Jett v. Dallas Independent School District Brief of Petitioner

    No. 87-2084 
No. 88-214

In The

Supreme Court of the United States
October Term. 1988

NORMAN JETT,
Petitioner,

v s .

DALLAS INDEPENDENT SCHOOL DISTRICT,
Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF OF PETITIONER

FR A N K  G ILSTR A P * 
FR A N K  HILL  
SH A N E  GOETZ 

Hill, H eard, Oneal 
G ilstrap & Goetz 
1400 W est Abram  S treet  
A rlington , T exas 76013 
(817) 261-2222

Counsel for P etition er

*Counsel of Record

PETITION FOR CERTIORARI IN
CASE NO. 87-2084 FILED JUNE 21, 1988

CROSS-PETITION FOR CERTIORARI IN 
CASE NO. 88-214 FILED JULY 21, 1988

CASES CONSOLIDATED AND CERTIORARI 
GRANTED IN BOTH CASES NOVEMBER 7, 1988



QUESTIONS PRESENTED

1. Must a local government employee who claims job 
discrimination on the basis of race show that the discrimina­
tion resulted from official “policy or custom” to recover 
from the employer under 42 U.S.C. § 1981?

2. Was the Fifth Circuit’s decision, that a local govern­
ment could be liable for damages under 42 U.S.C. § 1981 and 
§ 1983 because of an employee transfer decision made by a 
non-policymaker, who was not following official policy or 
custom, contrary to the recent decision of City of St. Louis
v. Praprotnik,_____ U.S-------- - 108 S. Ct. 915, 99 L.Ed.2d
107 (1988)?

i



LIST OF ALL PARTIES

Petitioner Norman Jett

Respondent Dallas Independent School 
District

u

TABLE OF CONTENTS
Page

QUESTIONS PRESENTED..........................................  j
LIST OF ALL P A R T IE S .................................................... ^

TABLE OF CONTENTS.................................................... m

TABLE OF AUTHORITIES............................................  v
OPINIONS BELOW ................................................  \
JURISDICTION................................................. . . . . . . . . . 2

CONSTITUTIONAL PROVISIONS AND STATUTES .2
ST A T E M E N T ...........................................................  3

SUMMARY OF ARGUM ENT..........................................  7
ARGUMENT ................................................................... ........

I. A local government employee who claims job 
discrimination on the basis of race need not 
show that the discrimination resulted from of­
ficial “policy or custom” to recover from the 
employer under 42 U.S.C. § 1981........................n
A. The “policy or custom” requirement arose

from the language of 42 U.S.C. § 1983 .........11
1. Background.......................................... n
2. Origin of the "policy or custom” re­

quirement ............................................ 12

B. Section 1983 did not amend Section
1981.............................................................. ..
1. Section 1981 was not passed by the 

42nd Congress, but by an earlier 
Congress............................................. ..

2. Absent clear historical evidence one 
cannot conclude that, by passing Sec­
tion 1983, Congress imposed a “policy
or custom” requirement on Section 
1981.........................................................

3. Congress did not intend for Section 
1983 to amend Section 1981.................18

iii



C. The history and language of § 1981 show 
that Congress did not intend to include a 
“policy or custom” requirement in that 
statute .........................................................21

II. The familiar rule of respondeat superior offers 
the most suitable standard for § 1981 liability .. 26
A. Considerations of legislative intent require

imposition of a respondeat superior 
standard.......................................................26

B. 42 U.S.C. § 1988 also compels adoption of a
respondeat superior standard ...................27

C. Policy arguments favor adoption of a
respondeat superior standard ...................29
1. A rule of respondeat superior will fur­

ther the policies of eradicating racial 
discrimination, compensating for civil 
rights deprivations, and deterring 
abuses of power ..................................29

2. Respondeat superior provides a clear,
easily applied standard ...................... 30

3. The policies that favor restricting
liability under Section 1983 do not ap­
ply to Section 1981..............................30

4. Other a lternatives..............................31
III. There was evidence from which the jury could

conclude that Superintendent Wright was a 
“policymaker” with regard to transfers of 
coaches and athletic directors............................ 31

CONCLUSION....................................................................33

iv

TABLE OF AUTHORITIES

Cases Page

Adickes v. S. H. Kress Co., 398 U.S. 144, 90 S.Ct
1598,2 L.Ed. 142 (1970).....................................................

Bates v. City of Houston, 189 S.W. 2d 17 (Tex. Civ.
App. - Galveston 1945, writ re f d w.o.m.)...................... 29

Bivens v. Six Unknown Fed, Narcotics Agents, 403
U.S. 388,91 S.Ct. 1999,29 L.Ed.2d 619 (1971)..................30

Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct 
1790,64 L.Ed.2d 440 (1980)....................................... 29

Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 
L.Ed.2d 36 (1984) ..........................................................  29

Butz v. Economou, 483 U.S. 478, 98 S.Ct. 2894 57 
L.Ed.2d 895 (1978) ........................................................  33

Cannon v. University of Chicago, 441 U.S. 677, 99
S.Ct. 1946,60 L.Ed.2d 560 (1979).....................................27

Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 
L.Ed.2d 252 (1978) ........................................................... 29

Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468,
64 .Ed.2d 15 (1980) ..................................................... 29,30

Chapman v. Houston Welfare Rights Organization,
441 U.S. 600,99 S.Ct. 1905,60 L.Ed.2d 508 (1979)......... 17

City of Galveston v. Posnainsky, 62 Tex. 118 
(Tex. 1884)....................................................... 29

City of Gladewater v. Pike, 727 S.W.2d 514 
(Tex. 1987)........................................................................ g9

City of Houston v. Quinones, 142 Tex. 282,
177 S.W.2d 259(1943)....................................................... 29

City of Midland v. Hamlin, 239 S.W.2d 159 
(Tex. Civ. App. - El Paso 1950, no w rit).......................... 29

City of Newport v. Fact Concerts, Inc., 453 
U.S. 247,101 S.Ct. 2748,69 L.Ed. 616 (1981)............. 26,30

City of Oklahoma City v. Tuttle, 471 U.S. 808,
105 S.Ct. 2427,85 L.Ed.2d 791 (1985)....................13,27,33

v



Cases Page

City of Orange v. LaCoste, Inc.,
210 F.2d 939 (5th Cir. 1954)............................................. 29

City of Round Rock v. Smith,
687 S.W.2d 300 (Tex. 1985)............................................. 29

City of S t  Louis v. Praprotnik,
108 S.Ct. 915,923 (1988)................................... i, 9,12,14
.......................................................................... 27,30,31,32

City of Wichita Falls v. Lewis, 68 S.W.2d 288,
(Tex. Civ. App. - Fort Worth 1934, writ dism’d) ........... 29

ContreUi Trust v. City of McAllen,
465 S.W.2d 804 (Tex 1971)..................................   29

Corfield v. Coryell, 4 Wash. C.C. 371,
6 Fed. Cas. 546 (1823)........................................................19

Corpus Christi Independent School D ist v. Padilla,
709 S.W.2d 700 (Tex. App. - Corpus Christi 1986, 
no writ) ............................................................................ 32

Crow v. City of San Antonio, 294 S.W.2d 899 (Tex.
Civ. App. - San Antonio 1956, no writ) ........................... 29

Dilley v. City of Houston, 148 Tex. 191,
222 S.W.2d 992(1949)........................................................29

District of Columbia v. Carter, 409 U.S. 418,
93 S.Ct. 602,34 L.Ed.2d 613 (1973)...................................21

Fielder v. Casey, 108 S.Ct. 2302,
101 L.Ed.2d 123(1988)......................................................29

General Building Contractors Ass'n v. Pennsylvania,
458 U.S. 375,102 S.Ct. 3141,73 L.Ed.2d 835 (1982)........20

Great American Federal Savings & Loan Ass n 
v. Novotny, 442 U.S. 366, 99 S.Ct. 2345,
60 L.Ed.2d 957 (1979)........................................................18

Griffin v. Breckenridge, 403 U.S. 88, 104 91 S.Ct.
1790,29 L.Ed.2d 338 (1971).............................................. 24

Hague v. C.I.O., 307 U.S. 496, 59 S.Ct. 954,
83 L.Ed. 1423 (1939)......................................................... 21

vi

Imbler v. Patchman, 424 U.S. 409, 96 S.Ct. 984 
47 L.Ed.2d 128(1976)...................................................... 26

James v. Bowman, 190 U.S. 127, 23 S.Ct. 678,
47 L.Ed. 979 (1903).......................................................... 24

Johnson v. Railway Express Agency, 421 U.S. 454,
95 S.Ct. 1716,44 L.Ed.2d 295 (1975).......................... 27, 28

Jones v. Alfred H. Mayer Co., 392 U.S. 409,
88 S.Ct. 2186,20 L.Ed2d 1189 (1968)............ 15,16,19
....................................................................23,25,26,27! 29

Lynch v. Household Finance Corp., 405 U.S. 538,
92 S.Ct. 1113,31 L.Ed.2d 424 (1972).....................17,18,20

Mitchum v. Foster, 407 U.S. 225, 91 S.Ct. 2151,
32 L.Ed.2d 705(1972)........................................................30

Monell v. Dept, of Social Services, 436 U.S. 658,
98 S. Ct. 2018,56 L.Ed.2d 611 (1978)...................8,9,12,14
....................................................................19,22,26,28,30

Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473,
5 L.Ed.2d 492 (1961)....................................... 11,15,28,30

Moore v. County of Alameda, 412 U.S. 693,
93 S.Ct. 1785,36 L.Ed.2d 596 (1973)................................28

N.C.A.A. v. Tarkanian,
109 S.Ct. 454 (1988)......................................................... 14

Occidental Life Ins. Co. v. E.E.O.C., 432 U.S. 355,
97 S.Ct. 2447, 53 L.Ed.2d 402 (1977)................................29

Owen v. City of Independence, 445 U.S. 622,
100 S.Ct. 1398,63 L.Ed.2d 673 (1980)........................ 26,30

Parratt v. Taylor, 451 U.S. 527,
101 S.Ct. 1908,68 L.Ed.2d 420 (1981)...............................30

Patterson v. McLean Credit Union,
108 S.Ct. 419 (1988), per curiam .......................................14

Paul v. Davis, 424 U.S. 693,
96 S.Ct. 1155,47 L.Ed.2d 405 (1976).................................30

Pembaur v. City of Cincinnati, 106 S.Ct 1292,
89 L.Ed.2d 452 (1986)............................................9,10,13

........................................................  14,31,33
Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213,

18 L.Ed.2d 288(1967)....................................................... 26

eases Page



Cases Page

Posadas v. National City Bank, 296 U.S. 497,
56 S.Ct. 349,80 L.Ed. 351 (1936)......................................15

Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct.
1991,56 L.Ed.2d 554 (1978)....................................... 29,30

Runyon v. McCrary, 427 U.S. 160
96 S.Ct. 2586,49 L.Ed.2d 415 (1976).....................14,23,27

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097
(5th Cir. 1971)................................................................... 18

Sarmiento v. City of Corpus Christi 
465 S.W.2d 813 (Tex. Civ. App. - Corpus 
Christi 1971, no w rit)........................................................29

Scheurer v. Rhodes, 416 U.S. 232, 94 S.Ct.
1690,40 L.Ed.2d 90 (1974)................................................ 26

Schroggins v. City of Harlingen, 131 Tex. 237,
112 S.W.2d 1035(1938)......................................................29

Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031,
89 L.Ed. 1495,162 A.L.R. 1330 (1945) ............................ 22

Slaughter-House Cases, 16 Wall 1136, 83 U.S. 36,
21 L.Ed. 394 (1872)......................................................21,30

Sullivan v. Little Hunting Park, 3% U.S. 229,
90 S.Ct. 400,24 L.Ed.2d 386 (1969)...................................27

Tenny v. Brandhove, 341 U.S. 367, 71 S.Ct. 783,
95 L.Ed. 1019 (1951)......................................................... 26

United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031,
85 L.Ed. 1368 (1941)....................................................14,17

United States v. Gradwell, 243 U.S. 476, 37 S.Ct.
407,61 L.Ed. 857 (1917)....................................................17

United States v. Henderson, 78 U.S. 652, 11 Wall 652,
206 L.Ed.2d 235 (1870)......................................................15

United States v. Morris, 125 F. 322 
(E.D. Ark. 1903) ............................................................... 19

United States v. Mosley, 238 U.S. 383,
35 S.Ct. 904. 59 L-Ed. 1355 (1915).............................. 16.17

United States v. Price, 393 U.S. 787,
86 S.Ct. 1152,16 L.Ed.2d 267 (1960).....................14,25,26

viii

Cases Page

United States v. Reese, 92 U.S. 214, 2 Otto, 23 L.Ed. 
563(1875).......................................................................... 25

United States v. Williams, 341 U.S. 70, 71 S.Ct.
581,95 L.Ed. 758 (1951)........................................ 16,22,24

Waters v. Wisconsin Steel Works of International 
Harvester Company, 427 F.2d 476 (7th Cir. 1970), 
cert, denied, 400 U.S. 911 (1970).......................................18

Williams v. Butler, No. 83-2534, No. 83-2641 
1988 WL 135650 (8th Cir., filed Dec. 21, 1988)
(en banc)............................................................................ 13

Wilson v. Garcia, 471 U.S. 260, 105 S.Ct. 1938,
85 L.Ed.2d 2545 (1985)......................................................29

Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992,
43 L.Ed.2d 214 (1975)....................................................... 26

CONSTITUTIONAL PROVISIONS 
U.S. Constitution

14th Amendment ..............................................15,25,30
15th Amendment....................................................24,25

STATUTES 
United States Code 
18 U.S.C.

§241.........................................................................16,24
§242 .............................................................................. 22

28 U.S.C.
§1331............................................................................ 17
§1343(3) ................................................................. 17,18

42 U.S.C.
§1981.................................................................6,7,8,11
....................................14.15,18,21,26,27,28,29,30,31

§1982 ........................................................  15,23,27

IX



§ 1983 ..........................................................  6,7,8,11,12
......................................... 14,15,17,18,21,22,26,30,31

§1986........................................................................... ....
§ 1988 ........................................................................ 9,27

Revised Statutes
§ 5506 ....................................
§ 5507 ..............................
§ 5508 .......................................................

Statutes
Civil Rights Act of April 9, 1866

(c. 31,14 Stat 27)..................................................7,8,14,15
.................................................. 16,19,20,21,22,23,24,25,27

Civil Rights Act of May 31, 1870 
(c. 114,16 Stat 140).......................................... 14,15,16,17

Civil Rights Act of April 20, 1871 
(c. 114,17 Stat 13).....................

Texas Education Code
§13.351 ....................................................................  32
§ 23.26 ............................................................................

....7 ,11,12,15 
17,18,19,20,21

17.23.24
23.24.25 
16,17,23

CONGRESSIONAL GLOBE, 39TH CONG., 
1STSESS ..................................................... 19,20

In The
SUPREME COURT OF THE UNITED STATES 

October Term, 1988

No. 87-2084 
No. 88-214

NORMAN JETT,

Petitioner,

DALLAS INDEPENDENT SCHOOL DISTRICT,
Respondent.

ON WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

BRIEF OF PETITIONER

OPINIONS BELOW

The initial Court of Appeals opinion is reported at 798 
F.2d 748, and is reprinted in the Appendix to the Petition 
for Writ of Certiorari (“Pet. App.”), at 1A-32A. The Fifth 
Circuit’s order on rehearing, supplementing its initial opi­
nion, is reported at 837 F.2d 1244, and is reprinted at Pet. 
App. 33A-44A. The opinion of the United States District 
Court for the Northern District of Texas, Dallas Division, is 
unreported and is printed at Pet. App. 45A-63A.

1



JURISDICTION

The Fifth Circuit entered its judgment on August 27, 
1986, and issued its mandate on February 5,1988. Pet. App. 
66A-67A. Norman Jett timely filed his petition for writ of 
certiorari on June 21, 1988, and the Dallas Independent 
School District timely filed its cross-petition on July 21, 
1988. This Court has jurisdiction pursuant to 28 U.S.C. § 
1254 (1).

CONSTITUTIONAL PROVISIONS AND STATUTES
The following statutes and constitutional provisions are 

involved in this case:
United States Constitution
- Thirteenth Amendment
- Fourteenth Amendment

(Sections 1 and 5)
- Fifteenth Amendment

United States Code
18 U.S.C. § 241; 18 U.S.C. § 242; 28 U.S.C. § 1331;
28 U.S.C. § 1343; 42 U.S.C § 1981; 42 U.S.C. § 1983;
42 U.S.C. § 1988;

Rexnsed Statutes (1874)
Sections 5506, 5507 and 5508

Statutes
Civil Rights Act of April 9,1866 (c. 31,14 Stat. 27),
the “Civil Rights Act of 1866.”

Civil Rights Act of May 31, 1870 (c. 114, 16 Stat.
140), the “Enforcement Act of 1870.”

Civil Rights Act of April 20, 1871 (c. 114,17 Stat.
13), the “Ku Klux Klan Act of 1871.”

The above-cited constitutional provisions and statutes 
are reprinted in full in the Joint Appendix (hereafter “Jt. 
App.”).

2

STATEMENT

Background
Norman Je tt became an employee of the Dallas Indepen­

dent School District ("DISD”) in 1957. In 1962 he became a 
teacher and assistant football coach at South Oak Cliff High 
School. In 1970 he became head coach and athletic director, 
while retaining his teaching position. During this period the 
racial composition of the school was changing from 
predominantly white to predominantly black. By 1982, when 
the events that gave rise to this litigation arose, the South 
Oak Cliff student body was virtually all black, and Je tt was 
the only white coach.

Je tt apparently served well as a teacher. He was regular­
ly evaluated and his marks were uniformly high. Tr. 
203-205,264-266. It was as a football coach, however, that he 
distinguished himself. During his thirteen years as head 
coach, Je tt’s South Oak Cliff teams won over eighty percent 
of their games and became the dominant high school team in 
Dallas. Two hundred fifty of his players won college scholar­
ships and forty three of them went on to play professional 
football. Tr. 220-221, 223-224.

What proved to be Je tt’s last game occurred in the late 
fall of 1982, when his team lost a playoff game to Plano High 
School before a large turnout in the Cotton Bowl. The loss 
was a bitter one, and it deeply affected Frederick Todd, who 
had served as South Oak Cliff principal since 1975.

Despite the team’s great success, Todd had not been 
totally satisfied with Jett. On several occasions Todd had 
urged Jett to recruit promising middle school athletes, but 
the practice was forbidden by DISD regulations, and Jett 
had refused. Je tt’s comments to the local newspapers — 
that many of his players could not meet new academic stan­
dards for college athletes — also rankled Todd.

Todd recommends Je tt’s removal
Immediately following the Plano loss, Todd criticized Jett 

for failing to follow the “game plan.” He also quizzed Jett 
about an absurd rumor that Je tt had been bribed to “throw 
the game.” Soon afterward he gave Jett an unsatisfactory 
teacher evaluation, the first in Je tt’s twenty-six years with

3



DISD. On March 15,1983, Todd summoned Jett to his office 
* and told him that he was recommending his removal as 

athletic director/head coach.
Two days later Todd sent a letter to John Kincaide, DISD 

athletic director, formally recommending that Je tt be 
removed as athletic director/head coach. Todd’s purported 
reasons, as set forth in this letter and in his testimony, were 
Je tt’s “improper” comments to the newspapers, his failure 
to recruit junior high school athletes, and his failure to 
follow the “game plan” in the Plano game. Tr. 77-79, 86-90, 
100-108, 174-175, 204, 207.

The jury would later find that Todd was motivated by 
Je tt’s race and by Je tt’s exercise of First Amendment 
rights, and that the stated reasons were pretextual. Jt. 
App. 36-38, 42-44. These findings were upheld by the Fifth 
Circuit and are no longer in dispute. Pet.App. 14A-20A.

DISD policies and practices
Under DISD practices Je tt’s removal as athletic director/ 

head coach was treated as a “reassignment”. No loss in 
salary was contemplated. And, while the DISD Board of 
Trustees had approved written policies to deal with teacher 
reassignments, it had promulgated none concerning 
reassignment of coaches and athletic directors. Jt. Ap. 
65-66.

DISD Superintendent Linus Wright described transfers 
of athletic directors and coaches as occupying a “gray area,” 
where matters were left up to him and his subordinates, and 
Wright had instituted “practices” to deal with such 
transfers. Jt. App. 68, 70. He could appoint a panel to hear 
the matter and make a recommendation, or there could be 
an informal hearing before him. Jt. App. 69. In either event 
Wright made the final ruling, and there was no appeal from 
his decision to transfer an athletic director or coach. Jt. 
App. 65, 69-70.

Superintendent Wright 
upholds Todd’s decision

Following the March 15 meeting with Todd, Je tt met with 
Kincaide. Tr. 21. Kincaide told Jett that, since he had 
received nothing in writing, he should return to the school 
However, as Jett was leaving Kincaide’s office, he met

4

another administrator, who sent him to meet with John San- 
tillo, DISD personnel director. After hearing Je tt’s story, 
Santillo told Jett that the damage was done and that he 
should allow himself to be removed from South Oak Cliff. 
When Jett protested, Santillo took him to meet with 
Wright. Tr. 271-275.

During this meeting, Je tt told Wright and Santillo that he 
believed that Todd s recommendation was racially 
motivated. Jt. App. 71-72, 76. Wright’s response was to sug­
gest that Je tt consider leaving the school, since he and Todd 
were having difficulty. Wright said that he had every con­
fidence in Je tt and that he would find him another position. 
Jt. App. 71-72.

On March 25,1983, Wright convened a meeting with San­
tillo, Kincaide, Todd, and two other administrators. Jett 
was not invited since, according to Wright, the informal 
March 15 meeting had constituted the hearing required by 
Wright’s transfer policy. Tr. 405. At the end of the meeting 
Wright officially ordered Jett removed as athletic/director 
coach. Jt. App. 72-73, 77.

The jury found that Wright’s decision was “based wholly 
on Todd’s recommendation without any independent in­
vestigation. Jt. App. 41, 46. Although there is evidence 
that Wright ordered Kincaide to investigate Je tt’s allega­
tions, Kincaide apparently did not do this, once he learned 
that Je tt had met with Wright and Santillo. Tr. 620, 627. 
Santillo testified that no investigation was in fact con­
ducted. Jt. App. 77.

There was evidence from which the jury could conclude 
that Wright simply resolved the conflict in favor of the 
principal and that he made no attempt to decide if there was 
any truth to the allegation of racial discrimination. Jt. Add. 
68. FF

The Aftermath
Jett was reassigned to the Business Magnet High School 

because, he was told, it was the only position available. Tr. 
279-280. Jett was undergoing a great deal of emotional 
stress, and the Business Magnet principal suggested that 
Je tt take some time off. Tr. 291-292. When Santillo learned 
of this, he sent a letter to Jett expressing “disappointment” 
at Je tt’s attendance. Tr. 292-293.

When Jett received the letter, he went to Santillo, who

5



, again took him to Wright. This time Wright told Jett that 
he would be “considered” for any head coaching positions 
that might come open. Tr. 293-294, 437-438.

On May 5,1983, Santillo wrote Jett a letter and told him 
he was being placed on the “unassigned personnel” budget 
and that he had been assigned to the security department. 
While Je tt should not expect to be able to remain in the 
department next year, Santillo said, Je tt could “pursue” 
any available position for which he was certified. Further, if 
Je tt was not recommended for a coaching position, he would 
be assigned as a classroom teacher. Je tt decided that 
Wright did not intend to keep his promise to give him the 
next available head coaching job, and filed suit. Tr. 359, 
371-372.

Subsequently, a head coaching job did open up at Madison 
High School; however, Je tt was not contacted regarding 
that position, apparently because he had filed suit. Tr. 
317-319, 452, 621-622.

On or about August 4, 1983, Je tt received notice that he 
had been assigned to Thomas Jefferson High School as 
freshman football/track coach. Tr. 305-306. Je tt resigned 
rather than accept this humiliating demotion. Tr. 307-311.

The remaining issues
Jett claimed several civil rights violations, only three of 

which are still before the Court.1 First he alleged that the 
decision to transfer him because of his newspaper 
statements violated his First Amendment rights, and gave 
rise to a cause of action under 42 U.S.C. § 1983. Next he 
claimed that the decision to transfer him because he was 
white violated his Fourteenth Amendment equal protection 
right, again giving rise to a Section 1983 claim. With regard 
to the racially motivated transfer, Jett also claimed a viola­
tion of 42 U.S.C. § 1981.

Todd’s liability under all three theories has been 
established. At issue here is only the liability of DISD.

1 See Pet. App. 7-8 for the disposition of the other claims.

6

SUMMARY OF ARGUMENT
We answer the first question by determining Congres­

sional intent. The Fifth Circuit approached the problem 
from the wrong direction. It sought the intent of the Con­
gress which enacted Section 1983. Instead it should have 
sought the intent of the Congress which passed Section 
1981.

The forerunner of Section 1983 was passed by the 42nd 
Congress in § 1 of the Ku Klux Klan Act of 1871. Section 
1981, on the other hand, was enacted by an earlier Con­
gress. The Fifth Circuit apparently reasoned that, by pass­
ing Section 1983, the 42nd Congress had somehow amended 
the earlier statute to impose Section 1983’s “policy or 
custom” requirement onto that statute as well.

This reasoning quickly encounters difficulty. Congress 
normally amends an existing statute by express act. Absent 
this, amendment can only occur through a process 
analogous to “repeal by implication.” Such repeals are not 
favored, and this is especially so where Reconstruction era 
civil rights statutes are involved. In our case there is no 
clear expression that the 42nd Congress intended to impose 
a “policy or custom” requirement on the already existing 
statute. On the contrary, there is strong indication that Con­
gress intended for the two statutes to apply differently.

Section 1981 originated as § 1 of the 1866 Civil Rights Act, 
and the 1866 Congressional debates indicate that Congress 
passed this statute to secure a set of specific rights to the 
newly freed slaves. These rights were enumerated in the 
statute and, in the legal thinking of the day, were seen as 
“fundamental” or “natural” rights.

When the 1871 Congress drafted Section 1983, it modeled 
it after § 2 of the 1866 Act. It made an important change in 
wording, however. Instead of the specific list of “fundamen­
tal rights” secured by the 1866 statute, Section 1983 
secured “any rights, privileges, or immunities secured by 
the Constitution.” Ultimately this language was held not to 
cover the “fundamental rights” protected by the 1866 Act. 
Thus the 1871 Congress did not intend to amend Section 
1981.

The proper way to construe Section 1981 is by reading 
the history and language of that statute, not Section 1983.

7



In other words, we must ask how Section 1981 would be con­
strued if Section 1983 had never been passed.

First, however, we must know exactly what to look for. 
The question again is this: Does Section 1981 contain a 
“policy or custom” requirement? To answer this, we must 
first recall just how the Monell Court went about finding a 
“policy or custom” requirement in Section 1983. A review of 
Monell reveals that the Court derived the “policy or 
custom" requirement entirely from certain “crucial terms” 
of Section 1983.

These “crucial terms” provide an avenue of inquiry into 
the 1866 Civil Rights Act. In fact the “crucial terms” of Sec­
tion 1983 come directly from § 2 of the 1866 Act. Does that 
mean that Congress intended to include a “policy or 
custom” requirement in § 2 of the 1866 Act? Probably not. 
Section 2 was a criminal statute, and because of this it’s 
unlikely that Congress had a “policy or custom” require­
ment in mind in 1866.

Yet, even if we assume that § 2 of the 1866 Act somehow 
does embody a “policy or custom” requirement, that doesn’t 
mean that a similar requirement appears in § 1.

Of course, the language of § 1 is totally different from § 2, 
and Section 1981 comes from § 1 of the 1866 Act, not § 2. 
Moreover, the “crucial terms” in § 2 are highly restrictive. 
Because this restrictive language was not placed in § 1, nor 
in any other part of the 1866 Act aside from § 2, it follows 
that Congress did not intend to impose the language- 
specific “policy or custom” requirement on § 1, and hence on 
the modern Section 1981.

Once we conclude Congress did not intend to impose a 
“policy or custom” requirement on Section 1981, we turn to 
the task of determining just what Congress did intend. As it 
turns out, there is no clear indication of Congressional in­
tent that pertains to our problem. Under these cir­
cumstances there are two routes we can take. Both lead to 
the same place.

The first alternative is to read Section 1981 in the light of 
the common law principles that were widely known in 1866. 
This is the approach that the Court took in the Section 1983 
immunity cases. The prevalent legal doctrine in the middle 
of the 19th Century turns out to be respondeat superior.

8

The second approach is to follow 42 U.S.C. § 1988, and 
either adopt the rule of the state in which the suit was filed 
or fashion a single federal rule. The applicable state law is 
Texas law, and there the doctrine of respondeat superior is 
strong. On the other hand, if the Court fashions a single 
federal rule, then general common law concepts must again 
be called upon, and again we wind up with respondeat 
superior.

In making its choice the Court is permitted to consider 
the policies behind the civil rights statutes. Certainly the 
policies of eliminating racial discrimination, discouraging of­
ficial misconduct, and compensating civil rights depriva­
tions are well established. There are, however, other fac­
tors which the Court should also consider.

First, the Court’s decade of struggle with Monell’s 
“policy or custom" requirement should illustrate the need 
for a simple, widely understood standard. Again the rule of 
respondeat superior fits better than any other.

Second, recognition of a respondeat superior standard 
will not lead to an expansion of liability under Section 1981, 
such as occurred with Section 1983. Section 1983 has grown 
because of its broad language, which can arguably encom­
pass almost any kind of government activity. Section 1981 
has different language, however. It secures a narrow set of 
enumerated rights, and there is no danger that the scope of 
Section 1981 liability will become unmanageable.

Finally, we turn to the second Question Presented. As 
framed, the Question answers itself at least insofar as Sec­
tion 1983 is concerned. Obviously we can’t satisfy the 
“policy or custom” requirement unless Wright was a 
policymaker with regard to transfers of coaches. That’s ex­
actly what Pembaur says but, then again, that’s exactly 
what the Fifth Circuit said in our case.

Analyzing the facts of our case in the light of Pembaur 
and Praprotnik, we ask first where applicable state law 
places the policymaking role. Our inquiry is necessarily 
brief. Texas statutes don’t say whether school district 
superintendents can or cannot make policy. Nor does our 
record contain any direct evidence as to whether the DISD 
school board actually made such a delegation to Superinten-

9



dent Wright, although that fact can be inferred. The lack of 
direct evidence comes as no surprise, since the case was 
tried before Pembaur. Obviously, this part of the case must 
be retried, hopefully after further clarification of the “policy 
or custom” requirement.

10

ARGUMENT

I. A local government employee who claims job 
discrimination on the basis of race need not show that 
the discrimination resulted from official “policy or 
custom” to recover from the employer under 42 U.S.C. 
§ 1981.

A. The “policy or custom" requirement arose 
from the language of 42 U.S.C. § 1983.

1. Background
In Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 

492 (1961), the Court held that Chicago police officers acted 
under “color of law” when they invaded and ransacked a 
home without a search warrant. They were therefore liable 
under 42 U.S.C. § 1983.365 U.S., at 171-187. Their municipal 
employer, however, was not liable, since Congress did not 
intend to include municipalities among the “persons" liable 
under Section 1983. 365 U.S., at 187-192.

Both Monroe holdings were based on the Court’s reading 
of Congressional intent. Section 1983 “came onto the books 
as section 1 of the Ku Klux Act of April 20,1871.17 Stat 13,” 
365 U.S., at 171, and the Court relied on the 1871 Congres­
sional debates to support its holding that policemen could 
act under “color of law”, even though their actions might be 
contrary to the “ordinances or regulations” of their 
municipal employer. 365 U.S., at 171-183.

The Monroe court also examined the 1871 debates with 
regard to its second holding, i.e., that the City of Chicago 
was not a “person” liable under § 1983. There the Court 
focused on the debates over § 6 of the 1871 statute^ather 
than § 1. At issue was the amendment proposed by 
Representative Sherman which would have imposed liabili­
ty upon “the county, city, or parish” in which certain violent 
acts occurred. 365 U.S., at 189 n. 41. The Sherman Amend­
ment was defeated, and the Monroe Court concluded that

‘Now 42 U.S.C. § 1986.

11



Congress’ response to the proposed measure “was so an­
tagonistic that we cannot believe” that Congress intended 
to include municipalities among the “persons” liable under 
§1 of the Act. 365 U.S., at 191.

Seventeen years later in Monell v. D ept of Social Ser­
vices, 436 U.S. 658, 98 S. Ct. 2018, 56 L.Ed.2d 611 (1978), the 
Court re-examined the Sherman Amendment debates and 
concluded that it had misread them in Monroe. “Congress 
did intend for municipalities and other local government 
units to be included among those persons to whom § 1983 
applies.” 436 U.S., at 690 (emphasis in original).

2. Origin of the “policy or 
custom" requirement

In Part II of Monell the Court began to define the newly 
recognized governmental liability. First it held that “a 
municipality cannot be held liable under § 1983 on a 
respondeat superior theory." 436 U.S., at 691. It then for­
mulated the standard by which local governments could be 
held liable—the now familiar “policy or custom” require­
ment. Id., at 694-695. The Sherman Amendment debates, 
crucial to Part I of Monell, were called upon only once in 
Part II, to bolster the rejection of respondeat superior. 436 
U.S. at 691 n. 57. They played no role in formulating the 
“policy or custom” requirement. Instead, throughout Part II 
of Monell, the Court relied exclusively on “the language of § 
1983 as originally passed,” i.e., § 1 of the Ku Klux Klan Act 
of 1871, which read as follows:

[Afny person who, under color of any law, statute, 
ordinance, regulation, custom, or usage of any 
State, shall subject or cause to be subjected. . .

436 U.S., at 691 (emphasis the Court’s). The Court wrote 
that this language “imposes liability on a government that, 
under color of some official policy, ‘causes’ an employee to 
violate another’s constitutional rights.” 436 U.S., at 692.

In City of S t  Louis v. Praprotnik, 108 S.Ct. 915, (1988), 
the Court again emphasized this language. There it wrote 
that “the crucial terms of the statute are those that provide 
for liability when a government ‘subjects [a person], or 
causes [that person] to be subjected,’ to a deprivation of con­
stitutional rights." 108 S.Ct., at 923 (plurality). Thus, the

12

Court has twice emphasized the phrase “subject or cause to 
be subjected” and, understandably, this has led lower 
courts to focus on this phrase as the source of the “policy or 
custom” requirement. See, e.g., Williams v. Butler, No. 
83-2534, No. 83-2641,1988 WL 135650 (8th Cir., filed Dec. 21, 
1988) (en banc).’ Yet the Court has never said that this 
language alone comprises the “crucial terms" giving rise to 
the policy or custom requirement and, upon examination, it 
appears that the phrase “color of law, statute, ordinance, 
regulation, custom, or usage” also plays a role.

Apparently the Court reads section 1983 quite literally. 
The “person” is the local government; the phrase “under 
color of any law, statute, ordinance, regulation, custom or 
usage” means pursuant to “policy or custom”; and the 
phrase “subject or cause to be subjected” requires a causal 
relationship between this “policy or custom” on the one 
hand and the constitutional deprivation on the other. Cf. Ci­
ty of Oklahoma City v. Tuttle, 471 U.S. 808, 818, 105 S.Ct. 
2427, 2433 (1985) (“This language tracks the language of the 
statute.”), and Pembaur v. City of Cincinnati, 106 S.Ct. 
1292, 1299, n. 10, 89 L.Ed. 2d 452 (1986).

Thus the phrase “under color of any law, statute, or­
dinance, regulation, custom or usage” is, if anything, more 
“crucial” to the “policy or custom” requirement than the 
“subject or cause to be subjected” language. Unfortunately, 
this “color of law” language has been given other meanings

' On remand from. City of Little Rock v. Williams, 108 S. Ct. 1102 (1988), 
vacating, Williams v. Butler, 802 F.2d 296 (8th Cir. 1986) (en banc), on 
remand from. City of Little Rock v. Williams, 475 UJS. 1105, 106 S.Ct. 
1508, 89 L.Ed.2d 909 (1986), vacating, Williams v. Butler, 762 F.2d 73 
(8th Cir. 1985) (en banc), affg, 746 F.2d 431 (8th Cir. 1984).

13



in other contexts.4 This may be why the Court coined the 
phrase “policy or custom”, as opposed to quoting the actual 
language of the statute.* This perhaps may also be why, 
when discussing the actual language of the statute, the 
Court has emphasized the phrase “subject or cause to be 
subjected.”

B. Section 1983 did not amend Section 1981
1. Section 1981 was not passed by the 42nd 

Congress, but by an earlier Congress.
In Runyon v. McCrary, 427 U.S. 160,168,96 S.Ct. 2586,49 

L.Ed.2d 415 (1976), the Court held that Section 1981 
originated as § 1 of the Civil Rights Act of April 9,1866, c. 
31, 14 Stat 27. The Runyon dissent, however, argued that 
Section 1981 originated with § 16 of the Enforcement Act of 
May 31,1870, c. 114,16 Stat 144. 427 U.S., at 195 (White, J., 
dissenting). While the court is presently reconsidering 
Runyon,* the final resolution of that controversy can make 
no difference here. Regardless of whether Section 1981

* In Section 1983 cases the phrase “color of any law, statute, ordinance, 
regulation, custom, or usage” “has consistently been treated as the 
same thing as state action required by the Fourteenth Amendment.” 
United States v. Price, 393 U.S. 787, 794 n. 7,86 S.Ct. 1152,16 L.Ed^d 
267 (1960). See also, N.C.A.A. v. Tarkanian, 109 S.Ct. 454, n.4 (1988), and 
cases there cited. Cf. Adickes v. S. H. Kress Co., 398 U.S. 144,166-167, 
90 S.Ct. 1598, 2 L.Ed. 142 (1970). Compare these cases with Monroe, 
where it was argued that the Chicago policemen could not have acted 
under “color of law" since their actions in invading and ransacking the 
home were contrary to local law. 365 U.S., at 172. The Court rejected 
this argument, holding that “[misuse of power, possessed by virtue of 
state law and made possible only because the wrongdoer is clothed with 
the authority of state law, is action taken ‘under color of state law.’ ” 
365 U.S., at 184, quoting United States v. Classic, 313 U.S. 299, 326, 61 
S.Ct. 1031, 85 LJSd. 1368 (1941). Thus, because the Chicago policemen 
misused the power given them by state law, they acted “under color of 
law." Yet, under Monell these same policemen, almost certainly, would 
not have been acting pursuant to their employer’s “policy or custom.” 
Cf. Praprotnik, 108 S.Ct., at 946 n. 19 (Stevens, J., dissenting).

* Cf. Pembaur, 106 S.Ct., at 1302 n.l (Stevens, J., concurring).

* See Patterson v. McLean Credit Union, 108 S.Ct. 1419 (1988), per 
curiam.

14

originated with the 39th Congress in 1866, or with the 41st 
Congress in 1870, the fact remains that, when the 42nd Con­
gress passed the Ku Klux Klan Act in 1871, Section 1981 
was already, to use the words of Monroe, “on the books."

2. Absent clear historical evidence, one 
cannot conclude that, by passing Section 
1983, Congress imposed a “policy or 
custom” requirement on Section 1981.

In our case, the Court of Appeals reasoned that “in 1871 
when Congress enacted what is now codified as section 
1983, which was five years after it had enacted the statute 
that became section 1981, Congress did not intend 
municipalities to be held liable for constitutional torts com­
mitted by its employees in the absence of official municipal 
policy.” 798 F.2d, at 762, Pet. App. 29A. Apparently the 
Fifth Circuit concluded that, when Congress passed the Ku 
Klux Klan Act in 1871, it intended to modify Section 1981 by 
imposing a “policy or custom” requirement on the already 
existing statute. Since Section 1981 was already “on the 
books” this argument raises all the difficult problems of 
repeal by implication.” Generally “repeals by implication 

are not favored, 7 and the Court has uniformly rejected 
them in other cases involving Reconstruction era civil 
rights statutes.

In Jones v. Alfred H. Mayer, Co., 392 U.S. 409, 88 S.Ct. 
2186, 20 L.Ed.2d 1189 (1968), the Court considered whether 
42 U.S.C. § 1982, which prohibits discrimination in the sale 
of housing, applies to private parties. Section 1982 
originated with § 1 of the Civil Rights Act of 1866, c. 31,14 
Stat 27, and it was re-enacted four years later by § 18 of the 
Enforcement Act of May 31, 1870, c. 114, 16 Stat 141. 392 
U.S., at 423. In the interval between the two statutes, the 
States ratified the 14th Amendment which is, of course, 
limited to “state action.” It was argued in Jones that, by re­
enacting the 1866 Act as part of the 1870 Act, Congress

’ Posadas v. National City Bank, 296 U.S. 497, 503, 56 S.Ct. 349, 80 L.Ed. 
351 (1936); United States v. Henderson, 78 U.S. 652, 565-658, 11 Wall 
652, 20 L.Ed.2d 235 (1870); and annotation at 4 L.R.A. 308.

15



meant to incorporate a “state action” requirement into the 
statute . 392 U.S., at 436. The Court rejected this argument. 
Citing the absence of historical support, the Court refused 
to conclude “that Congress made a silent decision in 1870 to 
exempt private discrimination from the operation of the 
Civil Rights Act of 1866.” 392 U.S., at 437.

In United States v. Mosley, 238 U.S. 383,386-387,35 S.Ct. 
904, 59 L.Ed. 1355 (1915), two Oklahoma election judges 
were charged with conspiring not to count votes in a Con­
gressional election. The charge was brought under § 6 of the 
Act of May 31,1870, which made it a crime for two or more 
persons to conspire “to injure, oppress, threaten, or in­
timidate any citizen with intent to prevent or hinder his 
free exercise and enjoyment of any right or privilege 
granted or secured to him by the Constitution or laws of the 
United States.”'

Here, unlike Jones, there was abundant historical 
evidence that Congress had intended to repeal § 6 of the 
1870 Act, at least insofar as it applied to voting. In 1894 Con­
gress had passed “An Act to repeal all statutes relating to 
supervisors of elections.. . ” 28 Stat. at L. 36, ch. 25, Comp. 
Stat 1913, § 1015. At one stroke it systematically repealed 
every federal statute which expressly dealt with voting. 
The list of repealed statutes included § 4 of the 1870 Act, 
which made it a crime to use “force, bribery, threats, in­
timidation, or other unlawful means [to] hinder, delay, pre­
vent, or obstruct... any citizen” from voting or qualifying to

' 16 Stat 141, § 6, later R. S. § 5508. By the time of Mosley this section 
had become § 19 of the Criminal Code of March 4,1909, c. 321, 35 Stat. 
at L. 1092. It’s now 18 U.S.C. § 241. See, generally, United States v. 
Williams, 341 U.S. 70. 83, 71 S.Ct. 581, 95 L.Ed. 758 (1951).

16

vote.' See Mosley, 238 U.S. at 389 (Lamar, J., dissenting); 
United States v. Gradwell, 243 U.S. 476, 483-484, 37 S.Ct. 
407, 61 L.Ed. 857 (1917); and United States v. Classic, 313 
U.S. 299, 334-335, 61 S.Ct. 1031, 85 L.Ed. 1368 (1940). 
Moreover, the 1894 Congressional debates reflected a clear 
intent to exclude all aspects of voting from the protection of 
the civil rights laws. 238 U.S., at 390-391. Despite this 
manifestation of legislative intent, the Mosley Court con­
cluded that § 6 had not been repealed or narrowed by the 
1894 statute. It thus permitted the election judges to be pro­
secuted.

As a final example, we turn to Lynch v. Household 
Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed^d 424 
(1972), where the Court considered the history of 28 U.S.C. § 
1343(3), the “jurisdictional counterpart” of § 1983. 405 U.S., 
at 543. That statute gives federal courts jurisdiction over 
“any civil action” to redress a deprivation of civil rights, and 
it contains no amount-in-controversy requirement. See, 
generally, Lynch, 405 U.S., at 543 n. 7, and Chapman v. 
Houston Welfare Rights Organization, 441 U.S. 600, 607, 99 
S.Ct. 1905, 60 L.Ed.2d 508 (1979). In 1875 Congress passed 
the forerunner of 28 U.S.C. § 1331 which, for the first time, 
gave federal courts general jurisdiction over all civil suits 
“arising under the Constitution and laws of the United 
States.” 405 U.S. at 546. That statute originally imposed a 
minimum jurisdictional limit of $500, which was periodically 
increased until it had reached $10,000 at the time of Lynch. 
405 U.S., at 546 n. 12.'°

Early cases construed these statutes by distinguishing 
between “personal rights” and “property rights”. Suits to 
redress deprivations of “personal rights” were covered by 
the 1871 Ku Klux Klan Act . Actions involving “property 
rights", on the other hand, were deemed to arise under the

* In the Revised Statutes, §§ 4 and 6 of the 1870 Act were placed in Title 
70, Chapter Seven, entitled “Crimes Against the Elective Franchise 
and Civil Rights of Citizens.” Thus, § 4 of the 1870 statute became R.S. 
§ 5506, while § 6 became R.S. § 5508. See Revisor’s Notes to ch. 7 of 
Revised Statutes.

" The amount in controversy requirement was deleted in 1980. Pub. L. 
96-486, § 2 (a), 94 Stat 2349.

17



1875 federal question statute, and thus had to meet its 
amount-in-controvesy requirement. 405 U.S., at 546-547. 
The Lynch Court overruled these cases. The two statutes 
were independent, and the 1871 statute covered suits to 
redress deprivations of “any rights, privileges, or im­
munities secured by the Constitution,” including “property 
rights.” To hold otherwise, one would have to reason that, 
when it enacted the 1875 statute, Congress “intended to 
narrow the scope of a provision passed four years earlier as 
part of major civil rights legislation.” 405 U.S., at 548. The 
Court, citing the prohibition against repeals by implication, 
“refus[ed] to pare down § 1343(3) jurisdiction.” 405 U.S., at 
549.

Finally, the Court has generally refused to conclude that 
modern civil rights statutes have narrowed the scope of the 
Reconstruction era statutes. See, Great American Federal 
Savings & Loan Assn v. Novotny, 442 U.S. 366, 377, 99 
S.Ct. 2345, 2351, 60 L.Ed.2d 957 (1979), and Id., 442 U.S., at 
391 (White, J., dissenting). See also, Sanders v. Dobbs 
Houses, Inc., 431 F.2d 1097,1100 (5th Cir. 1971), and Waters 
v. Wisconsin Steel Works of International Harvestor Com­
pany, 427 F.2d 476, 484 (7th Cir. 1970), cert denied, 400 U.S. 
911 (1970).

These principles apply to our case. We cannot assume 
that the 42nd Congress made a silent decision to impose a 
“policy or custom” requirement onto Section 1981 when it 
enacted Section 1983. To conclude that Section 1983 
somehow amended Section 1981, we must have clear 
historical evidence. The historical evidence that does exist, 
however, points in the opposite direction.

3. Congress did not intend for Section 1983 
to amend Section 1981.

The Fifth Circuit concluded in our case that “Congress 
did not intend to impose different types of liability on a 
municipality based on the particular ‘federal’ wrong 
asserted.” Pet. App. 29A. However, even if that were so it 
would not justify a repeal by implication which, as we have 
seen, requires strong evidence of an affirmative intent to 
repeal. Even so, the Fifth Circuit’s reading of Congressional 
intent is probably wrong. There’s evidence that the rights

18

secured by the 1866 Act were viewed quite differently from 
the rights secured by the 1871 Act and that the two statutes 
were passed to meet different needs. And while the views 
involved may not have survived as viable legal theories, 
they do reveal the intent of those that held them. Cf. 
Monell, 436 U.S., at 676.

As the 1866 debates make clear, the Civil Rights Act of 
1866 was intended to secure certain specific rights to the 
newly freed slaves. Cong. Globe, 39th Cong., 1st Sess., 41 
(remarks of Rep. Sherman), 474-475 (Sen. Trumbull), 504 
(Sen. Howard). These rights were regarded as “fundamen­
tal” or “inalienable” or “natural”. Id., 474-475 (Sen. Trum­
bull), 1118-1119 (Rep. Wilson). The idea had been discussed 
by Justice Washington, on circuit, in Corfield v. Coryell, 4 
Wash. C.C. 371, 6 Fed. Cas. 546, 551-552 (1823), and Senator 
Trumbull read from that opinion on the Senate floor. Cong. 
Globe, 39th Cong., 1st Sess., 475. See, generally, United 
States v. Morris, 125 F. 322, 325-326 (E.D. Ark. 1903), and 
cases there cited. See also, Jones, 392 U.S., at 441, 465, 466.

Section 1 of the statute, as originally introduced, read as 
follows:

There shall be no discrimination in civil rights or 
immunities among the inhabitants of any State or 
Territory of the United States on account of race, 
color or previous condition of slavery; but the in­
habitants of every race and color, without regard 
to any previous condition of slavery or involun­
tary servitude, except as punishment for crime . . .  
shall have the same right to make and enforce con­
tracts, to sue, be parties, and give evidence, to in­
herit, purchase, lease, sell, hold, and convey real 
and personal property, and to the full and equal 
benefit of all laws and proceedings for the security 
of persons and property, and shall be subject to 
like punishment, pains, and penalties, and to none 
other, any law, statute, ordinance, regulation, or 
custom to the contrary notwithstanding.

Cong. Globe, 39th Cong., 1st sess., 211 (emphasis added). 
During the ensuing debate questions were raised concern­
ing the scope of the phrase “civil rights and immunities.” 
The Act’s proponents insisted that this language referred

19



to "fundamental rights.” Opponents, however, feared it 
might also encompass “political rights”, including the right 
to vote.

Thus, after Sen. Trumbull had equated “civil rights and 
immunities” with “fundamental rights”, Id., 474-475, the 
following exchange took place:

MR. McDOUGALL:. . .  Do I understand that it is 
not designed to involve the question of political 
rights?
MR. TRUMBULL: This bill has nothing to do with 
the political rights or status of parties. It is confin­
ed exclusively to their civil rights such as apper­
tain to every free man.

Id., 476. Opponents were not convinced by Senator Trum­
bull’s assurances, however. Senator Saulsbury drew the 
distinction between “rights which we derive from nature” 
and “rights which we derive from government.” Id., 477. He 
went on to note that “[t]he right to vote is not a natural 
right.” Id., 478. He then read the “civil rights and im­
munities” language and remarked that “the question is not 
what [Sen. Trumbull] means but what the courts will say the 
law means.” Id., 478. See also, Id., 1117, 1151.

Eventually there was a compromise. On the eve of final 
passage, the bill was amended to delete the reference to 
“civil rights or immunities”. Id., 1367-1368. See also, 
General Bldg. Contractors A ss’n v. Pennsylvania, 458 U.S. 
375, 388 n. 15, 102 S.Ct. 3141, 3149, 73 L.Ed.2d 835 (1982). 
This left § 1 as protecting a specific list of enumerated 
rights, which Congress viewed as “natural rights.”

Five years later, when Congress drafted § 1 of the Ku 
Klux Klan Act, it modeled it after § 2 of the 1866 Act,11 
which read as follows:

That any person who, under color of any law, 
statute, ordinance, regulation, or custom, shall 
subject or cause to be subjected, any inhabitant of 
any State or Territory to the deprivation of any 
right secured by this ac t . . .  shall be deemed guil­
ty of a misdemeanor . . .

" See Lynch, 405 U.S., at 545.

20

c. 114,14 Stat 27, § 2 (emphasis added). The “rights secured 
by this act” were obviously the "natural rights” 
enumerated in § 1. The 1871 Congress, however, deleted 
that language and substituted the phrase “any rights, 
privileges, or immunities secured by the Constitution.”

While there was controversy as to what these words 
meant, their meaning was ultimately decided, to quote 
Senator Saulsbury, by “what the Courts will say.” In the 
Slaughter-House Cases, 83 U.S. 36, 75-80, 16 Wall 1136, 21 
L.Ed. 394 (1872), the Court construed the Fourteenth 
Amendment’s “privileges and immunities” clause to include 
only those rights which arose or grew out of the citizen’s 
relationship with the national government. The Court ex­
pressly rejected the argument that “privileges and im­
munities” includes “natural rights,” 83 U.S. at 75-76, and 
this same construction was later given the “rights, 
privileges, and immunities” language of § 1983. See Hague 
v. C.I.O., 307 U.S. 496,511,59 S.Ct. 954,83 L.Ed. 1423 (1939), 
and 307 U.S., at 520 (Stone, J., concurring).

Thus, we can conclude that Congress did not intend, by 
enacting § 1 of the Ku Klux Klan Act, to secure the same 
rights secured by the 1866 Act. See, generally, District of 
Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 
613 (1973), and cases cited at our Petition, p.15.

C. The history and language of Section 1981 
show that Congress did not intend to include 
a “policy or custom” requirement in that 
statute.

To construe Section 1981, we must look to the history and 
language of that statute, not Section 1983. Unfortunately, 
the legislative debates are not helpful. Thus, we turn to the 
other guidepost in this difficult area, statutory language.

We know that the Monell Court relied exclusively on the 
language of Section 1983 to derive the “policy or custom” re­
quirement. See Part IA2 above. We also know that Section 
1983 was modeled after § 2 of the 1866 Act. See part IB3. 
This hints that § 2 of the 1866 Act might itself contain a 
“policy or custom” requirement. This possibility deserves 
examiniation, since Section 1981 originated in the preceding 
section (§ 1) of that same 1866 Act.

21



Again, we examine the specific language of § 2 of the 1866 
Act:

That any person who, under color of any law, 
statute, ordinance, regulation, or custom, shall 
subject or cause to be subjected, any inhabitant of 
any State or Territory to the deprivation of any 
right secured by this a c t. . .  shall be deemed guilty 
of a misdemeanor.

c. 114, 14 Stat 27, § 2 (emphasis added). Obviously, the em­
phasized language comprises the “crucial terms” from 
which the Monell Court inferred the “policy or custom” re­
quirement. See Part IA2 above. Yet, there is a vast dif­
ference between § 2 of the 1866 Act and the modern Section 
1983. The former was a criminal statute, the direct ancestor 
of the modern 18 U.S.C. § 242.12 Since the notion of criminal 
liability of a city was unknown at the time, it seems unlikely 
that the 39th Congress had any kind of “policy or custom” 
requirement in mind when it enacted § 2 of the 1866 Act.

If the Court agrees, then this part of the argument need 
not continue. Since the “policy or custom” requirement 
arises from the “crucial terms” of § 1983, and since Con­
gress could not have meant “policy or custom” at the only 
place where it used those “crucial terms” in the 1866 Act, 
then Congress could not have intended to impose a “policy 
or custom” requirement anywhere in that statute.

If, on the other hand, we assume that, by including the 
“crucial terms” in § 2 of the 1866 Act, Congress did intend 
to impose a “policy or custom" requirement on that section, 
it does not follow that such a requirement should be read in­
to § 1 as well. Indeed, it’s more plausible to conclude that 
Congress did not intend to impose such a requirement on § 
1, or on any other part of the 1866 Act, except for § 2.

The restrictive language of § 2 stands in sharp contrast to 
the rest of the 1866 Act. Neither the phrase “color of any 
law, statute, ordinance, regulation, or custom”, nor the 
words “subject or cause to be subjected”, are found in any 11

11 See Screws t>. United States, 325 U.S. 91. 98, 65 S.Ct. 1031, 89 L.Ed. 
1495,162 A.L.R. 1330 (1945); United States v. Williams, 341 U.S., at 83; 
and Classic, 313 U.S., at 327 n. 10.

22

of the other sections. And while the Court has not dealt with 
the absence of the phrase “subject or cause to be 
subjected,” it has on several occasions drawn meaning from 
the fact that the “color of law” language appears only in § 2. 
It is to these cases that we now turn.1*

Again our simplest example is found in Jones, 392 U.S. 
409, which construed Section 1982, a statute that also arose 
from § 1 of the 1866 Act. In deciding that § 1 of the 1866 Act 
reaches private conduct, the Court reasoned that, if § 1 had 
been intended to reach only governmental conduct, “then 
much of § 2 would have made no sense at all.” 392 U.S., at 
424. The Court illustrated its point by quoting § 2 verbatim 
and emphasizing the “color of law” language. 392 U.S., at 
424 n. 32. Since the “color of law” language was present in § 
2, but not in § 1, Congress must have intended for § 1 to 
reach more than conduct committed under “color of law”,
i.e., private conduct.

Congress also omitted the “color of law" and "subject or 
cause to be subjected” language from § 6 of the 1866 Act, 
which imposed criminal penalties on “any person who shall 
knowingly and willfully obstruct, hinder, or prevent” the ar­
rest of a person charged with violating the statute, c. 31,14 
Stat 28, § 6.

While we find no case construing § 6, both it and § 2 were 
carried forward to the 1870 Act.'* There § 17 (re-enacting § 
2 of the 1866 Act) contains the “color of law” and “subject or 
cause to be subjected” language, while § 11 (re-enacting § 6 
of the 1866 Act) still applies to "any person.” c. 114,16 Stat 
142, § 11,144 § 17. Moreover, the 1870 Act contains several 
new sections which, like § 11, also impose criminal penalties 
on “any person” or “persons.” These are §§ 4, 5, and 6, c. 
114, 16 Stat. 141, which became §§ 5506, 5507, and 5508 of 
the Revised Statutes.

11 Bearing in mind, of course, the ambiguous nature of the “color of law” 
language. See footnote 4 above.

14 This part of the argument is particularly important if the view of the 
Runyon dissent should prevail. Under that view § 1981 arose from § 16 
of the 1870 Act, and not § 1 of the 1866 Act. See Runyon, 427 U.S., at 
195-211 (White, J., dissenting).

23



Section 6 of the 1870 Act (R.S. § 5508) made it a crime if 
“two or more persons shall band or conspire together, or go 
in disguise upon the public highway, or upon the premises of 
another, with intent to violate any provision of this act, or to 
injure, oppress, threaten, or intimidate any citizen with in­
tent to prevent or hinder his free exercise and enjoyment of 
any right or privilege granted or secured to him by the Con­
stitution or laws of the United States.” This is the original 
version of the modern 18 U.S.C. § 241, United States v. 
Williams, 341 U.S. 70, at 83, 71 S.Ct. 581, 95 L.Ed. 758 
(1950), and it has long been settled that § 241 reaches 
private conduct. 341 U.S., at 75-76 (plurality), Id., at 93 
(Douglas, J., concurring).

Again this conclusion depends on the absence of the “col­
or of law" language from § 6. Since conspiracies under color 
of law are reached by § 17 of the 1870 statute (§ 2 of the 1866 
Act), it follows that “the principal purpose of § 6, unlike § 17, 
was to reach private action rather than officers of a State.” 
341 U.S. at 75-76 (plurality). See, generally, Griffin v. 
Breckenridge, 403 U.S. 88,104,91 S.Ct. 1790,29 L.Ed.2d 388 
(1971), and cases there cited.
_ Finally, we note §§ 4 and 5 of the 1870 Act (R.S. §§ 5506 & 
5507), which also apply to “any person.” These sections 
were passed to enforce the 15th Amendment, which pro­
vides that “[t]he right of Citizens of the United States to 
vote shall not be denied or abridged by the United States or 
by any state on account of race, color or previous condition 
of servitude.” (emphasis added)

In James v. Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 
979 (1903), the Court considered an indictment brought 
under § 5 of the 1870 statute (R.S. § 5507), which made it an 
offense for “any person” to “prevent, hinder, control, or in­
timidate, any person from exercising . . . the right of suf- 
ferage, to whom the right of sufferage is secured or 
guaranteed by the [15th Amendment].” c. 114, 16 Stat 141, 
§5.

The Court read the 15th Amendment as giving Con­
gress only the authority to legislate with regard to actions 
taken “by the United States or by any state,” a requirement 
analogous to the “state action” requirement of the

24

14th Amendment, 190 U.S., at 136-137. Since § 5 of the 1870 
Act (R.S. § 5507) did not confine itself to “state action” it 
was overbroad. Moreover, the Court refused to preserve its 
constitutionality by reading in a “state action” requirement. 
There were “no words of limitation, or reference, even, that 
can be construed as manifesting any intention to confine its 
provisions to the terms of the 15th Amendment.” 190 U.S., 
at 140, quoting United States v. Reese, 92 U.S. 214, 2 Otto 
214, 23 L.Ed. 563 (1875). Obviously, the missing “words of 
limitation” were to be found in the “color of law” language, 
then located in § 17 of the 1870 Act (§ 2 of the 1866 Act). The 
Court said it “must take these sections of the statute as 
they are,” 190 U.S., at 141, and it refused to “disregard . . .  
words that are in the section” and to “in se rt. . .  words that 
are not in the section.” “The language is plain,” the Court 
wrote. “There is no room for construction.” Id. See also, 
United States v. Reese, 92 U.S. 214, which struck down § 4 
of the 1870 Act (R.S. § 5506) on similar grounds.

We have seen in Part IA2 that the “policy or custom” re­
quirement stems from certain "crucial terms." These cases 
here show that, if Congress really meant to impose a “policy 
or custom” requirement by including these “crucial terms” 
in § 2 of the 1866 Act, then its decision not to include them in 
§ 1, or any other part of the 1866 Act, means that Congress 
intended that § 1 —hence Section 1981—would not contain a 
“policy or custom” requirement.

We also note that the literal reading given the sections in­
volved in these cases is consistent with the maxim that a 
Reconstruction era civil rights statute must be given “a 
sweep as broad as its language”, Jones, 392 U.S., at 437, 
quoting, United States v. Price, 393 U.S. 787, at 801, 86 S.Ct. 
1152,16 L.Ed.2d 267 (1960). To read the "crucial terms” into 
§ 1 of the 1866 Act, when they simply do not appear there,

25



would fly in the face of this established approach to the 
Reconstruction era statutes. Ultimately, to read a “policy or 
custom” requirement into Section 1981 would be “to seek in­
genious analytical instruments” to carve an exception from 
Section 1981 that simply was never intended. Jones, 392 
U.S., at 437, quoting Price, 383 U.S., at 801.
II. The familiar rule of respondeat superior offers the 

most suitable standard for § 1981 liability.
In Part I we demonstrated that Congress did not intend 

to impose a Monell style “policy or custom” requirement on 
Section 1981. Now we inquire as to what Congress did in­
tend.

A. Considerations of legislative intent re­
quire imposition of a respondeat 
superior standard.

Legislative intent can be drawn from Congress’ silence. 
This was the approach taken in the Section 1983 cases in­
volving immunities. There, although the statute was silent 
on the immunity issue, the Court inferred legislative intent 
from the fact that, in the year 1871, questions of legislative 
and judicial immunity were viewed as “settled principles.” 
Pierson v. Pay, 386 U.S. 547, 554, 87 S.Ct. 1213,18 L.Ed.2d 
288 (1967) (judicial immunity). The Court refused to believe 
that Congress "would impinge on a tradition so well ground­
ed in history and reason” without mentioning it in the 
language of the statute. Penny v. Brandhove, 341 U.S. 367, 
376, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) (legislative 
immunity).1* On the other hand, the Court found “no tradi­
tion” of qualified good faith immunity for municipal corpora­
tions and thus refused to impose it. Owen v. City of In­
dependence, 445 U.S. 622, 638, 100 S.Ct. 1398, 63 L.Ed.2d 
673 (^so).1*

“ See alto, Scheurer v. Rhodes, 416 U.S. 232, 243-245, 94 S.Ct. 1683, 40 
L.Ed. 90 (1974); Wood v. Strickland, 420 U.S. 308, 316-319,95 S.Ct. 992, 
43 L.Ed.2d 214 (1975); and Imbler v. Patchman, 424 U.S. 409,417-424,96 
S.Ct. 984, 47 L.Ed.2d 128 (1976).

" cf- CitV of Newport v. Fact Concerts,Inc., 453 U.S. 247,101 S.Ct. 2748, 
69 L.Ed. 616 (1981) (city immune from punitive damages).

26

This approach allows Section 1981 to be read in light of 
the “settled principles” of 1866 (or 1870 if the Runyon dis­
sent is correct). As it turns out, the prevailing notion of 
municipal liability in the middle of the 19th Century was the 
familiar rule of respondeat superior. This was 
demonstrated by the Tuttle dissent, 471 U.S., at 834-839 
(Stevens, J., dissenting)17, and this area has been ably ex­
plored in Part I B of the amicus curiae brief of the NAACP 
Legal Defense Fund in our case. Of course, Tuttle was a Sec­
tion 1983 case, and the dissent there could not overcome the 
language of the statute. Here matters are different.

B. 42 U.S.C. § 1988 also compels adoption 
of a respondeat superior standard

A second avenue of. inquiry acknowledges the fact that 
private causes of action under Sections 1981 and 1982 do not 
arise from the express language of those statutes. Rather in 
Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 
24 L.Ed.2d 386 (1969), the Court held that in “[t]he existence 
of a statutory right implies the existence of all necessary 
and appropriate remedies.” Id., at 239.1' The Sullivan Court 
went on to say that in fashioning a private remedy under 
Sections 1981 and 1982, “both federal and state rules on 
damages may be utilized, whichever better serves the 
policies expressed in the federal statutes.” 396 U.S., at 240. 
In support of its approach, the Court cited 42 U.S.C. § 1988, 
which directs the district courts to exercise their jurisdic-

" We incorrectly cited Praprotnik, 108 U.S. 937 (Stevens, J., dissenting), 
for this proposition in our Petition, p. 26.

“ See also, Jones v. Alfred H. Mayer Co., 392 U.S., at 414 & n.13, and 
Johnson v. Railway Express Agency, 421 U.S. 454, 459-460, 95 S.Ct. 
1716, 44 L.Ed.2d 295 (1975) (§ 1981). See, generally. Cannon v. Universi­
ty of Chicago, 441 U.S. 677,99 S.Ct. 1946,60 L.Ed.2d 560 (1979). One can 
also argue that Section 1981 and 1982 claims are expressly allowed by § 
3 of the 1866 Civil Rights Act, which provides that “the district courts 
of the United States shall have . . .  cognizance . . .  of all causes, civil and 
criminal, affecting persons who are denied. . .  any of the rights secured 
to them by the first section of this act.” c. 31,14 Stat 27. See Cannon, 
441 U.S., at 736 n. 7 (Powell, J., dissenting). For purposes of our argu­
ment, however, that approach leads to the same place as the argument 
based upon the implied cause of action, i.e., to 42 U.S.C. § 1988, the 
modern version of § 3 of the 1866 Act.

27



*
tion to enforce the civil rights law s.. .

. . .  in conformity with the laws of the United 
States, so far as such laws are suitable to carry the 
same into effect; but in all cases where they are 
not adapted to the object, or are deficient in the 
provisions necessary to furnish suitable remedies 
and punish offenses against the law, the common 
law, as modified and changed by the constitution 
and statutes of the State wherein the court having 
jurisdiction of such civil and criminal cause is held, 
so far as the same is not inconsistent with the Con­
stitution and laws of the United States, shall be 
extended to and govern the said courts in the trial 
and disposition of the cause . . .

After Sullivan, the Court applied Section 1988 to hold 
that questions of limitations under Section 1981 are to be 
governed by “appropriate” state law. Johnson v. Railway 
Express Agency, 421 U.S. 454,462,95 S.Ct. 1716,44 L.Ed.2d 
295 (1975). The Court cautioned, however, that “considera­
tions of state law may be displaced where their application 
would be inconsistent with the federal policy underlying the 
cause of action under consideration.” 421 U.S., at 465.

This was also the approach in Moor v. County of 
Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973), 
where the Court refused to allow a county to be held liable 
under Section 1983 for the constitutional torts of its sheriff. 
While state law expressly allowed counties to be held liable 
for the civil rights violations, this feature could not be incor­
porated into Section 1983, since the result would be “less 
than consistent” with Monroe v. Pape. 411 U.S., at 706. The 
Moor Court reasoned that, because of the Monroe decision, 
its case was “a wholly different case from those in which, 
lacking any clear expression of congressional will, we have 
been called upon to decide whether it is appropriate to look 
to state law or to fashion a single federal rule in order to fill 
the interstices of federal law.” Id., 411 U.S., at 701 n. 12.

Of course, in our case there is no “clear expression of Con­
gressional will”. As we showed in Part I, Monell’s “policy or 
custom” requirement is inapposite to Section 1981. Thus, 
the Court is perfectly free to look to state law or to fashion

28

“a single federal rule.”1*
Texas law leads us unhesitatingly to a rule of respondeat 

superior.10 Similarly, in adopting a single federal standard 
the Court must also defer to common law principles. Cf. 
Carey v. Piphus, 435 U.S. 247, 252-259, 98 S.Ct. 1042, 55 
L.Ed. 2d 252 (1978).

C. Policy arguments favor adoption of a 
respondeat superior standard.

Whatever course it takes, the Court will ultimately have 
to address the policy implications of its decision.

1. A rule of respondeat superior will fur­
ther the policies of eradicating racial 
discrimination, compensating for civil 
rights deprivations, and deterring 
abuses of power.

The policy behind Section 1981 is easily understood after 
reading Jones. The policies of compensation and deterrence 
are closely related, and have been explored at length in

“ Cf. Robertson v. Wegmann, 436 U.S. 584, 98 S.Ct. 1991, 56 L.Ed.2d 554 
(1978) (survivorship); Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 
L.Ed.2d 15 (1980) (survivorship); Occidental Life Ins. Co. v. E.E.O.C., 
432 U.S. 355,97 S.Ct. 2447, 53 L.Ed.2d 402 (1977) (limitations); Board of 
Regents v. Tomanio, 446 U.S. 478,100 S.Ct. 1790, 64 L.Ed.2d 440 (1980) 
(limitations); Burnett v. Grattan, 468 U.S. 42,104 S.Ct. 2924, 82 L.Ed.2d 
36 (1984) (limitations); Wilson v. Garcia, 471 U.S. 260,105 S.Ct. 1938, 85 
L.Ed.2d 254 (1985) (limitations); and Fielder v. Casey, 108 S.Ct. 2302, 
101 L.Ed.2d 123 (1988) (notice of claim).

” City of Galveston v. Posnainsky, 62 Tex. 118 (Tex. 1884); White v. City 
of San Antonio, 94 Tex. 313, 60 S.W. 426 (1901); City of Wichita Falls v. 
Lewis, 68 S.W.2d 388 (Tex. Civ. App. - Fort Worth 1934, writ dism’d); 
Schroggins v. City of Harlingen, 131 Tex. 237,112 S.W .2d 1035 (1938); 
City of Houston v. Quinones, 142 Tex. 282,177 S.W.2d 259 (1943); Bates 
v. City of Houston, 189 S.W.2d 17 (Tex. Civ. App. -Galveston 1945, writ 
refd w.o.m.); Dilley v. City of Houston, 148 Tex. 191, 222 S.W.2d 992 
(1949); City of Midland v. Hamlin, 239 S.W.2d 159 (Tex. Civ. App. - El 
Paso 1950, no writ); Crow v. City of San Antonio, 294 S.W .2d 899 (Tex. 
Civ. App. - San Antonio 1956, no writ); City of Orange v. LaCoste, Inc., 
210 F.2d 939 (5th Cir. 1954); Sarmiento v. City of Corpus Christi, 465 
S.W.2d 813 (Tex. Civ. App. - Corpus Christi 1971, no writ); Contrelli 
Trust v. City of McAllen, 465 S.W.2d 804 (Tex. 1971); City of Round 
Rock v. Smith, 687 S.W .2d 300 (Tex. 1985); City of Gladewater v. Pike, 
727 S.W.2d 514 (Tex. 1987).

29



>
cases arising under Section 1983, as well as Bivens style ac­
tions.*1

2. Respondeat superior provides a clear, 
easily applied legal standard.

Ten years after Monell, Section 1983 litigants are still 
confronted with a legal landscape whose contours are ‘in a 

state of evolving definition and uncertainty’.” Praprotnik, 
108 S.Ct., at 922 (plurality), quoting City of Newport v. Fact 
Concerts, Inc., 453 U.S. 247, 256, 101 S.Ct. 2748, 2754, 69 
L.Ed.2d 616 (1981). Of course, the Court had no choice in 
deciding Monell, since the language of § 1983 represents a 
clear expression of Congressional will.” Here, however, 

there is no such imperative. The Court is writing on a clean 
slate and, for over a century, respondeat superior has pro­
vided a simple, widely understood, easily applied rule of 
law.

3. The policies that favor restricting liability 
under Section 1983 do not apply to Section 
1981

In the century since the Slaughter-House Cases, the 
“rights, privileges, and immunities secured by the Constitu­
tion” have expanded tremendously. The Court has “widen­
ed the scope of Section 1983 by recognizing constitutional 
rights that were unheard of in 1871.” Praprotnik, 108 S.Ct., 
at 923.

The vague language of Section 1983 has provided no 
“logical stopping place”, and the Court has become alarmed 
that Section 1983 might become a “font of tort law” where 
“every legally cognizable injury which may have been in­
flicted by a state official acting under ‘color of law’ 
establish[es] a violation of the Fourteenth Amendment." 
Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 
(1976). See also, Parrott v. Taylor, 451 U.S. 527, 546-553,101 
S.Ct. 1908, 68 L.Ed.2d 420 (1981) (Powell, J. concurring).

“ See Monroe, 365 U.S., at 651-656; Bivens v. Six Unknown Fed. Nar­
cotics Agents, 403 U.S. 388, 397, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); 
Mitchum v. Foster, 407 U.S. 225,238-242,91 S.Ct. 2151,32 L.Ed^d 705 
(1972); Carey, 435 U.S., at 254-257; Robertson v. Wegmann, 436 U.S., at 
590-591; Butz v. Economou, 438 U.S. 478, 506,98 S.Ct. 2894, 57 L.Ed.2d 
895 (1978); Owen, 445 U.S. at 651-656; Carlson v. Green, 446 U.S. 18, 
Newport v. Fact Concerts, Inc., 453 U.S., at 269.

30

These concerns are not pertinent here. The specific, 
enumerated rights of Section 1981 stand in sharp contrast 
to the vague “rights, privileges, and immunities" secured 
by Section 1983. The language of Section 1981 does provide 
a “logical stopping place.”

4. Other alternatives
If, despite our arguments, the Court decides to draw the 

line somewhere short of respondeat superior, then see our 
Petition, p. 27, for another approach to the problem.
TIT, There was evidence from which the jury could con­

clude th a t  S u p e rin ten d en t W right was a 
“policymaker” with regard to transfers of coaches and 
athletic directors.

Once the references to Section 1981 are removed, the 
“Question Presented” by the Cross-Petitioner is easily 
answered. Pembaur v. City of Cincinnati, 106 S.Ct. 1292, 
1299, 89 L.Ed.2d 452 (1986), teaches that DISD would not be 
liable under Section 1983, unless Superintendent Wright 
was the official charged with making policy to govern 
transfers of coaches and athletic directors. If Wright were 
not a policymaker, as the Question Presented assumes, then 
obviously the district would not be liable.

Of course, this is exactly what the Court of Appeals said. 
The Fifth Circuit held that the jury instruction concerning 
municipal liability was deficient “because it did not state 
that the city could be bound by the principal or superinten­
dent only if he was a designated policymaking authority.” 
Pet. App. 21A. The discussion that follows** concludes that 
“Wright’s final exclusive authority to make discrete in­
dividual transfer decisions would not alone subject the 
DISD to responsibility . . .  unless he also had final authority 
with respect to general DISD transfer policy..." Pet. App. 
23A (emphasis in original).

The correct question, obviously, is whether Wright was 
the official charged with making policy to govern such 
transfers. The Court in City of St. Louis v. Praprotnik, 108
S.Ct. 915, 924-925 (1988), said that this is a question of state 
law, but Texas law can only take us so far.

”  The following line was omitted from the beginning of the text at Pet.
App. 22A: “...sole and unreviewable authority to reassign teachers in..."

31



Uiiiier Texas law a school district’s board of trustees has 
the exclusive power to manage and govern the free public 

schools of the d trict .” Tex. Educ. Code section 23 26(b) 
(Vernon s 1987). At the time our suit was filed, however, 
there wm no Texas statute dealing with the powers and 
duties of the superintendent. Linus Wright testified that, as 
superintendent, he was the chief executive officer of the

^ C°Untab!f on.ly t0 the scho<>1 itself. Tr.
1-382. This accords with a subsequently adopted statute 

demgnating the superintendent as “the educational leader 
and the administrative manager of the school district.” Tex 
Educ. Code section 13.351 (a) (Vernon’s Supp. 1989)

Section 23.26(d) of the Education Code authorizes the 
trustees to adopt such rules, regulations, and by-laws as 
they may deem proper” and this, along with 23.36(b) quoted 
above, authorizes the board to delegate its powers. See Cor­
pus Cnnsti Independent School DisL v. PadiUa. 709 S W 2H 
700 707 [syL 16] (Tex. App. - Corpus Christi ̂ 8 6  no S  

While our record does not show that the DISD board ex­
pressly gave Wright authority to make policy with regard 
to transfers of coaches and athletic directors, it does allow 
such an inference. While the Board approved policies to deal 
with transfers of teachers, it promulgated none to deal with 
transfers of coaches and athletic directors. Jt. App. 65-67 
Wright described such transfers as a “gray area” where

App^O W6re l6ft UP t0 hhn aDd hiS subordinates- Jt.
Moreover, unlike any of the cases which the Court has 

heard, Wright actually promulgated policies to deal with 
coach/athletic director transfers, Jt. App. 68, 70, some of
I S S S T / S t *  DatUre> Tr- 40JM05' Praprotnik, 1U8 S.Ct., at 933 (Brennan, J., concurring). Finally, unlike
Praprotnik, Wright was actually the final decisionmaker, 
rhere was absolutely no recourse from his decision to 

APP-65 69-70. C/„ Praprotnik. 108 S.Ct.. 
t 926 [syl. 8, 9] (plurality). And, of course, he was the chief 

executive officer of the school district.
Frankly, it s difficult to imagine how much stronger the 

evidence could be, save for an actual board resolution ex­
pressly delegating policymaking power to Wright. That the 
evidence on this point is not fully developed should come

as no surprise. The case was tried in October of 1984, before 
Pembaur. (and before Tuttle). If Je tt must make further 
proof that Wright was a “policymaker”, then he should have 
that opportunity when this part of the case is retried.

CONCLUSION
The Court should affirm Petitioner’s Section 1981 

recovery against Respondent. The Section 1983 portion of 
the case should be remanded for retrial with appropriate in­
structions, as was done in Tuttle, 471 U.S., at 824, an'* 
Praprotnik, 108 S.Ct., at 928.

Respectfully submitted,

FRANK GILSTRAP 
FRANK HILL 
SHANE GOETZ 
Hill, Heard, Oneal,

Gilstrap & Goetz 
1400 West Abram 
Arlington, Texas 76013 
(817) 261-2222

33