
o Still leaves questions
49


It is sexual in nature enough to show that it was because of sex?
Then what if the harassment is not sexual in nature but because
they’re being significantly mean?
 How do you prove that when they’re the same sex?
o Before Oncale, they had to show the harasser was gay to show it was on
account of sex – after this, no longer a requirement
o Oncale clearly says not all harassment between men and women that is
sexual is harassment because of sex
o Sexual content isn’t a necessary component, but when there is and it’s the
same sex, what assumptions do you draw?
 It’s clearly cognizable after Oncale, just have to figure it out
 Further points to note:
o Harassment based on photo of his daughter – You have differential
treatment, the content is sexual, but he wasn’t being treated differently
because he’s a man, it’s because of the photo
o Sexual orientation is NOT a basis
 Cannot bring a claim based on harassment for being a lesbian
 It might be relevant if the harasser is a lesbian (not required like
before Oncale)
 But you must plead on sex, not orientation
II. Title IX
 Title IV - No person in the United States shall, on the basis of sex, be excluded
from participation in, be denied the benefits of, or be subjected to discrimination
under any program or activity receiving Federal financial assistance.
o You agree to accept our money and if you do, you agree to not
discriminate on the basis of sex
 Basically all schools, if any part of a school district receives
federal funds, then they can’t discriminate
 Includes prisons with vocational educational program that receive
federal funds
 If you have a non-educational setting that receives federal funds,
then any educational programs in that are covered by Title IV
 Very far-reaching effects
 BUT – You can still have single sex schools, boy/girl scouts are
ok, religious entities that receive federal funds can still allow all
male seminary (exception for religious organizations)
o Federal funds
 Any financial aid
 ND receives federal funds by virtue of students loans
 Federal training
 FBI training for local police – receiving federal funds
o Federal agencies monitor
 Make sure recipients of federal funds are complying
 They get notice first and then they have the option of
revoking
 Title IV has 2 purposes:
50
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

o 1. To prevent the use of fed funds to support discriminatory practices
o 2. To protect individual citizens against discrimination
Enforcing Title IV
o Title IV has an implied private cause of action
o Relief you can get – monetary damages, injunctive relief, CANNOT get
punitive damages, can get attorneys fees
o You sue the entity that receives federal funds (most times schools)
 You CANNOT sue an individual in their individual capacity
 You CAN sue the State
 Congress specifically abrogated sov imm under Title IV
Sexual Discrimination under Title IV
o When a student is sexually harassed, when is the school district be liable?
Gebster v. Lago Vista Independent School Dist. – Teacher is clearly sexually
harassing his student, but the Q is under what circumstances can the school
district be held liable for the teacher’s sexual harassment of the teacher?
o Gebster files suit against the school district Title IV
o Consider 1983 claim:
 Equal protection concerns under the 14th A
 COA against the school district
 Monell purposes – Is there some policy or custom?
 Unlikely a policy encouraging or unwritten custom of
students having sex
 Perhaps failure to train – did the school district specifically
train teachers not to sleep with students?
o Does the failure to train evince deliberate
indifference
o Is the need for training on that so obvious or so
likely to result in Con violation that the school
district can be said in violation
o And have to show causation
o Failure to train claim, questionable
 Hiring decision – maybe if they knew
 They’re really left with a Title IV claim
o Court – SD is liable only if an official who has the ability to take steps
has notice and failed to take steps
 Actual notice AND failure to adequately respond
 Lack of policy might relate to deliberate indifference, but it won’t
be dispositive (unlike Title VIII)
 If they had gone with Title VII, they would be liable for
sure, they had no policy against it
 But they go with deliberate indifference here
o Reasoning – Title 7 talked in terms of agency, but we don’t see the
language of agency in Title IV, so left to figure out what Congress
intended
 This is a spending statute and with respect to the administrative
aspect, the government gives notice and give opportunity to cure
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

 We’re going to import that into the private right of action
o Ginsburg dissent – An effective policy for reporting and redressing
misconduct should be an affirmative defense
 Burden on school district to show there was an adequate internal
policy
o Stevens Dissent – Concern about incentives, when you require actual
knowledge, you give the SD an incentive to not look, keep your eyes
closed so at to not be liable
 We want to induce schools to adopt practices that minimize the
danger to vulnerable students
o Are school districts actually going to be liable after this case?
 Instances where they know and are deliberately indifferent?
 Court has reaffirmed private right of action, but made the remedy
really hard to come by
 Gebster sets a very high standard
Title IV seems to hew more closely to Monell than Title VII
o Under what circumstances should they be liable for misdeeds of EEs?
 Monell – Only liable for an unconstitutional official policy, law, or
custom, not vicariously liable
o Court is making it up, lots of different variables
Davis v. Monrow County Board of Education – Sexual harassment between
students (this is where the vast majority of sexual harassment takes place)
o Fifth grader complains to teacher about a boy who is sexually assaulting
her, principal does nothing
o Court – There can be private damages against a school board, but only
where the school acts with deliberate indifference to known acts of
harassment; (like Gebster) but they ratchet it up, must prove 3 things
 Very high standard they adopt
o 1. Actual notice of the harassment
o 2. Deliberately indifferent of harassment
 Deliberate indifference – causes student to undergo harassment or
makes them vulnerable to it, school must be deliberately
indifferent to known acts of sexual harassment
 Title IV doesn’t govern student relationship with each other
 A clearly unreasonable response – even if they respond in
some way, it could be practically nothing and be clearly
inadequate, still counts
o 3. Harasser is under the disciplinary authority of the school
 Under school’s disciplinary authority – School has to have the
authority to take remedial action
o Court identifies and defines sexual harassment in the educational setting
 Harassment that is so severe, pervasive, and objectively offensive
that it effectively bars the victim’s access to an educational
opportunity or benefit
o Title VII vs. Title IV
 Title VII – severe OR pervasive
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 Has to alter the conditions of the work place
 Title IV – severe AND pervasive and objectively offensive
 Not sure objectively offensive adds anything
 Has to deprive the student of access to educational
opportunities
 Clearly different standard for WHAT is sexual harassment?
o Kennedy dissent – very skeptical, is it really appropriate for federal courts
and congress to be getting involved in “inescapable parts of adolescent”?
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