Monell v. New York Dept. of Social Services Brief Amici Curiae

    I H  T H E

(tort of %  Intteft States
O ctober  T e r m , 1976

Ho. 75-1914

J a n e  M o n e ll , el al., Petitioners,

v.
D e p a r t m e n t  op S o cial  S ervices  op t h e  C it y  of H e w  

Y ork , et al., Respondents.

On Writ of Certiorari to the United States Court of Appeals 
for the Second Circuit

BRIEF FOR NATIONAL EDUCATION ASSOCIATION 
AND LAWYERS' COMMITTEE FOR CIVIL RIGHTS 

UNDER LAW, AS AMICI CURIAE

ALBERT E. JENNER, JR. 
Lawyers’ Committee for Civil 

Rights Under Law

ROBERT A. MURPHY 
WILLIAM E. CALDWELL 

733 Fifteenth St., N.W. 
Washington, D.C. 20005

MICHAEL H. GOTTESMAN 
ROBERT M. WEINBERG 

B kedhoff, Cu sh m an , Gottesman 
& Cohen

1000 Connecticut Ave., N.W.
Washington, D.C. 20036

DAVID RUBIN 
National Education. Association 
1201 Sixteenth Street, N.W. 
Washington, D.C. 20036

Attorneys for Amici Curiae

9



TABLE OF CONTENTS

Page
I n t e r e s t  of t h e  A m ic i  C u r ia e  ..................................................  1

S u m m a r y  of A r g u m e n t  ............................................   2

A r g u m e n t  ....................................................    6
I. Public Officials in Their Official Capacities Are 

“ Persons”  Within the Meaning of Section 1983,
No Matter What Relief Is Sought Against Them. 
When Public Officials Use the Powers of Their 
Office to Violate Constitutional Rights, They 
May Be Ordered To Use the Powers of Their 
Office To Remedy Their Violations Even Though 
the Public Treasury Be Impacted .......................  6

A. Public Officials in Their Official Capacities
Are “ Persons”  Within the Meaning of 
§ 1983, No Matter What Relief Is Sought 
Against Them, and the Federal Courts Have 
Jurisdiction Under 28 U.S.C. §1343 To En­
tertain Claims For All Types of Relief 
Against Such “ Persons”  .................................. 8

B. When Public Officials Use the Powers of 
Their Office To Violate Constitutional Rights, 
They May Be Ordered To Use the Powers 
of Their Office To Remedy Their Violations 
Even Though the Public Treasury Be Im­
pacted ....................................................   12

II. School Boards Are “ Persons”  Within the Mean­
ing of § 1983 .................................................................  27

C o n c l u s i o n ............... ...............................................................................  33

A p p e n d ix  : An Analysis of the Legislative History of 
the Civil Rights Acts of 1871 As It Relates to the 
Issues Presented in This C ase.................................... la



ii

TABLE OF AUTHORITIES
Page

Abington School Dist. v. Schempp, 374 U.S. 203 (1963) 28
Adamson v. California, 332 U.S. 46 (1947) ...................  24
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) . . 13
Aldinger v. Howard, 427 U.S. 1 (1976) ............................ 26
Baker v. Carr, 369 U.S. 186 (1962) .................................. 10
Bell v. Hood, 327 U.S. 678 (1946) ...................................  13
Bemis Bros. Bag Co. v. United States, 289 U.S. 28

(1933) ..........     13
Bradley v. Richmond School Board, 416 U.S. 696

(1974) ............................................................................... 28,29
Bradley v. School Board, 382 U.S. 103 (1965) ............... 28
Brown v. Board of Education, 347 U.S. 483 (1954) . . .  28
Brown Shoe Co. v. United States, 370 U.S. 294 (1962)

4 ,6 ,11,32
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1932) 12
Carter v. West Feliciana School Bd., 396 U.S. 226

(1969) ............................................................................... 28,29
Chambers v. Hendersonville City Board of Education,

364 F.2d 189 (4th Cir. 1966)’ ....................................... 21
City of Kenosha v. Bruno, 412 U.S. 507 (1973) . . .  .3, 9,10,

11,26
Cleveland Board of Education v. LaFleur, 414 U.S.

632 (1974) ....................................................................2,17, 28
Davis v. Mann, 377 U.S. 678 (1964) ................................ 10
Davis v. School Comm’rs of Mobile County, 402 U.S.

33 (1971) ....................................................."................. 28,29
East Carroll Parish School Bd. v. Marshall, 424 U.S.

636 (1976) ..........................................................................  28
Edelman v. Jordan, 415 U.S. 651 (1974) .......................  12

17-20
Ex parte Virginia, 100 U.S. 339 (1880) .......................  24
Ex parte Young, 209 U.S. 123 (1908) ........................... 19,21
Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) ...................  19
Flood v. Kuhn, 407 U.S. 258 (1972) ........................... 6,12, 32
Goss v. Lopez, 419 U.S. 565 (1975) .................................... 28
Green v. County School Board, 391 U.S. 430 (1968) . .  28
Griffin v. Breckenridge, 403 U.S. 88 (1971) ...................  22
Griffin v. School Board, 377 U.S. 218 (1964) . . . . 7 , 15 ,28



Page
Hagans v. Lavine, 415 U.S. 528 (1974) ...........................  18
Harkless v. Sweeny Independent School District, 427

F.2d 319 (5th Cir. 1970) ..............................................  21
Hatton v. County Board of Education of Maury

County, 422 F.2d 457 (6th Cir. 1970) .......................  21
Hill v. Franklin County Board of Education of Lincoln

County, 390 F.2d 583 (6th Cir. 1968) .......................  21
Home Telephone & Telegraph Co. v. Los Angeles, 277

U.S. 278 (1913) ...............................................................  24
Johnson v. Branch, 364 F.2d 1977 (4th Cir. 1966) ___  21
Keyes v. School District No. 1, Denver, Colo., 413 U.S.

189 (1973) ............................................................... 28,29
Kramer v. Union School District, 395 U.S. 621 (1969) 28
Lanza v. Wagner, 11 N.Y. 2d 317 (1962) .......................  27
Lovell v. Griffin, 303 U.S. 444 (1938) ................................ 24
McFerren v. County Board of Education of Fayette

County, 455 F.2d 199 (6th Cir.) ................................ 21
McNeese v. Board of Education, 373 U.S. 663 (1963) 28
Milliken v. Bradley, 418 U.S. 717 (1974) .......................  27
Monroe v. Board of Commissioners, 391 U.S. 450 (1968) 28
Monroe v. Pape, 365 U.S. 167 (1961) ...............7, 8,18, 23, 26
Moor v. County of Alameda, 411 U.S. 693 (1973) . . . .  26
Mt, Healthy School Dist. v. Doyle, 45 LAV 4079 (1977) 19
Muzquiz v. City of San Antonio, 528 F.2d 499 (5th

Cir. 1976) ..................................'......................................  21
North Carolina Teachers A ss’n v. Asheboro City

Board of Education, 393 F.2d 736 (1968) ............... 21
Northcross v. Memphis Board of Education, 412 U.S.

427 (1973) ........................................................    28
Parden v. Terminal R. Co., 377 U.S. 184 (1963) ..........  19
Pasadena City Bd. of Education v. Spangler, 427 U.S.

424 (1976) ........................................................    28
People ex rel. Wells & Newton Co. v. Craig, 232 N.Y.

125 (1922) ................................'......................................... 27
Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S.

275 (1959) ........................................................    19
Phi]brook v. Glodgett, 421 U.S. 707 (1975) ...................16, 20
Raney v. Board of Education, 391 U.S. 443 (1968) . . . .  28
Reynolds v. Sims, 377 U.S. 533 (1964) ...........................  10
Rizzo v. Goode, 423 U.S. 362 (1976) ...............................  7

Table of Authorities Continued iii



IV Table of Authorities Continued

Page
Rolfe v. County Board of Education of Lincoln

County, 391 F.2d 77 (6th Cir. 1968) .......................  21
Roman v. Sincock, 377 U.S. 695 (1964) ...........................  10
Smith v. Board of Education of Morrilton School Dis-

_ trict, 365 F.2d 770 (8th Cir. 1966) ...........................  20
Smith v. Hampton Training School for Nurses, 360

F.2d 577 (4th Cir. 1966) ............................................  21
Sullivan v. Little Hunting Part, 396 U.S. 229 (1969). . 13
Swann v. Board of Education, 402 U.S. 1 (1971) ___ 7,28
Swann v. Charlotte-MecMenburg Board of Education,

402 U.S. 1 (1 9 7 1 )........................................................... .. 15
United States v. Price, 383 U.S. 787 (1966) ...................  22
Vlandis v. Kline, 412 U.S. 441 (1973) ........................... 11, 17
Von Hoffman v. City of Quincy, 71 U.S. 535 (1867) . . 25
Wicker v. Hoppock, 6 Wall. 94.(1867) .............................. 13
WMCA, Inc. v. Lomenzo, 377 U.S. 633 (1964) ............... 10

C o n s t it u t io n  an d  S t a t u t o r y  P ro visio n s  :

Constitution of the United States:
Fifth Amendment .............................................................  31
Fourteenth Amendment ........................... 2, 19, 22-24, 26, 31
Eleventh Amendment ..............................4, 5, 9,14,17-19, 21

United States Code:

20 U.S.C. ^  1601(b)(1), 1605(a)(1) (A) (i) 
20 U.S.C. § 1617 . . . .
20 U.S.C. * 1656 ...........
20 U.S.C. § 1702(a)(3) .............
20 U.S.C. $ 1702(b) ' .............
20 U.S.C. 1 1713 ..........
28 U.S.C. i 1343 .................
42 U.S.C. ' 1983 ...................
42 U.S.C. 1 1988 .......................
42 U.S.C. 'U 2000c-6, 2000c-8...........

. 16 
16, 30 
. 30
15, 31 
. 16

.. . 31 
passim 
passim 
. . .  13 
. .  . 29

L e g isla tiv e  M a te r ia ls  :

Cong. Globe, 42cl Cong., 1st Sess, passim



IN THE

j3>uprm? (Emtrt of the lulled Stales
O ctober T e r m , 1976

No. 75-1914

J a n e  M o n e ll , et al., Petitioners, 
v.

D e p a r t m e n t  of S ocial  S ervices of t h e  C it y  of N ew  
Y o r k , et al., Respondents.

On Writ of Certiorari to the United States Court of Appeals 
for the Second Circuit

BRIEF FOR NATIONAL EDUCATION ASSOCIATION 
AND LAWYERS' COMMITTEE FOR CIVIL RIGHTS 

UNDER LAW, AS AMICI CURIAE

INTEREST OF THE AMICI CURIAE i

The National Education Association (N EA) is the 
largest teacher organization in the United States, with 
a membership of approximately 1.5 million educators, 
virtually all of whom are employed by public educa­
tional institutions. One of N EA ’s purposes is to safe­
guard the constitutional rights of teachers and other 
public educators.

1 The parties have consented to the filing of this brief and their 
letters of consent are being filed with the Clerk of this Court pur­
suant to Rule 42(2) of the Rules of this Court.



The Lawyers’ Committee for Civil Rights Under 
Law is a non-profit corporation organized in 1963 at the 
request of President Kennedy. Its Board of Trustees 
includes nine past presidents of the American Bar 
Association, two former Attorneys General, and two 
former Solicitors General of the United States. The 
Committee’s primary mission is to involve private 
lawyers throughout the country in the quest of all 
citizens to secure their civil rights through the legal 
process.

The resolution o f this case will have an important 
impact upon the extent to which those who are injured 
by the unconstitutional actions of public officials and 
entities can secure complete relief in the federal courts. 
Both amici have a vital interest in the resolution of 
this case.

This brief is filed to provide the Court with the views 
of amici, refined through extensive litigation under the 
Fourteenth Amendment and 42 U.S.C. § 1983, that 
actions can be maintained under § 1983 against public 
officials in their official capacities and against school 
boards to secure complete relief, including relief which 
impacts upon the public treasury.

SUMMARY OF ARGUMENT

Plaintiffs brought this action under § 1983 against 
a school board, a city department, and various public 
officials in their official capacities, alleging that these 
defendants had violated plaintiffs’ rights by requiring 
them to stop working during their last two months of 
pregnancy. Cf. Cleveland Board of Education v. 
LaFleur, 414 U.S. 632, 638 (1974). As remedies, plain­
tiffs sought declaratory and injunctive relief (now



3

moot, because defendants have rescinded the policies 
winch required pregnant employees to stop working), 
and payment of the salaries which they would have 
received but for the unconstitutional interruption o f 
their employment.

The court below held that there is no federal 
jurisdiction over this action under 28 U.S.C. § 1343(3), 
because none of the defendants is a “ person”  who may 
be (sued under § 1983. More precisely, the court held 
that the school board and city department can never be 
“ persons”  under § 1983, and that public officials in 
their official capacities are “ persons”  when sued for 
declaratory and injunctive relief, but are not “ per­
sons”  when sued for retroactive monetary relief.

In Part I-A  o f this brief, we (show that the court 
ened in holding that the public officials are not “ per­
sons”  when sued for monetary relief under § 1983. 
Public officials in their official capacities are either 
“ persons”  suable under § 1983 or they are not. There 
is no basis for bifurcating their “ person”  status de­
pending on the nature of the relief sought. City of 
Kenosha v. Bruno, 412 U.S. 507 (1973). This Court 
has entertained and approved relief in numerous § 1983 
eases against public officials in their official capacities. 
A finding, implicit or explicit, that such defendants 
are ‘ persons”  suable under § 1983 was a necessary 
predicate to this Court’s resolution of those cases, 
particularly in light of this Court’s duty sua sponte 
“ to see to it that the jurisdiction of the [district 
court] . . . is not exceeded.”  City of Kenosha v. 
Bruno, supra, 412 U.S. at 511. Moreover, Congress has 
closely scrutinized these § 1983 decisions and has 
evinced no dissatisfaction wiith the definition of “ per­
sons ’ established therein. Too many important de­
cisions of this Court have proceeded on the premise



4

that public officials in their official capacities are “ per­
sons”  under § 1983 for the question to be considered 
other than settled. Brown Shoe Co. v. United States, 
370 U.S. 294, 306-307 (1962). It follows that there 
was jurisdiction under 28 U.S.C. § 1343 to entertain 
the monetary claim against the public officials.

Of course, even though there he jurisdiction over 
the claim, it would be defeated on its merits i f  it could 
he shown that Congress intended in § 1983 to restrict 
the forms of relief available against this category of 
“ persons”  so as to preclude monetary relief which 
would be paid from the public treasury. While 
the Court below did not address this “ merits”  issue, 
we go on in Part I-B to show that Congress did not! 
intend to restrict the scope of available relief in this 
fashion. On its face, § 1983 creates a cause of action 
for “ redress”  by the “ party injured”  against “ every 
person”  violating constitutional rights, and creates the 
broadest possible avenue to relief: through “ an action 
at law, suit in equity, or other proper proceeding.”  
These words do not admit of the interpretation that 
Congress meant the “ injured party”  to go without 
“ redress”  when the injury is monetary and the wrong­
doing “ persons”  are public officials. By logic, if 
Congress in enacting § 1983 had intended “ to protect 
municipal treasuries,”  as the Court below stated, then 
it would have permitted no award against public offi­
cials which impacts on municipal treasuries. But, this 
Court has already decided in numerous cases that relief 
may be granted against public officials in their official 
capacities, and Congress has accepted, indeed built 
upon, these decisions. Further, the Eleventh Amend­
ment “ analog}7-”  to which the court below refers, has 
no application here. The line drawn in Eleventh



Amendment eases between prospective and retroactive 
relief is a product of this Court’s effort to reconcile 
competing constitutional interests; it makes no sense 
as a means to determine the intent of the 1871 Congress 
in enacting § 1983, and in fact leads to a distortion of 
the manifest congressional purpose. The importation 
of the Eleventh Amendment line into § 1983 would 
contravene the central purpose of § 1983—to provide 
a complete federal remedy for federal constitutional 
wrongs committed under color of state law—without- 
serving any other purpose which the Congress that 
enacted § 1983 meant to achieve. The enactors did not 
intend to insulate municipal treasuries from suits to 
remedy constitutional wrongs. We detail the legislative 
history which proves this.

In Part II, we show that the court below also erred 
in holding that school boards are not “ persons”  under 
§ 1983. As consistently as this Court has treated 
other governmental entities as outside the ambit of 
§ 1983 and § 1343(3), so equally consistently (and in 
far greater volume) has this Court treated school 
boards as within the ambit of those provisions. In 
case after ease, particularly in the school desegregation 
area, this Court has entertained § 1983 action's in 
which school boards were defendants, and indeed has 
on numerous occasions issued, directed, or approved 
orders in such eases against school boards. Congress 
has followed these decisions closely and has assumed 
from these decisions, and acted upon the assumption, 
that school boards are subject to suit by private par­
ties. In 1964, 1972, and 1974, Congress enacted into 
law statutes founded on that assumption. In addition, 
Congress has failed to enact bills introduced from 
time to time to withdraw or limit federal court juris­
diction to entertain suits against school boards. In



6

the light of this history, the question whether school 
boards are “ persons”  under § 1983 must be regarded 
as settled in the affirmative. See Brown Shoe Co. v. 
United States, supra, 370 U.S. at 306-307; Flood v. 
Kuhn, 407 U.S. 258, 282-284 (1972). It follows that 
there was jurisdiction under 28 U.'S.C. § 1343 to enter­
tain the monetary claims against the school board, and 
that on the merits such relief may be awarded, where 
appropriate, under § 1983.

A R G U M E N T

I. PUBLIC OFFICIALS IN THEIR OFFICIAL CAPACITIES 
ARE "PERSONS" WITHIN THE MEANING OF SECTION 
1983, NO MATTER W H AT RELIEF IS SOUGHT AGAINST  
THEM. WHEN PUBLIC OFFICIALS USE THE POWERS 
OF THEIR OFFICE TO VIOLATE CONSTITUTIONAL  
RIGHTS, THEY M A Y BE ORDERED TO USE THE 
POWERS OF THEIR OFFICE TO REMEDY THEIR VIO­
LATIONS EVEN THOUGH THE PUBLIC TREASURY  
BE IMPACTED.

As we understand it, the theory of this action, inso­
far as it is directed at public officials in their official 
capacities, is as follows: when public officials, exercis­
ing the powers of their office, violate the federal Con­
stitution and thereby injure private parties, the in­
jured parties may sue under § 1983, and the court is 
empowered to require the wrongdoing officials to exer­
cise “ the power that is theirs”  2 to repair the injury 
done—here, to pay the back salaries which plaintiffs 
would have received but for the officials’ unconstitu­
tional actions. The theory depends upon two proposi­
tions: (a) that there is jurisdiction to entertain such 
a § 1983 claim; and (b) that, on the merits, if the de­
fendant public officials have the power to “ make good

2 Griffin v. School Board, 377 U.S. 218, 233 (1964).



7

the wrong done,”  § 1983 permits remedies which re­
quire those officials to exercise that power even where 
doing so impacts upon the treasury of the entity which 
they serve.1 * 3 The count below found that plaintiffs’ 
theory foundered on the first proposition—it held that 
as the public officials are not “ persons,”  there is no 
jurisdiction to entertain the claim. The court did not 
reach or discuss the second proposition. W e deal with 
both propositions herein.

3 The theory is applicable only where the wrongdoing officials 
hold positions of responsibility empowering them to provide the 
relief sought. Not every act of misconduct by every municipal em­
ployee can lead to an order against him in his official capacity 
impacting upon the public treasury. The courts can do no more 
than order wrongdoing officials to exercise “ the power that is 
theirs”  to right the wrongs which they have committed through 
their offices. Griffin v. School Board, 377 U.S. 218, 233 (1964). 
See also Swann v. Board of Education, 402 U.S. 1, 30 (1971). 
Although a court may have jurisdiction over a public official, it 
cannot instill him with powers to undo his wrong which he does 
not possess by virtue of his office. The wrongdoing policemen 
in Monroe v. Pape, 365 U.S. 167 (1961), could not have been 
ordered to make their victims whole from the public treasury— 
their official powers did not extend that far. Nor could such 
relief have been directed at their superiors who did have such 
powers, for those superiors were not. wrongdoers. As this Court 
explained in Rizzo v. Goode, 423 U.S. 362, 377 (1976), distinguish­
ing Swann and Brown, relief may be obtained only against those 
responsible for the wrong:

1 ‘ Those against whom injunctive relief was directed in cases
such as Swann and Brown were not administrators and school
board members who had in their employ a small number of 
individuals, which latter on their own deprived black students 
of their constitutional rights to a unitary school system. They 
were administrators and school board members who were found 
by their own conduct in the administration of the school system 
to have denied those rights. Here, the District Court found 
that none of the petitioners had deprived the respondent 
classes o f any rights secured under -the Constitution.”



A. Public Officials in Their Official Capacities Are "Persons" 
Within the Meaning of § 1983, No Matter What Relief Is 
Sought Against Them, and the Federal Courts Have Juris­
diction Under 28 U.S.C. § 1343 To Entertain Claims for All 
Types of Relief Against Such "Persons."

The court below did not question that there would 
have been jurisdiction in the district court to hear and 
resolve plaintiffs’ claims against the public officials 
had injunctive or declaratory relief been sought: 
“ There is no doubt that municipal and state officials, 
sued in their official capacities, are ‘ persons’ within 
the meaning of [42 U.S.C.] § 1983 when they are sued 
for injunctive or declaratory relief.” 4 The court 
ruled, however, that these same defendants are not 
“ persons”  within the meaning of § 1983 when they are 
sued for monetary relief, and therefore that “ [w]e 
are . . . without jurisdiction to hear this suit.” 5

The court below founded its analysis upon this 
Court’s decision in Monroe v. Pape, 365 U.S. 167 
(1961), which held, inter alia, that in a suit for money 
damages a municipality is not a person within the 
meaning of what is now codified as § 1983. The court 
below reasoned as follows: (a) the Department of So­
cial Services and the school board here are in effect 
part of the City of New York and thus, under Monroe, 
not “ persons”  in their own rights; (b) the monetary 
relief sought against the public officials in their official 
capacities would in fact come out of the treasuries of 
the Board of Education and the City of New York: 
consequently (c) the real parties in interest are the 
City and the Board and not the named public officials; 
and (d) suits against public officials may not be used

8

4 Pet. A. 53-54.
5 Pet. A. 60.



9

as a “ subterfuge”  to sue non-“ persons,”  and thus 
jurisdiction does not lie under § 1343(3).® (W e as­
sume, for purpose of our argument in Part I, that as 
the court below held, school boards are not “ persons.”  
Of course i f  they are “ persons,”  as we show they are 
in Part II, there could be no inhibition upon suits 
against school boards or their officials for relief im­
pacting upon their treasuries.)

Significantly, the court below completed the fore­
going analysis without dealing with this Court’s deci­
sion in City of Kenosha v. Bruno, 412 TI.S. 507 (1973) 
—a decision which cannot be reconciled with the hold­
ing below that public officials are “ persons”  for de­
claratory and injunctive relief but not for monetary 
refief. In Kenosha, this Court held that a municipality 
is not a “ person”  suable under § 1983 for any relief, 
declaratory or injunctive as well as monetary. Given 
the Kenosha holding, the logic of the court of appeals’ 
analysis would apply equally to preclude jurisdiction 
of a claim for declaratory or injunctive relief against 
a public official in his official capacity, where the real 
impact of that relief would be felt by the entity which 
is not a “ person.”  Just as with monetary relief, it 
could be said that to entertain a suit against the public 
official in his official capacity for such declaratory or 
injunctive relief would be sanctioning a “ subterfuge”  
to accomplish indirectly what cannot be done directly. 6

6 Pet. A. 55-61. Although recognizing that the Eleventh Amend­
ment is inapplicable to this case, the court below thought that the 
case law developed under that Amendment furnished “ a com­
pelling analogy”  for its ruling. Id. at 56. In fact, the analogy 
is wholly flawed. We defer our demonstration on. this point to 
Part I-B, infra, for even if the analogy were valid it would go to the 
scope of the federal court’s remedial power, not to its jurisdiction.



10

Kenosha found no evidence in the legislative history 
of § 1983 or in its language “ to suggest that the ge­
neric word ‘ person’ was intended to have a bifurcated 
application to municipal corporations depending on the 
nature of the relief sought against them.”  412 U.S. 
at 513. The same is true as to public officials. The 
statute prescribes the same cause of action, in the same 
terms, against “ every person.”  And there is not a 
word in the legislative history suggesting that public 
officials are '“ persons”  for some purposes but not 
others. Thus, there is no more basis here than in 
Kenosha for bifurcating the “ person”  status of the 
defendants. Regardless of the relief sought, there must 
be but a single answer to the question whether a public 
official in his official capacity is a “ person”  suable 
under § 1983.

That answer has already been provided by this Court 
in dozens of cases. For decades, this Court has en­
tertained and decided § 1983 actions against public 
officials in their official capacities; indeed, all of the 
Court’s school desegregation and legislative reappor- 
tionment decisions have been rendered in such actions.7 
In all of these cases the public entity was the “ real

7 The school desegregation eases are cited infra p. 28, n. 28. The 
legislative reapportionment cases include Baker v. Carr, 369 U.S. 
186 (1962) ; Reynolds v. Sims, 377 U.S. 533, 537 (1964) ; WMCA, 
Inc. v. Lomenzo, 377 U.S. 633, 635 (1964) ; Davis v. Mann, 377 U.S. 
678, 680 (1964) ; Roman v. Sincock, 377 U.S. 695, 697 (1964).

Of course, in all the school desegregation cases, suit was brought 
not only against the public officials in their official capacities, 
but also against the school board itself. It is possible, therefore, 
that this Court entertained those cases because school boards are 
themselves “ persons”  under § 1983. In that event, those cases 
establish that there is no jurisdictional problem here, at least with 
respect to that portion of the case concerning school board em­
ployees, for here too suit was brought against the school board 
as well as against the public officials. See part II, infra.



11

party in interest,”  and in many the relief awarded 
impacted directly upon the entity’s treasury.8

It is true that in none of these cases was the issue 
whether public officials in their official capacities are 
“ persons”  directly addressed. But a finding, implicit 
or explicit, that such defendants are “ persons”  suable 
under § 1983 was a necessary predicate to this Court’s 
entertaining those cases and approving relief therein, 
particularly as this Court has recognized its duty—in 
the context of a case brought pursuant to § 1983 and 
§ 1343(3)—siia sponte “ to see to it that the jurisdiction 
of the [district court] which is defined and limited by 
statute, is not exceeded,”  City of Kenosha v. Bruno, 
supra, 412 U.S. at 511. It is not without significance 
that on the very day that Kenosha was decided, holding 
sua sponte that public entities may not be sued under 
§ 1983, this Court affirmed an order in another § 1983 
action directing a public official to reimburse excess 
tuition payments which had been improperly collected 
from students. Vlandis v. Kline, 412 U.S. 441, 444-445, 
454 (1973).

Notwithstanding the absence of express considera­
tion, these many decisions by this Court surely con­
stitute stare decisis on the issue whether public em­
ployees in their official capacities are “ persons”  under 
§ 1983. Too many important decisions of this Court 
have proceeded on that premise for the question to be 
considered other than settled. As this Court stated in 
Brown Shoe Co. v. United States, 370 U.S. 294, 306-307 
(1962):

“ While we are not bound by previous exercises of
jurisdiction in cases in which our power to act was

8 We cite and describe these cases infra, pp, 15, 17.



12

not questioned but was passed sub silentio, . . . 
neither should we disregard the implications of an 
exercise of judicial authority assumed to be proper 
for over 40 years.”

Adherence to the rule implicitly established by these 
§ 1983 cases is particularly appropriate here, for the 
rule is one of statutory construction (rather than con­
stitutional interpretation).0 Congress has been free to 
change it, }ret, despite close congressional scrutiny of 
the pertinent decisions, Congress has evinced no dis­
satisfaction with the rule.10

In sum, there is no room for a holding that public 
officials in their official capacities are not “ persons”  
suable under § 1983, and the court below erred in rilling 
that there was no § 1343 jurisdiction over plaintiffs’ 
claim against these defendants. There remains the 
“ merits”  question, which the court below did not reach, 
whether there are special limitations upon the relief 
which can be awarded against these defendants, and it 
is to that question that we now turn.

B. When Public Officials Use ihe Powers of Their Office To 
Violate Constitutional Rights, They May Be Ordered To 
Use the Powers of Their Office To Remedy Their Viola­
tions Even Though the Public Treasury Be Impacted.

It is a familiar principle of federal law that 
when a federal court, has jurisdiction over a defendant 
who has violated constitutional rights, it will ordinarily

0 Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-408 (1932)
(Brandeis, J., dissenting), quoted with approval in Edelman v. 
Jordan, 415 U.S. 651, 671 n.14 (1974).

10 Cf. Flood v. Kuhn, 407 U.S. 258, 282-284 (1972). We diseuss 
the congressional response to the Court’s' desegregation decisions 
infra, pp. 15-16, 30-32.



13

require him to do what he can to repair the 'damage. 
“ [ I ] t  is . . . well settled that where legal rights have 
been invaded, and a federal statute provides for a 
general right to sue for such invasion, federal courts 
may use any available remedy to make good the wrong 
done.”  Bell v. Hood, 327 TJ.S. 678, 684 (1946).11 On 
its face, § 1983 is such a statute. It creates a cause of 
action for “ redress”  by the “ party injured”  against 
11 every person”  violating constitutional rights, and 
prescribes the broadest possible avenue to relief: 
through “ an action at law, suit in equity, or other 
proper proceeding.”  See also 42 U.S.C. § 1988. These 
words do not seem to admit of the interpretation that 
Congress meant the “ injured party”  to go without 
“ redress”  when the injury is monetary and the wrong­
doing “ persons”  are public officials. In the face of this 
unequivocal statutory language, it is difficult to see any 
basis for not applying the ordinary rule that federal 
courts “ will make good the wrong done.”  Any advo­
cate to the contrary should be required to bear a heavy 
burden of persuasion.

The couid below did not address this question in 
these terms, for it mistakenly disposed of the case on 
jurisdictional grounds. But it is easy to see from its

11 ‘ The existence of a statutory right implies the existence of 
all necessary and appropriate remedies.”  Sullivan v. Little Hunt­
ing Park, ,396 II.S. 229, 239 (1969). “ The general rule is, that 
when a wrong has been done, and the law gives a remedy, the com­
pensation shall be equal to the injury,”  Wicker v. Hoppock, 6 
Wall. 94, 98 (1867), reaffirmed in Albemarle Paper Co. v. Moody, 
422 TJ.S. 405, 418-19 (1975). Justice Cardozo put the principle 
in these words: “ Once let it be ascertained that the amount is 
determinable and all that follows is an incident . . . .  [Office a 
wrong is brought to light [, tffiere can be no stopping after that 
until justice is done.”  Bemis Bros. Bag Co. v. United States, 289 
TT.S. 28, 35-36 (1933).



M

opinion how it would have answered i t : the court below 
thought that “ the Reconstruction Congress which en­
acted the Civil Rights Act sought to protect municipal 
treasuries,”  12 and no doubt would have concluded that 
Congress intended to restrict the relief available 
against public officials commensurately with that ob­
ject. Although the logical implementation of such an 
understanding of congressional intent would be to per­
mit no award against public officials which impacts on 
municipal treasuries, the court below, which perceived 
a “ compelling analogy”  in the Eleventh Amendment 
cases,13 presumably would have precluded only awards 
of retroactive monetary relief.

We will show herein that in § 1983 suits against pub­
lic officials neither the complete prohibition of awards 
which impact upon municipal treasuries nor the pre­
clusion only of awards of retroactive monetary relief 
from such treasuries is a defensible result. In doing 
so, we will proceed as follows: First, this Court has 
already decided in numerous cases that relief may be 
granted which impacts upon the public treasury in 
§ 1983 suits against public officials in their official 
capacities, and Congress has accepted, indeed built 
upon, those decisions. Second, the Eleventh Amend­
ment “ analogy”  to which the court below refers is the 
product of this Court’s effort to reconcile competing 
constitutional interests; it makes no sense as a means 
to determine the intent of the 1871 Congress in enact­
ing § 1983, and in fact leads to a distortion of the 
manifest congressional purpose.

1. A construction that § 1983 precludes all awards 
against public officials impacting upon public treas-

12 Pet, A. 59.
13 Pet. A. 56.



15

uries could not be reconciled with the many decisions 
of this Court in § 1983 actions against public officials 
requiring the expenditure of enormous sums from local 
governmental treasuries—decisions which Congress has 
followed closely, legislated about, but never chosen to 
overturn.

Many of this Court’s school desegregation decisions, 
for example, have required large expenditures from 
local government treasuries. The leading example is 
Griffin v. School Board, 377 U.S. 218, 233 (1964), where 
the Court authorized issuance of an order requiring 
public officials “ to exercise the power that is theirs 
to levy taxes to raise funds”  if  necessary to reopen the 
public schools. And, in Swann v. Ckarlotte-Mecklen- 
hurg Board of Education, 402 U.S. 1, 30, and n.12 
(1971), the Court affirmed a busing order requiring 
“ local school authorities”  “ to employ 138 more buses 
than [the school system] had previously operated.”

Congress, aware that the Court has issued orders 
against public officials requiring them to expend public 
funds, has not amended either 42 U.S.C. § 1983 or 28 
U.S.C. § 1343(3) to withdraw the federal courts’ au­
thority and/or jurisdiction to issue such orders; on 
the contrary, Congress has expressly declared its inten­
tion not to do so.

In 1974, Congress found that “ the implementation of 
desegregation plans that require extensive student 
transportation has, in many cases, required local edu­
cational agencies to expend large amount[s] of funds, 
thereby depleting their financial resources . . .”  20 
U.S.C. § 1702(a) (3). Congress’ response was not to 
withdraw either jurisdiction or judicial power to re­
quire such plans, but simply to legislate revised eviden­



16

tiary standards and remedial priorities to be employed 
by the courts in deciding such cases.14 And lest that 
step be misunderstood as a statutory withdrawal of 
judicial power or jurisdiction, Congress took care to 
declare expressly that “ the provisions of this chapter 
are not intended to modify or diminish the authority 
of the courts of the United States to enforce fully the 
fifth and fourteenth amendments to the Constitution of 
the United States.”  20 U.S.C. § 1702(b).15

Either the 1871 Congress really did intend to “ pro­
tect municipal treasuries,”  or it did not. I f  it did, and 
if there had been no intervening developments, the 
solution would be clear: the Court would be required 
to “ give effect to the legislative will,”  PMlbrook v. 
Glodgett, 421 U.S. 707, 713 (1975), by forbidding all 
remedies in § 1983 actions which impact monetarily 
upon public treasuries. But, of course, there have 
been intervening developments: this Court has re­
peatedly approved just such remedies—both “ pros­
pective,”  as we have just shown, and “ retroactive,”  
as we show below—• and the modern Congress has 
responded by expressly affirming its desire not to 
“ modify or diminish”  the power o f the federal courts

14 20 U.S.C. §§ 1703-05, 1712-18, 1752-58.

15 In 1972, Congress had similarly found that “ the process of 
eliminating or preventing minority group isolation . . . involves 
the expenditure of additional funds to which local educational 
agencies do not have access.”  20 U.S.C. § 1601(a). Then, too, 
Congress’ response was not to cut back on the federal courts’ 
statutory powers or jurisdiction, but rather to reaffirm the pro­
priety of their exereise. Congress decided “ to provide financial 
assistance”  to enable local educational agencies to meet the de­
mands of these court orders, 20 U.S.C. §§ 1601(b)(1), 1605(a)(1) 
(A ) (i), and enlarged upon the remedies available in such actions 
by expressly authorizing attorney’s fee awards, 20 U.S.C. § 1617.



17

'to award such remedies. Under these circumstances, 
this Court’s prior decisions must be taken to preclude 
a holding that public treasuries can never be affected.

2. A construction of § 1983 which would permit 
orders requiring public officials to spend public funds 
prosepectively, while precluding orders against such 
officials directing retroactive monetary payments 
from the public treasury, would also collide with 
prior decisions of this Court. In Vlandis v. Kline, 
supra, 412 U.S. at 444-445, 454, a § 1983 case, this 
Court affirmed an order requiring a public official to 
reimburse excess tuition payments collected in viola­
tion of constitutional rights. Similarly, in Cleveland 
Board of Education v. La Fleur, 414 U.S. 632, 638 
(1974), a § 1983 case, this Court affirmed as “ appro­
priate relief”  a backpay award to pregnant teachers 
unconstitutionally suspended from employment (see 
326 P. Supp. 1159, 1161 (EJD. Va. 1971)). Cf. Edel- 
many. Jordan, 415 U.S. 651 (1974) (all opinions in this 
case either expressly declare or implicitly assume that, 
where the Eleventh Amendment is inapplicable, retro­
active monetary relief from a public entity’s treasury 
may be awarded in a § 1983 action against public offi­
cials in their official capacities).16

16 Edelman was a § 1983 action brought against officials of the 
State of Illinois seeking, inter alia, an order requiring the defend­
ants to provide benefits which would have been paid but for their 
unlawful delays.

The Court began its analysis with the recognition that, the 
monetary award, although addressed to the public officials, would 
in fact be paid from the public treasury— in this instance, the 
state treasury. ‘ ‘ These funds will obviously not be paid out of 
the pocket of petitioner Edelman . . . The funds to satisfy the 
award in this case must inevitably come from the general revenues 
of the State of Illinois.”  415 U.S. at 664, 665. The Court then 
ruled, by a 5-4 vote, that such an award was precluded by the 
Eleventh Amendment.

For present purposes, the important part of Edelman is not



But, even passing these prior decisions, nothing can 
be found on the face of § 1983 or in its legislative his­
tory to justify distinguishing between prospective and 
retroactive relief. Such justification as can be made 
for such a distinction must come not from anything 
internal to § 1983 or its background but from the 
“ compelling analogy”  of this Court’s Eleventh
its construction of the Eleventh Amendment— as we show below, 
the Eleventh Amendment is inapplicable here because it protects 
only state treasuries, not local school board treasuries—but the 
apparent unanimity on the Court that but for the Eleventh 
Amendment the monetary relief would have been recoverable under 
§ 1983 despite the fact that it came from the treasury of a public 
entity (the State) not itself a “ person”  under § 1983.

Initially, it is apparent that, if § 1983 did not authorize mone­
tary awards against public officials payable from public funds, 
there would have been no occasion for the Court to discuss the 
Eleventh Amendment at all in Edelman. Pursuant to the policy 
of avoiding unnecessary constitutional adjudication (see, e.g., 
Hagans v. Lavine, 415 T.T.S. 528, 546-547 (1974)), the Court need 
only have declared that 5 1983 itself did not authorize the award, 
and the case would have been over. Only if the Court was of 
the view that $ 1983 otherwise would reach the public treasury 
was it appropriate to reaeh the constitutional question whether the. 
Eleventh Amendment dictated a contrary result.

All four dissenters in Edelman (including the author of Monroe 
v. Pape) would have allowed the recovery against state officials 
even though it was to be paid from state funds. 415 TJ.S. at 678- 
687 (Douglas, J., dissenting) ; ul. at, 687-688 (Brennan, J., dissent­
ing) ; ul. at. 688-696 (Marshall, J., joined by Blackmnn, J., dissent­
ing). The majority, of course, disagreed, but not because of any 
limitation found in § 1983 itself. Rather, the majority concluded 
that the Eleventh Amendment constituted an independent restric­
tion upon the scope of relief available in federal court 415 U S 
at 677:

“  Though a § 1983 action may be instituted by public aid re­
cipients such as respondent, a federal court’s remedial power, 
consistent with the Eleventh Amendment, is necessarily lim­
ited to prospective injunctive relief . . . and may not include 
a retroactive award which requires the payment of funds 
from the state treasury . . (emphasis added; footnotes 
omitted).



19

Amendment decisions.17 As we show, this “ analogy”  
cannot bear examination.

The distinction between retroactive and prospective 
relief for purposes of the Eleventh Amendment does 
not purport to be an expression of the will of the fram­
ers of that Amendment. Rather, it represents the 
culmination of this Court’s effort—begun with the 
creation of the fiction of Ex parte Young, 209 U.S. 123 
(1908)—to reconcile the clash of values established by 
two constitutional amendments, adopted more than 60 
years apart: on the one hand, the “ sword”  o f the 
Fourteenth Amendment;18 on the other, the “ shield”  of 
the Eleventh.19 The Eleventh Amendment wais de­
signed to insulate state treasuries against federal 
court awards;20 the Fourteenth Amendment was de­
signed to place limitations upon states in their treat­
ment of private persons.21

The line ultimately drawn in Edelman v. Jordan, 
supra, evolved from a series of decisions confronting 
different aspects of the apparent tension between the 
two amendments. This end product—-the line between 
prospective and retroactive monetary relief—is one 
which “ will not in many instances! be that between

17 As the court below recognized, the Eleventh Amendment has 
no direct application to this case, because neither cities nor local 
school boards enjoy Eleventh Amendment protection. Edelman v. 
Jordan, supra, 415 TJ.S. at 667, n. 12 ; Mt. Healthy School Dist. 
v. Doyle, 45 LW  4079, 4081 (1977).

18 Edelman v. Jordan, supra, 415 U.S. at 664.

10 Fitzpatrick v. Bitzer, 427 U.S. 445, 448 (1976).

20 Petty v. Tennessee-Missouri Bridge Comm’n, 359 U.S. 275, 276 
n. 1 (1959) ; Parden v. Terminal R. Co., 377 U.S. 184, 187 (1963).

21 Fitzpatrick, supra, 427 U.S. at 456.



20

day and night.”  Edelmcin, 415 U.S. at 667. This 
Court did not attempt in Edelman to explain the re- 
sult as a logical distinction which Congress would 
have drawn starting from first principles, but as the 
evolved harmonization of conflicting constitutional 
interests.

To import the line drawn in such fashion into the 
meaning of § 1983 would make no sense. W e are 
concerned here with the interpretation of a single 
enactment of Congress. “ Our objective in a ease such 
as this is to ascertain the congressional intent and give 
effect to the legislative will.”  Philbrool> v. Glodgett, 
supra, 421 U.S. at 713. While it is theoretically 
possible that a Congress might choose to draw the line 
between prospective and retroactive monetary awards 
impacting upon a municipal treasury, there is not a 
shred of evidence in the legislative debates to suggest 
that the Congress of 1871 in fact intended to draw such 
a line in § 1983. Nor is there anything so inherently 
“ right”  about the line to attribute it to Congress with­
out any foundation in the language or history of the 
Act. Is it likely, for example, that Congress intended 
to empower the federal courts to require massive ex­
penditures from public treasuries to achieve desegre­
gation, while at the same time intending to withhold 
power from those courts to award back salaries from 
the same treasuries to the black teachers discrimina- 
torily selected for dismissal and non-renewal as de­
segregation plans were implemented1? 22 It would be a

22 Cases are common in which the lower federal courts have up­
held the propriety in § 1983 cases of backpay awards to black 
teachers who were discriminatorily selected for dismissal or non- 
renewal when school integration necessitated force reductions. See, 
e.g., Smith v. Board of Education of Morrilton School District, 365



21

most remarkable coincidence if  Congress in 1871 bad 
drawn the precise line which did not begin to be 
drawn in the Eleventh Amendment cases until 1908 
and did not reach final shape until 1974 following 
decades of litigation.23

More important, the importation of the Eleventh 
Amendment line into § 1983 would contravene the cen­
tral purpose of that statute— to provide a complete 
federal remedy for federal constitutional wrongs com­
mitted under color o f state law—without serving any 
other purpose which the Congress that enacted § 1983 
meant to achieve. The language of § 1983 and its legis­
lative history make clear that the competition of values 
which led to the distinction between prospective and 
retroactive relief for purposes of the Eleventh Amend­
ment has no analogous counterpart in § 1983. The lat­
ter provision was intended to be broadly remedial and 
its enactors did not seek to “ protect municipal treas­
1.2d 770, 783-784 (8th Cir. 1966) (Bl'ackmun, J.) ; Chambers v. 
Hendersonville City Board of Education, 364 F.2d 189, 193 (4th 
Cir. 1966) ( en banc) ; Hill v. Franklin County Board of Educa­
tion, 390 F.2d 583 (6th Cir. 1968) ; Rolfe v. County Board of Edu­
cation of Lincoln County, 391 F.2d 77, 81 (6th Cir. 1968); Hatton 
v. County Board of Education of Maury County, 422 F.2d 457 
(6th Cir. 1970) ; Harkless v. Sweeny Independent School District, 
427 F.2d 319, 323 (5th Cir. 1970) (Bell, J.) (Compare: Muzquiz 
v. City of San Antonio, 528 F.2d 499 (5th Cir. 1976) (en banc)) ; 
Mc-Ferren v. County Board of Education of Fayette County, 455 
F.2d 199 (6th Cir.), cert, denied, 407 U.S. 934 (1972). See also, 
Smith v. Hampton Training School for Niirses, 360 F.2d 577 (4th 
Cir. 1966) (en banc) ; .Johnson v. Branch, 364 F.2d 1977 (4th Cir. 
1966) (en banc), cert, denied, 385 U.S. 1003 (1967) ; North Caro­
lina Teachers Ass’n v. Asheboro City Board of Education, 393 F.2d 
736 (4th Cir. 1968) (en banc).

The Eleventh Amendment line began to be drawn in Ex parte 
Young, 209 U.S. 123 (1908), and reached its present contours only 
with the decision of Edelman in 1974.



22

uries.”  Congress established a sword in § 1983, but no 
shield.

Analysis of what Congress meant must begin with 
what was enacted. In its terms, as described above, 
§ 1983 provides to the “ party injured”  a cause of ac­
tion for “ redress”  “ in an action at law, suit in equity, 
or other proper proceeding”  against “  [e] very person”  
who violates its substantive provisions. This Court, in 
the context of interpreting another portion of the Civil 
Rights Act of 1871, stated that the approach to Recon­
struction civil rights statutes is to “  ‘ accord [them] a 
sweep as broad as [their] language.’ ”  Griffin v. Breck- 
enridge, 403 U.S. 88, 97 (1971), quoting from United 
States v. Price, 383 U.S. 787, 801 (1966). On its face, 
§ 1983—and it is here the meaning of that provision 
alone which is at issue—provides for complete “ re­
dress”  against “ every person”  who violates its terms. 
That language in itself, cannot constitute the basis for 
finding a prohibition of retroactive monetary relief 
against any “ person.”

The legislative history of § 1983 confirms a remedial 
purpose as broad as its language. We analyze that 
history in great detail in the appendix which follows 
this argument. That analysis shows that Congress in 
passing what is now § 1983 meant to establish a private 
cause of action for redress as broad as it was empow­
ered to create by the Fourteenth Amendment. Not a 
word said in connection with the enactment of § 1983 
indicates the slightest intention to leave a party injured 
by a Fourteenth Amendment violation with less than a 
full remedy. Indeed, the contrary is true: complete 
remedy for such constitutional violations was Congress’ 
preoccupation. See pp. 5a-13a, infra. In this connec­
tion, nothing in the debates over § 1983 indicates any



23

congressional concern to “ protect municipal treas­
uries.”  I f  anything, the evidence is strong that Con­
gress meant municipalities to be subject to suit under 
§1983 directly as “ persons.”  Congress understood 
that the Fourteenth Amendment applied to restrict 
the actions of municipalities, and § 1983 was intended 
to create a private cause of action as broad as the scope 
of that Amendment (see pp. 15a-16a, infra) ; and, a 
month before the introduction of the bill containing 
§ 1983, and less than two months before its passage, 
Congress had enacted a definitional statute to assist in 
the construction of subsequently enacted statutes, which 
provided that except where there was evidence of a 
contrary congressional intent the term “ persons”  
should be understood to include “ bodies politic and 
corporate.”  See pp. la, 14a.-15a, infra.

Each of the propositions just set forth regarding 
the legislative history is fully supported in the appen­
dix. That history, taken together with the unequivocal 
language of the statute, is sufficient to dispose of any 
effort to read into § 1983 a distinction between pros­
pective and retroactive remedies in actions against 
public officials in their official capacities.

It would be sufficient to stop here, but for a compli­
cation which results from certain statements made 
about the legislative debates of 1871 in Monroe v. Pape, 
supra, Monroe decided that the enacting Congress did 
not mean to include municipalities within the term 
“ persons”  in § 1983. That conclusion was based not 
on the legislative history of those portions of the bill 
which Congress enacted into law—indeed, as we show 
in the appendix, that legislative history clearly indi­
cates the opposite—but on the history of an amendment 
to that bill, the Sherman Amendment, which was even­
tually defeated. 365 U.S. at 187-192. The Sherman



24

Amendment proposed to make counties, cities, and par­
ishes liable in damages for private acts of violence oc­
curring within their boundaries, without regard even 
to whether those entities had been delegated any police 
power by the state with which to deal with such vio­
lence. See pp. 17a-19a, infra. The Monroe Court under­
stood the defeat of that amendment to have resulted 
from Congress ’ doubt as to its constitutional power to 
“ impose civil liability on municipalities,”  363 U.S. at 
190. In fact, this understanding is incorrect, as is ap­
parent from two considerations:

First, Congress did not doubt its power to “ impose 
civil liability on municipalities”  in the circumstances 
governed b y  § 1983, i.e. where a municipality in the 
exercise of powers delegated to it by the state violates 
the prohibitions of Section 1 of the Fourteenth Amend­
ment. Congress had voted for the Fourteenth Amend­
ment in 1866, and as this Court has repeatedly recog­
nized, it meant the prohibitions of Section 1 to apply 
to local governmental bodies. Ex parte Virginia, 100 
U.S. 339, 346-347 (1880) ; Home Telephone & Tele­
graph Co. v. Los Angeles, 227 U.S. 278 (1913); Lovell 
v. Griffin, 303 U.S. 444, 450 (1938). We demonstrate 
Congress’ awareness of this power in the appendix. 
See pp. 15a-16a, infra. We note here only that the 1871 
Congress could not have forgotten what it had done 
five years earlier, for Representative Bingham (whom 
Justice Black called “ the Madison of the First section 
of the Fourteenth Amendment” 24) reminded his col­
leagues during the debate on § 1983 that in drafting 
the first section of the Fourteenth Amendment he had 
used the words “ No State shall . . . ”  for the precise 
purpose of overruling a Supreme Court decision hold-

Adamson v. California, 332 U.S. 46, 74 (1947) (dissenting 
opinion). b



25

ing that a city’s taking of personal property without 
compensation did not violate the Constitution as it then 
stood.25 He went on to explain that he had copied these 
words from the Impairment of Obligations of Con­
tracts Clause.26 And in 1867, only four years prior to 
the debate on § 1983, the Supreme Court had ruled that 
the latter clause bound municipalities equally with 
states, and affirmed a writ of mandamus compelling 
municipal officers to levy taxes if  necessary to honor 
the contract sought to be impaired. Von Hoffman v. 
City of Quincy, 71 U.S. 535, 554-555 (1867).

Second, an examination of the debates over the Sher­
man Amendment reveals that while the Amendment 
failed owing to a doubt concerning Congress’ power, it 
was a doubt germane to the Sherman Amendment’s 
unique provisions and wholly irrelevant to the mean­
ing of § 1983. See pp. 17a-31a., infra. The Sherman 
Amendment had nothing to do with requiring munici­
palities to abide by the requirements of the Fourteenth 
Amendment in exercising powers delegated by the 
states; rather, it would have made municipalities affirm­
atively responsible for preventing certain private acts 
of violence from occurring within their boundaries. 
Congress’ doubt went only to its constitutional power 
to impose on local 'government bodies the affirmative 
obligation to exercise the police power; it was this 
doubt which led to the defeat of the Sherman Amend­
ment. The Republican representatives who supported 
the bill generally, but whose defection caused the 
defeat of the Sherman Amendment, asserted that

20 Cong. Globe, 42 Cong., 1st Session, Appendix (hereinafter 
“ Globe App.” ), p. 83-84.

2t' Globe App. 84.



26

it was the prerogative of the states to determine 
whether and how to delegate the police power 
function to local governments; that Congress could 
not bypass the states and impose such functions 
directly upon those governments; and consequently 
that Congress lacked power to hold municipalities 
monetarily liable for failing to exercise such power. 
See pp. 21a-31a, infra. That constitutional doubt, 
of course, warrants no inference that Congress intended 
to insulate municipal treasuries in § 1983, for, unlike 
the Sherman Amendment, § 1983 did not purport to 
impose any affirmative obligations upon municipalities, 
but only to enforce the prohibitions of the Four­
teenth Amendment—“ no State 'shall . . —which
Congress knew applied to municipalities in their exer­
cise of whatever powers the states chose to delegate to 
them. We analyze the meaning of the defeat of the 
Sherman Amendment more fully in the appendix.

We do not challenge here the holding of Monroe v. 
Pape. Soundly based or not, the decision there that 
municipalities are not “ persons”  under § 1983, twice 
relied upon in recent decisions,27 may well be entitled 
to stare decisis effect. But neither stare decisis nor 
any other doctrine compels this Court to perpetuate 
Monroe’s erroneous reading of the legislative history 
when, as here, distinct issues of statutory construction, 
not controlled by the actual holding of Monroe, are 
presented for decision. Congress did not intend to 
“ protect municipal treasuries,”  and there is thus no 
warrant for limiting the remedies available in a § 1983 
action against public officials in their official capacities.

27 Moor V. Comity of Alameda, 411 U.S. 693 (1973); City of 
Kenosha v. Bruno, 412 U.S. 507 (1973). See also Aldinger v. 
Howard, 427 U.S. 1,16 (1976).



27

II. SCHOOL BOARDS ARE "PERSONS" WITHIN THE 
MEANING OF §  1983.

The court below decided that the Board of Educa­
tion of the City of New York is not a “ person”  within 
the meaning of § 1983. The opinion is ambiguous as to 
the ground upon which this decision is based. On the 
one hand, the opinion indicates that due to institutional 
characteristics peculiar to this board of education, it 
should be considered a part of the City of New York, 
and not an independent entity; therefore, the board 
is not a “ person”  because the city is not a “ person.”  
Pet, A. 44-50. I f  this be the court’s holding, it is not 
of particular interest to these amici, whose concern is 
with the “ person”  status of those school boards which 
are independent entities. We do note on this issue, 
however, that contrary to the apparent conclusion of 
the court below, the New York courts have consistently 
ruled that the New York City Board of Education is 
“ an independent corporation separate and distinct 
from the city.”  Lanza v. Wagner, 11 N.Y.2d 317, 326 
(1962); People ex rel. Wells & Newton Co. v. Craig, 
232 N.Y. 125, 135 (1922).

On the other hand, implicit in a portion of the court’s 
analysis is a finding that no school boards, regardless 
how constituted, are “ persons”  within the meaning of 
§ 1983. I f  this be the court’s holding, we believe it to 
be in error. In their typical form, local school boards 
are distinct and independent governmental entities not 
properly viewed as mere sub-parts of other govern­
mental bodies. See Milliken v. Bradley, 418 U.S. 
717, 741-743 (1974). As consistently as this Court 
has treated other governmental entities as outside 
the ambit of § 1983 and § 1343(3), so equally con­
sistently (and in far greater volume) has this



2S

Court treated school boards as within the ambit of those 
provisions. In case after case, particularly in the 
school desegregation area, this Court has enter­
tained § 1983 actions in which school boards were 
defendants, without any indication that such boards 
were not proper parties.28

Beyond merely entertaining these cases, the Court 
has on a number of occasions issued orders against 
school boards or directed or approved the issuance of 
such orders. For example, in Green, supra, 391 U.S. 
at 437-439, 441-442, a unanimous Court declared:

“ 13 years after Brown I I  commanded the aboli­
tion of dual systems we must measure the effec­
tiveness of Respondent School Board’s ‘ freedom 
of choice’ plan to achieve that end. The School 
Board contends that it has fully discharged its

28 See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954) ; 
McNeese v. Board of Education, 373 U.S. 663 (1963) ; Abington 
School Dist. v. Schempp, 374 U.S. 203 (1963); Griffin v. School 
Board, 377 U.S. 218 (1963) ; Bradley v. School Board, 382 U.S. 
103 (1965) ; Green v. County School Board, 391 U.S. 430 (1968) ; 
Raney v. Board of Education, 391 U.S. 443 (1968) ; Monroe v! 
Board of Commissioners, 391 U.S. 450 (1968); Kramer v. Union 
School District, 395 U.S. 621 (1969) ; Alexander v. Board of Edu­
cation, 396 U.S. 19 (1969) ; Carter v. West Feliciana School Bd., 396 
U.S. 226 (1969), 396 U.S. 290 (1970); Swann v. Board of Educa­
tion, 402 U.S. 1 (1971) ; Davis v. School Comm’rs of Mobile County, 
402 U.S. 33 (1971); Northcross v. Memphis Board of Education,
412 U.S. 427 (1973) ; Keyes v. School District No. 1, Denver, Colo.,
413 U.S. 189 (1973) ; Cleveland Board of Education v. LaFleur,
414 U.S. 632 (1974) ; Bradley v. Richmond School Board, 416 U.S. 
696 (1974) ; Goss v. Lopez, 419 U.S. 565, 568 (1975) ; East Carroll 
Parish School Bd. v. Marshall, 424 U.S. 636 (1976) ; Pasadena 
City Bd. of Education v. Spangler, 427 U.S. 424 (1976). Several 
of these decisions encompassed two1 or more consolidated cases. In 
addition to these full decisions, there of course has been an enor­
mous number of per curiam decisions in school desegregation eases 
against school boards.



29

obligation . . . Bnt that argument ignores the 
thrust of Brown I I  . . . School boards such as the 
respondent . . . were . . . charged with the affirma­
tive duty to take whatever steps might be necessary 
to convert to a unitary system . . .  [ I ] t  was to this 
end that Brown I I  commanded school boards to 
bend their efforts.

• • The burden on a school board today is to 
come forward with a plan that promises realisti­
cally to work, and promises realistically to work 
now.

* * *
“ The New Kent School Board’s ‘ freedom-of- 
choice’ plan cannot be accepted as a sufficient step 
to ‘ effectuate a transition’ to a unitary system . . . 
[T ] he plan has operated simply to burden children 
and their parents with a responsibility which 
Brown I I  placed squarely on the School Board. 
The Board must be required to formulate a new 
plan and, in light of other courses which appear 
open to the Board, such as zoning, fashion steps 
which promise realistically to convert promptly to 
a system without a ‘ white’ school and a ‘ Negro’ 
school, but just schools.”  (emphasis in original; 
footnote omitted).

To like effect, see, e.g., Carter, supra, 396 TJ.S. at 228; 
Keyes, supra, 413 U.S. at 213-214; Monroe, supra, 391 
U.S. at 458-459; Alexander, supra, 396 U.S. at 20; 
Davis, supra, 402 U.S. at 35. See also Bradley, supra, 
416 U.S. at 699, 718.

Congress has followed these decisions closely and has 
assumed from these decisions, and acted upon the as­
sumption, that school boards are subject to suit by



30

private parties. In 1964, 1972, and 1974, Congress en­
acted into law statutes founded on that assumption.

In 1964, Congress augmented what it took to be an 
existing right o f private parties to bring discrimina­
tion actions against school boards by providing that, 
under certain circumstances, the Attorney General may 
bring such actions where he can certify that the ag­
grieved private parties are as a practical matter un­
able to bring their own suit. 42 U.S.C. § 2000c-6. Con­
gress was careful to make clear that it did not intend 
to “ affect adversely the right of any person to sue or 
obtain relief in any court against discrimination in 
public education.”  42 U.S.C. § 2000c-8.

In 1972, Congress passed extensive legislation in re­
sponse to the school desegregation decisions of this 
Court and the lower federal courts, again building on 
the assumption that school boards are proper defend­
ants in private actions to enforce constitutional rights. 
The 1972 Congress passed, inter alia: (a) a provision 
allowing attorney’s fees to the prevailing party, “ other 
than the United States,”  “ [ujpon entry of a final or­
der by a court of the United States against a local edu­
cational agency, . . . ”  for violation of the Fourteenth 
Amendment, 20 U.S.C. § 1617; and (b) a provision 
authorizing federal financial assistance to “ local school 
agenc[ies] ”  which are implementing a desegregation 
plan ‘ undertaken pursuant to a final order issued by 
a court of the United States, . . . ,”  20 U.S.C. § 1605 
(see also 20 U.S.C. § 1601). Once again, Congress 
recognized the “ existing power”  of federal courts “ to 
insure compliance with constitutional standards”  in 
school desegregation actions, 20 U.S.C. § 1656, and 
sought only to prohibit “ enlargement”  of that power, 
id.



31

In 1974, Congress found, inter alia, that as a result 
of court busing orders in suits brought to enforce the 
Fifth and Fourteenth Amendments, “ local educational 
agencies”  had been required to “ expend large amounts 
of funds, thereby depleting their financial resources. 
. . 20 U.S.C. § 1702(a)(3). That finding did not
motivate Congress to withdraw federal jurisdiction 
over suits against “ local educational agencies.”  
Rather, Congress in 1974 sought to set remedial pri­
orities in such suits, so that busing would be a remedy 
of last resort. See particularly, 20 U.S.C. § 1713. Far 
from removing jurisdiction, Congress made clear that 
“ the provisions of this chapter are not intended to 
modify or diminish the authority of the courts of the 
United States to enforce fully the fifth and fourteenth 
amendments to the Constitution of the United States.”  
20 U.S.C. § 1702(b).

From time to time bills have been introduced in 
Congress designed to withdraw or limit federal court 
jurisdiction to entertain suits against school boards.29 
No such bill has been enacted. Other bills have been 
introduced which proposed to limit the remedies avail­
able in school desegregation suits, drafted in a fashion

In the first session of the 93rd Cong., for example, the follow­
ing bills were introduced in the Senate: S. 179 (Jan. 4, 1973), a 
bill̂  introduced by Senator Griffin to deprive federal courts of 
jurisdiction to issue busing orders; S. 287 (Jan. 11, 1973), a bill 
introduced by Senator Scott to withdraw all lower federal court 
jurisdiction over eases “ involving the public schools” ; S. 1737 
(May 8, 1973), a bill introduced by Senators Ervin and Allen 
which, in Sec. 1207, would withdraw federal court jurisdiction, 
mter aha, to “ issue any order requiring any school board”  to 
abandon a freedom-of-choice plan, or “ requiring any school board”  
to bus, or “ requiring any school board”  to close any school.



32

which clearly reflects the sponsors’ belief that school 
boards are presently proper defendants in such suits.30

For over twenty years, and in more than that many 
cases, this Court has treated school boards as “ per­
sons”  subject to suit pursuant to § 1983 and § 1343(3). 
Congress has understood this Court so to have ruled, 
and has after careful consideration accepted, indeed 
built upon, that understanding. In the light of this 
history, the question whether school boards are “ per­
sons”  under § 1983 must be regarded as settled in the 
affirmative. See Brown Shoe Co. v. United, States, 
supra, 370 U.S., at 306-307; Flood v. Kuhn, supra, 407 
U.S., at 282-284.

30 See, e.g., S. 619, 93d Cong., 1st Sess. (Jan. 31, 1973), a bill 
sponsored by Senators Allen, Baker, Buckley, Helms, Nunn, Scott, 
Sparkman, Stennis, Talmadge, and Thurmond, which provided in 
Sec. 207:

Sec. 207. Any court, order requiring the desegregation of a 
school system shall be terminated, if the court finds the schools 
of the defendant educational agency are a unitary school sys- 
tem, one within which no person is to be effectively excluded 
from any school because of race, color, or national origin, 
and this shall be so, whether or not such school system was 
in the past segregated de jure or de facto. No additional order 
shall he entered against such agency for such purpose unless 
the schools of such agency are no longer a unitary school sys­
tem.”  (emphasis added).



33

CONCLUSION

For the reasons set forth hereinabove, the decision 
below should be reversed.

Respectfully submitted,

A lbert  E. J e n n e r , J r . 
Lawyers’ Committee 

for Civil Rights 
Under Law

R obert A . M u r p h y  
W il l ia m  E. C a l d w e l l  

733 Fifteenth St., N.W. 
Washington, D.C. 20005

M ic h a e l  I I . G o tte sm a n  
R obert M . W ein berg  

B r e d h o ff , C u s h m a n , 
G o t t e s m a n  & C o h e n  

1000 Connecticut Ave., 
N.W.

Washington, D.C. 20036
D avid  R u b in

National Education 
Association 

1201 Sixteenth Street, 
N.W.

Washington, D.C. 20036
Attorneys for Amici Curiae



APPENDIX



l a

APPENDIX *

An. Analysis of the Legislative History of the Civil Rights Act
of 1871 as It Relates to the Issues Presented in This Case

I.

We begin by briefly describing the course of the legisla­
tion which emerged as the Civil Eights Act of 1871, noting 
the particular features which bear directly upon the issues 
in this case. We then discuss the pertinent legislative his­
tory in depth.

The legislative history properly begins on February 25, 
1871, one month before the civil rights bill was introduced. 
On that day, the “ dictionary act”  was enacted, providing, 
in pertinent part :

“ That in all Acts hereafter passed . . . the w ord  ‘ p e r ­
s o n ’ m ay ex ten d  and he applied  to  bod ies p o litic  and, 
co rp o ra te , and the reference to any officer shall include 
any person authorized by law to perform the duties of 
such office, u n less the co n tex t  sh ow s that such w ords  
w ere  in ten d ed  to he used, in a m ore  lim ited  sen se  . . . . ”  1

On March 28, 1871, the House Select Committee reported 
H.R. 320, a bill “ to enforce the provisions of the Fourteenth 
Amendment to the Constitution of the United States, and 
for other purposes, ’ ’ which, with such modifications as were 
made in the ensuing debates, emerged as the Civil Eights 
Act of 1871.2

The bill contained four sections. Section 1— now 
codified in 42 TJ.S.C. § 1983—was enacted by Congress in

* Throughout this Appendix, “ Globe”  is used to refer to the 
Congressional Globe, 42d Cong., 1st Sess., and “ Globe App.”  is 
used to refer to the Appendix thereto.

1 Aet of Feb. 25, 1871, eh. 71, § 2, 16 Stat. 431 (emphasis added).
2 Globe 317.



2a

the form originally reported, without a single word change. 
It provided:

“ That any person who, under color of any law, statute, 
ordinance, regulation, custom, or usage of any State, 
shall subject, or cause to be subjected, any person with­
in the jurisdiction of the United States to the depriva­
tion of any rights, privileges, or immunities secured by 
the Constitution of the United States, shall, any such 
law, statute, ordinance, regulation, custom, or usage of 
the State to the contrary notwithstanding, be liable to 
the party injured in any action at law, suit in equity, 
or other proper proceeding for redress; such proceed­
ing to be prosecuted in the several district or circuit 
courts of the United States, with and subject to the 
same rights of appeal, review upon error, and other 
remedies provided in like cases in such courts, under 
the provisions of the act of the 9th of April, 1866, en­
titled ‘An act to protect all persons in the United States 
in their civil rights, and to furnish the means of their 
vindication, ’ and the other remedial laws of the United 
States which are in their nature applicable in such 
cases.”  3

Section 2 of the bill, as introduced, defined certain federal 
crimes and prescribed their punishment. Sections 3 and 4 
proposed to empower the President to send the militia into 
the states and communities, and to suspend the writ of 
habeas corpu s, in prescribed circumstances.4 5

The bill was debated first in the House. There were no 
amendments to Section 1. The sponsors uniformly declared 
that their purpose in enacting Section 1 was to provide as 
complete a civil cause of action for relief as the Fourteenth 
Amendment authorized Congress to create.8 No “ Sherman

3 Globe App. 138. See also 17 Stat. 13.
4 Globe App. 138.
5 See infra, pp. 5a-13a.



3a

Amendment,”  or its equivalent, was proposed in the House. 
Sections 2, 3 and 4 were amended on the floor of the House 
to assuage the concerns of several Republicans that the bill 
as originally drafted might invade the States’ reserved 
police powers.8 The House bill, when passed, was referred 
to the Senate.

The Senate adopted Section 1 without change, its spon­
sors declaring the same broad purpose as had their House 
colleagues.7 Just prior to the vote on the bill, Senator 
Sherman introduced his amendment on the floor of the Sen­
ate, the text of which appears in fra , n.47, to make “ the 
inhabitants”  of the county, city or parish liable for in­
juries caused by private acts of violence within the muni­
cipality’s borders. Pursuant to a rule of procedure which 
had been adopted, there was no debate on Sherman’s 
amendment. The amendment was adopted by the Senate, 
and the entire bill, including the Sherman Amendment, was 
returned to the House.

The House refused to accede to the amendments which 
the Senate had made in the bill. The debate was brief. 
The Sherman Amendment was declared to be “ obnoxious,”  
and deserving of a quick burial, and with that the House 
voted to go to conference with the Senate.8

The conferees agreed upon a revised version of the 
Sherman Amendment, making the municipality, rather 
than its inhabitants, liable for private acts of violence 
within its borders, and reported back to their respective 
houses.8

The Senate took up the conference committee report 
first. This time, there was no rule precluding debate, and

8 See infra, pp. 21a-23a.
7 See infra, pp. 7a, lla-14a.
8 See infra, p. 18a,
8 See infra, pp. 18a-19a.



4a

the substance of the Sherman Amendment was debated on 
the floor of the Senate. Its sponsors explained that their 
purpose was to impose upon municipalities the duty to 
police their communities, and to make them liable mone­
tarily where they refused or failed to do so.M) The Senate 
voted to adopt the conference report (and thus to adopt 
the revised Sherman Amendment) by a vote of 32- to 16. 
The vote on the conference report, like the original vote, 
was along party lines, the Republicans supporting the bill 
and the Democrats opposing it.11

The conference report fared less well in the House. The 
difference was that a number of Republicans defected from 
the “ party line”  on the Sherman Amendment. They 
doubted that Congress had the constitutional power to im­
pose policing obligations upon municipalities; they be­
lieved that the States’ reserved powers included the right 
to determine whether and to what extent to dele­
gate police powers to municipalities; and they thought it 
improper for Congress to impose monetary liability for a 
municipality’s failure to carry out a duty which Congress 
had no right to impose upon it. The Republicans opposing 
the Sherman Amendment were the very ones who had 
earlier raised similar “ police power”  objections to Sec­
tions 2, 3 and 4 as originally drafted. Within minutes 
after they spoke, the House voted to reject the conference 
report. Twenty-three House members who supported the 
rest of the civil rights bill voted against the Sherman 
Amendment, and their votes were decisive in causing’ its 
rejection.12

As a result of the House’s rejection of the conference 
report, a second conference was necessary. In this con­
ference, the Sherman Amendment was abandoned, and in

10 See infra, pp. 19a-20a.
11 See infra, p. 20a.

12 See infra, pp. 29a-30a.



5a

its place the provision now codified as 42 U.S.C. § 1986 was 
adopted. This second conference report was approved 
after brief debate by both Houses, and the bill as thus 
enacted was signed by President Grant.

As we show herein:

1. The legislative history of Section 1 shows that 
Congress intended by that section to exercise all of the 
power which it possessed under the Fourteenth Amend­
ment to create civil actions for complete relief, and it did 
not intend to insulate municipal treasuries from liability in 
suits brought pursuant to Section 1; and

2. The Sherman Amendment was defeated for reasons 
which are wholly irrelevant to and furnish no evidence of 
Congress’ intentions with respect to Section 1.

Accordingly, the legslative history refutes the conten­
tion that Congress intended to insulate municipal treasuries 
from liability in Section 1 suits.13

II.

Debate on the civil rights bill in the House was opened 
by Representative Shellabarger, Chairman of the House 
Select Committee, who had authored the bill14 and was its 
manager in the House. He stated:

‘ This Act is remedial, and in aid of the preservation 
of human liberty and human rights. All statutes and 
constitutional provisions authorizing such statutes are 
liberally and beneficently construed. It would be most 
strange and, in civilized law, monstrous were this not 
the rule of interpretation. As has been again and 
again decided by your own Supreme Court of the

13 See infra, pp. 31a-32a.

14 Representative Kerr, an opponent, was surprised that Shella­
barger  ̂ could at all conceive and pen such provisions as are con­
tained in this measure.”  Globe App. 46.



United States, and everywhere else where there is wise 
judicial interpretation, the largest latitude consistent 
with the words employed is uniformly given in con­
struing such statutes and constitutional provisions as 
are meant to protect and defend and give remedies for 
their wrongs to all the people. These provisions of the 
Fourteenth Amendment are wholly devoted to secur­
ing the equality and safety of all the people, as is this 
Section [Section 1], and, indeed, the entire bill.” 15

Shellabarger went on to quote from Story on 'Constitution 
as follows:

“ Where a power is remedial in its nature there is 
much reason to contend that it ought to be construed 
liberally, and it is generally adopted in the interpre­
tation of laws.”  18

Anticipating objections that the bill invaded state sover­
eignty, Shellabarger declared:

“ [W]here is the doubt Congress may, by appropriate 
legislation, protect those rights of American citizen­
ship so solicitously and so abundantly guarded and 
made eternal as the Constitution itself! If, after all 
this transcendent profusion of enactment in restraint 
of the States and affirmative conferment of power on 
Congress, the States still remained unrestrained, . . . 
to make laws, abridging or not abridging, to protect or 
to destroy, by banded murder, these United States 
citizens as the State may please, and the United States 
must stand by a powerless spectator of the overthrow 
of the rights and liberties of its own citizens, then not 
only is the profusion of guards put by the fourteenth 
amendment around our rights a miserable waste of

15 Globe App. 68, See also Globe 317.
10 Globe App. 68.



words, but the Government is itself a miserable sham, 
its citizenship a curse, and the Union not fit to be.”  17

Shellabarger then “ repeated”  his premise, “ that it is the 
duty of Congress to enforce by appropriate legislation 
every provision of the Constitution where legislation is 
needed to secure the enforcement. ’ ’ 18

7 a

In the Senate, Senator Edmunds, the manager of the 
bill, declared:

“ The first section is one . . . defining the rights se­
cured by the Constitution of the United States when 
they are assailed by any state law or under color of 
any state law, and it is merely carrying out the prin­
ciples of the civil rights bill [of 1866, 42 U.S.'C. §§ 1981, 
1982], which have since become a part of the Constitu­
tion.”  19

Senator Edmunds added that Section 1 was “ so very sim­
ple, and really reenacting the Constitution.”  20

In both houses, the statements of other supporters cor­
roborated the views of the bill’s managers: that Section 1 
was an exercise of the entirety of Congress’ power to create 
a civil cause of action for complete relief for violations of 
the rights established by the Fourteenth Amendment.

Representative Bingham, who had authored Section 1 of 
the Fourteenth Amendment, which was the constitutional 
predicate for Section 1 of the bill, declared the bill’s pur­
pose to be “ the enforcement . . .  of the 'Constitution on be­
half of every individual citizen of the Republic in every

17 Globe App. 69.
18 Globe App. 70.
19 Globe 568.
20 Globe 569.



8a

State and Territory of the Union to the ex ten t  o f  the 
righ ts  gu a ra n teed  to  him  by  the C o n stitu tion .”  21

Representative Garfield, declaring that the Equal Protec­
tion Clause of the Fourteenth Amendment “ is a broad and 
comprehensive limitation on the power of the State gov­
ernments, and, without doubt, Congress is empowered to 
enforce this limitation by any appropriate legislation,”  22 
stated:

“ But the chief complaint is . . . [that] by a systematic 
maladministration of [state laws], or a neglect or re­
fusal to enforce their provisions, a portion of the peo­
ple are denied equal protection under them. Whenever 
such a state of facts is clearly made out, I believe the 
last clause of the first section [of the Fourteenth 
Amendment] empowers Congress to step in and pro­
vide for doing justice to those persons who are thus 
denied equal protection.” 23

21 Globe App. 81 (emphasis added). See also id. at 84. Repre­
sentative Bingham elaborated further (id. at 85):

“ The States never had the right, though they had the power, 
to inflict wrongs upon free citizens by a denial of the full 
protection of the laws; because all State officials are by the 
Constitution required to be bound by oath or affirmation to 
support the Constitution. As I have already said, the States 
did deny to citizens the equal protection of the laws, they did 
deny the rights of citizens under the Constitution, and except 
to the extent of the express limitations upon the States, as I 
have shown, the citizen had no remedy. They took property 
without compensation, and he had no remedy. They restricted 
the freedom of the press, and he had no remedy. They re­
stricted the freedom of speech, and he had no remedy. They 
restricted the rights of conscience, and he had no remedy. They 
bought and sold men who had no remedy. Who dare say, now 
that the Constitution has been amended, that the nation cannot 
by law provide against all such abuses and denials of right as 
these in States and by States, or combinations of persons?”

22 Globe App. 153.
23 Id.



9a

Representative Sheldon, urging that “ it is the highest 
duty of the government to provide means to protect and 
secure every citizen in undisturbed enjoyment”  of his con­
stitutional rights, concluded:

“ It must be apparent that these amendments enlarge 
the power of the Government in controlling the action 
of the States and I believe that it can extend its pow­
ers, through its courts, in times of peace, directly to 
the individual citizen who is deprived of his rights, 
privileges, and immunities, whether through the posi­
tive act or the default of the State authorities.” 24

He saw it is as “ proper, to make a permanent law affording 
to every citizen a remedy in the United States courts for 
injuries to him in those rights declared and guaranteed by 
the Constitution. ’ ’ 25

Representative Dawes explained that the bill goes as far 
as the Constitution goes, for its purpose was to provide a 
remedy whenever constitutional rights were violated:

“ The rights, privileges, and immunities of the Amer­
ican citizen secured to him under the Constitution of 
the United States are the subject matter of this bill. 
They are not defined in it, and there is no attempt in 
it to put limitations upon any of them; but whatever 
they are, however broad or important, however minute 
or small, however estimated by the American citizen 
himself, or by his Legislature, they are in, this law. The 
purpose of this bill is, if possible, and if necessary, to 
render the American citizen more safe in the enjoy­
ment of those rights, privileges, and immunities. No 
subject for legislation was ever brought before the 
American Congress so broad and comprehensive, em­
bracing as it does all other considerations hitherto af-

24 Globe 367-368.
25 Globe 368.



10a

fecting the life, liberty and pursuit of happiness of 
every citizen of this Republic. ’ ’ 20

Representative Dawes asked, “ can there be any doubt that 
there exists whatever power is necessary to secure these 
rights?” 27 He answered that the Constitution carries 
with it :

“ the power by legislation, or by any other proper 
means, of securing and carrying out to their full ex­
tent the free, undisturbed enjoyment of each and every 
one of the rights, privileges and immunities whatever 
they may be and however broad they may be, which 
the Constitution itself secures, or professes at least to 
secure, to the American citizen.” 28

Representative Dawes concluded by asserting that:

“ Congress has power to legislate for the protection of 
every American citizen in the full, free, and undis­
turbed enjoyment of every right, privilege, or immu­
nity secured to him by the Constitution; and . . . this 
may be done—

F irs t. By giving him a civil remedy in the United 
States courts for any damage sustained in that re­
gard. ’ ’ 29

Other members of the House similarly evidenced their 
understanding that the bill was to exercise the full con­
gressional power vested in Congress by the Fourteenth 
Amendment to provide a remedy assuring the full enforce­
ment of that amendment’s prohibitions. See, e.g., Globe 
App. 166 (Rep. Williams); Globe App. 182 (Rep. Mercur); 
Globe 428, 429 (Rep. Beatty); Globe 448 (Rep. Butler);

20 Globe 475.
27 Id. at 476.
28 Id.

Id. at 477.



11a

Globe 481, 482, 483 (Rep. Wilson) ; Globe 511-512 (Rep. 
Perce); Globe App. 202 (Rep. Snyder); Globe 376 (Rep. 
Lowe); Globe App. 188 (Rep. Willard).

Tlie Senate debates were similar. Senator Trumbull de­
clared that the Fourteenth Amendment empowers the fed­
eral government both to “ correct”  violations of its pro­
visions, and to “ prevent any state from depriving any per­
son” of the rights created thereunder."'0 In a dialogue, 
Senator Edmunds asked Senator Trumbull if he agreed 
that the Fourteenth Amendment made “ a wise advance in 
favor of the protection of private rights by affirmative leg­
islation by Congress where those private rights are guar­
antied by the Constitution, and that in connection with it 
Congress is authorized by the same Constitution to carry 
them into effect by affirmative law.” 31 Senator Trumbull 
agreed, and noted that “ we provide in the bill before us 
for a redress through the judiciary.”  32 Senator Trumbull 
further stated that:

“ fl]n regard to all the rights secured by the Four­
teenth Amendment, however extended, in time of peace, 
the courts are established to vindicate them, and they 
can be vindicated in no other way. Sir, the judicial 
ti ibunals of the country are the places to which the 
citizen resorts for protection of his person and his 
property in every case in a free Government.” 38

He added:

“ Whenever the rights that are conferred by the Con­
stitution of tlie United States on the Federal Govern­
ment are infringed upon by the States, we should af­
ford a remedy. . . .  I am ready to pass appropriate

30 Globe 577.
31 Id. at 578.
32 Id.

33 Id.



12a

legislation on that subject; and I understand that this 
bill as it passed the House of Representatives was 
framed on this principle.” 34

Senator Pool, noting that under the Fourteenth Amend­
ment “ the State is prohibited from denying in any manner 
. . . within its jurisdiction the equal protection of the laws,”  
declared that should states violate that prohibition “ then 
the United States . . . must and will, by appropriate legis­
lation, by all the power of its courts . . . extend over him 
within the States the shield of the national authority.”  35

Senator Thurman was the leader of the opposition in the 
Senate, and he presented the most extensive criticism of § 1 
contained in the entire debates. He launched his attack 
with these words:

“ This section relates wholly to civil suits. It creates 
no new cause of action. Its -whole effect is to give to 
the Federal Judiciary that which now does not belong 
to it— a jurisdiction that may be constitutionally con­
ferred upon it, I grant, but that has never yet been 
conferred upon it. It authorizes any person 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 wrongdoer in the Federal 
courts, and that without any limit whatsoever as to the 
amount in controversy . . . .  I am certainly not in fa­
vor of denying to any man who is deprived unlawfully 
of his right, his privilege, or his immunity, under the 
Constitution of the United States, that redress to which 
every man is entitled whose rights are violated; but 
I do think that it is a most impolitic provision, that in 
effect may transfer the hearing of all such cases into 
the Federal courts.” 86

34 Globe 578-579.
35 Globe 609.
30 Globe App. 216.



13a

And he concluded with this complaint:

“ [Tjhere is no limitation whatsoever upon the terms 
that are employed, and they are as comprehensive as 
can be used. ’ ’ 37

Senator Boreman, a supporter, defined the congressional 
purpose to be to avoid “ the merest mockery”  of “ say[mg] 
that the citizens of any portion of this country, or the peo­
ple residing in any portion of this country, had guarantied 
to them by our Constitution certain rights, and at the same 
time to say that there was no power in this Government to 
secure to them those rights, to carry out the guarantee, to 
enable them to enforce those rights.” 38 The goal, in Sen­
ator Boreman’s view, was “ to provide the machinery in 
order that the injured person may secure his rights.”  30 It 
was Congress’ duty, he said, “ to protect the humblest citi­
zen, the humblest person that will be found in any part of 
this Union, in all his rights, privileges, and immunities, 
whatever they may be under the Constitution . . . . ” 40

Other Senate supporters expressed similar views. See, 
e.g., Globe 650 (Sen. Sumner); Globe 653 (Sen. Osborn). 
Throughout the debates, therefore, complete justice was 
the central, recurring refrain: wherever and however Four­
teenth Amendment rights are impaired, the injured party 
ought to— must— receive full redress. That was the plain 
intent underlying Section 1, as well as the other sections.

III.

With these declarations of purpose, both houses passed 
bills containing Section 1 in the exact language which was

37 Globe App. 217,
38 Globe App. 229.
39 Id.

40 Id.



14a

finally adopted. Although the legislative history does not 
end at this point, for the Senate had amended other sec­
tions of the House bill (including the addition, without de­
bate, of the Sherman Amendment as Section 7), there was 
not any further debate on Section 1. It is appropriate, 
therefore, to pause and examine what the two houses ap­
pear to have intended— at least at this point— respecting 
the application of Section 1 to municipalities. There are 
two pertinent guides to determining that intent:

1. On February 25, 1871, less than a month prior to the 
introduction of Section 1 in the exact language ultimately 
enacted, Congress adopted a statute (colloquially known 
as the “ dictionary act’ ’ ),41 whose declared purpose was 
“ to prevent doubt and embarrassment in [the] construc­
tion’ ’ of statutes.42 Section 2 of that Act provided:

“ That in all Acts hereafter passed . . . the word ‘ p er ­
son ’ may extend and he applied to bodies politic and 
corporate, and the reference to any officer shall include 
any person authorized by law to perform the duties of 
such office, unless the con text shows that such words 
w ere intended, to be used in a. more limited sense. . . . ”  43

The natural reading of this statute is that, except as “ the 
context shows that such words were intended to be used in 
a more limited sense,”  Congress intended the term “ per­
son” in subsequently enacted statutes to include “ bodies 
politic and corporate.”  There is no indication in the de­
bates on Section 1 of the Civil Rights Act that Congress

41 The Act has been described as an instance where “ Congress 
supplies its own dictionary.”  Frankfurter, Some Reflections on 
the. Readier/ of Statutes, 47 Col. L. Rev. 527, 536.

42 Cong. Globe, 41st Cong., 3d Sess. 1474 (Feb. 21, 1871) (re­
marks of Rep. Poland, one of the House managers of the bill, re­
porting on the agreement of the Conference Committee).

43 Act of Feb. 25, 1871, ch. 71, § 2, 16 Stat. 431.



15a

intended the “ unless”  clause to be applicable, nor does the 
“ context show”  that such was intended.44

2. The sponsors uniformly stated that Section 1 was 
to extend as far as the Fourteenth Amendment authorized 
it to go, and nowhere indicated an intention to rein in its 
sweep short of the municipal treasury. They knew that 
the prohibitions of the Fourteenth Amendment (“ No state 
shall . . . ” ) applied to municipalities,45 and they knew7

44 In Monroe, the Court deemed the “ dictionary act”  unpersua­
sive on the question whether municipalities are “ persons,”  be­
cause the “ definition is merely an allowable, not a mandatory one.”  
•165 U.S. at 191. Respectfully, we suggest that the Court’s con­
struction was not correct. The stated purpose of the “ dictionary 
act”  was to “ prevent doubt”  in the “ construction”  of statutes. 
Cong. Globe, 41st Cong., 3d Sess. 1474. If the definitions therein 
were merely “ allowable” — i.e. if the act meant simply that the 
term person ‘ may or may not.”  include bodies politic or cor­
porate— the act would have created doubt, rather than resolved 
it. Moreover, if that were the construction Congress intended there 
would have been no reason to include the “ in all Acts”  and “ un­
less”  clauses in the statute. (Significantly, the Court, in Monroe 
appears to have overlooked those clauses; the opinion states merely 
that the statute “ provides that the word ‘ person’ ‘ may extend and 
be applied to bodies politic and corporate.’ ”  365 U.S. at 190.) 
It seems far more logical, given the act’s purpose, that it intended 
that, the term “ persons”  in subsequently enacted statutes was to 
include.bodies politic or corporate, except where the act’s “ unless”  
clause came into play, i.e., “ unless the context shows that such 
words were intended to he used in a more limited sense.”  Of 
course, given the Monroe Court’s misunderstanding of the debate 
on the Sherman Amendment (see 30a-32a, infra), its ultimate con­
clusion would not have been altered, for on that, understanding the 
“ unless”  clause w'ould have been applicable.

45 Congress had voted for the Fourteenth Amendment only five 
years before, in 1866, and as this Court has repeatedly recognized, 
Congress meant the prohibitions of Section 1 thereof to apply to 
municipalities. Ex parte Virginia, 100 U.S. 339, 346-347 (1880) ; 
Home Telephone, and Telegraph Co. v. Los Angeles, 227 U.S. 278 
(1913) ; Lovell V. Griffin, 303 U.S. 444, 450 (1938). Lest any Con­
gressman had forgotten this by 1871, Representative Bingham, who 
had authored Section 1 of the Fourteenth Amendment, reminded his 
colleagues during the 1871 debate that he had used the “ No state



16a

that municipalities did not enjoy the protection of the 
Eleventh Amendment.46 If they had intended to “ protect

shall”  formulation for the precise purpose of overruling the Su­
preme Court’s decision in Barron v. The Mayor and City Council 
of Baltimore, 7 Pet. 243 (1833), a case in which, he explained, “ the 
city had taken private property for public use, without compensa­
tion as alleged, and there was no redress for the wrong in the Su­
preme Court of the United States.”  Globe App. 84 (emphasis 
added). Bingham explained further that he had copied the 
words “ No state shall . . . ”  from Article I, Section 10 of the Con­
stitution, the Impairment of Obligations of Contracts Clause. Id. 
In 1867, four years prior to the 1871 debate, this Court had ruled 
that the latter clause bound municipalities equally with the states, 
and affirmed a writ of mandamus compelling municipal officers to 
levy taxes if necessary to honor the contract sought to be impaired. 
Von Hoffman v. City of Quincy, 4 Wall. 535, 554-555 (1867). The 
equation in the impact of the two clauses upon municipalities is 
discussed at length in Home Telegraph, supra, 227 U.S. at 295-296.

46 During the 1860’s this Court issued innumerable decisions en­
forcing judgments against municipalities for defaulting on their 
bond obligations. See, e.g., Knox Co. v. Aspinwall, 24 How, 376 
(1861) : Gelpckc v. Dubuque, 1 Wall. 175 (1864) ; Riggs v. John­
son Co., 6 Wall. 166 (1868) ; Von Hoffman, supra; Butz v. Musca­
tine, 8 Wall. 575 (1869). These decisions were a subject of great 
national notoriety after the Civil War, for municipal officials in 
some states defied federal count orders and risked imprisonment, 
Pairman, History of the Supreme Court of the United States: 
Reconstruction and Reunion 1864-88, Bart I (MacMillan 1971), 
pages 920-1095, and the 1871 Congress was aware of them. See, 
e.g., Globe App. 314-15 (Rep. Burchard) ; Globe 751-52 (Rep. 
Shellabarger) ; Globe 777 (Sen. Sherman). These cases could not 
have been brought in federal court had municipalities been pro­
tected by the Eleventh Amendment, for the immediate purpose 
of that Amendment had been to overrule Chisholm v. Georgia, 2 
Dali. 419 (1/93), which had upheld federal court jurisdiction over 
bondholder actions against states. Edelman v. Jordan, supra, 415 
U.S. at 660-662. It was not until 1890 that a municipality even 
asserted the Eleventh Amendment as a defense, and the Court, 
rejecting the defense out of hand, observed that “ the records of 
this court for the last thirty years are full of suits against coun­
ties  ̂ and it would seem as though by general consent the juris­
diction of the federal courts in such suits has become established.”  
County of Lincoln v. Luning, 133 U.S. 529, 530 (1890).



17a

municipal treasuries,”  as the court below assumed, would 
they not have said so?

IV.

The lone question remaining is whether the subsequent 
congressional consideration of the o th er  provisions of the 
bill, and particularly of the Sherman Amendment, alters 
the understanding of what Congress intended in Section 1.

The Senate bill, as noted, had added the Sherman Amend­
ment, as Section 7, without debate. The Amendment 
dealt with one subject only: it made “ the inhabitants of the 
county, city or parish”  liable “ to pay full compensation”  
to any person injured by certain acts of private violence 
within the municipality’s borders. It was to be enforce­
able by suit “ against said county, city or parish,”  and 
if judgment were obtained the plaintiff was authorized to 
execute the judgment by levy “ upon any property, real or 
personal, of any person in said county, city, or parish.” 47

47 The full text of the Sherman Amendment as passed by the 
Senate was as follows (Globe 663) :

that if any house, tenement, cabin, shop, building, barn, or 
granary shall be unlawfully or feloniously demolished, pulled 
down, burned, or destroyed, wholly or in part, by any persons 
riotously and tumultuously assembled together; or if any per­
son shall unlawfully and with force and violence be whipped, 
scourged, wounded, or killed by any persons riotously and tu­
multuously assembled together; and if such offense was com­
mitted to deprive any person of any right conferred upon him 
by the Constitution and laws of the United States, or to deter 
him or punish him for exercising such right, or bv reason 
of bis race, color, or previous condition of servitude, in every 
such case the inhabitants of the county, city, or parish in 
which any of the said offenses shall be committed shall be 
liable to pay full compensation to the person or persons damni­
fied by such offense if living, or to his widow or legal repre­
sentative if dead; and such compensation may be recovered 
by such person or his representative by a suit in any court 
of the United States of competent jurisdiction in the district 
in which the offense was committed, to be in the name of the 
person injured, or his legal representative, and against said 
county, city, or parish. And execution may be issued on a



18a

The House refused to concur in the Senate’s amendments 
to the bill, which included creation of a jury oath as well 
as addition of the Sherman Amendment.* 48 The only refer­
ences to the latter were a declaration by one member that 
it was “ most obnoxious”  49 and by another that it “ should 
be passed with the silence of death and. the grave.” 50

The Conference Committee recommended a revised 
Sherman Amendment, which removed the liability of the 
inhabitants of counties, cities and parishes and substituted 
direct liability of these municipalities.51

judgment rendered in such suit and may be levied upon any 
property, real or personal, of any person in said county, city, 
or parish, and the said county, city, or parish may recover 
the full amount of such judgment, costs and interest, from 
any person or persons engaged as principal or accessory in 
snch riot in an action in any court of competent jurisdiction.”

48 Globe 725.
40 Globe 723.
50 Globe 724.
1,1 The full text of the revised Sherman Amendment, as rec- 

omended by the Conference Committee, was as follows (Globe 
749) :

“ That if any house, tenement, cabin, shop, building, bam, 
or granary shall be unlawfully or feloniously demolished, 
pulled down, burned, or destroyed, wholly or in part,, by any 
persons riotously and tumultuously assembled together; or 
if any person shall unlawfully and with force and violence he 
whipped, scourged, wounded, or killed by any persons riotously 
and tumultuously assembled together, with intent to deprive 
any person of any right conferred upon him by the Consti­
tution and laws of the United States or to deter him or punish 
him for exercising such right, or by reason, of his race, color, 
or previous condition of servitude, in every such case the 
county, city, or parish in which any of the said offenses shall 
be committed shall be liable to pay full compensation to the 
person or persons damnified by such offense, if living, or to 
his widow or legal representative if dead; and such compensa­
tion may be recovered in an action on the case by such person 
or his representative in any court of the United States of 
competent jurisdiction in the district- in which the offense was



19a

The Senate took up consideration of the report, and a.s 
the Amendment had not been debated originally this was 
the first occasion for its proponents to explain its purpose. 
Senator Edmunds explained that it was designed, in part, 
to impose “ some little obligation upon the part of the 
communities in which these tumults should occur, to see 
that justice was done and properly protected.” 52 He 
reasoned that,

“ given the . . . duty of the authorities of the localities 
to protect people in the way and to the extent that the 
Constitution says they shall protect them, that it must 
follow that he who refuses that protection or denies 
it, be he a principality, or a city, or a nation, if you 
please, is bound, if there is any value in the law at all, 
to make good the injury which the citizen who is en­

eommitted, such action to be in the name of the person in­
jured, or his legal representative, and against said county, city, 
or parish, and in which action any of the parties committing 
such acts may be joined as defendants. And any payment of 
any judgment, or part thereof unsatisfied, recovered by the 
plaintiff in such action, may, if not satisfied by the individual 
defendant therein within, two months next after the recovery of 
such judgment upon execution duly issued against such individ­
ual defendant in such judgment, and returned unsatisfied, in 
whole or in part, be enforced against such county, city, or par­
ish. by execution, attachment, mandamus, garnishment, or any 
other proceeding in aid of execution or applicable to the en­
forcement of judgments against municipal corporations; and 
such judgment shall be a lien as well upon all moneys in the 
treasury of such county, city or parish, as upon the other prop­
erty thereof. And the court in any such action may on motion 
cause additional parties to be made therein prior to issue 
joined, to the end that justice may be done. And the said 
county, city, or parish may recover the full amount of such 
judgment, by it paid, with costs and interest, from any person 
or persons engaged as principal or accessory in such riot, in 
an action in any court of competent jurisdiction. And such 
county, city, or parish, so paying, shall also be subrogated to 
all the plaintiff’s rights under such judgment.”

r’2 Globe 756. See generally City of Chicago v. Sturges, 222 U.S. 
313 (1911) (rejecting city’s Fourteenth Amendment challenge to 
state statute similar to Sherman Amendment).



20a

titled to that protection suffers; in other words, to 
bear the consequences of his own default.”  53

In a colloquy with Senator Conkling, Senator Edmunds 
agreed that the bill was “ saying”  to municipalities:

“ You, a parish, are bound to preserve the peace and 
enforce the provisions of the Constitution of the United 
States, and when you fail so to do, we deal with you 
directly. ’ ’ 54

Senator Sherman confirmed that this was the Amend­
ment’s purpose, and declared that Congress had as great 
a power as a State to impose this policing duty upon mu­
nicipalities :

“ If a State may, to secure the peace and quiet and 
good order of its citizens, pass a law making a county 
or a portion of the people responsible for a riot in 
order to deter such crime, then we may pass the same 
remedies and use the same means to enforce and se­
cure to our citizens the rights conferred in the Con­
stitution of the United States.”  55

This conception of congressional power—that Congress 
could charge municipalties with the affirmative obligation 
to protect federal rights against private interference, and 
punish the municipalities’ failures to carry out that obli­
gation—did not offend the Senate. The conference report 
was approved by a 2-1 margin in the Senate, on a straight 
“ party line”  vote. With one exception, the opposing votes 
were cast by Senators who voted against the final bill even 
after the Sherman Amendment was removed.56

53 Globe 757.
54 Id.
•’"Globe 760. See also Globe 761.
•>G Of the 16 senators who voted against the Sherman Amendment 

(Globe 779), only one (Fenton) voted for the final bill following 
removal of the Sherman Amendment (Globe 831).



21a

A  different fate awaited the conferees’ redraft of the 
Sherman Amendment in the House. The difference was 
that a number of Republicans in the House, who supported 
the bill generally, did not believe that Congress had con­
stitutional authority to hold municipalities accountable 
for refusing to exercise police powers. In their view, the 
Constitution left the police power with the states, and it 
was thus for the states to decide whether, and to what 
extent, that power should be delegated to subordinate 
agencies. In fact, they said, many municipalities did not 
have police powers, and those which did held them at the 
will of the state. For Congress to make municipalities 
accountable for failing to police private misconduct thus 
constituted an impermissible interference with the internal 
affairs of the states in an area which the Constitution 
left entirely with the states.57

Objections reflecting the same constitutional concern had 
been raised by the same Republican Representatives, in a 
different context, when the bill was first before the House. 
Sections 2, 3 and 4 of Representative Shellabarger’s orig­
inal bill had contained language which these members 
thought trespassed on the states’ reserved police power, 
and they had successfully battled for amendments to those 
sections to remove the objectionable matter.

Representative Garfield had presented a learned argu­
ment, respecting the improper encroachment which he be­
lieved these sections made upon States’ police powers,58 
and he declared that:

“ Amendments have been prepared which will remove 
the difficulties to which I have alluded; and I trust 
that my colleague [Mr. Shellabarger] and his Com­
mittee will themselves accept and offer these amend­
ments. ’ ’ 59

57 We document these matters infra, pp. 23a-31a.
58 Globe App. 149-155.
68 Id. at 153.



22a

They did; Sections 2, 3 and 4 were amended by Represen­
tative Shellabarger.60 With these changes, those Republi­
cans who had been troubled were satisfied and returned to 
support of the bill. Representative Poland explained what 
the changes accomplished:

“ I was opposed to the bill which was brought in by 
the committee, because I thought it gave the power to 
tlie General Government, to Congress, to go down into 
the States and legislate for the punishment of ordi­
nary offenses against person and property. I did not 
believe, I do not now believe, that the Constitution, 
as amended, gives us any such power. The Constitu­
tion originally left to the State the administration of 
the local law, both civil and criminal; all offenses 
against person and property were to be punished by 
the State authorities.

I do not agree that the fourteenth amendment or 
any amendment has changed that, except to this ex­
tent : the last clause of the fourteenth amendment pro­
vides that no State shall deny the equal protection of 
the laws to its citizens. Now, in my judgment, that 
is a constitutional enactment that each State shall 
afford to its citizens the equal protection of the laws. 
I cannot agree with several gentlemen upon my side 
° f _the House who insist that if the State authorities 
fail to punish crime committed in the State therefore 
the United States may step in and by a law of Con­
gress provide for punishing’ that offense; I do not 
agree with those gentlemen.

But I do agree that if a State shall deny the equal 
protection of the laws, or if a State make proper laws 
and have proper officers to enforce those laws, and 
somebody undertakes to step in and clog justice by 
preventing the State authorities from carrying out

00 Globe 477-478.



23a

this constitutional provision, then I do claim that we 
have the right to make such interference an offense 
against the United States; that the Constitution does 
empower us to aid in carrying out this injunction, 
which, by the Constitution, we have laid upon the 
States, that they shall afford the equal protection of 
the laws to all their citizens. When the State has pro­
vided the law, and has provided the officer to carry out 
the law, then we have the right to say that anybody 
who undertakes to interfere and prevent the execution 
of that State law is amenable to this provision of the 
Constitution, and to the law that we may make under 
it declaring it to be an offense against the United 
States.”  81

The concern that the reserved police power of the State 
not be invaded had been shared by Representatives W il­
lard,02 Farnsworth,83 and Burchard.04 See also Blair.05

It was these Republicans who had objected to the en­
croachment of the original sections 2, 3 and 4 upon State 
police powers who raised the same objections when the 
Conference Committee reported the Sherman Amendment. 
That Amendment, in a different way, equally invaded the 
States’ police power, for, as its sponsors had boasted, it 
was intended to bypass the States, impose policing duties 
directly upon municipalities, and hold those municipalities 
monetarily accountable should they fail to assume those 
duties.

The first Republican to speak against the Sherman 
Amendment was Rep. Willard. His objection was that

01 Globe 514.
02 Globe App. 187.
03 Globe 513.
84 Globe App. 313-315. 
65 Globe App. 73.



24a

Congress, lacking the power to invest municipalities with 
police powers, should not (perhaps could not) impose lia­
bilities upon municipalities for not exercising police 
powers. He explained that many municipalities had not 
been granted police powers by the States, and that those 
which had might lose them at any time if the State so 
chose. In his view, it would be wrong for Congress to 
impose monetary liability upon municipalities for failing 
to exercise powers which they did not possess, or which 
they possessed wholly by leave of the States. His analysis 
stated succinctly the constitutional concern shared by his 
Republican colleagues:

“ [T]he State, within its boundaries, has the crea­
tion and the control of the laws for the protection of 
the people. What can the county do? What can the 
parish do? What can a city do, to give me the equal 
piotection of the laws? The city and the county have 
no power except the power that is given them by the 
State. They cannot keep violence away from me; 
they cannot protect me in my rights, except as the 
State has clothed them with the power to do so; and 
for the enforcement of the laws of the State they get 
no aid, no authority, no power whatever from the 
United States.

“ In most of the States—it is so in mine, I know— the 
counties and the towns have no power whatever in this 
regard except as those powers have been conferred 
upon them by the State; and these powers can be 
taken from them at any time by the State. If these 
powers are not given to them by the State, if they hold 
them only at the will of the State, what justice is there 
in making the town, city, or parish liable for not pro­
tecting the property of citizens, when perhaps no laws 
for its protection exists; for not giving me protection, 
when they have not been clothed by the State with the 
right and power to give me protection?



25a

“ Thus it seems to me— and, as I said before, I am 
only arguing this point in the light of its justice, and 
not as a strict question of constitutional law— that we 
are imposing upon a community an obligation that 
we have no right to impose upon them, that in justice 
we cannot impose upon them for the reason that such 
municipalities are, as such, powerless to either make 
or enforce the laws of the State or of the United 
States. We should never impose an obligation upon 
a community when we do not and cannot give that 
community the power to discharge that obligation. 
We should not require a county or a city to protect 
persons in their lives or property until we confer also 
upon them the power to furnish that protection.

“ I hold that this duty of protection, if it rests any­
where, rests on the State, and that if there is to be 
any liability visited upon anybody for a failure to 
perform that- duty, such liability should be brought 
home to the State. Hence, in my judgment, this sec­
tion would be liable to very much less objection, both 
in regard to its justice and its constitutionality, if it 
provided that if in any State the offenses named in 
this section were committed, suit might be brought 
against the State, judgment obtained, and payment 
of the judgment might be enforced upon the treasury 
of the State.” 66

Representative Poland similarly found the Sherman 
Amendment defective because it purported to impose a lia­
bility where Congress had no power to impose the duty the 
neglect of which was to give rise to that liability:

‘ ‘ The principle of this law is taken from the old hue 
and cry or hundred law . . . When property was taken 
in a hundred all the officers and all the inhabitants

66 Globe 791.



were immediately to make hue and cry, on foot and 
horse, for the purpose of arresting the offender . . . 
It was made the duty by law of the officers of the hun­
dred and all the inhabitants of the corporation to ar­
rest the offender. If they arrested him that was the 
end of their liability . . . All those statutes, instead of 
being like this, enact this provision as a part of the 
police system. The first thing is to provide officers, 
prescribe their duties, and they may call everybody 
within their jurisdiction out and help put down the 
riot. If they fail to put down aggression upon the 
right of the people, for their neglect they may be made 
liable to the extent of damages done to property.”  67

The absurdity of imposing the liability for non-policing 
where Congress lacks the authority to impose the obliga­
tion to police was highlighted by Poland in these terms:

“ But what would be thought of a national law which 
should impose a penalty upon the town in which a suc­
cessful smuggler lived, or where an illicit distillery 
should be run, or give an action against the town for 
the loss of the Government in duties or taxes, by such 
operations? But it would equally be in the power of 
the national Government to do this as to enact this 
Senate amendment. I say again, it seems to me that 
legal gentlemen who support it cannot have given it 
proper thought.” 68

Representative Blair, too, focused upon Congress’ lack 
of power to impose policing obligations upon municipali­
ties :

2Ga

‘ ‘ That amendment claims the power in the General 
Government to go into the States of this Union and

67 Globe 794.
88 Id,



lay such obligations as it may please upon the munici­
palities, which are the creations of the States alone. 
Now, sir, that is an exceedingly wide and sweeping 
power. I am unable to find a proper foundation for it.

. . . [HJere it is proposed, not to carry into effect an 
obligation which rests upon the municipality, but to 
create that obligation, and that is the provision I am 
unable to assent to. The parallel of the hundred does 
not in the least meet the case. The power that laid the 
obligation upon the hundred first put the duty upon 
the hundred that it should perform in that regard, and 
failing to meet the obligation which had been laid upon 
it, it was very proper that it should suffer damage for 
its neglect. This is all there is of it.

“ I have learned, sir— perhaps I have some old-fash­
ioned prejudices— that in the Government of the United 
States there is a division of powers; that there are 
certain rights and duties that belong to the States, 
that there are certain powers that inhere in the State 
governments. They create these municipalities, they 
say what their powers shall be and what their obliga­
tions shall be. If the Government of the United States 
can step in and add to those obligations, may it not 
utterly destroy the municipality? If it can say that it 
shall be liable for damages occurring from a riot, I ask 
gentlemen to tell me where its power will stop and 
what obligations it might not lay upon a municipality. 
If gentlemen say that the powers of the General and of 
State governments for the protection of life, liberty, 
and property are concurrent and that we can go every­
where throughout the United States and do by the 
General Government everything that can be done by 
any State government, then I grant that this power 
might exist; but until I am shown that, I am unable 
to see it . . . I must say that I think that if we have 
the right to lay this obligation upon them, to require 
them to meet these damages, it must draw after it the



28a

power to go in there and say, ‘ you shall have a police, 
you shall have certain rules by which you may fulfill 
your obligation in this respect’. ” 69

Representative Burchard noted that many municipalities 
had not in fact been delegated policing functions by the 
States, and declared that Congress lacked constitutional 
power to impose policing obligations upon municipalities 
when the States had not:

“ But there is no duty imposed by the Constitution 
of the United States, or usually by State laws, upon 
a county to protect the people of that county against 
the commission of the offenses herein enumerated, 
such as the burning of buildings or any other injury 
to property or injury to person. Police powers are 
not conferred upon counties as corporations; they are 
conferred upon cities that have qualified legislative 
power. And so far as cities are concerned, where the 
equal protection required to be afforded by a State is 
imposed upon a city by State laws, perhaps the United 
States courts could enforce its performance . . . But 
still in few, if any, States is there a statute conferring 
this power upon the counties. Hence it seems to me 
that these provisions attempt to impose obligations 
upon a county for the protection of life and person 
which are not imposed by the laws of the State, and 
that it is beyond the power of the General Government 
to require their performance.”  70

00 Globe 795.

10 Globe 795. The quotation in the text contains one sentence 
which is ambiguous: “ And so far as cities are concerned, where 
1he equal protection required to be afforded by a State is imposed 
on a city by State laws, perhaps the United States courts could 
enforce its performance.”  In context, this sentence is completely 
consistent with our position, and with the central theme of Repre­
sentative Burchard’s remarks, that where a state delegates certain 
of its powers to a municipality, that municipality is bound when



Representative Bingham, declaring that ‘ ‘ the only power 
to charge a municipality for the destruction of property by 
a mob arises from the laws of the state,”  concluded that 
“ a county, being the creature of the State and an integral 
part of it, can in no case be made responsible for mob vio­
lence save by force of the positive law of the State creating 
it,.” * 71

Finally, Representative Farnsworth repeated the theme—  
no obligation, no liability:

“ Congress can . . . impose no duty on a sheriff or any 
other officer of a county or city. We cannot require 
the sheriff to read the riot act or call out the posse 
comitatus or perform any act or duty. Nor can Con­
gress confer any power or impose any duty upon the 
county or the city. Can we then impose on a county 
or other State municipality liability where we cannot 
require a duty? I think not.” 72

The House thereupon voted to reject the Conference Re­
port, by a vote of 106-74.73 Twenty-three supporters of the 
bill as a whole voted against the Sherman Amendment,74

it exercises those powers to abide by the requirements of the Four- 
teenth Amendment. See also Globe at 791 (Rep. Willard). We 
recognize, however, that literally and in isolation it could be read 
to mean that no municipality is bound by the requirements of the 
Fourteenth Amendment unless the state chooses to make it so 
bound. In this connection, it is important to remember that state­
ments made in these debates were often off-the-cuff, with loose and 
sometimes confused language. Thus, in analyzing these debates, it 
is critical to determine basic themes rather than to rely on random 
and isolated statements.

71 Id. at 794.
72 Id. at 799.
73 Id. at 800.
74 Compare Globe 800 (vote on Sherman Amendment) with Globe 

808 (vote on the final bill following removal of the Sherman Amend­
ment). Had these 23 supported the Sherman Amendment, it would 
have been approved by a margin comparable to that which ap­
proved the final bill.



30a

and their defections spelled the difference between defeat 
and victory for the Amendment. Of the 23, only the six 
we have quoted explained the basis for their opposition; 
but it is clear that others shared their concerns about the 
Amendment’s encroachment upon the States’ reserved 
police powers.75 *

The House’s rejection of the Conference Report necessi­
tated another conference, at which the Sherman Amend­
ment was scrapped and the present 42 TJ.S.C. § 1986 substi­
tuted (making persons who have knowledge of an impend­
ing riot affecting federal rights liable to injured victims 
for failing to take whatever steps are in their power to 
prevent or aid in preventing the riot).70

Representative Poland, who had been one of the confer­
ees, reported to the House the arguments which had per­
suaded the Senate conferees to recede from the Sherman 
Amendment. This passage is the on ly  item of legislative 
history addressed to the status of municipalities quoted or 
cited in M o n ro e :

“ I did understand from the action and vote of the 
House that the House had solemnly decided that in 
their judgment Congress had no constitutional power 
to impose any obligation upon county and town organ­
izations, the mere instrumentality for the administra­
tion of State law. We informed the conferees on the 
part of the Senate that the House had taken a stand on 
that subject and would not recede from it; that the 
section imposing liability upon towns and counties 
must go out or we should fail to agree.” 77

75 Thus, for example, four others among the 23 defectors had 
previously expressed concern about the bill’s possible encroach­
ment upon the state ’s police powers, in the context of the success­
ful effort to amend Sections 2, 3 and 4. Rep. Garfield (Globe App. 
149-155) ; Rep. Cook (Globe 478) ; Rep. Hawley (Globe 382) ; Rep. 
Sheldon (Globe 368).

70 Id. at 804, 819-820.
77 Id. at 804.



31a

In M on roe , the Court apparently understood the word 
“ obligation”  in Representative Poland’s report to mean 
“ financial obligation,”  so that the gist of his statement was 
thought to be that there was a doubt as to Congress’ “ con­
stitutional power to impose any [financial] obligation upon 
county and town organizations.”  It is plain, however, 
when the full debates are read, that Representative Po­
land meant “ affirmative obligation,”  and that the full gist 
of his remarks was that there was a doubt as to Congress’ 
“ constitutional power to impose any [affirmative] obliga­
tion. upon county and town organizations,”  and accordingly 
an unwillingness to impose a “ liability”  for non-perform­
ance of a duty [an “ obligation” ] which Congress could 
not require municipalities to perform.

V.
Correctly understood, the objections which led to the de­

feat of the Sherman Amendment were totally irrelevant to 
Section 1 of the bill. Section 1 imposed no obligations on 
“ persons.”  It provided only that “ persons”  could be 
held liable for violating those obligations which the Four­
teenth Amendment already imposed upon them; in the 
case of municipalities, the obligation to refrain from doing 
what “ No state shall”  do. Including municipalities under 
Section 1 thus constituted no invasion of the States’ re­
served powers. States retained their sole right to deter­
mine what functions, if any, they would delegate to munici­
palities. The Fourteenth Amendment already provided 
that in exercising w h a tev er  functions the states delegated 
to them, municipalities were required to refrain from deny­
ing due process, denying equal protection, etc. Section 1 
merely made these existing obligations enforceable in 
federal court.

With the full legislative debates properly understood, 
two conclusions follow:

1. The holding in M on roe  was erroneous. M o n ro e  drew 
an inference that Congress meant to exclude municipalities



32a

from the term “ persons”  in Section 1 so le ly  from its mis­
conception as to the reason for the defeat of the Sherman 
Amendment, 365 U.S. at 191:

“ The response of the Congress to the proposal to 
make municipalities liable for certain actions being 
brought within federal purview by the Act of April 
20, 1871, was so antagonistic that we cannot believe 
that the word ‘ person’ was used in this particular Act 
to include them.”

But however erroneous, this holding may be deemed to be 
s ta re  d ec is is . 78

2. M on roe  did not, however, decide the issues posed in 
the instant case; it cannoit be s ta re  d ecisis  as to them. We 
have shown that Congress did n ot have a desire to “ protect 
municipal treasuries”  against the cause of action created 
in Section 1. Congress erected no “ shield”  against the 
Fourteenth Amendment “ sword.”  There is no Eleventh 
Amendment “ analogy.”  There is nothing which stands in 
the way of effectuating the clear congressional will to make 
Section 1 reach as far as the Fourteenth Amendment allows 
it to go. The statute authorizes a federal court order re­
quiring wrongdoing public officials to exercise “ the power 
that is theirs”  to provide all relief— including retroactive 
monetary relief from the public treasury— necessary “ to 
make good the wrong done.”

78 Cf. Monroe, 365 U.S. at 218-223 (Frankfurter, J., dissenting).