Jett v. Dallas Independent School District Brief Amici Curiae

    Nob. 87-2084, 88-214

In the

(Ertttrt of tlir Huitrfo Stairs
Octobee Teem, 1988

N oeman J ett,

v.
Petitioner,

Dallas I ndependent School D isteict,
Respondent.

Dallas I ndependent School D isteict,
Cross-Petitioner,

v.

N oeman J ett,
Respondent.

ON WEIT OF CEBTIOEAEI TO THE UNITED STATES COUET 
OF APPEALS FOE THE FIFTH CIECUIT

BRIEF AMICI CURIAE OF THE NAACP LEGAL 
DEFENSE AND EDUCATIONAL FUND, INC. AND 

THE AMERICAN CIVIL LIBERTIES UNION

J ulius LeV on ne Cham bees 
E eic S chnappee*

NAACP Legal Defense & 
Educational Fund, Inc. 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Amici Curiae
*  Counsel of Record



t'

QUESTIONS PRESENTED
1. Must a public employee who alleges 

job discrimination on the basis of race show 
that the discr iminaton resulted from an 
official "policy or custom" in order to 
recover under 42 U.S.C. §1981?

2. Did the Fifth Circuit's decision 
correctly apply Monell v. Department of Social 
Services. 436 U.S. 658 (1978), and it progeny?

i



Page
TABLE OF CONTENTS

Questions Presented .........
Table of Contents ...........  ^
Table of Authorities ........
Interest of Amici ..........  1

Summary of Argument .........  2
Argument ...... ........................  D

I* The 1866 Civil Rights Act,
As Originally Enacted, Did
Not Require Proof of
Official Policy ........  10

A. No Proof of Official
Policy Is Required in Section 1981 
Actions Against Private
Defendants ......  15

B. No Proof of Official
Policy Is Required 
in Section 1981 
Actions Against 
Governmental
Defendants ......  22

II* The Rights and Remedies
Created by the 1866 Civil
Rights Act Were Not Altered
by the Adoption of the 1871Civil Rights Act ..... 47

Conclusion ... 57

ii

Page
TABLE OF ATJTHORTTTFQ

Allegheny County v. Rowley 
4 Clark (Pa.) 307 (1849) ....' .................  39

Amell v. United States, 384 U S
158 (1966) ............; * 48

Anthony v. Adams, 42 Mass. 284
(184°> .................

Barry v. city of st. Louis,
17 Mo. 121 (1852)   41

Batchelder v. City of Salem, 58
Mass. 599 (1849) .......  45

Botkin v. Osborne, 39 m
71 (1864)    45

Browning v. city of Springfield,17 111. 43 (1855) ...... 31/41
Casey v. Baldridge, 15 111. 43

(1853>   45
Chicago v. Robbins, 67 U.S. (2

Black) 418 (1863)   42
Cincinatti v. Stone, 5 Ohio St.

38 (1855)   41

City of Baltimore v. Marriott
9 Md. 160 (1856) .......  42

City of Dayton v. Pease, 4 Ohio
St. 80 (1854) ..........  19,31,33

iii



City of Detroit v. Corey, 9 Mich.165 (1861)   36

City of Logansport v. Wright, 25
Ind. 512 (1865)   31,35

City of Milwaukee v. Davis,
6 Wise. 377 (1858)   39

City of Providence v. Clapp,
58 U.S. (17 How.) 161
(1854)   28

City of Richmond v. Long's
Administrators, 17 Gratt.
(Va.) 375 (1867)   31,32

City of St. Louis v. Gurno, 12
Mo. 414 (1849)   36-37,42

Clague v. City of New Orleans,
13 La. Ann. 275
(1858)   43

Conrad v. Trustees of Ithaca,
16 N.Y. 158 (1857)   39

Cotes & Patchin v. City of 
Davenport, 9 Iowa 227
(1859)   35

County Commissioners of Anne
Arundel County v. Duckett,
20 Md. 468 (1863)   38

Creal v. City of Keokuk,
4 G. Greene (Iowa)
47 (1853)   41

Page

iv

Page
Cross v. District Township of 

Dayton, 14 Iowa 28(1862) ................. 45

Croy v. Skinner, 410 F. Supp.
117 (N.D. Ga. 1976)   16

Dargan v. Mayor of Mobile, 31
Ala. 469 (1858)   35

Dean v. New Milford Township,
5 Watts & Serg. (Pa.)545 (1843)   31

Delmonico v. Mayor, etc. of New 
York, 1 N.Y. Super. Ct. 222(1848)   3?

Dickerson v. City Bank & Trust Co., 590 F. Supp. 714
(D. Kan. 1984)   16

District of Columbia v. Carter,
409 U.S. 418 (1973)   7

Doyan v. School District, 35 Vt.520 (1863)   45

E.E.O.C. v. Gaddis, 733 F.2d 1373
(10th Cir. 1984) ....... is

Flowers v. Crouch Walker Corp.,
552 F.2d 1277 (7th Cir.1977)   16

Fowle v. Common Council of 
Alexandria, 28 U.S.(3 Pet.) 398
(1830)   39

v



Page
Freeland v. City of Muscatine,

9 Iowa 461 (1859)   41
General Building Contractors v. 

Pennsylvania, 458 U.S. 375 
(1982)   16,17,18

George v. School District No. 8,
20 Vt. 493 (1848)   45

Gilman v. Bassett, 33 Conn. 298
(1866)   45

Harrison Township v. Conrad,
26 Ind. 337 (1866)   45

Hickok v. Trustees of Platts­
burgh, 16 N.Y. 158
(1854)   28-29

Hickok v. Trustees of Platts­
burgh, 15 Barbour (N.Y.)
427 (Sup. Ct. 1853)   37

Hilsdorf v. City of St. Louis,
45 Mo. 94 (1869)   39

Holden v. Shrewsbury School 
District No. 10, 38 Vt.
529 (1866)   45

Hooe v. Alexandria, 12 Fed. Cas.
462 (C.C.D.C. 1802)   40

Imbler v. Pachtman, 424 U.S.
409 (1976)   12

Inhabitants of Searsmont v.
Farwell, 3 Me. 450
(1825)   45

vi

Page
Izard v. Arndt, 483 F. Supp. 261

(E.D. Wise. 1980)   16
Jett v. Dallas Independent School 

District, 837 F.2d 1244 
(5th Cir. 1988)   5,11

Jett v. Dallas Independent School 
District, 798 F.2d 762 
(5th Cir. 1986)   4,5,15

Johnson v. Municipality No. One,5 La. Ann. 100
(1850)   5,30,42

Jones v. Local 520, International 
Union of Operating Engineers,
524 F. Supp. 487 (S.D. 111.
1981)   16

Kavanagh v. City of Brooklyn,
38 Barb. (N.Y.) 232 (Sup.
Ct. 1862)   29

Kelley v. Mayor, etc. of New York,
4 E.D. Smith (N.Y.) 291 (Ct.
Com. Pleas 1855)   41

Kelly v. City Council of Charles­
ton, 4 Rich. Law. (S.C.)462 (1854) .........  43

Kelly v. Mayor, etc. of New York,
11 N.Y. 432 (1854)   41

Lloyd v. Mayor, etc. of New York,
5 N.Y. 369 (1851)   29,31

vii



Page
Lucero v. Beth Israel Hospital 

Center, 479 F. Supp. 452 
(D. Colo. 1979)   16

Lytle v. Household Manufacturing,
Inc., No. 88-334 ....... 1

Malone v. Schenk, 638 F. Supp.
423 (C. D. 111.
1985)   16

Mason v. School District No. 14,
20 Vt. 487 (1848)   45

Mayor, etc. of Baltimore v.
Kelly, 9 Md. 160
(1856)   31

Mayor, etc. of Memphis v.
Lasser, 28 Tenn. 757
(1849)   34

Mayor, etc. of New York v.
Bailey, 2 Denio (N.Y.)
433 (Ct. of Errors
1845)   37

Mayor, etc. of New York v. Furze,
3 Hill (N.Y.) 612, 618-19
(Sup. Ct. 1842)   29,32

Meares v. Commissioners of 
Wilmington, 31 N.C. 73 
(1848)   32

Mercantile Nat. Bank v. Langdeau,
371 U.S. 555 (1963)   48

viii

Page
Miller v. Bank of America, 600 

F.2d 211 (9th Cir.
1979) .................. io

Monell v. Department of Social 
Services, 436 U.S. 658
(1978) ................. i,8,9,10,

24,44,49-52
Morey v. Town of Newfane, 8

Barbour (N.Y.) 645 (Sup.Ct. 1850)   37
Morton v. Mancari, 417 U.S.

535 (1974)   48
Nebraska City v. Campbell, 67 

U.S. (2 Black) 590
(1863)   28

Neville v. School Directors of 
District No. 1, 36 111.
71 (1864)   45

Nevins v. City of Peioria, 41
111. 502 (1866)   35,41

Newport v. Fact Concerts, Inc.,
453 U.S. 247 (1981)   3,12,13

Offut v. Bougeois, 16 La. Ann.
163 (1861)   45

Oklahoma City v. Tuttle, 471 U.S.
808 (1985)   17

Owen v. City of Independence,
445 U.S. 622 (1980)   4,12,13,22,

24-25, 41,45

IX



Page
Pack v. Mayor, etc. of New York,

11 N.Y. 432 (1854)   41
Painter v. Pittsburgh, 46 Penn.

St. 213 (1863)   41
Patterson v. McLean Credit Union,

No. 87-107 .............  1,23
Paul v. School District No. 2,

28 Vt. 575 (1856)   45
Pembaur v. Cincinnati, 475 U.S.

469 (1988)   17
Pierson v. Ray, 386 U.S. 547

(1967)   12
Prather v. Lexington, 13 Ben.

Monroe's Ky. Rep. 559
(1852)   36

Pritchard v. Georgetown, 19 Fed.
Cas. 1348 (C.C.D.C.
1819)   38

Regional Rail Reorganization Act 
Cases, 419 U.S. 102
(1974)   48

Richardson v. School District 
No. 10, 38 Vt. 602
(1866)   45

Roberts v. City of Chicago, 26
111. 249 (1861)   39

Rochester White Lead Co. v. City
of Rochester 3 N.Y. 4c3

x

Page
Miller v. Bank of America, 600 

F.2d 211 (9th Cir.
1979) .................. 10

Monell v. Department of Social 
Services, 436 U.S. 658
(1978) ..................  i,8,9,10,

24,44,49-52
Morey v. Town of Newfane, 8

Barbour (N.Y.) 645 (Sup.Ct. 1850)   37

Morton v. Mancari, 417 U.S.
535 (1974)   48

Nebraska City v. Campbell, 67 
U.S. (2 Black) 590
(1863)   28

Neville v. School Directors of 
District No. 1, 36 111.
71 (1864)   45

Nevins v. City of Peioria, 41
111. 502 (1866)   35,41

Newport v. Fact Concerts, Inc.,
453 U.S. 247 (1981)   3,12,13

Offut v. Bougeois, 16 La. Ann.
163 (1861)   45

Oklahoma City v. Tuttle, 471 U.S.808 (1985)   17
Owen v. City of Independence,

445 U.S. 622 (1980) .... 4,12,13,22,
24-25, 41,45

IX



Page
Pack v. Mayor, etc. of New York,

11 N.Y. 432 (1854)   41
Painter v. Pittsburgh, 46 Penn.

St. 213 (1863)   41
Patterson v. McLean Credit Union,

No. 87-107 .............  1,23
Paul v. School District No. 2,

28 Vt. 575 (1856)   45
Pembaur v. Cincinnati, 475 U.S.

( 469 (1988)   17
Pierson v. Ray, 386 U.S. 547

■i: (1967)   12
Prather v. Lexington, 13 Ben.

Monroe's Ky. Rep. 559
(1852)   36

Pritchard v. Georgetown, 19 Fed.
Cas. 1348 (C.C.D.C.
1819)   38

Regional Rail Reorganization Act 
Cases, 419 U.S. 102
(1974)   48

Richardson v. School District 
No. 10, 38 Vt. 602
(1866)   45

Roberts v. City of Chicago, 26
-111. 249 (1861)   39

Rochester White Lead Co. v. City 
of Rochester, 3 N.Y. 463
(1850)   42

x

Page
Rolfe v. Cooper, 20 Me. 154(1841)   45

Ross v. City of Madison, 1 Ind.281 (1848)   34

Ruckleshaus v. Monsanto Co.,
467 U.S. 986 (1984)   5,43

St. Louis v. Praprotnik, 99 L.
Ed.2d 107 (1988)   46

St. Paul v. Seitz, 3 Minn. 297(1859)   41

Shaw v. Mayor of Macon, 19 Ga.468 (1856)   45

Small v. Inhabitants of Danville,
51 Me. 359 (1864)   36

Smith v. Milwaukee, 18 Wise.63 (1864)   41

Smoot v. City of Wetumpka, 24
Ala. 112 (1854)   41

Stewart v. City of New Orleans,9 La. Ann. 461(1854)   38

Templin v. Iowa City, 14 Iowa
59 (1862)   35

Treadwell v. Mayor, etc. of New
York, 1 Daly (N.Y.) 123 (Ct.
Com. Pleas 1861) ....... 41

xi



Page
Trustees of Town of Milford v. 

Simpson, 11 Ind. 520 
(1858) .................

Wallace v. City of Muscatine,
4 G. Greene (Iowa) 373 
(1854) .................

Weightman v. Washington, 66 U.S.
(1 Black) 39 (1861) .... 4

Wilde v. City of New Orleans, 12 
La Ann. 15 (1857) ......

Wood v. Strickland, 420 U.S. 308 
(1975) .................

Other Authorities
Civil Rights Act of 1866, 42

U.S.C. §1981 ...........
Civil Rights Act of 1871, 42

U.S.C. §1983 ...........
42 U.S. C. 1986 .............
Blackstone's Commentaries ....
F. Hillard, The Law of Torts

(1859) .................
W. Paley, A Treatise on the 

Law of Principal and 
Agent (1840) ...........

Prosser and Keeton on Torts
(5th ed. 1984) .........

xii

45

41

,26-28,32 

40 

12

passim.

passim.
53
19

20

20

13

C. Smith, A Treatise on the 
Law of Master and
Servant (1852) .........  20

J. Story, Commentaries on the
Law of Agency (1857)   14,19,20

W. Theobald, The Law of Principal 
and Surety and Principla and Agent (1836) ...........  2G

Cong. Globe, 39th Cong.,
1st sess................  8

Cong. Globe, 42nd Cong.,
lst sess................ 8,54-56

xiii



BRIEF AMICI CURIAE 
OF THE NAACP LEGAL DEFENSE AND 

EDUATIONAL FUND, INC.
AND THE AMERICAN CIVIL 

LIBERTIES UNION

INTEREST OF AMICI CURIAE1 
The NAACP Legal Defense and Educa­

tional Fund, Inc., is a non-profit 
corporation formed to assist Blacks to 
secure their constitutional and civil 
rights by means of litigation. Over the 
course of the last two decades, the Fund's 
attorneys have represented plaintiffs in a 
substantial number of section 1981 cases, 
both in the lower courts and in this 
Court. See. e.q.. Patterson v. McLean 
Credit Union. No. 87-107; Lytle v. 
Household Manufacturing. Inc.. No. 88-334.

1 Letters from the parties consenting 
to the filing of this brief have been 
filed with the Court.



2

We currently represent in pending section 
1981 actions a number of plaintiffs whose 
rights will necessarily be significantly 
affected by this Court's decision in the 
instant case.

The American Civil Liberties Union 
(ACLU) is a nationwide, non-partisan, 
membership organization dedicated to 
defending civil liberties and civil 
rights. In pursuit of that goal, the ACLU 
has participated in numerous cases before 
this Court involving the interpretation of 
federal civil rights statutes. This case 
raises again the question of whether those 
laws will remain an effective tool for 
combatting discrimination. The resolution 
of that question is a matter of vital 
concern to the ACLU.

SUMMARY OF THE ARGUMENT
The interpretation of the 1866 Civil 

Rights Act must be based on the terms and

3
legislative history of that statute, not 
on the meaning and history of the 1871 
Civil Rights Act. The membership of the 
House of Representatives in the thirty- 
ninth and forth-second Congresses, which 
adopted the 1866 and 1871 acts respec­
tively, was almost entirely different. Of 
the 122 Representatives who voted in 1866 
for the first Civil Rights Act, only 15 
were still in the House in 1871, and only 
4 of these voted against the Sherman 
amendment.

Whether respondeat superior, or 
comparable contract doctrines, should be 
applied to a section 1981 claim turns on 
the principles of common law which would 
have governed similar claims in 1866. 
Newport v.— Fact Concerts. Tnc. . 453 U.S.
247 (1981) . The Fifth Circuit in the
instant case correctly acknowledged that 
respondeat superior would apply to a



4
section 1981 claim against a private 
defendant. Jett v. Dallas Independent 
School District. 798 F.2d 748, 763 (5th 
Cir. 1986). It would be incongruous if a 
lesser standard of liability were applied 
to claims against government defendants.

In 1866 the doctrine of respondeat 
superior was widely utilized to determine 
the degree of municipal liability for a 
violation of a legal duty by a city 
employee. Weiqhtman v. Washington. 66 
U.S. (1 Black) 39 (1861). In this era 
municipal corporations were generally 
subject to "the same standards of liabil­
ity as any private corporation." Owen v. 
City of Independence. 445 U.S. 622, 644 
(1980). The principles of respondeat 
superior were applied by state courts 
prior to 1866 to determine whether a 
slaveowner could recover damages from a 
city for injuries inflicted on a slave by

5
city employees. Johnson v. Municipality 
MQ- One, 5 La. Ann. 100 (1850).

The 1866 Civil Rights Act, in the 
period prior to the enactment of the 1871 
Act, clearly did not require proof of 

policy or custom. The adoption 
of the 1871 statute did not alter the 
meaning of the 1866 law. Repeals by
implication are disfavored. Ruckleshans
v. Monsanto Co.. 467 U.S. 986 (1984).

ARGUMENT
The decisions of the Fifth Circuit in 

this case proceed from one essential but 
critically flawed premise —  that the 
meaning of the 1866 Civil Rights Act can 
and should be divined by reference to the 
meaning and now reigning construction of 
the 1871 Civil Rights Act. In its initial 
opinion the panel below asserted that the 
doctrine of respondeat superior could not 
be applied in section 1981 actions against



6

governmental bodies because, on its view, 
"[t]o impose such vicarious liability 
for... certain wrongs based on section 
1981 apparently would contravene the 
congressional intent behind section 1983." 
Jett v. Dallas Independent School Dis­
trict. 798 F. 2d 748, 762 (5th Cir. 1986). 
The panel in its second opinion relied on 
what it believed to be "the appropriate­
ness of parallel treatment in this respect 
of these two post-civil War statutes." 
Jett v. Dallas Independent School Dis­
trict. 837 F.2d 1244, 1248 (5th Cir. 
1988) .

Under most circumstances, however, 
the interpretation of one statute must be 
based on its own terms and legislative 
history, not on the history and meaning of 
a distinct and subsequent law. An excep­
tion might be appropriate for two related 
and similarly worded statutes adopted

7
simultaneously by the same Congress to 
solve the same problem. But such a 
relationship does not exist between the 
1866 Civil Rights Act and the 1871 Civil 
Rights Act. The 1866 Act was enacted by 
the thirty-ninth Congress pursuant to the 
Thirteenth Amendment, and covers both 
private and governmental acts of discrimi­
nation; the 1871 Act was adopted by the 
forty-second Congress pursuant to the 
Fourteenth Amendment, covers a wide 
variety of constitutional and statutory 
claims, and extends only to conduct under 
color of state of law. In District of
Columbia v._Carter. 409 U.S. 418 (1973),
this Court unanimously rejected a similar 
claim that the 1866 and 1871 acts should 
be accorded "parallel treatment"; Carter 
held that, although the words "state and 
territory" in the 1866 Act encompass the



8
District of Columbia, those same words in 
the 1871 Act do not refer to the District.

The legislation enacted by the forty- 
second congress is a particularly unreli­
able guide to the intent of the thirty- 
ninth congress because of the almost total 
change in the membership of the House of 
Representatives between 1866 and 1871. Of 
the 122 members of the thirty-ninth 
congress who voted for the 1866 Civil 
Rights Act, only 15. were still members of 
the House when the 1871 Act was adopted.2 * 
The interpretation of section 1983 in 
Monell v. Dept, of Social Services. 438 
U.S. 658, 664-701 (1978), turned largely

2 Compare Cong. Globe, 39th Cong.,
1st sess. 3, 1861 (1866) with Cong. Globe, 
42nd Cong., 1st sess. 5, 801 (1871). The 
representatives who voted for the 1866 act 
and were still in the House in 1871 were 
Nathaniel Banks, Burton Cook, Henry Dawes, 
John Farnsworth, James Garfield, Samuel 
Hooper, William Kelley, John Ketcham, John 
Lynch, Ulysses Mercur, Leonard Myers, 
Philetus Sawyer, Glenni Scofield, Samuel 
Shellabarger and William Washburn.

9
on the vote of the House of Representa­
tives in 1871 rejecting the Sherman 
amendment. But the rejection of the 
Sherman amendment by the congressmen in 
the House in 1871 tells us absolutely 
nothing about the views of the wholly 
Afferent group of congressmen who served 
in 1866. Indeed, among the 15 former
members of the thirty-ninth congress who 
were elected to the forty-second congress, 
only 4 voted against the Sherman amend­
ment.2 Representative Shellabarger, the 
House sponsor of and chief spokesman for 
the bill containing the Sherman amendment, 
436 U.S. at 669-73, was one of the few 
supporters of the 1866 Act still in 
Congress in 1871; of the five congressmen 
whose remarks in opposition to the Sherman 
amendment were referred to in Monell. only

3 Banks,Garfield. Cook, Farnsworth and



10

one had even been a member of the earlier 
thirty-ninth congress.4 *

For these reasons, the 1866 and 1871 
acts should be separately evaluated. The 
first issue is whether the 1866 Civil 
Rights Act, as originally enacted, 
required proof of official policy or 
custom; if, as we urge, the Court holds 
that the 1866 Act contained no such 
requirement, it should then consider 
whether, by adopting the 1871 Act, 
Congress intended by implication to amend 
that earlier law and impose such a 
requirement.
I. THE 1866 CIVIL RIGHTS ACT, AS 

ORIGINALLY ENACTED. DID NOT REQUIRE 
PROOF OF OFFICIAL POLICY
The question raised by this case is

not whether a city or private corporation
can be held liable because of discrimina-

4 436 U.S. at 673-82 (Reps. Blair,
Burchard, Farnsworth, Poland and Willard).

11

tion by one of its employees, but only 
when the imposition of such liability is 
appropriate. Corporations, be they 
private or municipal, can only act through 
natural persons; if, as respondent does 
not deny, cities are subject to suit under 
section 1981, it will necessarily be as a 
consequence of discrimination by one or 
more municipal employees or agents.

The terms of the 1866 Civil Rights 
Act do not themselves expressly establish 
any rule regarding when an employer may 
and may not be held liable for discrimi­
natory acts by its employees. But that 
silence does not, as the Fifth Circuit 
believed, authorize the courts to create 
whatever liability rules they may think 
supported by their own views of social 
policy or current "judge-made law." 837 
F.2d at 1248. Rather, here, as in 
ordinary cases of statutory construction,



12

Congress is presumed to have intended that
such liability issues would be controlled
by the common law rules applicable to
similar claims at the point in time when
the statute in question was adopted:

One important assumption underlying 
the Court's decisions in this area is 
that members of the ... Congress were 
familiar with common-law principles 
... and that they likely intended 
these common-law principles to 
obtain, absent specific provisions to 
the contrary.

Newport v. Facts Concerts. Inc.. 453 U.S. 
247, 258 (1981).5 Such common law
principles are assumed to control litiga­
tion under section 1981 except in those 
cases where they would "defeat the promise

5 E.q.. Owen v. City of Independence, 
445 U.S. 662, 637 (1980) (principles 
"firmly rooted in the common law"); Imbler 
v. Pachtman. 424 U.S. 409, 418 (1970) 
(statute "read in harmony with general 
principles of tort immunity and defenses 
rather than in derogation of them"); Wood 
v. Strickland. 420 U.S. 308, 318 (1975) 
("common law tradition"); Pierson v. Ray, 
386 U.S. 547, 553-54 (1967) ("doctrines 
... solidly established at common law").

13
of the statute." Newport v. Fact Con­
certs. Inc.r 453 U.S. at 259.6

The court below assumed that, in 
evaluating the potential liability of an 
employer, all section 1981 claims should 
be regarded as torts, and that the issue 
presented by this case is thus simply 
whether the doctrine of respondeat 
superior should be applied in these cases. 
The common law, however, encompassed two

6 Respondent suggested below that the imposition of liability on the city in 
this case would be inappropriate because 
intentional racial discrimination is 
analogous to an intentional tort for which 
an employer, even under common law prin­
ciples, could not be held liable. The 
actual common law rule, however, exon­
erates an employer only for intentional 
torts unrelated to the employer's busi- 
ness* Prosser and Keeton on Torts. 505 
(5th ed. 1984) . This argument, moreover, 
proves too much, for if racial discrimina­
tion were regarded as an intentional tort 
for which an employer could not be held 
liable, that doctrine would "insulate[] 
the municipality from unconsented suits 
altogether," Owen v. city of Independence. 
445 U.S. 622, 647 (1980), even if the tort 
were committed jointly by a mayor and a city council.



14
distinct types of rules regarding when an 
employer was to be held liable for actions 
of an employee, one set, under the rubric 
respondeat superior, for torts, and a 
second set for claims arising in a 
contract. J. Story, Commentaries on the 
Law of Agency 521-36 (contract), 536-600 
(tort) (1857). Under some circumstances, 
which we do not here undertake to con­
sider, the differences in those rules 
might be of significance. The claim in 
the instant case of constructive discharge 
is probably more analogous to a contract 
claim for the wrongful dismissal of an 
employee than to a tort claim arising, for 
example, from the injury caused by a 
negligently maintained street. As we 
suggest below, however, the disposition of 
petitioner's claim is the same regardless 
of whether it is regarded as sounding in
contract or in tort.

15
A - No Proof of Official Policy T<=; 

Required In Section 1981 Actions Against Private Defendants
The Fifth Circuit in the instant case

expressly held that the doctrine of
respondeat superior is applicable to
section 1981 claims against a private
defendant:

Plaintiff relies on several cases 
applying respondeat superior theory 
under section 1981 in the context of 
private employment.... Our reason- 
ing, of course, does not prevent the 
imposition of vicarious liability on 
a private employer under section 
1981.... We believe that the Supreme 
Court's interpretation in Monell of 
Congress' intent in enacting section 
1983 provides compelling reasons for 
distinguishing between private and 
municipal liability under section 1981.

798 F.2d at 763. The lower courts are in 
virtually unanimous agreement that the 
principles of respondeat superior are



16
controlling in section 1981 claims against 
private employers.7

A majority of this Court is already 
committed to the view that the liability 
of an employer, at least of a private 
employer, can be based on the principles 
of respondeat superior. In General 
Building Contractors v. Pennsylvania. 458 
U.S. 375 (1982), the Court considered a
variety of assertions that the employer 
association in that section 1981 case 
should be held liable for discrimination

7 E.E.O.C. v. Gaddis. 733 F.2d 1373, 
1380 (10th Cir. 1984) ; Miller v. Bank of 
America. 600 F.2d 211, 212-13 (9th Cir. 
1979); Flowers v. Crouch Walker Corp.. 552 
F.2d 1277, 1282 (7th Cir. 1977); Malone v. 
Schenk. 638 F. Supp. 423, 424-25 (C.D. 
111. 1985) ; Dickerson v. City Bank and 
Trust Co.. 590 F. Supp. 714, 717 C.D. Kan. 
1984); Jones v. Local 520. International 
Union of Operating Engineers 524 F. Supp. 
487, 492 (S.D. 111. 1981); Lucero v. Beth 
Israel Hospital Center. 479 F. Supp. 452, 
455 (D. Colo. 1979) ; Croy v. Skinner. 410 
F. Supp 117, 123 (N.D. Ga. 1976); Cf. 
Isard v. Arndt. 483 F. Supp. 261, 263 (E. 
D. Wise. 1980) (section 1982).

17
by a union hiring hall. Justices O'Connor 
and Blackmun insisted, in a concurring 
opinion, that the plaintiffs would be 
entitled on remand to redress against the 
employers if they could demonstrate that a 
principal-agent relationship in a fact 
existed between the employers and the 
union, thus establishing "the traditional 
element[] of respondeat superior." 458 
U.S. at 404. Justices Marshall and 
Brennan expressly endorsed this aspect of 
Justice O'Connor's opinion. 458 U.S. at 
417 n. 5 (dissenting opinion). Although 
Justice Stevens did not address that 
issue, he has repeatedly insisted that 
respondeat superior should be applied even 
in a section 1983 case. Pembauer v. 
Cincinnati. 475 U.S. 469, 489 (1866)
(concurring opinion); Oklahoma City v. 
Tuttle , 471 U.S. 808,834-44 (1985)
(dissenting opinion). Despite the fact



18
that the defendant employers in General 
Building Contractors expressly urged this 
Court to apply to section 1981 the "policy 
or custom" requirement of Monell.8 the 
remaining members of the Court in General 
Building Contractors premised their 
opinion on "the assumption that respondeat 
superior applies to suits based on 1981", 
458 U.S. at 395, and held, because of the 
apparent absence of a master-servant 
relationship, that the imposition of 
liability in that case would have required 
an unwarranted "extended application of 
respondeat superior." 458 U.S. at 392 n. 
18; see also id. at 394 n. 19 (Supreme 
Court itself to decide whether the facts 
of the case were "sufficient to invoke the 
doctrine of respondeat superior").

8 Brief for Petitioners, No. 81-280, 
pp. 10, 22-24.

19
Certainly with regard to a private 

employer there can be no doubt that the
extent of an employer's liability for
violations of section 1981 by its 
employees would, where the violation 
sounded in tort, be controlled by the 
principles of respondeat superior. In the 
nineteenth century the doctrine of 
respondeat superior was recognized as "one 
of the oldest and best settled doctrines 
of the common law." City of Davton v.
Pease. 4 Ohio St. 80, 95 (1854) . The
principle of respondeat superior had its 
roots in Roman law, J. Story, Commentaries 
on the Law of Agency. 594 (1857), and was 
familiar to Blackstone. 1 Blackstone's 
Commentaries 431-32. By the middle of the 
nineteenth century both the doctrine of 
respondeat superior, and various applica­
tions and ramifications of the rule, were 
well settled. See J. Story, Commentaries



20

on the Law of Agency. 536-600 (Boston, 
1857) ; F. Hilliard, The Law of Torts, v. 
2, pp. 524-29 (Boston, 1859); C. Smith, A 
Treatise on the Law of Master and Servant, 
pp. 151-93 (Philadelphia, 1852); W. Paley, 
A Treatise on the Law of Principal and 
Agent. pp. 294-98 (Philadelphia, 1840); W. 
Theobald, The Law of Principal and Surety 
and Principal and Agent, pp. 296-300 (New 
York, 1836). Similarly, under contract 
law, although there were complex rules 
regarding when an agent could make a 
contract binding his or her principal, 
once such a contract was made the prin­
cipal was clearly liable if the agent 
breached the agreement. Story, supra, pp. 
521-36; Smith, supra. pp. 122-43. In 
1866, if the employee of a private concern 
were wrongfully dismissed, or if a third 
party were injured by the tortious conduct 
of a servant acting within the course of

21

his employment, the employer or master 
would have been liable under state law for 
the ensuing damages. There is no indica­
tion that Congress intended to depart from 
those established principles and to impose 
for a violation of section 1981 any lesser 
degree of responsibility or liability.

Indeed, such a departure from common 
law principles would fairly fly in the 
face of the 1866 Civil Rights Act itself. 
Section 1981 requires in part that blacks 
be accorded "the same . . . full and equal 
benefit of all laws and proceedings for 
the security of persons and property as is 
enjoyed by white citizens." If in 1866 a 
white worker had been wrongfully dis­
charged, he could have obtained an award 
of lost wages in state court without proof 
that his employer had a "policy or custom" 
of wrongfully dismissing employees. The 
contract clause of the 1866 Civil Rights



22

Act made it wrongful to discharge an
employee on account of his race ? it is
inconceivable that Congress intended to
give to a black employee wrongfully 
discharged in violation of federal law a 
remedy in any way less efficacious than 
the remedy available to a white employee 
wrongfully discharged in contravention of 
state law.

B. No Proof of Official Policy Is 
Required in Section 1983 Actions 
Against Governmental Defendants

If respondeat superior, and compar­
able contract principles, apply to a 
section 1981 action against a private 
employer or other entity, it would be 
strange indeed if a lesser standard of 
liability, and responsibility, applied to 
governmental defendants. This Court 
observed in Owen v. City of Independence 
that it would be

"uniquely amiss" ... if the govern­
ment itself —  "the social organ to

23
which all in our society look for the 
promotion of liberty, justice, fair and equal treatment ..." —  were 
permitted to disavow liability for 
the injury it has begotten.

445 U.S. at 651. Surely it would be even 
more amiss if a city or school board could 
under federal law assert immunity from a 
claim for which a private defendant would 
be financially liable. The fifth circuit 
evidently reached this peculiar result 
because, although acknowledging that 
section 1981 covered private conduct, it 
harbored doubts as to whether the 1866 Act 
applied to cities at all. 837 F.2d at 
247-48. While we adhere to the view which 
we expressed in Patterson v. McLean Credit 
Union. No. 87-107, that the 1866 Act 
applies to private as well as governmental 
discrimination, nothing in that history 
suggests any intent on the part of 
Congress to prohibit only private dis­
crimination, or to apply to private



24
institutions principles of liability more 
stringent than were applicable to govern­
mental defendants.

The common law principles which would 
have been familiar to the thirty-ninth 
congress encompassed no rule comparable to 
the "policy or custom" doctrine in Monell. 
That doctrine was virtually unknown to 
Anglo-American jurisprudence prior to the 
1978 decision in Monell itself. In the 
mid-nineteenth century, as this Court 
explained in Owen v. City of Independence, 
there were two somewhat ill-defined 
circumstances in which a municipality 
could be sued in tort in state or federal 
court. First, cities could be held liable 
for injuries caused by tortious actions of 
a "proprietary" rather than "governmental" 
nature. The building and maintenance of 
city bridges and streets were the most 
widely recognized type of proprietary

25
functions, while the adoption of ordi­
nances was ordinarily deemed a govern­
mental act. Second, cities were subject 
to suit if they violated a duty imposed by 
state law or by their own charters, but 
not for "discretionary", "legislative" or 
"judicial" activities. 445 U.S. at 644- 
49. The instant case does not require 
this Court to resurrect and apply these 
elusive distinctions, because it is clear 
that Congress did intend to allow suits 
against municipalities under section 1981, 
and thus that it would have rejected the 
absolute immunity accorded to "discretion­
ary" "governmental" acts. Rather, the 
historical issue of importance is to 
ascertain what principles of liability 
would in 1866 have been applied to 
municipalities in those instances —  be
they for "proprietary" or "ministerial"



26
actions —  when cities were subject to 
suit.

It is quite clear that in 1866, when 
a city was subject to suit in tort, both 
federal and state courts consistently 
applied the doctrine of respondeat 
superior. Tort actions based on a 
violation of a statutory or ministerial 
duty are of particular importance, since 
they are most closely analogous to a 
violation of section 1981. In Weightman 
v. Washington. 66 U.S. (1 Black) 39 
(1861), the plaintiff sued the District of 
Columbia for injuries sustained as a 
result of the collapse of a bridge then 
spanning Rock Creek at K Street. 66 U.S. 
at 45-4 6. The city argued that it was 
"not responsible for the nonfeasances or 
misfeasances of the persons necessarily 
employed" by the city to build and 
maintain the bridge. This Court unani­

27
mously rejected that argument, holding
that the city was subject to suit because
the case involved a violation of a
ministerial rather than a discretionary
duty, and that liability could be based on
negligence by city employees:

Municipal corporations undoubtedly 
are invested with certain powers 
which, from their nature, are discre­
tionary, such as the power to adopt 
regulations or by-laws ... [I]t has 
never been held that an action . . . would lie against the corporation ... 
for the failure ... to perform such a 
duty. But duties arising under such 
grants . . . must not be confounded 
with the burdens imposed, and the 
consequent responsibilities arising 
under another class of powers usually 
to be found in [municipal] charters, 
where a specific and clearly defined 
duty is enjoined.... Where such a 
duty ... is enjoined, and ... the 
means to perform the duty are placed 
at the disposal of the corporation 
.. . they are clearly liable to the 
public if they unreasonably neglect 
to comply with the requirement of the 
charter.... [Tlhev are liable for 
the negligent and unskillful acts of 
their servants and agents, whenever 
those acts occasion special injury to 
the person or property of another.



28
66 U.S. at 50-51 (emphasis added). On two 
other occasions prior to 1866 this Court 
sustained claims against municipalities 
based on similar claims of negligence by 
city employees. Nebraska City v. Camp­
bell . 67 U.S. (2 Black) 590 (1863) 
(neglect to repair bridge, in violation of 
city charter); City of Providence v. 
Clapp. 58 U.S. (17 How.) 161 (1854) 
(negligent failure to remove snow from 
sidewalk, in violation of state statute).

The applicability of respondeat 
superior in such cases was indeed "well 
settled." Nebraska City v. Campbell. 67 
U.S. at 592. In Hickock v. Trustees of 
Village of Plattsburgh the New York Court 
of Appeals observed, with regard to "the 
liability of municipal corporations for 
damages arising from the negligence of 
malfeasance of their officers," that it

29
was already "established" that when a
municipal corporation

has become bound ... to do certain 
things, such corporation ... is 
liable, in case of neglect to perform 
... to a private action at the suit 
of any person injured by such neglect 
... [W]henever it exercises its 
corporate powers, it is bound to see 
that due care and caution are used to 
avoid injury to individuals. It can, 
of course, be no excuse for the 
corporation, any more than it would 
be for an individual, that the work 
was done and the want of care shown 
by an employee or servant whom [it] had set to work.

16 N.Y. 158, 162-72 n..9 The Louisiana
Supreme Court agreed in 1850 that "The

9 Several other New York cases also 
so held. Kavanagh v. City of Brooklyn. 38 
Barb. 232, 237 (Sup. Ct. 1862) (city 
liable where a "duty, purely ministerial, 
is violated or negligently performed by a 
public body or officer"); Lloyd v. Mayor, 
etc, of New York. 5 N.Y. 369, 374 (1851) 
(where a city's "duty to perform ... is 
clearly ministerial ... [t]he principle of 
respondeat superior consequently 
applies"); Mayor, etc, of City of New York 
v. Furze. 3 Hill (N.Y.), 618-619 (Sup. Ct. 
1842) ("a municipal corporation is ... 
liable ... where a duty, specifically 
enjoined upon the corporation as such, has 
been wholly neglected by its agents").



30

liability of municipal corporations for 
the acts of their agents, as a general 
rule, is too well settled at this day to 
be seriously questioned", noting that 
while some exceptions to the rule existed, 
it necessarily applied where a city 
employee had failed to perform a duty 
established by state statute. Johnson v. 
Municipality No. One. 5 La. Ann. 100 
(1850). Similar decisions were issued 
prior to 1866 by state courts in

31
Illinois,10 Indiana,11 Maryland,12 Ohio,13 
and Pennsylvania.14 The North Carolina

10 Browning v. City of Springfield.
17 111. 143-45 (1855) (municipalities
"like individuals are liable for the 
negligent, unskillful acts of their 
servants and agents" where they are 
"charged with a full, specific and complete duty").

11 City of Logansport v. Wright. 25
Ind. 512, 515 (1869) (where an act "is
ministerial in its character" municipal 
corporations are liable for "the negli­
gence or unskillfulness of their agents").

12 Mayor, etc. of Baltimore v.
Marriott. 9 Md. 160, 174-44 (1856)
(upholding jury instruction imposing 
liability on city for lack of "ordinary 
care and diligence" by "its agents" 
because statute imposing duty on Baltimore 
placed it "upon the same footing which is held by individuals and private corpora­
tions . . . and so are the consequences the 
same for its disregard").

13 City of Dayton v. Pease. 4 Ohio 
St. 80, 99 (1854) (quoting Llovd v. Mayor, 
etc, of New York^.

14 Dean v. New Milford Township. 5 
Watts & Serg. (Pa.) 545, 546 (1843) 
(upholding claim against municipality 
because "whenever an individual has 
sustained injury by the misfeasance or 
nonfeasance of an officer who acts or 
omits to act, contrary to his duty, the 
law affords redress") . See also City of



32
Supreme Court, in an expansive view of the 
nature of a municipality's obligations, 
reasoned that any grant of power to a 
city implied a condition that actions 
taken pursuant to that grant would be 
performed "in a skillful and proper 
manner." Meares v. Commissioners of 
Wilmington. 31 N.C. 73, 81 (1848). A
plaintiff injured by a violation of that 
duty was entitled to sue the city commis­
sioners "as a corporation, in which 
capacity they procured the work to be 
done, and are liable for the damage done

Richmond v. Long's Administrators. 17 
Gratt. (Va.) 375, 381 (1867) ("Wherever it 
can be said that distinct duties are 
imposed upon a [municipal] corporation, 
purely ministerial and involving no 
exercise of discretion, the same liability 
attaches as in the case of private persons 
owing the same service under the law. To 
this . . . class belong numerous cases of 
recovery against corporations for the 
torts or negligence of their servants") 
(citing, inter alia. Weightman v. 
Washington and Mayor, etc, of New York v. 
Furze) .

33
by their agent, under the rule respondeat
superior." 31 N.C. at 79.

The principle of respondeat superior
was also widely applied to delineate the
scope of municipal liability where a city
was subject to suit because of injuries
occasioned by "proprietary" activities.
The Ohio Supreme Court held that

When a municipal corporation under­
takes to ... construct[] improvements 
for the especial interest or advan­
tage of its own inhabitants, the authorities are all agreed, that it 
is to be treated merely as a legal 
individual ... and subject to all the 
liabilities that pertain to private 
corporations or individual citizens.

City of Dayton v. Pense. 4 Ohio St. 80,
100 (1854). In such circumstances

We have again and again affirmed, 
that the liabilities of corporations, 
private and municipal, are no less 
extensive, and that the maxim, 
respondeat superior, properly applies 
to them, in the same manner, and to 
the same extent, as in its applica­
tion to the liabilities of private 
individuals.



34
4 Ohio St. at 95. In Tennessee, Mayor,
etc, of Memphis v. Lasser. 28 Tenn. 757 
(1849), held that where the object of a 
city activity was "to confer a direct 
benefit or convenience upon the inhabi­
tants" or "to swell the revenues,"

[m]unicipal corporations are ... 
liable for the wrongful acts and 
neglects of their servants and 
agents, upon the same grounds, in the 
same manner, and to the same extent 
as natural persons.

28 Tenn. at 761. The Indiana Supreme
Court ruled in 1848:

It may ... be considered settled law 
that municipal corporations are 
responsible to the same extent and in 
the same manner as natural persons 
for injuries occasioned by the 
negligence or unskillfulness of their 
agents in the construction of works 
for the benefits of the cities....

Ross v. City of Madison. 1 Ind. 281, 284
(1848). The Iowa Supreme Court agreed

[t]he doctrine that a municipal 
corporation is liable for malfea­
sance, or the negligence of its 
agents in the construction of public

that

35
improvements upon precisely the same 
principle and under the same circum­
stances as the individual citizen ... 
may be regarded as well estab­
lished. 15

Cotes & Patchin v. City of Davenport. 9 
Iowa 227, 235 (1859).16 Similar decisions 
in the decades prior to 1866 are to be 
found in Alabama,17 Illinois,18 * * * * *

See also Logansoort v. Wright. 25 
Ind. 512, 515 (1865).

16 See also Templin v. Iowa City. 14 
Iowa 59, 60 (1862).

17 Dargan v. Mayor of Mobile. 31 Ala.
469, 475-77 (1858) (city liable for
"negligence," "misconduct" and "unskillful 
and incautious" acts of employees "where 
they are employed about its private 
interests; as, for instance in the 
improvement of its private property").

18 Nevins v. City of Peoria. 41 111.
502, 515 (1866) ("a city in the management
of corporate property must be held to the
same responsibilities that attach to
individuals for injury to the property of
others ... respondeat superior ...").



36
Kentucky,19 Louisiana,20 Maine,21 
Maryland,22 Michigan,23 Missouri,24 and

19 Prather v. Lexington. 13 Ben.
Monroe's Ky. Rep. 559, 560-61 (1852)
("cities are responsible to the same 
extent, and in the same manner, as natural 
persons for injuries occasioned by the 
negligence or unskillfulness of their 
agents in the construction of works for 
their benefit").

20 Stewart v. City of New Orleans. 9
La. Ann. 461, 462 (1854) (a city "in the
exercise of powers ... which are conferred 
upon it for private purposes ... is 
answerable for the acts of those who are 
in law its agents . . . and ... is to be 
regarded as a private company").

21 Small v. Inhabitants of Danville, 
51 Me. 359, 362 (1864) .

2 2 County Commissioners of Anne 
Arundel County v. Duckett. 20 Md. 468, 
476-77 (1863) (county "is responsible for
the acts of those who are in law its 
agents" for injuries occurring in the 
exercise of "private franchises").

23 City of Detroit v. Corev. 9 Mich.
165, 183-86 (1861) (where a city's
"private purposes" or "private property" 
are envolved, "the rule of respondeat 
superior is applicable").

24 City of St. Louis v. Gurno. 12 Mo.
414, 419-21 (1849) (city "liable for the
negligence and unskillfulness of its 
agents" in activities "for her emolument

37
New York.25

In the mid-nineteenth century 
municipal liability was not consistently 
limited to conduct involving proprietary

or convenience").
25 Mayor, etc, of New York v. Bailey. 

2 Denio 433, 447 (Ct. of Errors 1845)
("municipal corporations ... have been 
held liable for the acts of their officers 
and agents of whom they had the appoint­
ment and supervision ... when the duty to 
be performed was for the benefit of the 
corporation"); Morey v. Town of Newfane. 8 
Barbour 645 (Sup. Ct. 1850) ("The doctrine 
is now well settled that a municipal 
corporation ... enjoying franchises and 
privileges for its own convenience or 
benefit, is liable in a civil action for 
any injury resulting either from its 
misfeasance or that of its officers") ; 
Delmonico v. Mayor, etc, of New York. 1 
N.Y. Super. Ct. 222, 226 (1848) ("It has 
freguently been decided in this court, 
that the corporation of the city is liable 
for injuries occasioned by the negligence, 
unskillfulness or malfeasance of its 
agents and contractors, engaged in the 
construction of its public works"); Hickok 
v. Trustees of Plattsburgh. 15 Barbour 
(N.Y.) 427, 436 (Sup. Ct. 1853) (city is 
"responsible for its negligence or 
unskillfulness of its agents and servants 
when employed in the construction of a 
work for the benefit of the city or town") 
(emphasis in original).



38
activities or violations of legal duties; 
in those opinions apparently imposing 
liability without regard to the nature of 
the activity or duty involved, the 
principle of respondeat superior was also 
applied. In Pritchard v. Georgetown. 19 
Fed. Cas. 1348 (C.C.D.C. 1819), the
plaintiff complained that his property had 
been injured when city workers regraded 
the street beside his home; Chief Judge 
Cranch held that "if the act was done by 
the agents, ignorantly or negligently, the 
corporation [of Georgetown] is liable." 
19 Fed. Cas. at 1349. The court in 
Anthony v. Adams. 42 Mass. 284, 285
(1840), observed:

We can have no doubt that an action 
will lie against municipal 

corporations, when such corporations 
are in the execution of powers 
conferred on them, or in the perfor­
mance of duties required of them by 
law, and their officers, servants and 
agents, shall perform their acts so 
carelessly, unskillfully or

39
improperly, as to cause damage to 
others.

In Missouri, Hilsdorf v. City of St.
Louis. 45 Mo. 94, 97 (1869), held:

corporations, whether municipal or 
aggregate, are now held to the same 
liability as individuals, and will 
not be permitted to screen themselves 
behind the plea that they are 
impersonal, and their acts are but 
the acts of individuals; and if an 
agent or servant of a corporation, in 
the line of his employment, shall be 
guilty of negligence or commit a 
wrong, the corporation is responsible 
in damages.

(Emphasis in original). Similar state­
ments can be found in a number of other 
opinions of this era.26 * *

Respondeat superior doctrines 
permeated municipal liability litigation

26 Roberts v. City of Chicago. 26 
111. 249, 252 (1861); Allegheny County v.
Rowley. 4 Clark (Pa.) 307, 308 (1849);
City of Milwaukee v. Davis. 6 Wise. 377, 
387 (1858); Conrad v. Trustees of Ithaca.
10 N.Y. 158, 172-73 (1857); cf. Fowle v.
Common Council of Alexandria. 28 U.S. (3 
Pet.) 398, 409 (1830) (city not liable
because wrongdoer not "the officer or 
agent of the corporation.")



40
in this era. Even when the alleged 
wrongdoer was a high ranking official, 
liability was premised on the fact that he 
was an employee acting within the scope of 
his employment, rather than on any notion 
that such officials were policy makers or 
otherwise unique.27 In several instances 
claims against municipalities turned on 
the familiar question of whether the 
relevant employee was in fact acting 
within the scope of his employment,28 and 
a large volume of litigation concerned 
whether particular workers were city 
employees, thus rendering appropriate the 
application of respondeat superior, or

27 Hooe v. Alexandria. 12 Fed. Cas. 
462 (C.C.D.C. 1802) (city street commissioner).

2® Hooe v. Alexandria. 12 Fed. Cas. 
462 (C.C.D.C 1802); Anthony v. Inhabitants 
of Adams. 42 Mass. 284, 286 (1840); Wilde
v. City of New Orleans. 12 La. Ann. 15 
(1857) .

41
were independent contractors.29 The 
application of respondeat superior to 
municipalities —  in those instances when 
they could be sued at all -- was consis­
tent with the general nineteenth century 
practice of holding cities "to the same 
standards of liability as any private 
corporation." Owen v. City of Indepen­
dence. 445 U.S. 622, 644 (1980).30 * * In

29 Nevins v. City of Peoria. 41 111. 
502, 515-16 (1866); St. Paul v. Seitz. 3
Minn. 297 (1859) ; Barry v. City of St.
Louis, 17 Mo. 121 (1852); Kelley v. Mayor, 
etc, of New York. 4 E.D. Smith (N.Y.) 291 
293 (Ct. Com. Pleas 1855); Treadwell v. 
Mayor, etc, of New York. 1 Daly (N.Y.) 
123, 127-28 (Ct. Com. Pleas 1861); Pack v. 
Mayor, etc. of New York. 8 N.Y. 222 
(1853) ; Kelly v. Mayor, etc, of New York. 
11 N.Y. 432, 435-36 (1854); Cincinnati v.
Stone. 5 Ohio St. 38 (1855); Painter v.
Pittsburgh. 46 Penn. St. 213, 220 (1863);
Smith v. Milwaukee. 18 Wis. 63 (1864).

3 0 See also Smoot v. City of 
Wetumoka. 24 Ala. 112, 121 (1854);
Browning v. City of Springfield. 17 111. 
143, 147-48 (1855); Creal v. City of
Keokuk. 4 G. Greene (Iowa) 47, 50 (1853); 
Freeland v. City of Muscatine. 9 Iowa 461, 
464 (1859); Wallace v. City of Muscatine.
4 G. Greene (Iowa) 373, 374-75 (1854);



42
Chicago v. Robbins. 67 U.S. (12 Black) 418 
(1863), this Court held that it would be 
wrong to permit joint tortfeasor indemni­
fication to be "determined by a different 
rule of decision from the rights of 
private persons," 67 U.S. at 425, merely 
because one of the tortfeasors was a 
municipality.

The principle of respondeat superior 
was applied, ironically, to claims by 
slaveowners that their slaves had been 
injured or been permitted to escape as a 
result of misconduct by city employees. 
In Johnson v. Municipality No. One. 5 La. 
Ann. 100 (1850), jail officials had 
violated their legal duty to advertise the 
name of any slave in their custody, and 
had failed to keep the slave at issue

City of Baltimore v. Marriott. 9 Md. 160, 
174 (1856); City of St. Louis v. Gurno. 12 
Mo. 414, 419 (1849); Rochester White Lead 
Co, v. City of Rochester. 3 N.Y. 463, 468 
(1850) .

43
under tolerable conditions. A Louisiana
judge awarded the former slaveowner $600
for the death of a slave who became
fatally ill while in the New Orleans jail:

The disease was contracted in prison; 
... it was aggravated by prison fare; 
and . . . the circumstances in which 
the patient was found . . . were 
neither fit nor decent for a human 
being of any color. I think a 
sufficiently strong case of omission 
of duty has been made out against the 
agents of the defendants.

5 La. Ann. at 101.31 Surely if the
doctrine of respondeat superior controlled
a city's tort liability for injuries
suffered by the "property" of slaveowners
in violation of state law, Congress could
not have intended to hold cities to a 33

33- See also Claque v. City of New 
Orleans. 13 La. Ann. 275 (1858) (slave­
owner entitled to recover from muncipality 
if her slave escaped as a result of 
"illegal" or "negligent" acts by "agents 
of the city"); Kelly v. City of Council of 
Charleston. 4 Rich. Law (S.C. 426, 433
(1850) (slaveowner claim for damages due 
to death of slave rejected because of lack 
of proof city employees had violated any

J .



44
lesser standard of liability for harms to 
freedmen inflicted in violation of the 
1866 Civil Rights Act.

The same conclusion is compelled if a 
particular claim under the 1866 Act sounds 
in contract, although the matter is 
considerably simpler. The sometimes 
elusive distinctions regarding when a city 
would be sued in tort never existed in 
contract; under the common law a principal 
was always liable for any breach of its 
contract occasioned by the act or omission 
of an agent or employee. This Court noted 
in Monell that counties and municipalities 
were regularly sued in federal court for 
violations of the financial undertakings 
in their bonds. 436 U.S. at 673 n. 28. 
In state court, coincidentally, the 
largest volume of contract claims against 
local government bodies were proceedings 
brought against cities or school boards by

45
teachers who had allegedly been wrongfully 
dismissed32 33 or improperly denied their 
salaries.33 Cf. Owen v. City of Indepen­
dence . 445 U.S. at 639 and n. 19. In most 
of the successful wrongful discharge cases 
the courts found that the dismissal at 
issue violated the relevant city charter,

32 Gilman v. Bassett. 33 Conn. 298
(1866) ; Shaw v. Mayor of Macon. 19 Ga. 
468, 469 (1856) (city Marshall); City of
Crawf ordsvil le v. Hays. 42 Ind. 200 
(1873); Inhabitants of Searsmont v. 
Farwell. 3 Me. 450 (1825); Mason v. School 
District No. 14. 20 Vt. 487 (1848);
Richardson v. School District No. 10. 38
Vt. 602 (1866); Holden v. Shrewsbury
School District No. 10. 38 Vt. 529 (1866).

33 Neville v. School Directors of
District No. 1. 36 111. 71 (1864); Botkin
v. Osborne. 39 111. 101 (1866); Casey v.
Baldridge. 15 111. 65 (1853); Trustees of 
Town of Milford v. Simpson. 11 Ind. 520 
(1858); Harrison Township v. Conrad. 26 
Ind. 337 (1866); Cross v. District
Township of Dayton. 14 Iowa 28 (1862),
Offut v. Bourgeois. 16 La. Ann. 163 
(1861); Rolfe v. Cooper. 20 Me. 154 
(1841); Batchelder v. City of Salem. 58 
Mass. 599 (1849); George v. School
District No. 8. 20 Vt. 493 (1848); Paul v. 
School District No. 2. 28 Vt. 575 (1856); 
Doyan v. School District. 35 Vt. 520 (1803).



46
or that the dismissal had been ordered by 
an official who lacked any authority 
whatever to fire a teacher. The state 
courts regarded such a lack of authority 
as establishing the plaintiff's right to 
recover, not, as in St. Louis v. 
Praprotnik. 99 L. Ed. 2d 107 (1988), as 
constituting some sort of affirmative 
defense.

If, in 1867, a public school teacher 
had been dismissed on account of race, it 
is clear that the teacher would have been 
entitled to relief under section 1981 
against the school board or town for which 
he or she worked, without regard to the 
existence or absence of any relevant 
general policy or custom. The result 
would have been the same regardless of 
whether the teacher's claim was treated as 
an action in contract or in tort. Unless 
the adoption of the 1871 Civil Rights Act

47
has somehow changed the meaning of the 
1866 Act, no proof of policy or custom is 
necessary today under section 1981.
II. THE RIGHTS AND REMEDIES CREATED BY

THE 1866 CIVIL RIGHTS ACT WERE NOT
ALTERED BY THE ADOPTION OF THE 1871
CIVIL RIGHTS ACT
Had the 1871 Civil Rights Act never 

been adopted, there would be no doubt that 
petitioner could prevail in this action 
without being required to prove the 
existence of any policy or custom. As 
originally enacted the 1866 Civil Rights 
Act created a cause of action against 
governmental bodies both for discrimina­
tory acts pursuant to some official 
policy, and for discriminatory acts not 
rooted in such policies. The second type 
of claim may still be asserted by 
petitioner unless it was somehow repealed 
by the adoption of the 1871 Act.

"This Court has recognized, however, 
that 'repeals by implication are dis-



48
favored.'" Ruckelshaus v. Monsanto Co. . 
467 U.S. 986, 1017 (1984). A party
asserting that Congress intended any 
repeal by implications "bears a heavy 
burden of persuasion." Amell v. United 
States. 384 U.S. 158, 165-66 (1966). Such 
an implied repeal will be found only where 
there is "some manifest inconsistency or 
positive repugnance between the two 
statutes." Merrantile Nat. Bank v. 
Lanadeau. 371 U.S. 555, 565 (1963).
"[W]hen two statutes are capable of co­
existence, it is the duty of the courts, 
absent a clearly expressed congressional 
intent to the contrary, to regard each as 
effective." Morton v. Mancari. 417 U.S. 
535 551 (1974) ; see Regional Rail Reorgan­
ization Act Cases. 419 U.S. 102, 133-34
(1974) .

The court below did not purport to 
find any positive repugnance between

49
section 1983, as construed by Monell. and 
a broader form of liability under section 
1981. It is entirely understandable that 
Congress would have chosen to utilize 
different principles of liability and 
responsibility under the two statutes. 
First, because section 1981 forbids only 
certain types of racial discrimination, 
and because racial discrimination is the 
evil that lies at the very heart of the 
three reconstruction era constitutional 
amendments, Congress might well have 
favored more stringent remedies under the 
section 1981 than it thought appropriate 
for the wide range of constitutional and 
statutory claims made actionable under 
section 1983. Second, because the types 
of conduct forbidden by section 1981 are 
specified in detail, while the substantive 
requirements enforceable under section 
1983 are only incorporated by reference



50
and are considerably less clear, Congress 
could have believed that only in section 
1981 cases would it be fair to apply the 
common-law doctrine of respondeat 
superior. Finally, because section 1981 
extends to private as well as governmental 
conduct, a failure to apply common-law 
principles to government bodies would have 
created disparate results under the same 
statute; since, however, section 1983 
reaches only action under color of law, no 
comparable problem arises under that 
provision.

In Monell this Court concluded that 
the "policy or custom" requirement of 
section 1983 was rooted in the language of 
the 1871 Civil Rghts Act imposing lia­
bility only on persons who "subject, or 
cause to be subjected, any person ... to 
the deprivation of any rights, privileges 
or immunities secured by the Constitu­

51
tion." 436 U.S. at 691-92 (emphasis 
added) . But if that is how the forty- 
second Congress understood section 1 of 
the 1871 Civil Rights Act, it would surely 
have realized that section 1 of the 1866 
Civil Rights Act would not be construed in 
the same manner, since the earlier statute 
clearly contains no such restrictive 
terms. Congress7 failure to amend the 
1866 Act to add comparable language, 
conforming it to the 1871 Act, can only be 
understood as indicating an intent that 
the differently worded statutes would in 
fact have distinct meanings.

The Fifth Circuit read Monell to 
suggest that any federal law basing 
liability on the principle of respondeat 
superior would have raised in the mind of 
the forty-second Congress severe constitu­
tional problems. 837 F.2d at 1247. In
fact, however, Monell contains no such



52
holding, and no such conclusion would be 
warranted by either the debates on the 
Sherman amendment or the state of consti­
tutional and common law principles in the 
mid-nineteenth century. Although the 
Sherman amendment did involve a species of 
vicarious liability, that was not the 
feature of the bill which the House found 
objectionable. Rather, as Monell made 
clear, critics of the amendment had 
reservations about the power of Congress 
to impose on state officials affirmative 
substantive duties to carry out federal 
law. Monell v. Dept, of Social Services. 
436 U.S. at 673-83. The Sherman amendment 
was criticized, not because it imposed 
damages as such on cities and counties, 
but because the effect of those damages 
would have been to conscript local 
officials and government bodies into 
affording protection against the Ku Klux

53
Klan; those critics would have objected 
more, not less, strongly if the amendment, 
rather than establishing any civil cause 
of action, had instead directly and 
expressly imposed such a duty on local 
authorities.

Equally important, this constitu­
tional argument —  at least in its most 
absolute version —  did not command the 
support of a majority of the House. After 
rejecting the Sherman amendment, the House 
adopted a substitute provision, now 
codified in 42 U.S.C. §1986, which did 
impose some affirmative duties. Section 
1986 imposes liability on any person who, 
having the ability to prevent or aid in 
the prevention of certain offenses, "shall 
neglect or refuse to do so;" clearly the 
impact of that provision would, for 
example, create affirmative obligations 
for a sheriff or police official who was



aware that the Klan was conspiring to 
violate federal law. The distinction 
between the Sherman amendment and section 
1986 is that the rejected amendment 
imposed liability even on cities and 
counties which lacked any authority or 
means under state law to stop the Klan or 
other rioters, while section 1986 imposes 
liability only on persons "having the 
power to prevent or aid in preventing" the 
specified offenses. Much of the criticism 
of the Sherman amendment emphasized that 
it applied to cities and counties that 
might in fact be powerless to stop the 
private misconduct at issue.34

Perhaps most significantly, members 
of the House criticized the type of 
liability proposed by the Sherman amend­

34 Cong. Globe, 42nd Cong., 1st sess.
788 (Rep. Kerr), 791-93 (Rep. Willard),
795 (Rep. Blair), 795 (Rep. Burchard), 799
(Rep. Farnsworth) (1871).

- 54 - 55
ment precisely because it departed from 
the principles of liability ordinarily 
applicable to governmental and private 
defendants. Representatives Kerr, Willard 
and Poland referred approvingly to the 
then common civil litigation against 
cities, described above, for violations of 
their contracts and of state imposed 
duties, and objected that such actions 
were "a very widely different thing"35 
from the Sherman amendment. Representa­
tive Kerr denounced the amendment because 
it departed from "the common law" and 
"fundamental principles;"36 Congressman 
Buchard asserted that the amendment was 
"altogether without a precedent in this 
country."37 These objections would have

35 Id. at 794 (Rep. Poland); see also 
id. at 789 (Rep. Kerr), 792 (Rep. Willard).

36 Id. at 788.
37 Id. at 795.



56

made no sense if the speakers harbored any 
reservations about the well established 
common-law doctrine of respondeat 
superior. Several members of the House 
acknowledged that the civil liability 
imposed by the Sherman amendment would be 
appropriate if cities were or could 
constitutionally be placed under a duty to 
keep the peace,38 and distinguished the 
amendment from state statutes imposing 
liability on cities and counties whose 
officers and authorities had negligently 
or willfully failed to prevent riots.39 
These remarks bespeak an intent to adhere 
to, not to repeal by implication, the 
common law rules of liability.

38 Id. at 791 (Rep. Willard), 795(Rep. Burchard).
39 Id. at 791 (Rep. Willard), 794(Rep. Poland).

57

For
CONCLUSION

the above reasons, the decision
of the Fifth Circuit, insofar as it
requires proof of an official policy or
custom in a section 1981 action, should be
reversed.

Respectfully submitted,

JULIUS LEVONNE CHAMBERS 
ERIC SCHNAPPER*

NAACP Legal Defense & 
Educational Fund 

16th Floor 
99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

Counsel for Amici Curiae
*Counsel of Record