Jett v. Dallas Independent School District Brief of the Respondent
Public Court Documents
January 1, 1988
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Brief Collection, LDF Court Filings. Jett v. Dallas Independent School District Brief of the Respondent, 1988. 7ca518fc-b59a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/81a6812f-c684-4984-85ff-20f08dbe6022/jett-v-dallas-independent-school-district-brief-of-the-respondent. Accessed April 29, 2025.
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IN D E X
PAGE
Opinions Below................................................................. i
Jurisdiction......................................................................... 2
Question Presented........................................................... 2
Constitutional Provision Involved................................... 3
Statutory Provisions Involved.......................................... 3
Statement of the Case........................................................ 4
Legislative Background...................................................... 9
Introduction to Argument and to Summary of Argument 13
Summary of Argument...................................................... 14
Argument............................................................................. 16
I. This Court’s Decision in City o f Si. Louis v.
Praprotnik Governs the Case............................. 16
A. Scope of Review............................................ 16
B. Implied A ctions............................................ 21
C. Respondeat Superior..................................... 33
II. Respondeat Superior is Not a Legally Valid
Basis for Imposing Liability on the Dallas Inde
pendent School District Under 42 U.S.C. § 1981 37
Conclusion 48
n
TABLE OF AUTHORITIES
Cases:
PAGE
Bivens v. Six Unknown Fed. Narcotics Agents 403 U S
388 (1971)......................................................; .........]9
Brown v. Government Services Administration, 425 U.S.
820 <1976) ................................................................. ...17 , 18
Burks v. Lasker, 441 U.S. 471 (1979)............................. 18
Cannon v. University o f Chicago, 441 U.S. 677
(1978)......................................................................18, 19, 32
Carpenter v. City o f Fort Wayne, Ind., 637 F. Supp. 889
(N.D. Ind. 1986)................................................ 19
Chapman v. Houston Welfare Rights Organization 441
U.S. 600 (1979)..................................................... ’. 18> I9> 20
City o f Greenwood v. Peacock, 384 U.S. 808 (1966) . . . 19
City o f Oklahoma City v. Tuttle, 471 U.S. 808 (1985) .passim
City o f St. Louis v. Praprotnik, ____ U.S ____ 108
S.Ct. 915, 99 L.Ed.2d 107 (1988)....................... ’ . . .passim
Civil Rights Cases, 109 U.S. 3 (1883).......................33, 43, 46
Corpus Christi Independent School District v. Padilla,
709 S.W.2d 700 (Tex. App.—Corpus Christi 1986, no
w r it ) ....................................................................................................................... 6
Cort v. Ash, 422 U.S. 66 (1975).........................22, 23, 31, 32
Daniels v. Williams, 414 U.S. 327 (1986)....................... 18
Dean v. Gladney, 621 F.2d 1331 (5th Cir. 1980)............ 19
District o f Columbia v. Carter, 409 U.S. 418
(1973) ........................................................................ 19, 21, 22
in
Franchise Tax Bd. o f Calif, v. United States Postal Ser
vice, 467 U.S. 512 (1984).............................................. 19
General Building Contractors Association v. Pennsylva
nia, 458 U.S. 375 (1982).......................................... 35, 40, 41
Georgia v. Rachel, 384 U.S. 780 (1966)........................... 40
Givhan v. Western Line Consolid. Sch. Dist., 439 U.S.
410 (1979)....................................................................... 35
Great American Federal Savings & Loan Assn. v.
Novotny, 442 U.S. 366 (1979).......................................18> 33
Griffin v. Breckenridge, 403 U.S. 88 (1971)................... 35
Hinojosa v. State, 648 S.W.2d 380 (Tex.App.—Austin
1983)................................................................................. 7
Hurd v. Hodge, 334 U.S. 24 (1948).................................23, 41
In re Turner, 24 Fed. Cas. 337 (No. 14,247) (C.C.D. Md.
1867)................................................................................. 29
Insurance Group Committee v. D. & R.G. W. R. Co., 329
U.S. 607 1947) ............................................................... 5
Jett v. Dallas Independent School District, 798 F.2d 748
(5th Cir. 1986), on motion for rehearing, 837 F.2d
1244 (5th Cir. 1988)........................................................38, 44
Johnson v. Railway Express Agency, 421 U.S. 454 (1975) 17
Jones v. Alfred H. Mayer Co., 392 U.S. 409
1968).........................................................................17, 26, 33
Leonard v. City o f Frankfort Electric and Water Plant
Board, 752 F.2d 189 (6th Cir. 1985)............................ 38
Mahone v. Waddle, 564 F.2d 1018 (3rd Cir. 1977), cert,
denied, 438 U.S. 904 (1978)..........................................P^sim
PAGE
]V
. , . PAGE
Maine v. Thiboutot, 448 U.S. 1 (1980)................. lg
Martinez v. California, 444 U.S. 277 (1980)............. 35
Departmenl ° f Social Services, 436 U.S. 658
............................................................passim
Monroe v. Pape, 365 U.S. 167 (1961)................. , 9 28 34 39
“ s s : . r “ * ’ 3S
NaR a U r L T p 0ad PaSSenger Corp- v- C lo n a l Assn, o f Railroad Passengers, 414 U.S. 453 (T9741......... ................... passim
P‘ApS°25V' m T )4™ N a 87-107 <0 rd« of
f t m W v. G /f o f Cincinnati,475 U.S. 469 (1986)..
PT s “T , m n Sc,'° ° ' 4 H°spi‘° ' « i
..................................................................... 18
Piper v. Chns-Craft Industries, 430 U.S. 1 (1977) 32
Preiser v. Rodriguez, 411 U.S. 475 (1973).....................32 33
Professional Association o f College Educators v. El Paso
Community (College) District, 678 S.W.2d 94 (Tex
App.—El Paso 1984, writ ref’d n .r .e .) ............. 6
Runyon v- McCrary, 427 U.S. 160 (1976).....................passim
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) 32
Protection Corp. v. Barbour, 421
Springer v. Seamen, 821 F.2d 871 (1st Cir. 1987).......... 38
Strauder v. West Virginia, 100 U.S. 303 (1879)............. 18, 41
Switchmen v. National Mediation Board, 320 U S 297
(1943)
33
v
Texas & Pacific R.R. Co. v. Rigsby, 241 U.S. 33 (1916) 23
Tillman v. Wheaton-Haven Recreation Assn., 410 U.S.
431 (1973)....................................................................... 17
United States v. Rhodes, 27 Fed. Cas. 785 (No. 16,151)
(C.C.D. Ky. 1866).......................................................... 29
United States v. Smelting Co., 339 U.S. 186 (1950)___ 5
Virginia v. Rives, 100 U.S. 313 (1879)............................. 43
Washington v. Davis, 426 U.S. 229 (1976)..................... 35
Williams v. Bennett, 689 F.2d 1370 (11th Cir. 1982), cert,
denied, 464 U.S. 932 (1983)............................................ 19
Zwickler v. Koota, 389 U.S. 241 (1967)........................... 22
Constitutional Provisions:
U.S. Const, amend. XIII................................................. passim
U.S. Const, amend. XIV................................................. passim
Texas Const. Art. 1, § 27....................................................... 6
Statutes:
13 Stat. 774 (1865)............................................................ 10
18 U.S.C. § 241 ............................................................... 27
18 U.S.C. § 242 ............................................................... 27
28 U.S.C. § 1254(1).......................................................... 2
42 U.S.C. § 1981.............................................................. passim
42 U.S.C. § 1983.............................................................. passim
Act of June 27, 1866, 14 Stat. 7 4 .................................. passim
Act of May 4, 1870, ch. 72, 16 Stat. 9 6 .......................... 13
Civil Rights Act of 1866, ch. 31, 14 Stat. 27.............passim
Civil Rights Act of 1871, ch. 22, 17 Stat. 13.............passim
PAGE
VI
Enforcement Act of 1870, ch. 114, 16 Stat. 140........... passim
Revised Statutes of 1874......................... 33
Tex. Educ. Code § 13.351..................................... 3?
Tex. Educ. Code § 23.01 .................................... 7 36
Tex. Educ. Code § 23.26 .................................... 7 3?
Tex. Rev. Code Anno. art. 5154c, sec. 6......................... 6
Articles:
PAGE
A 'm ninS/ ,n s ? Civil Ri&hts A « o f 1866, The Civil Rights
Rill o f 1966, and the Right to buy Property, 40 S. Cal
I {1 c\cn\L. Rev. 274 (1967).............................. 43
Bickd, The Original Understanding and The Segregation
Decision, 69 Harv. L. Rev. 1 (1955)....................... 10 jj
Comment, Implied Private Rights o f Action: The Courts
Search fo r Limitations in a Confused Area o f the Law
13 Cumb. L. Rev. 569 (1983).............................. ’ 23
Delaware Law School, The Reconstruction Amendment
Debates, (A. Avins, editor 2nd ed. 1974)................... jg 27
The Adoption o f the Fourteenth Amendment
( l y 08 ) ............................................................................... ^
J (1956)S' T>W Framing the Fourleenth Amendment
J. James, The Ratification o f the Fourteenth Amend
ment (1984)..........................................
B. Kendrick, The Journal o f the Joint Committee o f Fif
teen on Reconstruction, 39th Congress, 1865-1867
(1914)............................................................................ j j
Vll
Matasar, Personal Immunities Under Section 1983: The
PAGE
Limits o f the Court’s Historical Analysis, 40 Ark. L.
Rev. 741 (1987)............................................................... 43
E. McPherson, The Political History o f the United States
o f America During the Period o f Reconstruction
(1871)............................................................................... 27
Private Causes o f Actions from Federal Statutes: A Strict
Standard for Implication by Sole Reliance on Legisla
tive Intent, 14 U. Rich. L. Rev. 605 (1980)............... 23, 32
K. Stampp, The Era o f Reconstruction, 1865-1877 (1965) 41
2A Sutherland, Statutes and Statutory Construction (J.
Singer 4th ed. 1984)........................................................ 43
J. TenBroek, Equal Under the Law (1958)..................... 43
Walter, The Ku Klux Klan Act and the State Action
Requirement o f the Fourteenth Amendment, 58 Temp.
L. Q. 3 (1985)................................................................ 12
Miscellaneous:
Journal of the Joint Committee on Reconstruction,
reprinted as S. Doc. No. 711, 63rd Cong., 3rd Sess.
(1915)............................................................................... 11
Report of Maj. Gen. Carl Schurz on the Condition of the
South (December 19, 1865), S. Exec. Doc. No. 2, 39th
Cong., 1st Sess. (1865).................................................. 9
Report of the Joint Committee on Reconstruction XIV,
H.R. Rep. 30, 39th Cong., 1st Sess. (1866)............... 11
1 Revision of the United States Statutes as Drafted by the
Commissioners Appointed for that Purpose, Title
XIV, Ch. 7 (1872)......................................................... 29
VU1
S. B. 61, 39th Cong., 1st Sess. (1866), reprinted in Cong.
Globe, 39th Cong., 1st Sess. (1866).............................10, 18
S. B. 715, 41st Cong., 2nd Sess. (1871)........................... 27
S. Exec. Doc. No. 6, 39th Cong., 2nd Sess.....................26, 27
S. Rep. 1, 42nd Cong., 1st Sess. (1871) (Report of the
Select Committee to Investigate the Alleged Outrages
in the South).................................................... 9
S. Rep. 41, 42nd Cong., 2nd Sess. (1872) (Report on
Conditions in the South).......................................... 9
H.R. 320, 42nd Cong., 1st Sess. (1871)...........................12, 13
H R- ReP- No. 37, 41st Cong., 3rd Sess. (1871) (Report
on Protection of Loyal and Peaceable Citizens in the
South)...................................................... 9
Cong. Globe, 39th Cong., 1st Sess. (1866)..................... passim
Cong. Globe, 41st Cong., 2nd Sess. (1870)............. 12, 27, 41
Cong. Globe, 42nd Cong., 1st Sess. (1871)................... passim
PAGE I n t h e
jsuxprnnE ( ta r t of tljE UnitEft ^tatEfi
O c t o b e r T e r m , 1988
No. 87-2084
No. 88-214
N o r m a n J e t t , Petitioner,
—v.—
D a l l a s In d e p e n d e n t S c h o o l D is t r ic t ,
Respondent.
D a l l a s In d e p e n d e n t S c h o o l D is t r ic t ,
Cross-Petitioner,
N o r m a n J e t t ,
Cross-Respondent.
ON writ of certiorari to the united states
COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF OF THE RESPONDENT*
Opinions Below
The opinion of the Fifth Circuit is reported at 798 F.2d 748,
while the opinion on Suggestion for Rehearing En Banc is
Dallas Independent School District is the Petitioner in Cause No. 88-
214- however, for ease of identification, and with the agreement of
counsel and the consent of the Clerk, it will be styled the “ Respon
dent” throughout these proceedings.
2
eponed at 837 F 2d ,244. The original „pinion is set fonh ta
for w T o ”f Cer'rio / !ndependent Scho»' District’s Petition
a. P ^ A ^ a ". and',! “ a“ ached “ the primedopinion on the Suggestion for Rehear
rng » -produced a, pp. 33A-44A. The opS on oHhe M stri«
set f l ^ n0‘ T ned' The Memorand™ Opinion and Order is
S“ ' °n h . f ‘he APPandk at pp. 4Sa.63a. The Amended
Reformed Judgment appears at pp. 64a-65a.
Jurisdiction
F e b m a T f ^ a ' RftJ. Ci' CUiI C° “rt of Appea]s issued °nebruary 5. 1988. Appendix at 66a-67a. Norman Jett filed a
petition for wnt of certiorari on June 21, 1988 which was
s^m H h ° \ NOVember 1988, Umited t0 the first Question pre-
Distnct med' r 1111011' Rf p0ndent Dallas Independent School istnct filed its petition for certiorari on July 21, 1988 and it
non T 8ramed.°n November 7, 1988. This Court has jurisdic
tion to review the judgment of the United States Court of
U s“c ' § 1254<,)lflh CirCUit bV Wril ° f “ rti0rari P“rsuant 10 28
Questions Presented
T ,VHCarious'y 'iab,eunder
policymaking employee. ’ * ‘ actIons of a non‘
lQ m a n d 'f rg R n 111.0 ^ 1111 by n0t dismissing tbe section 1983 (and § 1981) claims against Dallas Independent School
District since they were predicated solely upon the doctrine of
respondeat superior.
References in this brief to the Appendix attached to the petition for
certiorari filed by Petitioner Jett will hereafter be cited as » " , »
References to the Appendix attached to Respondent’s petition for cer-
uoran will be cited as “--------a” and references to the separate Joint
Appendix wi be designated as “-------- A .” References to the Trial
Transcript will be designated as “_____ T ”
3
Constitutional Provision Involved
United States Constitution, Amendment 13, Section 1:
Neither slavery nor involuntary servitude, except as a punish
ment for crime whereof the party shall have been duly con
victed, shall exist within the United States, or any place subject
to their jurisdiction.
Statutory Provisions Involved
1. Title 42, United States Code § 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 white persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains, pen
alties, taxes, licenses, and exactions of every kind, and to no
other.
2. Title 42, United States Code § 1983:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected,
any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privi
leges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in
equity, or other proper proceeding for redress. For purposes
of this section, any Act of Congress applicable exclusively to
the District of Columbia shall be considered to be a statute
of the District of Columbia.
Other statutory provisions, and acts of Congress, which are
substantially involved in this case are noted in the brief of the
petitioner at p. 2 and are reproduced in the Joint Appendix.
4
Statement of the Case
Frederick Todd, a black, was assigned as principal of South
Oak Cliff High School in 1975. When he arrived at South Oak
Cliff, petitioner Norman Jett, plaintiff below,1 a white male,
was already assigned there. In 1983, believing that it was best
for his school, Todd requested and received permission from
Linus Wright, then General Superintendent of Schools of Dal
las Independent School District (hereinafter also called
DISD”), to reassign plaintiff. The assignment was effective
April 4, 1983.
Plaintiff was employed by the Dallas Independent School
District as a teacher2 in 1957. In 1962, he was assigned to SOC
as a teacher and an assistant coach and later, in 1970, he was
assigned to be the head football coach and athletic director. He
remained in the position of teacher/head football coach at SOC
until April, 1983, when he was reassigned, first to security,
then, as a teacher and assistant coach and transferred to
another school within the district. Rather than accept his reas
signment, Jett resigned from his employment with the school
district.3
1 Hereinafter the parties will be referred to according to their designa
tion in the trial court.
2 Although petitioner Jett was ultimately assigned as an athletic direc
tor and coach at South Oak Cliff High School (hereinafter called
“SOC”), he was originally hired, and remained employed throughout
his career at Dallas Independent School District, under a “TEACHER
CONTRACT.” Plaintiff’s Response to Defendants’ Request for
Admissions, Requests Nos. 1-5, 7. The plaintiff’s Teacher Contract is
reproduced in the Appendix at 19A-21A. DISD does not use any other
employment contract with its non-administrative professionals other
than the “ teacher contract.” Jett was administratively assigned to his
position at SOC pursuant to paragraph 3 of his contract. See Testi
mony of Frederick Todd, 53T-54T.
3 Jett claimed that he was constructively discharged from his position
with the DISD; however, the Fifth Circuit rejected this allegation “as a
matter of law.” Appendix at 11a. This finding is now the law of
5
Suspecting that his school principal’s request to have the
General Superintendent reassign him was, in part, racially mo -
vated, Jett brought suit against Todd and the Dallas Indepen
dent School District4 claiming reverse discrimination under
U S C § 19815 and a denial of First Amendment rights pursu
ant to § 1983.6 He did not sue Dallas Independent School Dis
trict’s General Superintendent of Schools, Linus Wright who is
whie Th° reverse racial drserimination claim .ha. is before Urn
Court derives from para6raph VI of .he First AmendedI Corn-
plaint and is based upon Section Sixteen of the Enforceme
Act of 1870, ch. 114, 16 Stat. 140.
The results of the litigation are detailed in the initial opinion
of the Fifth Circuit. Appendix at 5a. On appeal, the Urn e
States Court of Appeals for the Fifth Circuit rejected plamUff «
claim that he had been deprived of a property interest in his
assignment as a coach and athletic director. It set aside the jury
finding that plaintiff had been constructively ducharged and
left intact a finding that Todd’s recommendation that Jett be
reassigned was racially motivated and in retaliation for free
speech. Feeling that the jury findings were uncle^
whether the General Superintendent was a tte
court remanded for a new trial, on a respondeat superior the
the case. See United S'a'es v. Smelting Co , B 9 U.S^ '98 (.950);
Insurance Croup Committee v. D. & R.C.W. R. Co.,
612 (1947).
4 The individual members of the Dallas Independent School District
Board of Trustees are nominal parties since Jett sued them only in their
official capacities.
5 As will be discussed in the body of this brief, plaintiff’s § 1981 claim
. " S * . f L Amendmen. claim, brough, imo federal court . . .
§ 1983.
S stA sssssssS tSon DISD’S challenge ,o .he Fit.h O rem 's failure »
speech alleg.iions ag.ihs. .. for failure » stare a clarm. See Cross
Petition for Writ of Certiorari, Question 1.
6
siressst: far -•••■ «
Superintendent'lZ s W g Z 'f deckion To reaTigT p t S
J S T * “ “ - i - Per«, any v io la .Z bT C d oT
law Md B™WH°r r h°01 b°ard P°lky Was Subject- P ^ u a n t to
Trust pollcy' t0 further examination by the Board of
t Z I I s t h ^ W JZ COUld have Claimed the Board of at Wright or Todd had violated DISD’s anti
* Z T d Z lS D 'T liCi' f ° r “T ‘T 0eMraI Superintendent had violated D SD s transfer policy.1 Defendant's policies only ore-
vent appellate type review of a transfer when the decision does
long a s ^ G e '0115? ^ 101131, StatUt0ry or policy violations. As ng the General Superintendent does not violate policy or
7 secTT SrnC p S r Uti0n *’ § 21' Tex' Rev' Code Anno. art. 5154c
c. 6. In Professional Association o f College Educators v El Paso
Community (College) District, 678 S.W 2d 94 fTex Ann p i d
1984, writ ref’d n r e ) (“ PACF"\ ,u ' ex APP— El Paso
tution Art I S v t • ..C5 h C0Urt ruled that Texas Consti-uon An. 1, § 27 requ.res “ those trusted with the powers of govern
U - being g o v e ^ . 2
r ™ So W'n “ ''> 27 r°ias Conslilu-
S S l ° Z 2 . ‘ms w ill
no writ! As , k. °° (T“ ’ APP— 1Corpus Christ! 1986,
PACE ^ constitutional right to grieve, Padilla found that the
PACE decision was sound,*' 709 S. W.2d at 704, and adopted it The
where w m ? "" “° Pen f° m m ” before a school boardhere persons have the opportunity to freely express their views is the
n L " * * ? 10 “« Te>“ constitutional ,tq„,remcn, ,
T o , , 1 " b> ■!« Te<aS Constitution ,orespond to the presentation.
8 Botri n i V 01 filC a„8rievanee over the transfer or appear before the
Board of Trustees alleging any violation of law or policy.
7
law, he is free to assign and reassign for any reason, or for no
reason.9
Second, although the plaintiff and amicus National Educa
tion Association try to claim that General Superintendent
Wright was or could be a policymaker, he has never been, and
under state law cannot be, delegated authority to make policy.
Tex. Educ. Code §§ 23.01, 23.26(b), 23.26(d). See, e.g., Hino
josa v. State, 648 S.W.2d 380, 386 (Tex.App.—Austin 1983).
Dallas Independent School District’s Board of Trustees has
established several policies regarding transfers and reassign-
ments by which the General Superintendent was bound. More 9 10 11 * *
9 Board of Trustees Policy DK-R (Local) provides that on review of
an involuntary transfer, the General Superintendent shall “ issue a deci
sion that shall be final and binding.” Paragraph 6, Page 5 of 6, Plain
tiff’s Exhibit 9. This “ finality” regulation applies only to an appeal of
an involuntary transfer and not a formal grievance. Policy DK-R
(Local) states that the appeal procedure “ shall not be deemed a formm
grievance.” Id. It is for this reason that Mr. Wright testified at trial
that there is no appeal to his decision “ [a]s far as assignment . . . .
405T; see also 423T.
10 Plaintiff alleged in his First Amended Complaint that “Defendant
BOARD OF TRUSTEES of the DALLAS INDEPENDENT SCHOOL
DISTRICT by virtue of the statutes of the State of Texas, is given and
charged with the responsibility for the possession, care, control, and
management of the affairs of defendant DALLAS INDEPENDENT
SCHOOL DISTRICT . . . .” Paragraph IID at 7A. We agree with
this admission. See. e.g.. Defendants’ First Amended Answer, para-
graph IID at 24A.
11 General Superintendent Wright, in response to questions asked by
plaintiff’s counsel, testified that the transfer policy applied to all pro
fessional employees except “Administrators,” and that Jeu, aUhough
his school’s athletic director, was not an Administrator. 67A (395 -
396T). Mr. John Santillo. who was at the time the Assistant Superin
tendent of Personnel, expressed his belief that the Board of Trustees
transfer policy did apply to the Jett a s s i g n m e n t 1 W r l g b ^ aS
bound by those policies and, assuming, arguendo, that he failed to fo
low them, would have been at fault. However, the fact that he might
not have followed the policies which were created by the true policy
making body of the District, the Board of Trustees, does not make him
8
importantly, the Board of Trustees had established policies for
bidding racial discrimination or retaliation for labor or First
Amendment activities.12 See, e.g., Board of Trustees Policy
DAA .Plaintiff's Trial Exhibit 3.13 The General Superinten
dent s final authority to make discrete individual transfer deci
sions would not subject the DISD to responsibility for his
actions. Quite simply, Wright was not and could not be a
policymaker.
a policymaker. Rather, the opposite is true. See Pembaur v City o f
Cincinnati, 475 U.S. 469, 482-83, 483n.l2 (1986) (hereinafter cited as
Pembaur)-, City o f Oklahoma City v. Tuttle, 471 U.S. 808, 823 (1985)
(“At the very least there must be an affirmative link between the policy
and the particular constitutional violation alleged”).
12 The General Superintendent testified that it is inconsistent with the
policy of the DISD to use as a reason for demotion or transfer the pub
ic speech or remarks made by one of its employees. 449T-450T. This
testimony was uncontroverted. Accordingly, as to the First Amend
ment claim, the appellate court should have rendered judgment in
favor of defendant, Dallas Independent School District City o f St
n Z i \ PraPT ik--------- U’S' ----------108 S C t ’ 915> 99 * L.Ed.2d 107(1988). Even if a First Amendment violation occurred when the Gen
eral Superintendent made the transfer decision, it would have been in
violation of defendant’s policy, and not in accordance with it.
13 Hereinafter citations to Trial Exhibits will be to the party and
exhibit number only. Plaintiff's Exhibits 9-15 are other policies, estab
lished by the Board of Trustees, which control the discretion of the
General Superintendent.
14 Having concluded that the jury findings were deficient and could not
support the award of damages against the DISD under section 1983,
the Fifth Circuit remanded the case for retrial, holding that DISD
might be liable if General Superintendent Wright acted with discrimi
natory intent or intent to retaliate for the exercise of free speech activi
ties. In light of Praprotnik, the Fifth Circuit’s decision is error. The
court should have applied state law to the case and dismissed the
claims brought pursuant to 42 U.S.C. § 1983. Because this is so
straightforward, and since state law is so clear on the subject of who is
a school district’s policymaker, see supra at notes 9, 10, 11 and 12;
infra at note 36, we will not dwell upon the issue further. Regardless of
whether the Court affirms the section 1981 portion of the Fifth Cir-
(Footnote IS appears on following page)
9
Legislative Background
In mid-December, 1865, the “ Schurz Report,” Report of
Maj. Gen. Carl Schurz on the Condition of the South (Decem
ber 19, 1865), was presented to Congress. The report cautioned
that in spite of the abolition of slavery, the establishment by
the southern states of ‘‘black codes,” offshoots of the antebel
lum slave codes, were preventing blacks from taking their right
ful place within society. S. Exec. Doc. No. 2, 39th Cong., 1st
Sess. (1865).
With the Schurz Report and others like it16 as an impetus,
Congress tried to end the anarchy existing at the end of the Civil
War, caused, as the Radical Republicans viewed it, by the
Southern States’ intransigence, by passing legislation aimed at
defining and protecting the rights of the former slaves, aad for‘
mulating the relationship of the confederate states to the federal
government. These early Civil Rights Laws have become the
mechanism for today’s civil rights litigation. One of the first ol
the early civil rights laws, passed in the same legislative session,
the 39th, that saw the Fourteenth Amendment sent to the states
cult’s holdings, it should rule that the § 1983 claims must be dismissed.
Likewise, if the Court affirms the ruling that respondeat superior may
not be utilized to impose § 1981 liability upon DISD, as it should, it
should apply Praprotnik and order the entire case dismissed.
15 While the case was pending before the Fifth Circuit, defendanl T °dd
settled with plaintiff. The settlement papers stale that ^ e"ckJ ° d
is to be released from the lawsuit, with prejudice, and [d]efendant
Todd continues to deny all liability.” Release Restricted as to Fred
erick Todd and the Alleged Insurance Carrier Colony Instance Com
pany, 2. The Fifth Circuit’s and the District Court s Orders of
Dismissal appear in the Appendix to the petition for certiorari at 82a ̂
85a as “G” and “ H ,” respectively. Consequently, we take issue with
the claim that “Todd’s liability under all three [above-referenced legal]
theories has been established.” Brief of the Petitioner at 6.
16 See e g S. Rep. 41, 42nd Cong., 2nd Sess. (1872) (Report on Con-
difions in the Late Insurrectionary States); S. Rep. 1. 42nd Cong 1st
Sess (1871) (Report of the Select Committee to Investigate the A ege
Outrages in the South); H.R. Rep. No. 3 7 .41st Cong.. 3rd Ses, (1 7 )
(Report on Protection of Loyal and Peaceable Citizens in the South).
tfh0e n ‘S f ’ W3S entiUed “An Act t0 P«>tect all persons in
th!irU ^ StateS„in the,r civiJ and furnish the means of
in C A?K0n; ' S' 61, 39th C ong’ lst Sess' (1866). reprinted
du^ednfn ?h ^ ’ C° ng” 1St SeSS< (1866)‘ The M1 was intro- duced in the Senate on January 5, 1866.17 Cong. Globe, 39th
“ Globe )1 inTh (1866[ (berein this session will be cited as
tor T k if Ŝ nate> the legislation was managed by Sena
tor Trumbull, the chairman of the Senate Judiciary Committee
ho opened debate on January 12, 1866. Id. at 211. It passed
he Senate by a vote of 33 to 12 on February 2, 1866, id. at 606-
h L d ' I f 'I " 1 t0 thC H0USe' Id■ at 626' 27' House debate began on March 1st, id. at 1115, and the Act, as amended in the
jd f ,,r! " Ĉ , PaSSed> °n March 13th- by a vote of 111 to 38.
j at 1367-Three prominent Repubhcans voted “ nay,” Henry
Delano HPUbllSfher ° f th® NeW Y° rk Times-’ ColumbS
7ohn a’ aRm0derate from ° hi°; and, most importantly, Ohioan
John A Bingham, a Radical Republican, and one of the most
mfluent13! men in the 39th Congress. A. Bickel, The Original
^ 2n%9 The Segregation Decision, 69 Harv. L. Rev.
Th q } (hereinafter cited as "The Original Understand-
r f k , Senate concurred in the amendments two days later
i 6' President Johnson ^toed the bill on March
' • /? ' Ht 1679‘8L The Senate ^ r r o d e the veto, 33-15
on April 6th Id. at 1809. The House, on April 9, 1866, voted
the Ac into law by a vote of 122 to 41, generating “ an outburst
of applause.” Id. at 1861. 1
The Fourteenth Amendment was conceived in the Joint Com-
imttee to Look into the Condition of the States Which Formed
the So-called Confederate States of America (the Joint Com-
°n Construction) (popularly known as the “ Commit-
ee o Fifteen ). The Committee was formed under the Joint
Resolution of December 13, 1865. Globe at 6, 30, 46-47; The
Original Understanding at 29-45. On April 30, 1866, Senator
Fessenden in the upper chamber and Representative Stevens in
the lower chamber introduced the Joint Committee’s proposed
10
17 The Thirteenth Amendment was officially certified as adopted on
December 18, 1865. 13 Stat. 774 (1865).
11
Constitutional Amendment, H.R. 127.18 Globe at 2265, 2286.
Debate started in the House on May 8th, id. at 2433, and in the
Senate on May 23, 1866. Id. at 2764. On May 10th, the House
by a vote of 123-37, passed the joint resolution. H.R. 127
18 As originally written by Representative Bingham, the proposed reso
lution read: “The Congress shall have power to make all laws neces
sary and proper to secure to all persons in every state within this Union
equal protection in their rights of life, liberty and property. Journal
o f the Joint Committee on Reconstruction, 9, reprinted as S. Doc. No.
711, 63rd Cong., 3rd Sess. (1915); see The Original Understanding at
30; see generally H. Flack, The Adoption o f the Fourteenth Amend
ment (1908); B. Kendrick, The Journal o f the Joint Committee o f Fif
teen on Reconstruction, 39th Congress. 1865-1867 (1914); J. James,
The Framing o f the Fourteenth Amendment (1956). For a study of the
ratification process in the states, see generally J. James, The Ratifica
tion o f the Fourteenth Amendment (1984). This draft was edited in the
Committee of Fifteen, which ultimately reported out the Bingham pro
posal, as H.R. 63, with one significant change. The phrase “ to secure
to all persons in every state within this Union equal protection in their
rights of life, liberty and property” had permutated to “ secure to the
citizens . . . all privileges and immunities of citizens in the several
States and to all persons in the several States the equal protection in
the rights of life, liberty and property.” Globe at 1033’3^ * fler
debate, however, the measure was postponed to a day certain, Globe at
1095, and never appeared again. Although this language did not pre
vail by itself, Bingham never gave up and, in a modified version, later
saw his concept become a part of our Constitution.
When the Joint Committee began attempting to salvage something
from the ignominious disappearance of its previous attempt to draft an
acceptable amendment, see Report of the Joint Committee on Recon
struction XIV, H.R. Rep. 30, 39th Cong., lst Sess. (1866), Representa
tive Robert Owen put before it a proposal which, in section 5, stated
that “ Congress shall have power to enforce by appropriate legislauon,
[its) provisions. . . Representative Bingham, refusing to give up
his language entirely, offered an amendment to this secuon. The sub
stitute language is now a part of the Fourteenth Amendment:
Sec. 5. No state shall make or enforce any law which shall abridge
the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty or property with
out due process of law, nor deny to any person within its jurisdic
tion the equal protection of the laws.
The Original Understanding at 42-13. Later the Committee moved this
section to its rightful place in the proposal. By a vote of 10-3,
became section 1 of the Resolution introduced.
12
passed the Senate on June 8, 1866, id. at 3042, and was returned
i° f° r concurrence with Senate amendments. On
June 13, 1866, by a vote of 120 to 32, the House concurred in
the Senate s amendments and sent the Joint Resolution to the
states for ratification. Id. at 3149.
The ratification of the Fourteenth Amendment allowed the
ongress to take aim at the denial of civil rights in a manner not
otherwise constitutional possible. In reality, many in Con
gress had felt that Congress had exceeded its authority when it
passed the Civil Rights Act of 1866 with only the Thirteenth
^anendment as its sanction. Hence, the Enforcement Act of
1870, while pending before the Senate, was amended on motion
° L 7 T ° r Stewart to include language almost identical to the
866 Act and to incorporate the previous civil rights law into
the new legislation by reference. Cong. Globe, 41st Cong. 2d
Sess. 3480 (1870). In the House, Representative Bingham
reported a substitute bill on behalf of the Committee on the
Judiciary on May 16, 1870, and with the rules suspended
passage‘ ConS- Globe- 41st Cong., 2d Sess. 3503-04
(1870). It was the House bill which ultimately became law; how
ever, the language was the Senate’s. Id. at 3688-90 3705 3726
3752, 3809, 3884 (1870).
In 1871, the Anti-Ku Klux Klan law was enacted. Ch. 22, 17
Stat. 13 (1871). See generally M. Walter, The Ku Klux Klan Act
and the State Action Requirement o f the Fourteenth Amend
ment, 58 Temp. L. Q. 3 (1985). It is by far the most important
of the Reconstruction Period Civil Rights Acts adopted, since it
gave birth to present day 42 U.S.C. § 1983. Its development
began in the House, five days after President Grant called for
legislation to control the turbulant conditions in the South, see
Cong. Globe, 42nd Cong., 1st Sess. 244 (1871), when Repre
sentative Shellabarger, on behalf of the House Judiciary Com
mittee, introduced a bill, H.R. 320, to enforce the new
Amendment. H.R. 320, 42nd Cong., 1st Sess. (1871), reprinted
in id. at app. 138. During debate, he outlined the legal effect of
prior decisions upon the proposal. Id. at app. 68. Because of
opposition even within his own party to the bill as introduced,
Shellabarger amended it substantially, including the addition of
13
a civil remedy. Id. at 477. It passed the House Apnl 6th on a
vote of 118-91. Id. at 522.
In the Senate, debate opened with Senator Edmunds acting as
floor manager on behalf of the Senate Judiciary Committee. Id.
at 567 It passed the Senate on April 14, 1871, with a controver
sial amendment having been attached to it by Senator Sherman.
Id at 633 704-05. The House voted down the bill with the Sher
man amendment, 74-106, on April 19, 1871. Id. at 800. The
amendment authorized a damage action against amunlc'Paby
or county for damages incurred during a not. Jurisdiction was
placed in federal courts. The House stood firm in its refusal to
adopt the Sherman amendment. Cong. Globe'^ 2nd C° " gk’ f
SessP 801-05 (1871); see especially, id. at 804 (Remarks of
Poland). After detaching the Sherman amendment in confer
ence, the House voted in favor of the bill. Id. At 808. That same
day, April 19, 1871, the Senate passed the bill, as amended, 3
13. Id. at 831.
The United States’ statutes were revised and codified “ . 1P * ’
when section 1981 appeared in its present form. Commission
ers were appointed to “ bring together all statutes and parts of
statutes which from similarity of subject ought to be brough
together, omitting redundant or obsolete enactments pur
toAct of June 27, 1866, 14 Stat. 74. Due to the length of time t
ultimately required to complete the task the - t h e — u t-
ute was re-enacted. Act of May 4, 1870, ch. 72, 16 Stat. .
Introduction to Argument and to
Summary of Argument
There are two questions presented by the petftions for eertio.
ran The first question is the major issue before the Court.
Whether section 1981 liability may be imposed on a school d«-
trict solely upon the doctrine of respondeat superior. These
ond question is whether the Fifth Circuit erred in not resolving
» a ,* .* ...v w w 427 us ;6 0 , jli'SL'Vs’S
(While, J., dissenting), for a short histor,
apply to section 1981.
14
the question of who under Texas Law has “ final policymaking
authority,” Praprotnik,____U.S. a t _____, 108 S.Ct. at 924,
99 L.Ed. at 118, and dismissing the claims based upon respon
deat superior as opposed to remanding the issue for determina
tion by a jury.
To the extent that the second question is different from the
first one, it is only a more general challenge to the respondeat
superior problem. Accordingly, other than the law which is dis
cussed in relation to the § 1981 issue, we do not intend to
address separately the “ question of state law” vis-a-vis section
1983 liability for the alleged denial of the First Amendment
rights.
While the plaintiff and amici NAACP Legal Defense Fund
and American Civil Liberties Union, and, to a lessor extent, the
court of appeals, have framed this case in terms of the meaning
of section 1981 and whether it requires proof of official policy,
another—and more serious—issue is raised by the plaintiff’s
position that under 42 U.S.C. § 1981 the doctrine of respondeat
superior applies. That issue is whether section 1981 gives rise to
an independent, implied right of action against a public entity
or finds redress only through section 1983. See Mahone v. Wad
dle, 564 F.2d 1018, 1044 (3rd Cir. 1977), cert, denied, 438 U.S.
904 (1978) (Garth, J. dissenting) (hereinafter Judge Garth’s dis
sent will be cited as “Mahone”). If an independent right of
action against a state agency is not directly implied under
§ 1981, then City o f St. Louis v. Praprotnik,____U .S .____ ,
108 S.Ct. 915, 99 L.Ed.2d 107 (1988), is stare decisis and the
doctrine of respondeat superior cannot be used to hold Dallas
Independent School District vicariously liable. This, then, will
be the first issue upon which we will focus.
Summary of Argument
This case presents the question under what circumstances a
school district may be held liable under 42 U.S.C § 1981 for
unconstitutional conduct allegedly attributable to its non
policymaking employees. See Monell v. Department o f Social
Services, 436 U.S. 658 (1977). Before reaching this issue,
15
though, the Court must determine if its recent pronouncements
in Pembaur v. City o f Cincinnati, 475 U.S. 469^ 9?8̂ “ ^ C,(S
o f St. Louis v. Praprotnik,------U.S. 108 '} ’
L Ed.2d 107 (1988), that municipal liability under 42 U .b .c .
§ 1983 cannot be predicated on the doctrine of respondeat supe
rior, are stare decisis.
Section 1983 provides adequate support for one to bring an
action against a school district and its employees for violations
of constitutional and statutory rights. Of course, § 1983 is the
means by which one obtains a cause of action against a munici
pality to protect the rights and privileges protected m § 1981.
Likewise, section 1981 does not by its own language grant any
cause of action; it only details substantive rights. Unless the
Court wishes to create a direct, implied right of action outsi e
the parameters of § 1983 against those acting under color ol
state law, Monell and its offspring prevent the respondeat supe
rior doctrine from being used to hold defendant Dallas Inde
pendent School District vicariously liable to plaintiff for
damages.
Even if there is an implied right of action when the defendant
is a state actor, the legislative history of section 1981 prevents
the use of respondeat superior as a means of obtaining a judg
ment against defendant. Section 1981 was, originally, a crimi
nal J u t e and was not meant to include the doctrine of
respondeat superior within its terms. Each Congress from 1866
through 1874, when the Reconstruction civil rights acts were
being adopted or codified, believed that any legislation which
attempted to use the doctrine of respondeat superior agam su
municipality would be unwise and unconstitutional. Fearing
this they did not pass any civil liability statute incorporating
the theory. The rationale of Monell and the Court s other deci
sions in the area can lead to no other conclusion.
When a school district in good faith has adopted policies
which are meant to prevent violations of employe*e s• is
fundamentally wrong to require it to answer in damages Unless
the district through its elected policymakers “
tortfeasor, its taxpayers should not be required to pay the piper.
16
ARGUMENT
I.
This Court’s decision in City o f St. Louis v. Praprotnik20
Governs The Case
A. Scope of Review
The plaintiff attempts to succeed in this Court by the device
of toppling over a straw man. He constructs his argument by
stating that this cause is an action brought under the provisions
of 42 U.S.C. § 1981. He then finds himself obtaining a reversal
because, so the argument goes, section 1981 is the progeny of
the Civil Rights Act of April 9, 1866, Ch. 31, 14 Stat. 27 (1866),
and at the time it was enacted the doctrine of respondeat supe
rior existed at common law. The straw man is the assertion that
this action was “ brought” under § 1981. Actually, the action
was brought under the provisions of § 1983, see Mahone, 564
F.2d at 1037-38, and, therefore, the focus in this case to ascer
tain if a local government is subject to vicarious liability should
be on § 1983, not § 1981.
A quick look at Monell v. New York Department o f Social
Services, 436 U.S. 658 (1978), reveals the accuracy of this prop
osition. After concluding in Part I of its opinion that munici
palities are “ persons” within the meaning of 42 U.S.C. § 1983,
the Monell Court probed the wording and legislative history of
section 1983 to decide if a local government could be held liable
on a respondeat superior theory. The Court did not look at the
legislative history or wording of the Fourteenth Amendment,
id. at 691-95, the source of the rights being protected in the
case, to make its decision. If, indeed, this case is an action at
law or suit in equity brought pursuant to authority granted by
§ 1983 to seek redress for the deprivation of rights, privileges,
or immunities secured by the Constitution and laws, and, in
particular, section 1981, then this Court’s decision in City o f St.
U .S .--------, 108 S.Ct. 915, 99 L.Ed.2d 107 (1988).20
17
Louis v. Praprotnik, ____ U.S. ------ , 108 S.Ct. 915, 99
L.Ed.2d 107 (1988), governs.
The Court has found it necessary on several occasions, in the
context of actions against private as opposed to public defen
dants, to decree that 42 U.S.C. § 1981 grants an independent,
direct implied cause of action against one who deprives another
of the rights and privileges granted by the present codification
of the early civil rights statutes.21 * See, e.g., Runyon v.
McCrary, 427 U.S. 160 (1976); Johnson v. Railway Express
Agency, 421 U.S. 454, 459-60 (1975); see also, Tillman v.
Wheaton-Haven Recreation Assn., 410 U.S. 431 (1973); Jones
v. Alfred H. Mayer Co., 392 U.S. 409 (1968). However, in each
of these cases, § 1983 was not available to the plaintiffs.
In this action, the plaintiff appears to have lost sight of ele
mentary principles of statutory construction and assumes, with
out discussion or citation to authority, that he sued defendants,
one a state agency, the other a person acting under color of
state law, directly under section 1981. His premise may be cor
rect; however, the Court has never implied such an action
against a state agency and analysis of the cases involving
implied rights of action would suggest that he is not.
The decision in Johnson v. Railway Express Agency, 421
U.S. 454 (1975), certainly does not preclude this Court from
looking at § 1981 in the circumstance of a state rather than a
private actor. The case is as inapposite here as it was in Brown
v. Government Services Administration, 425 U.S. 820, 833
(1976) (hereinafter cited as GSA). In GSA, the Court recog
nized that the holding in Johnson was limited to the “ context of
private employment." Id. Emphasis in original.
21 It is difficult, if not now impossible, nearly 125 years later, to deter
mine the ancestry of current 42 U.S.C. § 1981. It probably finds its
origin in the Act of May 31, 1870, ch. 114, 16 Stat. 144, although
many commentators and jurists plainly disagree. See, e.g., Runyon v.
McCrary, 427 U.S. 160, 168-69, 168n. 8 (1976). However, the net
result of the enactment in 1866, the reenactment in 1870, and the codi
fication in 1874 is a statute whose constitutional underpinnings have
been lost to posterity. Cf. id. at 190 (Stevens, J., concurring); id. at
195-97, 195n. 6 (White, J., dissenting).
18
The Court has routinely held that § 1983 does not create any
substantive rights; it simply furnishes the mechanism for
obtaining redress for the deprivation of rights vested elsewhere.
Id.', Maine v. Thiboutot, 448 U.S. 1, 4 (1980); Chapman v.
Houston Welfare Rights Organization, 441 U.S. 600, 617-18
(1979); Great American Federal Savings & Loan Assn. v. Nov
otny, 442 U.S. 366, 381 (1979) (Stevens, J., concurring) (dic
tum).22 On the other hand, section 1981, by its language, does
not establish any remedy for its violation. It “ merely” defines
some of the rights and privileges of citizenship. Jones v. Alfred
H. Mayer Co., 392 U.S. 409, 432 (1965); Strauder v. West Vir
ginia, 100 U.S. 303, 312 (1879); see Cong. Globe, 39th Cong.,
1st Sess. 474-75 (1866) (remarks of Senator Trumbull, the spon
sor of the bill (S. No. 61) which became the Civil Rights Act of
1866) (Portions of the debates are reprinted in The Delaware
Law School, The Reconstruction Amendment Debates, 121-22
(A. Avins, editor 2nd ed. 1974).
We recognize that many lower court judges have offhandedly
assumed sub silentio the proposition that § 1981 grants an inde
pendent, implied right of action against state defendants, but
cf. Brown v. General Services Administration, 425 U.S. 820
(1976) (denying the use of 42 U.S.C. § 1981 in federal employ
ment litigation); Cannon v. University o f Chicago, 441 U.S.
677, 725 (1978) (White, J., dissenting) (discussing an analagous
situation); nonetheless, this does not prevent this Court from
directly and thoroughly analyzing the proposition. Thiboutot,
448 U.S. at 31 (Powell, J., dissenting); cf. Burks v. Lasker, 441
U.S. 471, 476, 476n. 5 (1979). That a right of action has been
implied for the private sector does not preclude consideration
of whether an implied right exists in the public arena, especially
since in Thiboutot, 448 U.S. at 4, the Court announced that
“42 U.S.C. § 1983 provides a cause of action for state depriva
tions of ‘rights secured’ by ‘the [statutory] laws’ of the United
States.” Pennhurst State School & Hospital v. Halderman, 451
U.S. 1, 28 (1981). It is universally recognized, today, that
22 The Court ruled in Daniels v. Williams, 474 U.S. 327, 330 (1986),
that “ in any given § 1983 suit, the plaintiff must still prove a violation
of the underlying constitutional right . . . .”
19
“ [u]nder 42 U.S.C. § 1983 (1964 ed.) the [State] officers may be
made to respond in damages . . . for violations of rights con
ferred by federal equal rights laws. . . . ” City o f Greenwood
v. Peacock, 384 U.S. 808, 829 (1966). Indeed, in the state action
context, the only reason to find an implied right would be to
avoid the limitations which Congress grafted on to § 1983. See
National Railroad Passenger Corp. v. National Assn, o f Rail
road Passengers, 414 U.S. 453, 458 (1974) (hereinafter cited as
“Passenger Corp.”)', cf. Williams v. Bennett, 689 F.2d 1370,
1390 (11th Cir. 1982), cert, denied, 464 U.S. 932 (1983); Dean
v. Gladney, 621 F.2d 1331, 1336 (5th Cir. 1980); Carpenter v.
City o f Fort Wayne, Ind., 637 F. Supp. 889, 891-92 (N.D. Ind.
1986). Plus, when the lower courts have assumed that § 1981
grants an implied right of action against public defendants, the
holdings are almost always dicta because § 1983 jurisdiction is
also present.23 * For an assessment of an analogous situation, see
Cannon v. University o f Chicago, 441 U.S. 677, 722-23 (1978)
(White, J., dissenting).
In addition, this Court, at least in dicta, has articulated the
source of a section 1981 cause of action against state action. In
Chapman v. Houston Welfare Rights Organization, 441 U.S.
600 (1979), the Court construed the scope of the civil rights-
federal claim jurisdiction of the district courts. In the context of
23 An exception to this statement existed during the period from the
handing down of Monroe v. Pape, 365 U.S. 167 (1961), until the ren
dering of the decision in Monell v. New York City Department o f
Social Services, 436 U.S. 658(1978). See, e g., Mahone v. Waddle, 564
F.2d 1018 (3d Cir. 1977), cert, denied, 438 U.S. 904 (1978).
Another exception is the decision rendered by the First Circuit in
Springer v. Seamen, 821 F.2d 871 (1st Cir. 1987), but there, the
implied right of action was more akin to one against a private
employer, see, Franchise Tax Bd. o f Calif, v. United States Postal Ser
vice, 467 U.S. 512, 520 (1984), and, since the action was against the
Postal Service, a federally created entity, it could not involve state
action or § 1983. Likewise, District o f Columbia v. Carter, 409 U.S.
418 (1973), is inapplicable since the version of § 1983 before the CourL
did not apply to the District of Columbia. The most that can be said
for the case is that it stands for the proposition that the Court will
imply a cause of action under § 1981 when the Congress has not, by
statute, developed one. Compare Carter, with Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388, 395-97 (1971).
20
the issues before it, the Court was called upon to adjudicate the
breadth of section 1983. In doing so, it described the parallel
nature and common ancestry of the Civil Rights Act of 1866,
ch. 31, 14 Stat. 27, and § 1983. The starting point from which
the Court progressed in its examination was the statement that
“ [ujnlike the 1866 and 1870 Acts [Act of May 31, 1870, ch. 114,
16 Stat. 140], § 1 of the Civil Rights Act of 1871 did not provide
for any substantive rights—equal or otherwise.” Id. at 617.
From this position, the Court recognized that the progenitor of
§ 1983 was enacted to enforce the ‘‘substantive protections
afforded by § 1 of the 1866 Act.” Id. (footnotes omitted). As
Justice Powell points out in his concurring opinion, the Reviser
of the Statutes in 187424 ‘‘believed that § 1 of the 1866 Act, to
the extent it protected against deprivations under color of state
law, was meant to be fully encompassed by the phrase ‘rights
. . . secured by the Constitution,’ in § 1 of the 1871 Act.” 441
U.S. at 633 (Powell, J., concurring). And, concluded Justice
Powell, the Commissioners’ note dealing with federal court
jurisdiction demonstrates graphically that Congress meant for
the ‘‘particularly described rights of §§ 1977 and 1978 [to be]
protected against deprivation under color of state law by the
24 Section 1983 first appeared in its present form in the Revised Stat
utes of 1874 as § 1979. Pursuant to the Act of June 27, 1866, three
Commissioners were appointed to attempt to codify all federal stat
utes. Later, their work was examined by an attorney, Thomas Jeffer
son Durant, to insure that the proposed revision met the intent of the
Congress that the revision should not substantively change current law.
Section 1979 was itself derived from § 1 of the Civil Rights Act of
1871, ch. 22, 17 Stat. 13. Under the ‘‘Ku Klux Klan” Act, as the Civil
Rights Act of 1871 is commonly called, the civil cause of action pro
tected only against deprivations, under color of state law, of rights
“secured by the Constitution.” However, the phrase “secured by the
Constitution” includes the rights, privileges, or immunities granted by
the 1866 Civil Rights Act since, in passing the 1866 Act, Congress was
simply defining the privileges of citizenship guaranteed by the Consti
tution and in particular the Thirteenth Amendment. Chapman v.
Houston Welfare Rights Organization, 441 U.S. 600, 633n.l4 (1979)
(Powell, J., concurring).
21
words ‘rights . . . secured by the Constitution’ in § 1979.” Id.
at 636.25
A study of the relationship between § 1981 and § 1983 reveals
that, from the time that ‘‘any person” was first authorized by
Congress to sue in federal court to enforce his or her Constitu
tional rights as defined, in part, by the 1866 Act, Congress’
understanding was that the mechanism creating the cause of
action would be § 1983 or one of its predecessors.26 Unless the
Court now creates a cause of action separate and apart from the
one which Congress created, the Court’s previous rulings
involving respondeat superior and § 1983 are stare decisis.
Accordingly, we turn our attention to the subject of whether the
Court should imply a direct, independent cause of action
against a municipality from § 1981.
B. Implied Actions
Section 1981 reads as follows:
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 evi
25 During the debates over the Civil Rights Act of 1871, Representative
Shellabarger emphasized that Section 1 provides a civil remedy for
people “ where, under color of law, they or any of them may be
deprived of rights to which they are entitled . . . by reason and virtue
of their national citizenship.” Cong. Globe, 42nd Cong., 1st Sess.
App. 68 (1871). Moreover, he defended the 1871 Act’s constitutional
ity by remarking that the first section of the bill, patterned upon the
second section of the 1866 Act, was simply another means of enforce
ment. Id. Senator Thurman depicted the anticipated law as “ relating
wholly to civil suits . . . . Its whole effect is to give to the federal judi
ciary that which does not now belong to it . . . .I t authorizes any per
son who is deprived of any right, privilege, or immunity secured to him
by the Constitution of the United States, to bring an action against the
wrong-doer in the Federal Courts . . . . ” Cong. Globe, 42nd Cong.,
1st Sess. App. 216-17 (1871).
26 "[I)t must be remembered,” that at the time the Civil Rights Act of
1866 was adopted, “ there existed no general federal-question jurisdic
tion in the lower federal courts.” District o f Columbia v. Carter, 409
U.S. at 427.
22
dence, and to the full and equal benefit of all laws and pro
ceedings for the security of white persons and property as
is enjoyed by white citizens, and shall be subject to like
punishment, pains, penalties, taxes, licenses, and exac
tions of every kind, and to no other.
The statute does not, as one can plainly see, explicitly sanc
tion a private right of action by a person injured by a denial of
any of the rights, privileges, or immunities guaranteed by its
terms. See Passenger Corp., 414 U.S. at 456. Moreover, assum
ing that the predecessor to § 1981 was the Civil Rights Act of
1866, the remedy by which Congress chose to enforce its terms
was criminal liability.27 *
An analysis of whether § 1981 contains an implied remedy
when the defendant is a public entity starts with the ruling in
Cort v. Ash, 422 U.S. 66 (1975). Although Cort was not the
first case to deal with the doctrine of an implied right of action
from a federal statute, it is the seminal decision in the area.
Cort requires an inquiry into the factors which are indicative of
the legislative will. Of course, legislative intent is not the sine
qua non; if the Congress truly intended for a right of action to
exist it would have said it in clear and unmistakable language.
Rather, the inquiry is to determine if the Court should create
the cause of action in an attempt to further Congressional pol
icy.
27 Likewise, assuming that the source of § 1981 is the Enforcement Act
of 1870, ch. 114, 16 Slat. 140, the prescription Congress used to
enforce the Act’s terms was, nevertheless, criminal. This did not
change until 1871 with the passage of the Ku Klux Klan Act, ch. 114,
17 Stat. 13 (April 20, 1871). Of course, the result in this case does not
vary with a determination that § 1981 stems from the Enforcement Act
or, for that matter, any later enacted Reconstruction Civil Rights Act,
although the determination would make § 1981 a Fourteenth Amend
ment statute, not a Thirteenth.
At the time that § 1981 was adopted there was no federal question
jurisdiction in the lower federal courts. Hence, Congress, up until it
passed § 1983, relied upon “ ‘the state courts to vindicate essentia!
rights arising under the Constitution and federal laws.’ Zwickler v.
Koota, 389 U.S. 241, 245 (1967).” District o f Columbia v. Carter, 409
U.S. 418, 427 (1973).
23
In deducing whether a private remedy is suggested by a par
ticular act where the right of action is not announced, several
elements apply. See generally Comment, Implied Private Rights
o f Action: The Courts Search fo r Limitations in a Confused
Area o f the Law, 13 Cumb. L. Rev. 569 (1983); Private Causes
o f Actions From Federal Statutes: A Strict Standard fo r Impli
cation By Sole Reliance on Legislative Intent, 14 U. Rich. L.
Rev. 605 (1980) (hereinafter Private Causes o f Action). Fore
most may be the requirement that the plaintiff be “ one of the
class for whose especial benefit the statute was enacted.” Texas
& Pacific R.R. Co. v. Rigsby, 241 U.S. 33, 39 (1916). This
ingredient is basic, since, if the person is not within the class for
whom the statute was meant to favor, the case need not proceed
further regardless of Congressional design. Here, this criteria is
a given. It is now well established that section 1981 was adopted
to protect all citizens, not just blacks, in their citizenship rights.
We gladly concede the point and move on to the succeeding
essential factor.
The next area of inquiry under the Cort formulation is the
question of legislative history. 422 U.S. at 78. According to
Cort, one must resolve whether there is any sign of legislative
intent, explicit or implicit, either to create such a remedy or to
deny one. Here, we are on Firm ground in stating that at the
time of the adoption of the 1866 Civil Rights Act, the intent was
not to create a private right of action. To begin with, it is with
out question that the 39th Congress doubted its constitutional
authority to pass legislation allowing for actions for violations
of civil rights. See Hurd v. Hodge, 334 U.S. 24, 32-33 (1948). In
introducing the proposal which was to thereafter become the
Fourteenth Amendment, on February 26, 1866, only days
before the 1866 Civil Rights Act would be enacted, Representa
tive Bingham2* stressed that it “ has been the want of the Repub-
28 Representative Bingham, a Radical Republican, voted against the
Civil Rights Act of 1866 since he felt that, even as narrowly written as
it was, the planned law was unconstitutional. See Cong. Globe, 39th
Cong., 1st Sess. 1291-92 (1866) (Statement of Bingham). It was for this
reason that he introduced the Joint Resolution which became the Four
teenth Amendment. Cong. Globe, 39th Cong., 1st Sess. 1033 (1866)
(Introduction of H.R. 63).
24
lie that there was not an express grant of power in the
Constitution to enable the whole people of every State, by con
gressional enactment, to enforce obedience to those require
ments [the privileges and immunities portion of the second
section of the fourth article] of the Constitution.” Cong.
Globe, 39th Cong., 1st Sess. 1034 (1866). Given the intense
debate in Congress over constitutional authority to pass the
Civil Rights Bill, even in its pristine form, e.g., Cong. Globe
39th Cong., 1st Sess. 1291-92 (Statement of Bingham); id at
2896 (Statement of Doolittle), it is doubtful, at best, that Con
gress would have tried to expand its coverage to allow direct
damage actions. Such an idea had to await the passage of the
Fourteenth Amendment and was the impetus for the Amend
ment’s introduction.
More to the point, on March 8, 1866, one of the foremost
supporters of civil rights, Representative Bingham, the father
of the Fourteenth Amendment, moved to amend a motion to
recommit S. No. 61, the legislation which ultimately became the
Civil Rights Act of 1866, as follows:
I move to amend the motion . . . by adding the following:
With instructions to strike out of the first section the
words ‘‘and there shall be no discrimination in civil rights
or immunities among citizens of the United States in any
State or Territory of the United States on account of race,
color, or previous condition of slavery,” and insert in the
thirteenth line of the first section, after the word ‘‘right”
the words ‘‘in every State and Territory of the United
States.” Also to strike out all parts o f said bill which are
penal, and which authorize criminal proceedings, and in
lieu thereof to give to all citizens injured by denial or viola
tion of any of the other rights secured or protected by said
act an action in the United States courts with double costs
in all cases of recovery, without regard to the amount of
damages; . . . .
Cong. Globe, 39th Cong., 1st Sess. 1271-72 (March 8, 1866)
(emphasis added). The motion died on the legislation’s floor
manager’s demand for the previous question, 53-45. Id. Incon-
25
trovertibly, the Congress spoke and its intent cannot be mis
taken; it rejected the right to a damage action, opting instead
for penal provisions.29 The rejection of Bingham’s amendment
and the retention of criminal penalties in the Act of 1866,
despite strong arguments about the injustice of criminal liabil
ity, compellingly demonstrates that the Congress in 1866 grap
pled with the availability of a right of action to enforce section 1
and explicitly rejected it. The refusal to adopt the Bingham
amendment rejected any concept of respondeat superior.
In explaining the intent of the proposal to the Congress, Sen
ator Trumbull remarked that the entire proposal was directed
only at persons who act under color of state law. Cong. Globe,
39th Cong., 1st Sess. 1758 (1866). Although Senator Trumbull
was talking about section 2 of the bill, his commentary is appli
cable to the entire legislation since he prefaced his theme by say
ing: “ [I]n my judgment. . . this second section . . .isthevital
part of the bill,” and ‘‘[w]ithout it, it would scarcely be worth
the paper on which the bill is written.” Id. He further explained
that section 1 granted only privileges and rights but otherwise
has ‘‘no consequence.” 30 Id. Earlier, when he introduced S. 61,
29 In light of the graphic legislative history rejecting a right of action, it
is hard to comprehend Runyon v. McCrary, 427 U.S. 160 (1976).
However, the Court has signaled that it, too, questions the validity of
Runyon. Cf. Patterson v. McLean Credit Union, No. 87-107 (Order of
April 25, 1987). Even if Runyon is reaffirmed, it does not invalidate
the argument which respondent is making. The fact that this Court has
found that a private sector cause of action furthers Congressional pol
icy does not establish the necessity of going around the Congressional
will by finding a public sector right of action outside of § 1983. Section
1983 is the means which the Congress authorized for suing public insti
tutions; an implied right is therefore unnecessary. The statutory provi
sion for one form of proceeding normally precludes implying an intent
by the Congress that another form of enforcement is warranted.
National Railroad Passenger Corp. v. National Assn, o f Railroad Pas
sengers, 414 U.S. 453 (1974).
30 Justice Harlan quoted Trumbull’s statements as to the intent of the
legislation, thusly: “ It will have no operation in any State where the
laws are equal, where all persons have the same civil rights without
regard to color or race. It will have no operation in the State of Ken-
26
he divulged that, while section 1 defines the rights of all per
sons, “ (t]he other provisions of the bill contain the necessary
machinery to give [the rights] effect.” Id. at 474. The machin
ery being, of course, the criminal sanctions. In explaining why
he u’as voting for the bill, Senator Stewart stated: “ He must do
it under the color of the law. If there is no law or custom in
existence in a State authorizing it, it will be impossible for him
to do it under color of any law.” Cong. Globe, 39th Cong., 1st
Sess. 1785 (1866). See also id., at 2511 (Remarks of Eliot); id. at
1294 (Remaiks of Sheilabarger) (a lawyer). Accordingly, from
the time of its adoption, the 1866 Act was considered to be con
trolled by section 2, the criminal provision.
The later Reconstruction Congresses also viewed the 1866
Act as limited to a criminal remedy, as opposed to granting a
civil rights’ cause of action for damages. Hence, in 1870 and,
especially in 1871, Congress moved to fill the vacuum created
by the lack of private enforcement provisions contained in the
1866 Civil Rights Act.31 * In 1870, after the adoption of the Four
lucky when her slave code and all her laws discriminating between per
sons on account of race or color shall be abolished.” Jones v. Alfred
H. Mayer Co., 392 U.S. 409, 459 (1968), quoting Cong. Globe, 39th
Cong., 1st Sess. 476 (1866). This quote, like the other remarks quoted
in the text, indicates Congress’ intent to limit the 1866 Act’s scope to
laws, policies, and customs of governments.
31 The 1866 Act contains language that one might construe as allowing
a private right of action in the federal courts. Section 3 states in part
that “ the district courts . . . 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 . . . . ”
Emphasis added. However, a close reading of the provision, with an
eye on the phrases surrounding the clause, along with consideration of
the problem being addressed by the 39th Congress, leads to the ines
capable conclusion that the design was meant to allow a person to
bring a state law claim into the federal courts when some state require
ment precluded it from being litigated in the local system. The Con
gress was chiefly concerned with old “ Slave Codes” and the
quasi-slave “ Black Codes” which prevented the newly freed Ameri
cans from testifying in cases involving whites. See, e.g., Cong. Globe,
39th Cong., 1st Sess., at 39. 474, 516-17, 602-03, 1 123-25, 1151-53,
1160 (1866); see generally S. Exec. Doc. No. 6, 39th Cong., 2nd
27
teenth Amendment, the 41st Congress reenacted the criminal
portion of the 1866 Act (presently 18 U.S.C. § 242) basing its
power on the newly enacted Amendment. It also added what is
presently 18 U.S.C. § 241, reaching private conspiracies which
interfere with civil rights. The debates uncloak the intention of
the drafters of the earlier Civil Rights Act. The remarks of Sen
ator Pool of North Carolina, for example, present the view that
the Civil Rights Act was solely to be enforced as a criminal stat
ute. Cong. Globe, 41st Cong., 2nd Sess. 3611 (1870).
Even a cursory review of the legislative history of the 1871
Act shows that the opponents of the proposed law were bris
tling over the break from old constitutional theories by the
granting of a private cause of action for damages. Representa
tive McHenry summarized the fear best, asserting that the bill
would “ rob” the states’ tribunals of their rightful jurisdiction
“ by a power of the Federal Government . . . so flagrant that
the people will hold to a strict accountability those men . . .
who perpetrate the outrage.” Cong. Globe, 42nd Cong., 1st
Sess. The provision meant to allow, for example, blacks to sue whites
in federal court for breach of contract, action of ejectment or negli
gence. See, e.g., Cong. Globe, 39th Cong., 1st Sess. 602-03 (1866)
(Statement of Senator Lane); Cong. Globe, 39th Cong., 1st Sess. 604-
05 (1866) (Statement of Senator Trumbull); Cong. Globe, 39th Cong.,
1st Sess. 630 (Statement of Rep. Hubbard) (The blacks “ are not per
mitted to sue in the courts or testify against a white man’’); Cong.
Globe, 39th Cong., 1st Sess. 1159-60 (1866) (Statement of Senator
Windom). See generally E. McPherson, The Political History o f the
United States o f America During the Period o f Reconstruction 29-44
(1871); Readers Guide, Reconstruction Debates at vi-xiv. This reading
of the statute is forcefully supported by later attempts by Senator Saw
yer to amend the Act to insure that it achieved its goal. See, e.g., S.B.
715, 41st Cong., 2nd Sess. (1871) (” [I]t being the true intent and mean
ing of the act to which this is supplementary [Civil Rights Act of 1866)
to have the same law administered in the Courts of the United States to
the persons denied the right secured to them by said act and is adminis
tered in the courts of record of the State to persons not denied these
rights . . . .” ). For another version of the purpose of this clause, see
Mahone, 564 F.2d at 1044-47 (although Judge Garth’s view is plausi
ble, we believe that our interpretation is the correct one).
28
Sess. 429 (1871). Even discounting the obvious hyperbole, the
speech displays the novelty in 1871, five years after the passage
of the Civil Rights Act, of the remedy section 1 was about to
grant.
Of course, even on the Republican side, the understanding
was that the Civil Rights Act of 1866 would not be enforced by
a damage action. In explaining the Ku Klux Klan bill in the
House, the floor manager, Representative Shellabarger, who
served in Congress in 1866, opened debate on the 1871 Civil
Rights Act by analogizing the bill to the 1866 law. He noted that
the bill before Congress was patterned on the Civil Rights Act
of 1866; but, he continued, whereas the 1866 Act was only crim
inal, the proposal before the House provides for a “ civil rem
edy.” Cong. Globe, 42nd Cong., 1st Sess. app. 68 (1871).32
Representative Blair, who is quoted in Monell, 436 U.S. at
673, explained, during the debates on the Sherman Amend
ment:
The proposition known as the Sherman amendment . . .
is entirely new. It is altogether without a precedent in this
32 After reading the first section of the bill, Mr. Shellabarger justifies it
by arguing:
The model for it will be found in the second section of the act of
April 9, 1866, known as the “civil rights act.” That section pro
vides a criminal proceeding in identically the same case as this one
provides a civil remedy for, except that the deprivation under color
of State law must, under the civil rights act, have been on account
of race, color, or former slavery. This section of this bill, on the
same stale o f fads, not only provides a civil remedy . . . to all peo
ple where, under color of State law, they or any of them may be
deprived of rights to which they are entitled under the Constitution
by reason and virtue of their national citizenship.
Cong. Globe, 42nd Cong., 1st Sess. app. 68 (1871) (Statement of Shel
labarger). Emphasis added. Thus, the Ku Klux Klan Act was the first
effort to “afford a federal right in federal courts [to litigate] . . .
claims of citizens to the enjoyment of [the] rights, privileges and
immunities,” Monroe v. Pape, 365 U.S. 167, 180 (1961), defined in the
Civil Rights Act of 1866.
29
country. . . . [The Amendment] lay[s] . . . obligations
. . . upon the municipalities.
[I]t is proposed . . . to create that obligation . . . .
Cong. Globe, 42nd Cong., 1st Sess. 795 (1871). Emphasis
added. Of course, if a civil cause of action allowing municipal
liability under the doctrine of respondeat superior had been
introduced with the 1866 Act, the proposition would hardly
have been “without a precedent.”
The few federal cases decided between the time of the adop
tion of the 1866 Act and the civil enforcement provisions in
1871 reflect Congress’ intent that section 1 was to be enforced
only as a criminal statute or by writ of habeas corpus. See
United States v. Rhodes, 27 Fed. Cas. 785 (No. 16,151) (C.C.D.
Ky. 1866); In re Turner, 24 Fed. Cas. 337 (No. 14,247) (C.C.D.
Md. 1867). The act was never used during that period, to our
knowledge, by any member of a protected class to enforce § 1
by means of a civil damage action in the federal courts.
Mahone, 564 F.2d at 1040.
The draft of the proposed Revised Statutes also supports the
view that § 1983 was meant to provide all deprivations men
tioned in § 1981 and was to be the source of civil actions vindi
cating the rights granted. While there wasn’t any note
accompanying the chapter on Civil Rights, an extensive note
was written regarding the jurisdiction of the federal courts to
redress deprivations of rights secured by the Constitution and
laws. 1 Revision of the United States Statutes as Drafted by the
Commissioners Appointed for that Purpose, Title XIV, Ch. 7,
359-63 (1872). The note follows the proposed jurisdictional
statement for the Circuit Courts,33 and makes clear that the pro-
33 The proposed jurisdictional provision reads, in part, as follows:
15. Of all suits authorized by law to be brought by any person to
redress the deprivation, under color o f any lave, statute, ordinance,
regulation, custom or usage o f any State, of any right, privilege, or
immunity, secured by the Constitution of the United States, or o f
1
30
vision is to enforce the Act of 1866, the Act of 1870, and the
Act of 1871. In actuality, the marginal note makes this unmis
takable.
Suits to redress deprivation of rights secured by the Con
stitution and laws to persons within jurisdiction of United
States.
20 April 1871, ch. 22 § 1, vol. 17, p.13
31 May 1870, ch. 114 §§ 16, 18, vol. 16, p. 114
9 April 1866, ch. 31 § 3, vol. 14, p. 27
Id. at 359. The following note only serves to strengthen the sali
ent meaning of the marginal note:
It may have been the intention of Congress to provide, by
this enactment [Civil Rights Act of 1871], for all the cases
of deprivations mentioned in the previous act of 1870, and
thus actually to supersede the indefinite provision con
tained in that act. But as it might perhaps be held that only
such rights as are specifically secured by the Constitution,
and not every right secured by a law authorized by the
Constitution, were here intended, it is deemed safer to add
a reference to the civil rights act.
Id. at 362. Emphasis added.
In light of the jurisdictional provision and the accompanying
notes, it is ludicrous to try to distinguish Monell v. New York
City Department o f Social Services, 436 U.S. 658 (1978) (here
inafter cited as Monell), on the grounds that § 1983 includes the
“ Any person who . . . shall subject, or cause to be subjected”
language, although § 1981 does not. See Brief of Respondent at
12-13. The language used in § 1981 may be different than that
used in § 1983, however, the intention is the same. Section 1981
any right secured by any law providing for equal rights of citizens
of the United States, or of all persons within the jurisdiction of the
United States.
Emphasis added.
31
was meant to come within the umbrella of § 1983 and was
believed by the Revisors in 1872, only a few years after the sev
eral acts were adopted, to be co-extensive with it, not expansive.
Justice White persuasively argued in his dissent in Runyon v.
McCrary, A ll U.S. 160, 195 (White, J., dissenting), that the
plain language of 42 U.S.C. § 1981 does not allow an implied
right of action against private individuals and that the statute in
its present form is completely based on the authority of the
Fourteenth Amendment, which controls “ state action.” Id. at
201-02. Although he did not carry the day in Runyon, his views
were certainly not rejected by all members of the Court. See id.
at 186 (Powell, J., concurring); id. at 189 (Stevens, J., concur
ring). Moreover, the legislative history leaves “ no doubt” that
the construction of § 1981 in Runyon “ would have amazed the
legislators who voted for it.” Id. at 189 (Stevens, J., concur
ring). In any event, if Runyon is overruled and does not imply
any direct, right of action to enforce the rights, privileges, or
immunities granted by § 1981, the Fifth Circuit must be sus
tained as then clearly § 1983 will be the only vehicle creating a
right of action against a school district. If Runyon is sustained
and is held to allow a direct right of action against a private
entity, the decision will not effect this litigation. The Court will
still be called upon to determine if it should imply an action,
independent of § 1983, against public agencies. Certainly, it
would not be appropriate to imply an action here when § 1983
is already available for persons deprived of their rights by state
action. Congress’ action in adopting § 1983, by itself, says how
they intended civil rights actions to be brought against munici
palities. If Congress had wanted civil rights actions to be
broader than now allowed under § 1983, the legislation adopt
ing § 1981 would have provided for it.
In Cort,‘ it was acknowledged that “ an explicit purpose to
deny such cause of action would be controlling.” 422 U.S. at 82
(emphasis added). Where the legislature rejects a cause of
action for damages, a private right of action against state entit
ies cannot be presumed. This view is strengthened by the
Court’s recognition that the Congress, not the Court, is the
proper body to be devising legislation, c/., e.g., National Rail
32
road Passenger Corp. v. National Assn, o f Railroad Passen
gers, 414 U.S. 453 (1974); Securities Investor Protection Corp
v. Barbour, 421 U.S. 412 (1975); Santa Clara Pueblo v. Mar
tinez, 436 U.S. 49 (1978); Piper v. Chris-Craft Industries, 430
U.S. 1 (1977), and that a “ strict approach” to developing
implied rights of action is required, Cannon v. University o f
Chicago, 441 U.S. 677, 698-99 (1978), by the separation of
powers doctrine. See Private Causes o f Action, supra at 619.
With these perspectives in mind, Justice, now Chief Justice,
Rehnquist, cautioned that “ [n]ot only is it ‘far better’ for Con
gress to so specify when it intends private litigants to have a
cause of action, but for this very reason this Court in the future
should be extremely reluctant to imply a cause of action absent
such specificity on the part of the Legislative Branch.” Id. at
718. “ The creation of private causes of actions,” according to
Justice Powell, “ is a legislative function” and the “ federal
courts should not assume the legislative role of creating such a
remedy and thereby enlarge their jurisdiction.” Id. at 730-31
(Powell, J., dissenting).
The most potent reason why this Court should not imply an
independent, direct cause of action comes from Cort's third
precept: “ [Ujnder Cort, a private remedy should not be implied
if it would frustrate the underlying purpose of the legislative
scheme. 441 U.S. at 677. Here, the Congress devised a scheme
whereby one could sue to enforce their statutory and constitu
tional rights. This formula is embodied in section 1983. The
scheme, however, has certain restrictions, one of which is that
the actor function under color of state law. Section 1983 also
requires that a state institution only be subject to liability when
its policies create the deprivation and bestows upon defendants
a qualified immunity. “ It would wholly frustrate explicit con
gressional intent to hold that the [plaintiff] . . . could evade
[these] requirement [s] by the simple expedient of putting a dif
ferent label on [his] pleadings,” to quote this Court’s opinion
on a different but analogous topic. Preiser v. Rodriguez, 411
U.S. 475, 489-90 (1973).
It is only when the statute granting the privilege has “ no
other remedy to redress [the] violations of the statute” that a
33
private remedy will be inferred. 441 U.S. at 728 (White, J., dis
senting); see also Great American Federal Savings & Loan Assn
v. Novotny, 442 U.S. 366 (1979). The Court has often, if not
consistently, refused to create a private right of action if Con
gress has provided some other means of protecting the privi
leges. 441 U.S. at 735 (Powell, J., dissenting); see also
Switchmen v. National Mediation Board, 320 U.S. 297, 300-01
(1943). “ Where a statutory scheme expressly provides for an
alternative mechanism for enforcing the rights and duties cre
ated,” Justice Powell warns, the Court should “ be especially
reluctant ever to permit a federal court to volunteer its services
for enforcement purposes.” 441 U.S. at 748; see also Passenger
Corp., 414 U.S. at 458. A warning which in the context of this
case should be obeyed.34 Moreover, in a variety of situations,
including at least one involving the 1866 Act, “ the Court has
held that a precisely drawn, detailed statute preempts more gen
eral remedies.” GSA, 425 U.S. at 834; see also Preiser v. Rodri
guez, 411 U.S. at 489-90.
C. Respondeat Superior
As previously stated, if this Court does not imply a direct,
independent cause of action under § 1981, the question
becomes solely one of stare decisis: Do the past precedents of
the Court apply to the facts of this case? The answer, of course,
is a resounding, “ YES!.”
34 Some might argue that the Civil Rights Act of 1866 granted, in sec
tion 3, a cause of action and that it did not require state action as a
prerequisite to come into the federal system. See supra note 30.
Accepting this as true, arguendo, the argument goes nowhere. If Con
gress saw fit to establish a cause of action in 1866 which did not
require state action, it was free in 1871, with the adoption of the Klu
Klux Klan Act, and, too, with the Revision in 1874 to narrow the scope
of the right to sue for damages and require the deprivation to have
occurred under color of state law. In any event, if a private right of
action was granted in the ’66 Civil Rights Act, it would have been lim
ited, no doubt, by section 2 of the act, as it is now by § 1983, to claims
of deprivations of rights under color of “any law, statute, ordinance,
regulation, or custom.” Cf. The Civil Rights Cases, 109 U.S. 3, 16-17
(1883); Jones, 392 U.S. at 454 (Harlan, J., dissenting).
34
In Praprotnik,____U .S ._____, 108 S.Ct. 915, 99 L.Ed.2d
107 (1988), Justice O’Connor undertook to define the parame
ters of the Court’s prior decisions concerning when a decision
by a municipal officer or employee may expose the municipality
itself to vicarious liability under section 1983.35 The Court
defined the legal standard against the backdrop of an employee
who was laid off from his professional position with St. Louis
after successfully appealing a suspension for cause to the city’s
Civil Service Commission. The employee believed, and a jury
found, that the city had violated his First Amendment rights.
The jury exonerated each of the individual defendants.
On appeal, the verdict against the city was affirmed since the
court felt that the jury’s verdict absolving the individual defen
dants could be harmonized with the finding of liability against
the city. The appellate court reconciled the apparent conflict
between the jury’s findings on the grounds that “ ‘the named
defendants were not the supervisors directly causing the layoff,
when the actual damages arose.’ ” Id. at 921, quoting from 798
F.2d 1168, 1173n. 3 (8th Cir. 1986). Based upon this holding,
the Eighth Circuit sustained the jury’s implicit finding that the
layoff was brought about by a city policy.
It is important to understand what the circuit ruled before
discussing the Court’s reversal since it has such a strong bearing
upon the current proceeding. The Eight Circuit found that the
employee’s layoff was brought about by an unconstitutional
city policy. Furthermore, the court of appeals concluded that
the city could be held liable for the adverse personnel decisions
taken by the employee’s supervisors since, according to the
appellate court, a “ policymaker” is one whose employment
decisions are “ final” in the sense that they are not subject to de
novo review by higher ranking officials. 798 F.2d 1168, 1173-75
(8th Cir. 1986).
This Court initiated its scrutiny by outlining the previous his
tory surrounding municipal liability for violations of civil
rights, beginning with its overruling of Monroe v. Pape, 365
35 The constitutional principles applied to “municipalities” also apply
to school districts.
35
U.S. 167 (1961), in the case of Monell v. New York City
Department o f Social Services, 436 U.S. 658 (1978). Monell, of
course, held that a municipality was a “ person” within the
meaning of § 1983. The decision went on to announce, how
ever, that a city could not be found vicariously liable by the use
of the doctrine of respondeat superior. Municipalities can only
be held liable when the injury is inflicted by a government’s
“ lawmakers or by those whose edicts or acts may fairly be said
to represent official policy.” 436 U.S. at 694. According to the
Monell Court, a city can only be held liable for its own acts.
This holding was based on the Court’s reading of the language
of § 1983 in light of the Act’s legislative history. 436 U.S. at
691-93. The ruling is consistent with this Court’s requirement
that factual causation be a predicate for constitutional tort lia
bility, Mt. Healthy City School Dist. Board o f Education v.
Doyle, 429 U.S. 274 (1977); Givhan v. Western Line Consolid.
Sch. Dist., 439 U.S. 410 (1979); City o f Oklahoma City v. Tut
tle, 471 U.S. 808, 823-24, 824n. 8 (1985); Martinez v. Califor
nia, 444 U.S. 277 (1980), and with the “ intention”
requirements of cases like Washington v. Davis, 426 U.S. 229
(1976), and General Building Contractors Assn. v. Pennsylva
nia, 458 U.S. 375 (1982) (“ We conclude, therefore, that § 1981,
like the Equal Protection Clause, can be violated only by pur
poseful discrimination.” Id. at 391); see also Griffin v. Breck-
enridge, 403 U.S. 88 (1971).
After establishing these primary guideposts, the Praprotnik
Court “ reiterated that the identification of policymaking offi
cials is a question of state law.” Praprotnik, 108 S.Ct. at 924;
see also Pembaur v. Cincinnati, 475 U.S. 469, 483 (1986) (plu
rality opinion). As a consequence, the identification of policy
making officials is not a question of federal law and is not, the
Court emphasized, a fact question. Id. at 924. When presented
with a civil rights claim against a municipality, a trial court, or,
if necessary, a court of appeals, need look only to the laws of
the state (which can include valid local ordinances and regula
tions) to determine whether a person is a policymaker. Under
the precedents canvassed by the Court, a municipality or other
governmental agency may not be held liable unless the munici
36
pality itself is the constitutional tortfeasor. That is, acts which
the municipality has actually ordered by custom or policy must
be the source of the constitutional injury. Hence, the resolution
that “ (wjhen an official’s discretionary decisions are con
strained by policies not of that official’s making, those policies,
rather than the subordinate’s departures from them, are the act
of the municipality.” Id. at 926. The actions of the Board of
Trustees and the Genera] Superintendent fall squarely within
the parameters of this holding. D1SD can only operate through
its agents and employees; it is its administrators who are dele
gated the authority to conduct the school district’s day-to-day
business. However, the Board of Trustees limits that delegation
by passing policies whose purpose is to govern how its adminis
trators are to use the delegated discretion. It is those policies
which subject the district to liability; not the actions of an
administrator acting contrary to those policies or in making dis
crete decisions within the scope of legal, non-discriminatory
policies. Cf. City o f Oklahoma City v. Tuttle, 471 U.S. 808
(1985).
In the case at bar, the Fifth Circuit refused to examine the
law of the State of Texas and apply Praprotnik to this case.
Had it done so, it would have dismissed the claims against Dal
las Independent School District because the responsibilities of
the General Superintendent under state law are precise: The
General Superintendent is an administrator, governed by the
rules, regulations and by-laws of the Board of Trustees; he is
not a policy-maker. In fact, the plaintiff introduced sufficient
policies which governed the Superintendent’s actions in trans
ferring Jett that the proposition is incontestable.36 Plaintiff has
36 Because of the various school district policies already discussed,
Pembaur requires that the issue of the status of the General Superin
tendent of the Dallas Independent School District be resolved in defen
dant’s favor. The General Superintendent is not a policymaker. In
addition, state law precludes him from becoming one. Tex. Educ.
Code § 23.01 states that “The public schools of an independent school
district shall be under the control and management of a board of . . .
trustees." Furthermore, state law establishes that these “ trustees shall
have the exclusive power to manage and govern the public free schools
37
put forth—and certainly the Fifth Circuit found—no evidence
which would show that any policy of the Dallas Independent
School District violated any of his constitutional rights. Neither
can he provide any evidence that the members of the Board of
Trustees acted in any way to deprive him of his constitutional
rights. In reality, he proved the opposite by introducing policies
which were meant to protect employees from racial discrimina
tion and which guaranteed due process upon an involuntary
transfer.
Praprotnik applies because this is, quite simply, a § 1983
case, not a direct action under § 1981, and accordingly the prec
edent is stare decisis. The rights to be protected most assuredly
come from § 1981; nevertheless, the cause of action comes from
§ 1983.
II.
Respondeat Superior is Not a Legally Valid Basis for Imposing
Liability on the Dallas Independent School District Under 42
U.S.C. § 1981.
In 1978, the Court probed the applicability of respondeat
superior in a case which arose under section 1983 to enforce
rights which were granted by the Fourteenth Amendment’s
Equal Protection clause to the plaintiffs, women who were
forced to take illegal, unpaid pregnancy medical leaves. In the
resolution of that case, the Court held that:
[T]he language of § 1983, read against the background of
[its] legislative history, compels the conclusion that Con
gress did not intend municipalities to be held liable unless
[municipal] action . . . caused a constitutional tort. In
of the district,” Tex. Educ. Code § 23.26(b) (emphasis added), and
“ may adopt such rules, regulations, and by-laws as they may deem
proper.” Id. at § 23.26(d). The General Superintendent, unlike a mem
ber of the Board of Trustees, is “ the educational leader and the admin
istrative manager of the school district.” Id. at § 13.351. Emphasis
added.
38
particular, we conclude that a municipality cannot be held
liable solely because it employs a tortfeasor—or, in other
words, a municipality cannot be held liable under § 1983
on a respondeat superior theory.
Monell, 436 U.S. at 691. Emphasis in original.
The Court has several times since Monell reaffirmed the con
clusion that respondeat superior does not support municipal lia
bility and that an agency of the state may be held liable only for
its own constitutional violations. Praprotnik; Pembaur v. City
o f Cincinnati, 475 U.S. 469 (1986); City o f Oklahoma City v.
Tuttle, 471 U.S. 808 (1985). Each of these cases was buttressed
by § 1983. Hence, as to litigation brought under the umbrella of
§ 1983, the question as to municipal responsibility via the doc
trine of respondeat superior is not open.37 And, while Monell
was decided under § 1983, it applies with equal validity here,
even if a direct, implied cause of action is found to exist under
§ 1981 in spite of § 1983’s applicability to the school district.
To impose municipal liability on a respondeat superior the
ory simply because the case seeks to vindicate § 1981 rights
would be incompatible with the Monell Court’s logic. Although
the Court braced its decision on the specific wording of section
1983, the language of the act was not the only foundation upon
which the Court built. See City o f Oklahoma City v. Tuttle, 471
U.S. at 817-18; Pembaur, 475 U.S. at 478-79.38 Monell rec
ognizes that in passing the Civil Rights Act of 1871, ch. 22, 17
Stat. 13, Congress avoided “creation of a federal law of respon-
37 Since Monell, the question has arisen in several lower courts as to
whether the respondeat superior theory may be applied to § 1981. E.g.,
Jett v. Dallas Independent School District, 798 F.2d 748 (5th Cir.
1986), on motion for rehearing, 837 F.2d 1244 (5th Cir. 1988);
Springer v. Seamen, 821 F.2d 871 (1st Cir. 1987); Leonard v. City o f
Frankfort Electric and Water Plant Board, 752 F.2d 189 (6th Cir.
1985) (dicta).
38 Justice Brennan maintains that the wording of § 1983 is not the pri
mary source for Monell's conclusion that respondeat superior liability
cannot be imposed on government bodies for deprivations of civil lib
erties. Rather, the conclusion rests “ (p)rimarily” according to his
opinion in Pembaur, “ upon the legislative history.” 475 U.S. at 479.
39
deal superior [because it] would have raised all the constitu
tional problems associated with the obligation to keep the peace
. . Id. at 693. Certainly if § 1983’s framers were appre
hensive about a constitutional impediment to respondeat supe
rior liability in the Civil Rights Act of 1871, see Monell, 436
U.S. at 692 n. 57, after the passage of the Fourteenth Amend
ment, the same fear was, most assuredly, present when the 39th
Congress adopted the 1866 Act. Cf. id. at 694. Moreover, had
the earlier act contemplated vicarious liability, it is safe to
assume that the Sherman amendment’s39 * * * supports would have
used it in debate.
Monell speaks of constitutional torts, id. at 691, not of
§ 1983 torts. To the extent that § 1981 defines the limits of the
rights, privileges, or immunities of citizenship, a violation of
the provision creates a constitutional tort. Moreover, we can
discern no legitimate reason why one who sues to protect Con
stitutional rights, as, for example, First Amendment freedoms,
or, like in Monell, Fourteenth Amendment equal protection of
the laws, should be denied the use of respondeat superior
whereas a person who sues to protect a statutory right can uti
lize the doctrine. It seems that we are putting the wrong foot
forward when we make statutory rights, even those that define
privileges and immunities, more meaningful than those guaran
teed by our Constitution. There is, too, little difference in the
rights sought to be protected. Petitioners in Monell were
endeavoring to prevent class based discrimination, albeit, they
were not within the ambit of protection offered by the Thir
teenth Amendment or § 1981.
City o f Oklahoma City v. Tuttle, All U.S. 808 (1985), spot
lighted the logic of Monell and reiterated that a municipality
39 During the debates over the legislation which lead to the adoption of
the Civil Rights Act of 1871, Senator Sherman introducted an amend
ment which attempted to allow municipal corporations to be named in
actions for damages caused by riot. Cong. Globe, 39th Cong., 1st Sess.
663 (1866). As the amendment came out of committee, it placed the
responsibility for damages directly upon the municipality. Id. at 749-
55. The defeat of the amendment has been a mainstay in the analysis
of the meaning of section 1983. See, e.g., Monroe v. Pape. 365 U.S.
167, 191 (1961); Monell, 436 U.S. at 691n. 57.
42
whose object was . . . [to make them] victims of unjust laws.”
Id. at 388. Emphasis added.
Two things stand out from the Court’s explanation of the
law’s purpose and reach. If the law is meant to reach only
“ intentional” violations, respondeat superior is incompatible
with it. The doctrine of respondeat superior places liability
upon an employer solely because he, she or it is an employer;
intent becomes meaningless. Moreover, once intent is removed
from the statute, one of the main policy reasons for the law will
be lost. The law was meant to reach “constitutional tort
feasors” and to prevent them from denying individuals their
rights. If liability is shifted to the state regardless if it is at fault,
the deterrent will be moved.
The second aspect of the Court’s pronouncement is that
§ 1981 was aimed at “ unjust laws.” Clearly, the intention is to
punish the state as a creator of those laws and not as an
employer. Finally, the Court’s concluding remarks about the
Fourteenth Amendment and its relationship to the modern day
§ 1981 are illuminating. The Court wrote:
[T]he origins of the law can be traced to both the Civil
Rights Act of 1866 and the Enforcement Act of 1870. Both
of these laws, in turn, were legislative cousins of the Four
teenth Amendment. The 1866 Act represented Congress’
first attempt to ensure equal rights for the freedmen fol
lowing the formal abolition of slavery effected by the Thir
teenth Amendment. As such, it constituted an initial
blueprint of the Fourteenth Amendment, which Congress
proposed in part as a means of “ incorporat(ing) the guar
anties of the Civil Rights Act of 1866 in the organic law of
the land.” [Citation omitted] The 1870 Act, which con
tained the language that now appears in § 1981, was
enacted as a means of enforcing the recently ratified Four
teenth Amendment. In light of the close connection
between these Acts and the Amendment, it would be
incongruous to construe the principal object of their suc
cessor, § 1981, in a manner markedly different from that
of the [Fourteenth] Amendment itself.
43
Id. at 389-90. This language answers the challenge that § 1981
does not include the phrase “ under color of state law” or the
“ causes to be subjected” language. Of course, section 2 of the
Act did include similar language and it was the means by which
section 1 was to be enforced. The Civil Rights Cases, 109 U.S.
at 16-17. Even with the metamorphosis that the 1866 statute
went through, the intention remained that “ cause” under
“ color of state law” be required for enforcement. See Virginia
v. Rives, 100 U.S. 313, 317-18 (1879) (dictum). The drafters’
notes accompanying the previously discussed proposed revision
makes this explicit.
The above-referenced language leads to the inevitable conclu
sions that § 1981 should not be construed in a manner markedly
different from the Act, section 1983, which implemented the
Fourteenth Amendment. Statutory law is not drafted in a
closet. Past legislative decisions influence the drafting of bills.
New legislation ties to past experience and prior enactment.
Uniformity and consistency of regulation is as important in the
halls of Congress as it is in the hallowed room of this Court. See
generally 2A Sutherland, Statutes and Statutory Construction
§ 45.10 (J. Singer 4th ed. 1984). The Congress that passed the
Civil Rights Act of 1866, initiated the Amendment that was
implemented by the Congress that adopted the CivD Rights Act
of 1871. Unquestionably, it knew of the construction that had
been placed upon the 1866 Act by the Congress that adopted it
and sought to have § 1983 fit the same mold. See generally A.
Avins, The Civil Rights Act o f 1866, The Civil Rights Bill o f
1966, and the Right to Buy Property, 40 S. Cal. L. Rev. 274,
304 (1967). Looking backward, the defeat of the Sherman
amendment in 1871, just as decidedly, was caused by the same
concerns which had to govern the drafters of the 1866 Act. See
Monell, 436 U.S. at 658 n. 57. If the defeat of the Sherman
amendment tells us that § 1983 does not support the use of the
doctrine of respondeat superior, it equally reveals the same
about § 1981.43 See R. Matasar, Personal Immunities Under 43
43 “ [W]hen Congress’ rejection of the only form of vicarious liability
presented to it is combined with the absence of any language in
40
could only be liable for its own constitutional torts. Id. at 818
(plurality opinion).40 The Court confirmed the position in Pem-
baur and recently, again, in Praprotnik.
In Pembaur, the Court expressed the conclusion, based upon
the legislative history reviewed in Monell, that § 1983 could not
be interpreted to incorporate any vicarious liability doctrines. It
was the view of the Pembaur Court that “ while Congress never
questioned its power to impose civil liability on municipalities
for their own illegal acts, Congress did doubt its constitutional
power to impose such liability in order to oblige municipalities
to control the conduct of others.” 475 U.S. at 479 (emphasis
added). It was the necessity of avoiding the creation of a federal
law of respondeat superior which inevitably led to the result
reached in Monell. Id.
The Court has tracked the history of section 1981 in numer
ous opinions, see General Building Contractors Assn., 458 U.S.
at 383-84; see also Georgia v. Rachel, 384 U.S. 780 (1966), and
we do not feel it necessary to attempt to resolve the question of
§ 1981 ’s ancestry here. See, e.g., Runyon v. McCrary, A ll U.S.
at 192-205 (White, J., dissenting). Suffice it to say that follow
ing the ratification of the Fourteenth Amendment, Congress
passed the Civil Rights Act of 1870, Ch. 114, 16 Stat. 140 (also
known as the Voting Rights Act or the Enforcement Act),
which included, pursuant to the power granted Congress by § 5
of the Amendment, and in order to constitutionally shore up
40 Amici NAACP Legal Defense Fund and ACLU have spent a consid
erable portion of their brief discussing the availability of respondeat
superior at the time that the Civil Rights Act of 1866 was adopted. We
do not feel that the common law doctrine’s existence is relevant. If the
Court wishes to imply a direct cause of action, it can certainly draft the
contours of the right. If it wishes to deny the use of respondeat supe
rior, the fact that it existed at common law now, one or two hundred
years ago, is equally irrelevant. In any event, as the majority opinion in
City o f Oklahoma City, 471 U.S. at 819n. 5, points out, the cases
known to have allowed vicarious liability to be applied to municipali
ties at the time that the various Reconstruction Civil Rights Acts were
enacted, do not support the broad respondeat superior liability
requested by the plaintiff.
41
the previous Civil Rights Act,41 a reenactment of the 1866 Act in
its entirety. Section 16 of the 1870 Act seems to be patterned on
§ 1 of the Civil Rights Act of 1866, but differs in a few respects
from that Act. It does contain virtually the identical language to
that which is now contained in present § 1981.42
General Building Contractors v. Pennsylvania, 458 U.S. 375
(1982), is instructive, although the Court did not use the oppor
tunity of the case to determine the issue now before the Court.
The Court was first called upon to see if “ discriminatory
intent” is a necessary ingredient of a cause brought to enforce
the privileges safeguarded by § 1981. In arriving at its conclu
sion that “ intent” to discriminate is a necessary part of the
proof in an action to enforce § 1981, the Court tracked the evo-
lutioiTof present day § 1981 and, quoting from Hurd v. Hodge,
334 U.S. 24, 32-33 (1948), recognized the common heritage of
the Civil Rights Act of 1866 and the Fourteenth Amendment.
458 U.S. at 384-85. In determining whether § 1981 reaches
practices that merely result in a disproportionate impact, it was
important to keep in mind, the opinion taught us, the history of
the times and the events which forged the law. Id. at 386; see
also Strauder v. West Virginia, 100 U.S. 303, 306-07 (1879); see
generally K. Stampp, The Era o f Reconstruction, 1865-1877
(1965). The Court’s study of those events and the legislative
debates led it to conclude that “ Congress instead acted to pro
tect the freedmen from intentional discrimination by those
41 E.g., Cong. Globe, 39th Cong., 1st Sess. 2511 (1866) (Remarks of
Rep. Eliot); see R. Matasar, Personal Immunities Under Section 1983;
The Limits o f the Court’s Historical Analysis, 40 Ark. L. Rev. 741,
766n. 112 (1987) (“ It is commonly known that the fourteenth amend
ment was passed in part to insure the constitutionality of the Act of
1866”).
42 The legislative history of § 1983 is outlined in Monell and need not
be summarized here. Section 1981, in its present form, has been law
since 1870. It was adopted as § 16 of the Voting Rights Act of May 31,
1870, ch. 114, 16 Stat. 140. It was the result of the Congress’ view that
the States were depriving newly freed persons of the equal protection
of the law in violation of the Fourteenth Amendment. Cf. Cong.
Globe, 41st Cong., 2nd Sess. 3 (1869); Cong. Globe, 41st Cong., 2nd
Sess. 3658 (1869) (Statement of Senator Stewart); see also Runyon, 427
U.S. at 197-202 (White, J., dissenting).
44
Section 1983: The Limits o f the Court’s Historical Analysis, 40
Ark. L. Rev. 741, 766-68, 766n. 112 (1987).
In 1866, without the benefit of the Fourteenth Amendment,
concerns about federalism almost prevented the 1866 Act from
becoming law. Cf., e.g., Globe at 1083 (Remarks of Rep.
Davis); id at 2446 (Remarks of Senator Grimes). Those who
doubted its legitimacy presumed that the law would impinge on
the domain of the states by interfering with their internal law
making and judicial affairs. E.g., Cong. Globe, 39th Cong., 1st
Sess. 1120-21 (1866) (Remarks of Rep. Rogers); see generally J.
TenBroek, Equal Under the Law 183 (1958). These fears would
have prevented the Congress from expanding the reach of the
1866 Act by the use of the doctrine respondeat superior.
Monell, as the Fifth Circuit recognized in Jett, 837 F.2d at
1247, was in part grounded on the absence of any language in
§ 1983 which could be construed to create respondeat superior
liability. 436 U.S. at 2037n. 57. “ This is, of course,” to quote
the appellate court, “ likewise true as to section 1981.” Id.
Moreover, as we have tried to emphasize throughout this brief,
§ 1981 contains no language of liability; it is only the declara
tion of rights to be protected. The absence of language creating
a cause of action is significant for another reason—one should
not construe a statute to allow vicarious liability against munici
palities in the absence of a clear Congressional mandate. And,
we might add, looking for Congressional intent to allow
respondeat superior in a statute that does not contemplate any
type of civil liability is a gesture in futility. Finally, in the same
vain, we are not aware of any criminal prosection of a munici
pality based upon the official criminal conduct of one of its
employees. The employee may face criminal charges; the city
does not.* 44 If a municipality could not be vicariously charged
§ 1983 which can easily be construed to create respondeat superior lia
bility, the inference that Congress did not intend to impose such liabil
ity is quite strong,” according to Monell. 436 U.S. at 693 n. 57. The
same is true when applied to § 1981.
44 Representative Bingham imparted this very thought to the Congress
during the debate over the Ku Klux Klan act: “ It is clear that if Con-
45
with a crime, then it is logical to assume that the Congress that
passed the 1866 Civil Rights Act as a criminal law could not
have had any type of respondeat superior liability in mind when
they voted it into law. Recognizing that the 1866 Act was a
criminal law statute, looking at it to determine if the Congress
intended to apply the common law doctrine of respondeat supe
rior to § 1981 civil actions can, of course, lead to uniquely one
result: by definition, the intent to incorporate the doctrine must
be absent.45
The above cases apply whether the present day § 1981 is
derived from the Civil Rights Act of 1866, the Enforcement Act
of 1870 or the Ku Klux Klan Act. Starting with the 1866 Act,
two points are salient. As passed, section 1 of the Act was
intended to be enforced by the provisions of section 2. See, e.g.,
Globe at 1758 (Remarks of Senator Trumbull). Section 2 was,
according to Senator Trumbull, the “ machinery to carry [sec
tion 1] into effect.” Id. at 475. In interpreting the measure, one
cannot look at section 1 in a shadow. Section 2 provides, in
almost identical language to the language from § 1983 which
was compelling in deciding Monell: “Any person who, under
color of any law . . . shall subject, or cause to be subjected,
any person . . . to the deprivation of any right . . . shall
. .” Compare Civil Rights Act of 1866, § 2, ch. 31, 14 Stat.
27 (1866), with Monell, 436 U.S. at 691-92. Emphasis added.
gress do so provide by penal laws for the protection of these rights,
those violating them must answer for the crime, and not the States.
The United States punishes men, not States, for a violation of iu
laws." Cong. Globe, 42d Cong., 1st Sess. app. 85-86 (1871). Emphasis
added.
45 Plaintiff argues in his brief that the legislative intent to include
respondeat superior in the 1866 Civil Rights Act can be drawn from the
Congress’ silence in the face of settled principles existing at the ume
the statute was adopted. Brief of Petitioner at 26-27. Whether respon
deat superior existed at the time the 1866 Act was adopted is irrelevant.
A principle must apply to the statute being considered before one can
assume that silence meant that Congress intended to include the doc
trine. Here, unlike the situation with § 1983, where the Congress was
passing a civil statute that specifically allowed damage actions, the
argument makes little sense.
46
Given the relationship of section 1 of the 1866 Act to section 2
of the Act, Monell’s interpretation of the meaning of “ cause to
be subjected” applies here in spite of the phrase’s absence in
present day § 1981.
The intent of Congress in passing the 1866 Act, if it intented
any civil remedy at all, which is, of course, highly improbable,
was to impose liability via section 2, not section 1, on a govern
ment that, under color of some official policy, “ causes” an
employee to violate another’s section 1 rights. Cf. 436 U.S. at
692. At the same time, following M onells reasoning, the lan
guage of section 2 “ cannot be easily read to impose liability
vicariously on governing bodies solely on the basis of the exis
tence of an employer-employee relationship with a tort
feasor.” Id.
Furthermore, section 1 of the 1866 Act concluded with the
expression “any law, statute, ordinance, regulation, or custom,
to the contrary notwithstanding.”46 This language signifies
that it was the intention of the Congress to strike down any of
the state laws, etc., that were interfering with the ability of
former slaves to obtain all the privileges of citizenship. It was
the actions of the states at which section 1 was directed, not at
individuals, and the use of the “ contrary notwithstanding”
phraseology in section 1 only served to reinforce the language
of section 2. If a legislature did not pass any offensive laws, the
Civil Rights Act would not operate within their state. Of
course, the legislative history confirms this. See Globe at 476
(Remarks of Senator Trumbull); id. at 1758. This Court, too,
after reviewing this language, arrived at this identical conclu
sion, in 1883, over one hundred years ago, albeit in dictum. The
Civil Rights Cases, 109 U.S. at 16.
One of the persuasive statements demonstrating the fallacy of
the assertion that the Congress intented respondeat superior to
46 The above-quoted language does not appear in § 1981, however, it
was removed from the earlier act when the laws were revised in 1874,
hence, its omission is of no consequence. The commissioners were spe
cifically instructed to omit “redundant” enactments and to “ simplify”
the statutes. Act of June 27, 1866, §§ 1,2, 14 Stat. 74. The language
was unnecessary since the vehicle for enforcement was § 1983.
47
apply to the 1866 Act was made by Senator Trumbull in his
defense of section 2 of the act. In its proper construction, he
asks rhetorically, “ Who is to be punished?” “ Is the law to be
punished?” “Are the men who make the law to be punished?”
And, most importantly to our inquiry, “ Does this section pro
pose to punish the community where the custom prevails?” He
answers himself, “ Not at all” and continues:
Or is it to punish the person who, under color of the cus
tom, deprives the party of his right? It is a manifest perver
sion of the meaning of the section to assert anything else.
Id. Application of the doctrine of respondeat superior in the
circumstances of § 1981 would most certainly “ punish the com
munity” and be a flagrant perversion of the meaning of the sec
tion.
Justice White’s Runyon analysis of the legislative history of
§ 1981 applies with greater force to the facts of this case than to
Runyon itself, and leads to the inevitable conclusion that, if
§ 1981 is a Fourteenth Amendment statute, it must be read, like
§ 1983, to preclude liability based upon the doctrine of respon
deat superior. As such, it requires state action as defined in
Monell, and, accordingly the doctrine of respondeat superior
cannot be applied to § 1981. Therefore, whether § 1981 is
derived from the Civil Rights Act of 1866 or from a later enact
ment, respondeat superior is not a part of the statute’s enforce
ment provisions.
*
48
CONCLUSION
The Court should affirm the decision of the Fifth Circuit
Court of Appeals that the doctrine of respondeat superior does
not apply to claims brought to protect the rights, privileges, or
immunities granted by section 1981 and affirm the application
of Praprotnik to the free speech claims. However, the Court
should order the case against the defendant Dallas Independent
School District dismissed, since no actor involved in the alleged
deprivations was a policymaker of the district, as a matter of
state law, and the alleged wrongdoers were governed by policies
which did not create the asserted constitutional torts.
Respectfully submitted,
L e o n a r d J. S c h w a r t z *
D e n n is J. E ic h e l b a u m
B e n W . N ie d e c k e n
Dallas Independent School District
3700 Ross Avenue
Dallas, Texas 75204
(214) 824-1620 Ext. 468
Counsel fo r Respondent **
* Counsel of Record for the Respondent
•* Counsel for the Respondent would like to publicly thank the Refer
ence Librarians at the Law Library of the Library of Congress and at
the Texas Archives for their assistance in researching the legislative his
tory of the Reconstruction Era Acts. We would also like to thank
Eleanor Eastep, Shirley A. Jeffers and Diana Cantu for their adminis
trative support in accumulating the numerous documents involved.