Petitioner Jett, a white male, was employed by respondent Dallas
Independent School District (DISD) as a teacher, athletic director,
and head football coach at a predominantly black high school. After
repeated clashes with the school's Principal Todd, a black man,
over school policies and Jett's handling of the school's football
program, Todd recommended that Jett be relieved of his duties as
athletic director and coach. The DISD's Superintendent Wright
affirmed Todd's recommendation and reassigned Jett to a teaching
position in another school, where he had no coaching duties.
Alleging,
inter alia, that Todd's recommendation was
racially motivated, and that the DISD, acting through Todd and
Wright, had discriminated against him on the basis of race in
violation of 42 U.S.C. §§ 1981 and 1983 and the Equal Protection
Clause, Jett brought this action in the District Court, which
upheld a jury verdict in his favor on all counts. The Court of
Appeals reversed in part and remanded, finding, among other things,
that the District Court's jury instructions as to the DISD's
liability under § 1983 were deficient, since (1) they did not make
clear that, under
Monell v. New York City Dept. of Social
Services, 436 U. S. 658,
such liability could be predicated on the actions of Todd or Wright
only if those officials had been delegated policymaking authority
or acted pursuant to a well settled custom that represented
official policy; and (2) even if Wright could be considered a
policymaker for purposes of the transfer of personnel, the jury
made no finding that his decision to transfer Jett was either
improperly motivated or consciously indifferent to the improper
motivations of Todd. The Court of Appeals also rejected the
District Court's conclusion that the DISD's § 1981 liability for
Todd's actions could be predicated on a
respondeat
superior theory, noting that
Monell had held that
Congress did not intend that municipalities be subject to vicarious
liability under § 1983 for the federal constitutional or statutory
violations of their employees, and declaring that to impose such
liability for only certain wrongs based on § 1981 apparently would
contravene the congressional intent behind § 1983.
Page 491 U. S. 702
Held: The judgment is affirmed in part, and the case is
remanded. 798 F.2d 748 and 837 F.2d 1244, affirmed in part and
remanded.
JUSTICE O'CONNOR delivered the opinion of the Court with respect
to Parts I, III, and IV, concluding that:
1. A municipality may not be held liable for its employees'
violations of § 1981 under a
respondeat superior theory.
The express "action at law" provided by § 1983 for the "deprivation
of . . . rights secured by the Constitution and laws" provides the
exclusive federal damages remedy for the violation of the rights
guaranteed by § 1981 when the claim is pressed against a state
actor.
Cf., e.g., Brown v. GSA, 425 U.
S. 820, where the Court, in holding that § 717 of Title
VII of the Civil Rights Act of 1964 constitutes the exclusive
remedy for racial discrimination in federal employment despite the
possibility of an implied damages remedy under § 1981, invoked the
general principle that a precisely drawn, detailed statute preempts
more general remedies.
Monell, supra, specifically held
that a municipality cannot be liable under § 1983 on a
respondeat superior theory, while the Courts of Appeals in
post-
Monell decisions have unanimously rejected the
contention, analogous to petitioner's argument here, that that
theory is available against municipalities under a
Bivens-type action implied directly from the Fourteenth
Amendment. Given this Court's repeated recognition that the
Fourteenth Amendment was largely intended to embody and expand the
protections of § 1981's statutory predecessor as against state
actors, this Court declines petitioner's invitation to imply a
damages remedy broader than § 1983 from § 1981's declaration of
rights. Creation of such a remedy would allow § 1983's carefully
crafted remedial scheme to be circumvented by artful pleading. Nor
can a
respondeat superior standard be implied from 42
U.S.C. § 1988, since, although that statute does authorize district
courts in civil rights actions to look to the common law if federal
remedies are deficient, the statute specifically withdraws that
authority where, as here, the common law remedy is inconsistent
with federal law;
i.e., with § 1983.
See Moor v.
County of Alameda, 411 U. S. 693,
411 U. S. 706,
411 U. S. 710,
n. 27. Thus, to prevail against the DISD, petitioner must show that
the violation of his § 1981 "right to make contracts" was caused by
a custom or policy within the meaning of
Monell and
subsequent cases. Pp.
491 U. S.
731-736.
2. These cases are remanded to the Court of Appeals to determine
whether, in light of the principles enunciated in
Monell,
supra, and clarified in
Pembaur v. Cincinnati,
475 U. S. 469, and
St. Louis v. Praprotnik, 485 U. S. 112,
Superintendent Wright possessed final policymaking authority under
Texas law in the area of employee transfers, and if so, whether a
new trial is required to determine the DISD's responsibility for
the actions of Principal Todd in light of this determination.
Although the Court of Appeals correctly ruled that the District
Court's
Page 491 U. S. 703
jury instructions constituted manifest error, the case was tried
before
Pembaur and
Praprotnik were decided, and
the Court of Appeals issued its decision before
Praprotnik. Pp.
491 U. S.
736-738.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE WHITE,
and JUSTICE KENNEDY, concluded in Part II that the text and
legislative history of both the Civil Rights Act of 1866 and the
Civil Rights Act of 1871, the precursors of §§ 1981 and 1983,
respectively, demonstrate that § 1981 does not provide an
independent federal damages remedy for racial discrimination by
local governmental entities; rather, Congress intended that the
explicit remedial provisions of § 1983 control in the context of §
1981 damages actions against state actors.
(a) The legislative history of the 1866 Act, which was
originally enacted to implement the Thirteenth Amendment,
demonstrates that that Act neither provided an express damages
remedy for violation of its provisions nor created any original
federal jurisdiction which could support such a remedy against
state actors, and that the Act's penal section -- the only
provision explicitly directed at state officials -- was designed to
punish only the official committing a violation and not the
municipality itself. Two congressional actions subsequent to the
passage of the 1866 Act -- the submission of the Fourteenth
Amendment to the States for ratification, which Amendment was based
upon, and widely viewed as "constitutionalizing," that Act's
protections, and the reenactment of that Act's substance in the
Enforcement Act of 1870, a Fourteenth Amendment statute -- further
evidence the relationship between §§ 1981 and 1983 and demonstrate
that § 1981 is both a Thirteenth and a Fourteenth Amendment
statute. Pp.
491 U. S.
713-722.
(b) The text and legislative history of the 1871 Act, which was
expressly enacted to enforce the Fourteenth Amendment, establish
that: (1) unlike any portion of the 1866 Act, that statute
explicitly exposed state and local officials to liability for
damages in a newly created "action at law" for deprivation of
constitutional rights; (2) the Act
expanded federal
jurisdiction by explicitly providing original jurisdiction in the
federal courts for prosecution of such actions; and (3) the
provision of the Act which is now § 1983 was explicitly modeled on
the penal provision of the 1866 Act, and was intended to amend and
enhance the protections of that provision by providing a parallel
civil remedy for the same violations. Thus, Jett's contention that
the 1866 Act had
already created a
broader
federal damages remedy against state actors is unpersuasive.
Moreover, the fact that Congress rejected the Sherman amendment to
the 1871 Act -- which specifically proposed the imposition of
vicarious liability on municipal governments for injuries caused by
mob violence directed at the enjoyment or exercise of federal civil
rights -- demonstrates an awareness of, and a desire to comply
with, the then-reigning constitutional
Page 491 U. S. 704
doctrine of "dual sovereignty," which indicated that Congress
did not have the power to assign the duty to enforce federal law to
state instrumentalities by making them liable for the
constitutional violations of others. Given this constitutional
background, Jett's contention that the 1866 Act had already
silently created a form of vicarious liability against municipal
governments is historically untenable. Furthermore, the addition,
in 1874, of the phrase "and laws" to the remedial provision of what
is now § 1983 indicates an intent that the guarantees contained in
what is now § 1981 were to be enforced against state actors through
§ 1983's express damages remedy. Pp.
491 U. S.
722-731.
JUSTICE SCALIA concluded that the
respondeat superior
question is properly decided solely on the rudimentary principles
of construction that the specific -- here, § 1983, which precludes
liability on that basis for the precise category of offense at
issue -- governs the general -- here, § 1981 -- and that, where the
text permits, statutes dealing with similar subjects should be
interpreted harmoniously. Pp.
491 U. S.
738-739.
O'CONNOR, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I and IV, in which
REHNQUIST, C.J., and WHITE, SCALIA, and KENNEDY, JJ., joined; the
opinion of the Court with respect to Part III, in which REHNQUIST,
C.J., and WHITE and KENNEDY, JJ., joined, and in which SCALIA, J.,
joined, except insofar as that Part relies on legislative history;
and an opinion with respect to Part II, in which REHNQUIST, C.J.,
and WHITE and KENNEDY, JJ., joined. SCALIA, J., filed an opinion
concurring in part and concurring in the judgment,
post,
p.
491 U. S. 738.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL,
BLACKMUN, and STEVENS, JJ., joined,
post, p.
491 U. S. 739.
STEVENS, J., filed a dissenting opinion,
post, p.
491 U. S.
753.
Page 491 U. S. 705
JUSTICE O'CONNOR announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I, III,
and IV, and an opinion with respect to Part II, in which THE CHIEF
JUSTICE, JUSTICE WHITE, and JUSTICE KENNEDY join.
The questions before us in these cases are whether 42 U.S.C. §
1981 provides an independent federal cause of action for damages
against local governmental entities, and whether that cause of
action is broader than the damages remedy available under 42 U.S.C.
§ 1983, such that a municipality may be held liable for its
employees' violations of § 1981 under a theory of
respondeat
superior.
I
Petitioner Norman Jett, a white male, was employed by respondent
Dallas Independent School District (DISD) as a teacher, athletic
director, and head football coach at South Oak Cliff High School
(South Oak) until his reassignment to another DISD school in 1983.
Petitioner was hired by the DISD in 1957, was assigned to assistant
coaching duties at South Oak in 1962, and was promoted to athletic
director and head football coach of South Oak in 1970. During
petitioner's lengthy tenure at South Oak, the racial composition of
the school changed from predominantly white to predominantly black.
In 1975, the DISD assigned Dr. Fredrick Todd, a black, as principal
of South Oak. Petitioner and Todd clashed repeatedly over school
policies, and in particular over petitioner's handling of the
school's football program. These conflicts came to a head following
a November 19, 1982, football game between South Oak and the
predominately white Plano High School. Todd objected to
petitioner's comparison of the South Oak team with professional
teams before the match, and to the fact that petitioner entered the
officials' locker room after South Oak lost the game and told two
black officials that he would never allow black officials to work
another South Oak game. Todd also objected to petitioner's
Page 491 U. S. 706
statements, reported in a local newspaper, to the effect that
the majority of South Oak players could not meet proposed National
Collegiate Athletic Association academic requirements for
collegiate athletes.
On March 15, 1983, Todd informed petitioner that he intended to
recommend that petitioner be relieved of his duties as athletic
director and head football coach at South Oak. On March 17, 1983,
Todd sent a letter to John Kincaide, the director of athletics for
DISD, recommending that petitioner be removed based on poor
leadership and planning skills and petitioner's comportment before
and after the Plano game. Petitioner subsequently met with John
Santillo, director of personnel for DISD, who suggested that
petitioner should transfer schools, because any remaining
professional relationship with Principal Todd had been shattered.
Petitioner then met with Linus Wright, the superintendent of the
DISD. At this meeting, petitioner informed Superintendent Wright
that he believed that Todd's criticisms of his performance as head
coach were unfounded and that, in fact, Todd was motivated by
racial animus and wished to replace petitioner with a black head
coach. Superintendent Wright suggested that the difficulties
between Todd and petitioner might preclude petitioner from
remaining in his coaching position at South Oak, but assured
petitioner that another position in the DISD would be secured for
him.
On March 25, 1983, Superintendent Wright met with Kincaide,
Santillo, Todd, and two other DISD officials to determine whether
petitioner should remain at South Oak. After the meeting,
Superintendent Wright officially affirmed Todd's recommendation to
remove petitioner from his duties as coach and athletic director at
South Oak. Wright indicated that he felt compelled to follow the
recommendation of the school principal. Soon after this meeting,
petitioner was informed by Santillo that, effective August 4, 1983,
he was reassigned as a teacher at the DISD Business Magnet School,
a position that did not include any coaching duties. Petitioner's
attendance
Page 491 U. S. 707
and performance at the Business Magnet School were poor, and, on
May 5, 1983, Santillo wrote petitioner indicating that he was being
placed on "unassigned personnel budget" and being reassigned to a
temporary position in the DISD security department. Upon receiving
Santillo's letter, petitioner filed this lawsuit in the District
Court for the Northern District of Texas. The DISD subsequently
offered petitioner a position as a teacher and freshman football
and track coach at Jefferson High School. Petitioner did not accept
this assignment, and, on August 19, 1983, he sent his formal letter
of resignation to the DISD.
Petitioner brought this action against the DISD and Principal
Todd in his personal and official capacities under 42 U.S.C. §§
1981 and 1983, alleging due process, First Amendment, and equal
protection violations. Petitioner's due process claim alleged that
he had a constitutionally protected property interest in his
coaching position at South Oak, of which he was deprived without
due process of law. Petitioner's First Amendment claim was based on
the allegation that his removal and subsequent transfer were
actions taken in retaliation for his statements to the press
regarding the sports program at South Oak. His equal protection and
§ 1981 causes of action were based on the allegation that his
removal from the athletic director and head coaching positions at
South Oak was motivated by the fact that he was white, and that
Principal Todd, and, through him, the DISD, were responsible for
the racially discriminatory diminution in his employment status.
Petitioner also claimed that his resignation was in fact the
product of racial harassment and retaliation for the exercise of
his First Amendment rights, and thus amounted to a constructive
discharge. These claims were tried to a jury, which found for
petitioner on all counts. The jury awarded petitioner $650,000
against the DISD, $150,000 against Principal Todd and the DISD
jointly and severally, and $50,000 in punitive damages against Todd
in his personal capacity.
Page 491 U. S. 708
On motion for judgment notwithstanding the verdict, the
defendants argued that liability against the DISD was improper
because there was no showing that petitioner's injuries were
sustained pursuant to a policy or custom of the school district.
App. to Pet. for Cert. in No. 87-2084, p. 46A. The District Court
rejected this argument, finding that the DISD Board of Trustees had
delegated final and unreviewable authority to Superintendent Wright
to reassign personnel as he saw fit.
Id. at 47A. In any
event, the trial court found that petitioner's claim of racial
discrimination was cognizable under § 1981 as well as § 1983, and
indicated that "liability is permitted on solely a basis of
respondeat superior when the claim is one of racial
discrimination under § 1981."
Ibid. The District Court set
aside the punitive damages award against Principal Todd as
unsupported by the evidence, found the damages award against the
DISD excessive, and ordered a remittitur of $200,000, but otherwise
denied the defendants' motions for judgment
n.o.v. and a
new trial and upheld the jury's verdict in all respects.
Id. at 62A-63A. Principal Todd has reached a settlement
with petitioner, and is no longer a party to this action.
Id. at 82A-84A.
On appeal, the Court of Appeals for the Fifth Circuit reversed
in part and remanded. 798 F.2d 748 (1986). Initially, the court
found that petitioner had no constitutionally protected property
interest "in the intangible, noneconomic benefits of his assignment
as coach."
Id. at 754. Since petitioner had received both
his teacher's and coach's salary after his reassignment, the change
in duties did not deprive him of any state law entitlement
protected by the Due Process Clause. The Court of Appeals also set
aside the jury's finding that petitioner was constructively
discharged from his teaching position within the DISD. The court
found the evidence insufficient to sustain the claim that
petitioner's loss of coaching duties and subsequent offer of
reassignment to a lesser coaching position were so humiliating or
unpleasant that a reasonable employee would have felt compelled to
resign.
Page 491 U. S. 709
Id. at 754-756. While finding the question "very
close," the Court of Appeals concluded that there was sufficient
evidence from which a reasonable jury could conclude that Principal
Todd's recommendation that petitioner be transferred from his
coaching duties at South Oak was motivated by impermissible racial
animus. The court noted that Todd had replaced petitioner with a
black coach, that there had been racial overtones in the tension
between Todd and petitioner before the Plano game, and that Todd's
explanation of his unsatisfactory rating of petitioner was
questionable, and was not supported by the testimony of other DISD
officials who spoke of petitioner's performance in laudatory terms.
Id. at 756-757. The court also affirmed the jury's finding
that Todd's recommendation that petitioner be relieved of his
coaching duties was motivated in substantial part by petitioner's
protected statements to the press concerning the academic standing
of athletes at South Oak. These remarks addressed matters of public
concern, and Todd admitted that they were a substantial
consideration in his decision to recommend that petitioner be
relieved of his coaching duties.
The Court of Appeals then turned to the DISD's claim that there
was insufficient evidence to support a finding of municipal
liability under 42 U.S.C. § 1983. The Court of Appeals found that
the District Court's instructions as to the school district's
liability were deficient in two respects. First, the District
Court's instructions did not make clear that the school district
could be held liable for the actions of Principal Todd or
Superintendent Wright only if those officials were delegated
policymaking authority by the school district or acted pursuant to
a well settled custom that represented official policy. Second,
even if Superintendent Wright could be considered a policymaker for
purposes of the transfer of school district personnel, the jury
made no finding that Superintendent Wright's decision to transfer
petitioner was
Page 491 U. S. 710
either improperly motivated or consciously indifferent to the
improper motivations of Principal Todd.
Id. at
759-760.
The Court of Appeals also rejected the District Court's
conclusion that the DISD's liability for Principal Todd's actions
could be predicated on a theory of
respondeat superior
under § 1981. The court noted that, in
Monell v. New York City
Dept. of Social Services, 436 U. S. 658
(1978), this Court held that Congress did not intend municipalities
to be subject to vicarious liability for the federal constitutional
or statutory violations of their employees. The Court of Appeals
reasoned that
"[t]o impose such vicarious liability for only certain wrongs
based on section 1981 apparently would contravene the congressional
intent behind section 1983."
798 F.2d at 762.
The Court of Appeals published a second opinion in rejecting
petitioner's suggestion for rehearing en banc in which the panel
gave further explanation of its holding that
respondeat
superior liability against local governmental entities was
unavailable under § 1981. 837 F.2d 1244 (1988). The Court of
Appeals noted that our decision in
Monell rested in part
on the conclusion that "
creation of a federal law of
respondeat superior would have raised all the
constitutional problems'" associated with the Sherman amendment
which was rejected by the framers of § 1983. 837 F.2d at 1247,
quoting Monell, supra, at 436 U. S.
693.
Because the Court of Appeals' conclusion that local governmental
bodies cannot be held liable under a theory of
respondeat
superior for their employees' violations of the rights
guaranteed by § 1981 conflicts with the decisions of other Courts
of Appeals,
see, e.g., Springer v. Seamen, 821 F.2d 871,
880-881 (CA1 1987);
Leonard v. Frankfort Electric and Water
Plant Bd., 752 F.2d 189, 194, n. 9 (CA6 1985) (dictum), we
granted Norman Jett's petition for certiorari in No. 87-2084. 488
U.S. 940 (1988). We also granted the DISD's cross-petition for
certiorari in No. 88-214,
ibid., to clarify the
application of our decisions in
St. Louis
v. Praprotnik,
Page 491 U. S. 711
485 U. S. 112
(1988) (plurality opinion), and
Pembaur v. Cincinnati,
475 U. S. 469
(1986) (plurality opinion), to the school district's potential
liability for the discriminatory actions of Principal Todd.
We note that at no stage in the proceedings has the school
district raised the contention that the substantive scope of the
"right . . . to make . . . contracts" protected by § 1981 does not
reach the injury suffered by petitioner here.
See Patterson v.
McLean Credit Union, ante at
491 U. S.
176-177. Instead, the school district has argued that
the limitations on municipal liability under § 1983 are applicable
to violations of the rights protected by § 1981. Because petitioner
has obtained a jury verdict to the effect that Dr. Todd violated
his rights under § 1981, and the school district has never
contested the judgment below on the ground that § 1981 does not
reach petitioner's employment injury, we assume for purposes of
these cases, without deciding, that petitioner's rights under §
1981 have been violated by his removal and reassignment.
See
Canton v. Harris, 489 U. S. 378,
489 U. S.
388-389, n. 8 (1989);
United States v. Leon,
468 U. S. 897,
468 U. S. 905
(1984).
See also this Court's Rule 21.1(a).
II
Title 42 U.S.C. § 1981, as amended, provides that:
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and no other."
In essence, petitioner argues that, in 1866, the 39th Congress
intended to create a cause of action for damages against municipal
actors and others who violated the rights now enumerated in § 1981.
While petitioner concedes that the
Page 491 U. S. 712
text of the 1866 Act itself is completely silent on this score,
see Brief for Petitioner 26, petitioner contends that a
civil remedy was nonetheless intended for the violation of the
rights contained in § 1 of the 1866 Act. Petitioner argues that
Congress wished to adopt the prevailing approach to municipal
liability to effectuate this damages remedy, which was
respondeat superior. Petitioner concludes that, with this
federal damages remedy in place in 1866, it was not the intent of
the 42d Congress, which passed present day § 1983, to narrow the
more sweeping remedy against local governments which Congress had
created five years earlier. Since "repeals by implication are not
favored,"
id. at 15 (citations omitted), petitioner
concludes that § 1981 must provide an independent cause of action
for racial discrimination against local governmental entities, and
that this broader remedy is unaffected by the constraints on
municipal liability announced in
Monell. In the
alternative, petitioner argues that, even if § 1981 does not create
an express cause of action for damages against local governmental
entities, 42 U.S.C. § 1988 invites this Court to craft a remedy by
looking to common law principles, which again point to a rule of
respondeat superior. Brief for Petitioner 27-29. To
examine these contentions, we must consider the text and history of
both the Civil Rights Act of 1866 and the Civil Rights Act of 1871,
the precursors of §§ 1981 and 1983 respectively.
JUSTICE BRENNAN'S dissent errs in asserting that we have strayed
from the question upon which we granted certiorari.
See
post at
491 U. S.
739-740. Jett's petition for certiorari asks us to
decide
"[w]hether a public employee who claims job discrimination on
the basis of race must show that the discrimination resulted from
official 'policy or custom' in order to recover under 42 U.S.C. §
1981."
Pet. for Cert. in No. 87-2084, p. i. In answering this question,
the lower court looked to the relationship between §§ 1981 and
1983, and refused to differentiate "between sections 1981 and 1983
with respect to municipal
respondeat superior liability."
837 F.2d at 1247. In both his petition for certiorari and his brief
on the merits
Page 491 U. S. 713
in this Court, petitioner Jett took issue with the Court of
Appeals' conclusion that the express damages remedy under § 1983
militated against the creation or implication of a broader damages
remedy under § 1981.
See Pet. for Cert. in No. 87-2084,
pp. 14-16; Brief for Petitioner 14-25. Moreover, petitioner
concedes that "private causes of action under Sections 1981 and
1982 do not arise from the express language of those statutes,"
Brief for Petitioner 27, and asks this Court to "look to state law
or to fashion a single federal rule," of municipal damages
liability under § 1981.
Id. at 28-29 (footnote omitted).
We think it obvious that the question whether a federal damages
remedy broader than that provided by § 1983 should be implied from
§ 1981 is fairly included in the question upon which we granted
certiorari.
Equally implausible is JUSTICE BRENNAN'S suggestion that we have
somehow unwittingly answered this question in the past.
See
post at
491 U. S. 741.
Most of the cases cited by the dissent involved private conduct,
and thus quite obviously could not have considered the propriety of
judicial implication of a federal damages remedy under § 1981 in
the state action context we address here. The only two cases cited
by JUSTICE BRENNAN which involved state actors,
Takahashi v.
Fish and Game Comm'n, 334 U. S. 410
(1948), and
Hurd v. Hodge, 334 U. S.
24 (1948), are completely inapposite.
See post
at
491 U. S. 745.
Takahashi involved a mandamus action filed in state court,
and thus understandably had nothing to say about federal damages
remedies against state actors under § 1981.
Hurd also
involved only injunctive relief, and could not have considered the
relationship of § 1981 to § 1983, since the latter statute did not
apply to the District of Columbia at the time of our decision in
that case.
See District of Columbia v. Carter,
409 U. S. 418
(1973).
A
On December 18, 1865, the Secretary of State certified that the
Thirteenth Amendment had been ratified and become part of the
Constitution. Less than three weeks later,
Page 491 U. S. 714
Senator Lyman Trumbull, Chairman of the Senate Judiciary
Committee, introduced S. 61, which was to become the Civil Rights
Act of 1866.
See Cong.Globe, 39th Cong., 1st Sess., 129
(1866). The bill had eight sections as introduced, the first three
of which are relevant to our inquiry here. Section 1, as introduced
to the Senate by Trumbull, provided:
"That there shall be no discrimination in civil rights or
immunities among the inhabitants of any State or Territory of the
United States on account of race, color, or previous condition of
slavery; but the inhabitants of every race and color, without
regard to any previous condition of slavery or involuntary
servitude, except as a punishment for a crime whereof the party
shall have been duly convicted, shall have the same right to make
and enforce contracts, to sue, be parties, and give evidence, to
inherit, purchase, lease, sell, hold, and convey real and personal
property, and to the full and equal benefit of all laws and
proceedings for the security of person and property, and shall be
subject to like punishment, pains, and penalties, and to none
other, any law, statute, ordinance, regulation, or custom to the
contrary notwithstanding."
Id. at 474.
On January 29, 1866, Senator Trumbull took the floor to describe
S. 61 to his colleagues. Trumbull indicated that
"the first section will amount to nothing more than the
declaration in the Constitution itself unless we have the machinery
to carry it into effect."
Id. at 475. The Senator then alluded to the second
section of the bill, which provided:
"That any person who under color of any law, statute, ordinance,
regulation, or custom shall subject, or cause to be subjected, any
inhabitant of any State or Territory to the deprivation of any
right secured or protected by this act, or to different punishment,
pains, or penalties on account of such person having at any time
been held in a condition of slavery or involuntary servitude, . .
.
Page 491 U. S. 715
or by reason of his color or race, than is prescribed for the
punishment of white persons, shall be deemed guilty of a
misdemeanor, and, on conviction, shall be punished by fine not
exceeding $1,000, or imprisonment not exceeding one year, or both,
in the discretion of the court."
Ibid.
Senator Trumbull told the Senate: "This is the valuable section
of the bill so far as protecting the rights of freedmen is
concerned."
Ibid. This section would allow for criminal
prosecution of those who denied the freedman the rights protected
by § 1, and Trumbull felt, in retrospect somewhat naively,
that,
"it will only be necessary to go into the late slaveholding
States and subject to fine and imprisonment one or two in a State,
and the most prominent ones I should hope at that, to break up this
whole business."
Ibid.
Trumbull then described the third section of the bill, which, as
later enacted, provided in pertinent part:
"That the district courts of the United States, within their
respective districts, shall have, exclusively of the courts of the
several States, cognizance of all crimes and offenses committed
against the provisions of this act, and also, concurrently with the
circuit courts of the United States, of all causes, civil and
criminal, affecting persons who are denied or cannot enforce in the
courts or judicial tribunals of the State or locality where they
may be any of the rights secured to them by the first section of
this act; and if any suit or prosecution, civil or criminal, has
been or shall be commenced in any State court, against any such
person, for any cause whatsoever . . . such defendant shall have
the right to remove such cause for trial to the proper district or
circuit court in the manner prescribed by the 'Act relating to
habeas corpus and regulating judicial proceedings in certain
cases,' approved March three, eighteen hundred and sixty three, and
all acts amendatory thereof."
14 Stat. 27.
Page 491 U. S. 716
Trumbull described this section as
"giving to the courts of the United States jurisdiction over all
persons committing offenses against the provisions of this act, and
also over the cases of persons who are discriminated against by
State laws or customs."
Cong.Globe, 39th Cong., 1st Sess., 475 (1866). Much of the
debate in both the Senate and the House over the 1866 Act was taken
up with the meaning of the terms "civil rights or immunities"
contained in the first sentence of § 1 of the bill as introduced in
the Senate. The phrase remained in the bill throughout the Senate's
consideration of S. 61, but was stricken by amendment in the House
shortly before that body passed the bill.
Discussion of § 2 of the bill focused on both the propriety and
constitutionality of subjecting state officers to criminal
punishment for effectuating discriminatory state laws. Opponents of
the bill consistently referred to criminal punishment and fines
being levied against state judges and other state officers for the
enforcement of state laws in conflict with § 1.
See id. at
475, 499, 500 (Sen. Cowan);
id. at 598 (Sen. Davis);
id. at 1121 (Rep. Rogers);
id. at 1154 (Rep.
Eldridge). They never intimated that they understood any part of
the bill to create a federal damages remedy against state officers
or the political subdivisions of the States.
Debate concerning § 3 focused on the right of removal of civil
and criminal proceedings commenced in state court. Senator Howard,
an opponent, engaged in a section by section criticism of the bill
after its introduction by Trumbull. As to § 3, he gave numerous
examples of his perception of its operation. All of these involved
removal of actions from state court, and none alluded to original
federal jurisdiction except in the case of the exclusive criminal
jurisdiction expressly provided for.
Id. at 479 ("All such
cases will be subject to be removed into the Federal courts");
see also id. at 598 (Sen. Davis) ("Section three provides
that all suits brought in State courts that come within the purview
of the previous sections may be removed into the Federal
courts").
Page 491 U. S. 717
On February 2, 1866, the bill passed the Senate by a vote of 33
to 12, and was sent to the House.
Id. at 606-607.
Representative Wilson of Iowa, Chairman of the House Judiciary
Committee, introduced S. 61 in the House on March 1, 1866. Of § 1
of the bill, he said:
"Mr. Speaker, I think I may safely affirm that this bill, so far
as it declares the equality of all citizens in the enjoyment of
civil rights and immunities, merely affirms existing law. We are
following the Constitution. . . . It is not the object of this bill
to establish new rights, but to protect and enforce those which
already belong to every citizen."
Id. at 1117.
As did Trumbull in the Senate, Wilson immediately alluded to §
2, the criminal provision, as the main enforcement mechanism of the
bill.
"In order to accomplish this end, it is necessary to fortify the
declaratory portions of this bill with sanctions as will render it
effective."
Id. at 1118.
The only discussion of a civil remedy in the House debates
surrounding the 1866 Act came in response to Representative
Bingham's proposal to send the bill back to the House Judiciary
Committee with instructions
"to strike out all parts of said bill which are penal and which
authorize criminal proceedings, and in lieu thereof to give all
citizens of the United States injured by denial or violation of any
of the other rights secured or protected by said act, an action in
the United States courts, with double costs in all cases of
emergency, without regard to the amount of damages."
Id. at 1266, 1291. Bingham was opposed to the civil
rights bill strictly on the grounds that it exceeded the
constitutional power of the Federal Government. As to States
"sustaining their full constitutional relation to the Government of
the United States," Bingham, along with several other Republicans,
doubted the power of the Federal Government to interfere with the
reserved powers of the States to define property and other rights.
Id. at 1292. While Bingham realized that the same
constitutional objections applied to his proposal
Page 491 U. S. 718
for modification of the bill, he felt that these would make the
bill "less oppressive, and therefore less objectionable."
Id. at 1291.
Representative Wilson responded to his Republican colleague's
proposal. Wilson pointed out that there was no difference in
constitutional principle
"between saying that the citizen shall be protected by the
legislative power of the United States in his rights by civil
remedy and declaring that he shall be protected by penal enactments
against those who interfere with his rights."
Id. at 1295. Wilson did, however, see a difference in
the effectiveness of the two remedies. He stated:
"This bill proposes that the humblest citizen shall have full
and ample protection at the cost of the Government, whose duty it
is to protect him. The [Bingham] amendment . . . recognizes the
principle involved, but it says that the citizen despoiled of his
rights, instead of being properly protected by the Government, must
press his own way through the courts and pay the bills attendant
thereon. . . . The highest obligation which the Government owes to
the citizen in return for the allegiance exacted of him is to
secure him in the protection of his rights. Under the amendment of
the gentleman, the citizen can only receive that protection in the
form of a few dollars in the way of damages, if he shall be so
fortunate as to recover a verdict against a solvent wrongdoer. This
is called protection. This is what we are asked to do in the way of
enforcing the bill of rights. Dollars are weighed against the right
of life, liberty and property."
Ibid.
Bingham's proposal was thereafter defeated by a vote of 113 to
37.
Id. at 1296. The Senate bill was subsequently carried
in the House, after the removal of the "civil rights and
immunities" language in § 1, and an amendment adding a ninth
section to the bill providing for a final appeal to the Supreme
Court in cases arising under the Act.
Id. at
1366-1367.
Page 491 U. S. 719
On March 15, 1866, the Senate concurred in the House amendments
without a record vote,
see id. at 1413-1416, and the bill
was sent to the President.
After holding the bill for a full 10 days, President Johnson
vetoed the bill and returned it to the Senate with his objections.
The President's criticisms of §§ 2 and 3 of the bill, and Senator
Trumbull's responses thereto, are particularly illuminating. As to
§ 2, the President declared that it was designed to counteract
discriminatory state legislation, "by imposing fine and
imprisonment upon the legislators who may pass such . . . laws."
Id. at 1680. As to the third section, the President
indicated that it would vest exclusive federal jurisdiction over
all civil and criminal cases where the rights guaranteed in § 1
were affected.
Ibid.
Trumbull took issue with both statements. As to the charge that
§ 2 would result in the criminal prosecution of state legislators,
Trumbull replied:
"Who is to be punished? Is the law to be punished? Are the men
who make the law to be punished? Is that the language of the bill?
Not at all. If any person, 'under color of any law,' shall subject
another to the deprivation of a right to which he is entitled, he
is to be punished. Who? The person who, under the color of the law,
does the act, not the men who made the law. In some communities in
the South, a custom prevails by which different punishment is
inflicted upon the blacks from that meted out to whites for the
same offense. Does this section propose to punish the community
where the custom prevails? Or is it to punish the person who, under
color of the custom, deprives the party of his right? It is a
manifest perversion of the meaning of the section to assert
anything else."
Id. at 1758.
Trumbull also answered the President's charge that the third
section of the bill created original federal jurisdiction in all
cases where a freedman was involved in a state court proceeding. He
stated:
Page 491 U. S. 720
"So in reference to this third section, the jurisdiction is
given to the Federal courts of a case affecting the person that is
discriminated against. Now, he is not necessarily discriminated
against, because there may be a custom in the community
discriminating against him, nor because a Legislature may have
passed a statute discriminating against him; that statute is of no
validity if it comes in conflict with a statute of the United
States; and it is not to be presumed that any judge of a State
court would hold that a statute of a State discriminating against a
person on account of color was valid when there was a statute of
the United States with which it was in direct conflict, and the
case would not therefore rise in which a party was discriminated
against until it was tested, and then, if the discrimination was
held valid, he would have a right to remove it to a Federal
court."
Id. at 1759.
Senator Trumbull then went on to indicate that
"[i]f it be necessary in order to protect the freedman in his
rights that he should have authority to go into the Federal courts
in all cases where a custom [of discrimination] prevails in a State
. . . I think we have the authority to confer that jurisdiction
under the second clause of the constitutional amendment."
Ibid. Two days later, on April 6, 1866, the Senate
overrode the President's veto by a vote of 33 to 15.
Id.
at 1809. On April 9, 1866, the House received both the bill and the
President's veto message, which were read on the floor.
Id. at 1857-1860. The House then promptly overrode the
President's veto by a vote of 122 to 41,
id. at 1861, and
the Civil Rights Act of 1866 became law.
Several points relevant to our present inquiry emerge from the
history surrounding the adoption of the Civil Rights Act of 1866.
First, nowhere did the Act provide for an express damages remedy
for violation of the provisions of § 1.
See Jones v. Alfred H.
Mayer Co., 392 U. S. 409,
392 U. S. 414,
n. 13 (1968) (noting "[t]hat 42 U.S.C. § 1982 is couched in
declaratory
Page 491 U. S. 721
terms and provides no explicit method of enforcement");
Sullivan v. Little Hunting Park, Inc., 396 U.
S. 229,
396 U. S. 238
(1969);
Cannon v. University of Chicago, 441 U.
S. 677,
441 U. S. 690,
n. 12 (1979);
id. at
441 U. S. 728
(WHITE, J., dissenting). Second, no original federal jurisdiction
was created by the 1866 Act which could support a federal damages
remedy against state actors.
See Allen v. McCurry,
449 U. S. 90,
449 U. S. 99, n.
14 (1980) (Section 3 of the 1866 Act embodied remedy of
"post-judgment removal for state court defendants whose civil
rights were threatened");
Georgia v. Rachel, 384 U.
S. 780,
384 U. S.
788-789 (1966);
Strauder v. West Virginia,
100 U. S. 303,
100 U. S.
311-312 (1880). Finally, the penal provision, the only
provision explicitly directed at state officials, was, in Senator
Trumbull's words, designed to punish the "person who, under the
color of the law, does the act," not "the community where the
custom prevails." Cong.Globe, 39th Cong., 1st Sess., 1758
(1866).
Two events subsequent to the passage of the 1866 Act bear on the
relationship between §§ 1981 and 1983. First, on June 13, 1866,
just over two months after the passage of the 1866 Act, a joint
resolution was passed sending the Fourteenth Amendment to the
States for ratification. As we have noted in the past, the first
section of the 1866 Act "constituted an initial blueprint of the
Fourteenth Amendment."
General Building Contractors Assn., Inc.
v. Pennsylvania, 458 U. S. 375,
458 U. S. 389
(1982). Many of the Members of the 39th Congress viewed § 1 of the
Fourteenth Amendment as "constitutionalizing" and expanding the
protections of the 1866 Act, and viewed what became § 5 of the
Amendment as laying to rest doubts shared by both sides of the
aisle concerning the constitutionality of that measure.
See,
e.g., Cong.Globe, 39th Cong., 1st Sess., 2465 (1866) (Rep.
Thayer) ("As I understand it, it is but incorporating in the
Constitution of the United States the principle of the civil rights
bill which has lately become a law");
id. at 2498 (Rep.
Broomall);
id. at 2459 (Rep. Stevens);
id. at
2461 (Rep. Finck);
id. at 2467
Page 491 U. S. 722
(Rep. Boyer).
See also Hurd v. Hodge, 334 U. S.
24,
334 U. S. 32
(1948) ("[A]s the legislative debates reveal, one of the primary
purposes of many members of Congress in supporting the adoption of
the Fourteenth Amendment was to incorporate the guaranties of the
Civil Rights Act of 1866 in the organic law of the land") (footnote
omitted).
Second, the 41st Congress reenacted the substance of the 1866
Act in a Fourteenth Amendment statute, the Enforcement Act of 1870.
16 Stat. 144. Section 16 of the 1870 Act was modeled after § 1 of
the 1866 Act. Section 17 reenacted with some modification the
criminal provisions of § 2 of the earlier civil rights law, and §
18 of the 1870 Act provided that the entire 1866 Act was reenacted.
See Civil Rights Cases, 109 U. S. 3,
109 U. S. 16-17
(1883). We have thus recognized that present-day 42 U.S.C. § 1981
is both a Thirteenth and a Fourteenth Amendment statute.
Runyon
v. McCrary, 427 U. S. 160,
427 U. S.
168-169, n. 8 (1976);
id. at 190 (STEVENS, J.,
concurring);
General Building Contractors, supra, at
458 U. S.
383-386.
B
What is now § 1983 was enacted as § 1 of "An Act to Enforce the
Provisions of the Fourteenth Amendment to the Constitution of the
United States and For other Purposes," Act of April 20, 1871, ch.
22, 17 Stat. 13. The immediate impetus for the bill was evidence of
widespread acts of violence perpetrated against the freedmen and
loyal white citizens by groups such as the Ku Klux Klan. On March
23, 1871, President Grant sent a message to Congress indicating
that the Klan's reign of terror in the Southern States had
"render[ed] life and property insecure," and that "the power to
correct these evils [was] beyond the control of State authorities."
Cong.Globe, 42d Cong., 1st Sess., 244 (1871). A special joint
committee consisting of 10 distinguished Republicans, five from
each House of Congress, was formed in response to President Grant's
call for legislation, and drafted the bill that became what is now
known as the Ku Klux Act. As enacted,
Page 491 U. S. 723
§§ 2 through 6 of the bill specifically addressed the problem of
the private acts of violence perpetrated by groups like the
Klan.
Unlike the rest of the bill, § 1 was not specifically addressed
to the activities of the Klan. As passed by the 42d Congress, § 1
provided in full:
"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 within the
jurisdiction of the United States to the deprivation 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 proceeding 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 ninth of April, eighteen
hundred and sixty-six, entitled '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."
17 Stat. 13.
Three points are immediately clear from the face of the Act
itself. First, unlike any portion of the 1866 Act, this statute
explicitly ordained that any "person" acting under color of state
law or custom who was responsible for a deprivation of
constitutional rights would "be liable to the party injured in any
action at law." Thus, "the 1871 Act was designed to expose state
and local officials to a new form of liability."
Newport v.
Fact Concerts, Inc., 453 U. S. 247,
453 U. S. 259
(1981). Second, the 1871 Act explicitly provided original federal
jurisdiction for prosecution of these civil actions against
state
Page 491 U. S. 724
actors.
See Will v. Michigan Dept. of State Police,
ante at
491 U. S. 66
("[A] principle purpose behind the enactment of § 1983 was to
provide a federal forum for civil rights claims");
accord,
Mitchum v. Foster, 407 U. S. 225,
407 U. S. 239
(1972). Third, the first section of the 1871 Act was explicitly
modeled on § 2 of the 1866 Act, and was seen by both opponents and
proponents as amending and enhancing the protections of the 1866
Act by providing a new civil remedy for its enforcement against
state actors.
See Chapman v. Houston Welfare Rights
Organization, 441 U. S. 600,
441 U. S.
610-611, n. 25 (1979) ("Section 1 of the [1871] Act
generated the least concern; it merely added civil remedies to the
criminal penalties imposed by the 1866 Civil Rights Act");
Monroe v. Pape, 365 U. S. 167,
365 U. S. 185
(1961);
Mitchum, supra, at
407 U. S.
238.
Even a cursory glance at the House and Senate debates on the
1871 Act makes these three points clear. In introducing the bill to
the House, Representative Shellabarger, who served on the joint
committee which drafted the bill, stated:
"The model for it will be found in the second section of the act
of April 9, 1866, known as the 'civil rights act.' That section
provides a criminal proceeding in identically the same case as this
one provides a civil remedy for, except that the deprivation under
color of State law must, under the civil rights act, have been on
account of race, color or former slavery."
Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871).
Representative Shellabarger added that § 1 provided a civil
remedy "on the same state of facts" as § 2 of the Civil Rights Act
of 1866.
Ibid. Obviously Representative Shellabarger's
introduction of § 1 of the bill to his colleagues would have been
altogether different if he had been of the view that the 39th
Congress, of which he had been a Member, had
already
created a
broader federal damages remedy against state
actors in 1866. The view that § 1 of the 1871 Act was an amendment
of or supplement to the 1866 Act designed to create a new civil
remedy against state actors was
Page 491 U. S. 725
echoed throughout the debates in the House.
See id. at
461 (Rep. Coburn);
id. at App. 312-313 (Rep. Burchard).
Opponents of § 1 operated on this same understanding.
See
id. at 429 (Rep. McHenry) ("The first section of the bill is
intended as an amendment of the civil rights act");
id. at
365 (Rep. Arthur).
Both proponents and opponents in the House viewed § 1 as working
an
expansion of federal jurisdiction. Supporters
continually referred to the failure of the state courts to enforce
federal law designed for the protection of the freedman, and saw §
1 as remedying this situation by interposing the federal courts
between the State and citizens of the United States.
See
id. at 376 (Rep. Lowe) ("The case has arisen . . . when the
Federal Government must resort to its own agencies to carry its own
authority into execution. Hence this bill throws open the doors of
the United States courts to those whose rights under the
Constitution are denied or impaired"). Opponents recognized the
expansion of original jurisdiction, and railed against it on policy
and constitutional grounds.
See id. at 429 (Rep. McHenry)
("The first section of the bill . . . vests in the Federal courts
jurisdiction to determine the individual rights of citizens of the
same State; a jurisdiction which of right belongs only to the State
tribunals");
id. at App. 50 (Rep. Kerr);
id. at
365-366 (Rep. Authur);
id. at 373 (Rep. Archer).
The Senate debates on § 1 of the 1871 Act are of a similar
tenor. Senator Edmunds, Chairman of the Senate Judiciary Committee
and one of the Members of the joint committee which drafted the
bill, introduced § 1 to the Senate in the following terms:
"The first section is one that I believe nobody objects to, as
defining the rights secured 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 principles of the
civil rights bill, which have
Page 491 U. S. 726
since become a part of the Constitution."
Id. at 568, quoted in
Monroe v. Pape, supra,
at
365 U. S.
171.
Again, Senators addressed § 1 of the Act as creating a new civil
remedy and expanding federal jurisdiction to accommodate it in
terms incompatible with the supposition that the 1866 Act had
already created such a cause of action against state actors.
See Cong.Globe, 42d Cong., 1st Sess., 653 (1871) (Sen.
Osborn) ("I believe the true remedy lies chiefly in the United
States district and circuit courts. If the State courts had proven
themselves competent . . . we should not have been called upon to
legislate upon this subject at all. But they have not done so");
id. at App. 216 (Sen. Thurman) ("Its whole effect is to
give to the Federal Judiciary that which does not belong to it -- a
jurisdiction that may be constitutionally conferred upon it, I
grant, but that has never yet been conferred upon it");
see
also id. at 501 (Sen. Frelinghuysen).
The final aspect of the history behind the adoption of present
day § 1983 relevant to the question before us is the rejection by
the 42d Congress of the Sherman
Page 491 U. S. 727
amendment, which specifically proposed the imposition of a form
of vicarious liability on municipal governments. This history was
thoroughly canvassed in the Court's opinion in
Monell, and
only its broadest outlines need be traced here. Immediately prior
to the vote on the bill in the Senate, Senator Sherman introduced
an amendment which would have constituted a seventh section of the
1871 Act. Cong.Globe, 42d Cong., 1st Sess., 663 (1871). In its
original form, the amendment did not place liability on municipal
corporations
per se, but instead rendered the inhabitants
of a municipality liable in civil damages for injury inflicted to
persons or property in violation of federal constitutional and
statutory guarantees "by any persons riotously and tumultuously
assembled together." The initial Sherman amendment was passed by
the Senate, but was rejected by the House and became the subject of
a conference committee. The committee draft of the Sherman
amendment explicitly provided that, where injuries to person or
property were caused by mob violence directed at the enjoyment or
exercise of federal civil rights,
"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."
Id. at 755. Judgments in such actions were to run
directly against the municipal corporation, and were to be
enforceable through a "lien . . . upon all moneys in the treasury
of such county, city, or parish, as upon the other property
thereof."
Ibid.
Opposition to the amendment in this form was vehement, and ran
across party lines, extending to many Republicans who had voted for
§ 1 of the 1871 Act, as well as earlier reconstruction legislation,
including the Civil Rights Act of 1866.
See id. at 758
(Sen. Trumbull);
id. at 798-799 (Rep. Farnsworth).
The Sherman amendment was regarded as imposing a new and
theretofore untested form of liability on municipal governments. As
Representative Blair put it:
"The proposition known as the Sherman amendment -- and to that I
shall confine myself in the remarks which I may address to the
House -- is entirely new. It is altogether without a precedent in
this country. Congress has never asserted or attempted to assert,
so far as I know, any such authority. That amendment claims the
power in the General Government to go into the States of this Union
and lay such obligations as it may please upon the municipalities,
which are the creations of the States alone."
Id. at 795 (Rep. Blair), partially quoted in
Monell, 436 U.S. at
436 U. S.
673-674.
See also Cong.Globe, 42d Cong., 1st
Sess., 758 (1871) (Sen. Trumbull) (referring to the conference
committee version of the Sherman amendment as "asserting principles
never before exercised, on the part of the United States, at any
rate").
The strong adverse reaction to the Sherman amendment, and
continued references to its complete novelty in the law of
Page 491 U. S. 728
the United States, make it difficult to entertain petitioner's
contention that the 1866 Act had already created a form of
vicarious liability against municipal governments. Equally
important is the basis for opposition. As we noted in
Monell, a large number of those who objected to the
principle of vicarious liability embodied in the Sherman amendment
were of the view that Congress did not have the power to assign the
duty to enforce federal law to state instrumentalities by making
them liable for the constitutional violations of others.
See
Monell, supra, at
436 U. S.
674-679. As Representative Farnsworth put it: "The
Supreme Court of the United States has decided repeatedly that
Congress can impose no duty on a State officer." Cong.Globe, 42d
Cong., 1st Sess., 799 (1871). Three decisions of this Court lent
direct support to the constitutional arguments of the opponents,
See Collector v.
Day, 11 Wall. 113 (1871);
Kentucky v.
Dennison, 24 How. 66 (1861), and
Prigg v.
Pennsylvania, 16 Pet. 539 (1842).
Day and
Prigg were repeatedly cited in the House debates on the
Sherman amendment.
See Monell, supra, at
436 U. S.
673-683, and n. 30. In
Prigg, perhaps the most
famous and most oft-cited of this line of cases, Justice Story
wrote for the Court that Congress could not constitutionally
"insist that the states are bound to provide means to carry into
effect the duties of the national government."
Prigg,
supra, at
41 U. S. 616.
In
Monell, we concluded that it was this constitutional
objection which was the driving force behind the eventual rejection
of the Sherman amendment.
Monell, supra, at
436 U. S.
676.
Although the debate surrounding the constitutional principles
established in
Prigg, Dennison, and
Day occurred
in the context of the Sherman amendment, and not § 1 of the 1871
Act, in
Monell we found it quite inconceivable that the
same legislators who opposed vicarious liability on constitutional
grounds in the Sherman amendment debates would have silently
adopted the same principle in § 1. Because the
"creation of a federal law of
respondeat superior would
have raised all the constitutional problems associated with
Page 491 U. S. 729
the obligation to keep the peace"
embodied in the Sherman amendment, we held that the existence of
the constitutional background of
Prigg, Dennison, and
Day
"compell[ed] the conclusion that Congress did not intend
municipalities to be held liable [under § 1] unless action pursuant
to official municipal policy of some nature caused a constitutional
tort."
Monell, supra, at
436 U. S.
691.
Both
Prigg and
Dennison were on the books when
the 39th Congress enacted § 1 of the 1866 Act. Supporters of the
1866 Act were clearly aware of
Prigg, and cited the case
for the proposition that the Federal Government could use its own
instrumentalities to effectuate its laws.
See, e.g.,
Cong.Globe, 39th Cong., 1st Sess., 1294 (1871) (Rep. Wilson). There
was, however, no suggestion in the debates surrounding the 1866 Act
that the statute violated
Prigg's complementary holding
that federal duties could not be imposed on state instrumentalities
by rendering them vicariously liability for the violations of
others. Just as it affected our interpretation of § 1 of the 1871
Act in
Monell, we think the complete silence on this score
in the face of a constitutional background known to those who
enacted the 1866 Act militates against imputing to Congress an
intent to silently impose vicarious liability on municipalities
under the earlier statute.
Cf. Tenney v. Brandhove,
341 U. S. 367,
341 U. S. 376
(1951).
As originally enacted, the text of § 1983 referred only to the
deprivation "of any rights, privileges, or immunities secured by
the Constitution of the United States." In 1874, Congress enacted
the Revised Statutes of the United States. The words "and laws"
were added to the remedial provision of § 1 of the 1871 Act which
became Rev.Stat. § 1979. At the same time, the jurisdictional grant
in § 1 of the 1871 Act was split into two different provisions,
Rev.Stat. § 563 (12), granting jurisdiction
Page 491 U. S. 730
to the district courts of the United States to redress
deprivations under color of state law of any right secured by the
Constitution or "by any law of the United States," and Rev.Stat. §
629 (16), granting jurisdiction to the old circuit courts for any
action alleging deprivation under state authority of any right
secured "by any law providing for equal rights." In 1911, Congress
abolished the circuit courts of the United States and the Code's
definition of the jurisdiction of the district courts was taken
from Rev.Stat. § 629(16), with its narrower "providing for equal
rights" language. This language is now contained in 28 U.S.C. §
1343(3), the jurisdictional counterpart of § 1983.
Chapman, 441 U.S. at
441 U. S.
608.
There is no commentary or other information surrounding the
addition of the phrase "and laws" to the remedial provisions of
present day § 1983. The revisers' draft of their work, published in
1872, and the marginal notes to §§ 629(16) and 563(12), which
appeared in the completed version of the Revised Statutes
themselves, provide some clues as to Congress' intent in adopting
the change. The marginal note to § 629(16) states: "Suits to
redress the deprivation of rights secured by the Constitution and
laws to persons within jurisdiction of United States." The note
then cross-cites to § 1 of the 1871 Act, §§ 16 and 18 of the
Enforcement Act of 1870, and § 3 of the 1866 Act. Both §§ 629(16)
and 563(12) were followed by bracketed citations to Rev.Stat. §
1979, present-day § 1983, and Rev.Stat. § 1977, present-day § 1981.
Rev.Stat. 95, 111 (1874). The revisers' draft of 1872 contains the
following notation concerning § 629(16):
"It may have been the intention of Congress to provide, by this
enactment [the Civil Rights Act of 1871], for all the cases of
deprivations mentioned in the previous act of 1870, and thus
actually to supersede the indefinite provision contained in that
act. But as it might perhaps be held that only such rights as are
specifically secured by the Constitution, and not every right
secured by a law authorized by the Constitution, were here
intended, it is deemed safer to add a reference to the civil rights
act."
1 Revision of the United States Statutes as
Page 491 U. S. 731
Drafted by the Commissioners Appointed for that Purpose 362
(1872).
We have noted in the past that the addition of the phrase "and
laws" to the text of what is now § 1983, although not without its
ambiguities as to intended scope, was at least intended to make
clear that that the guarantees contained in § 1 of the 1866 Act and
§ 16 of the Enforcement Act of 1870 were to be enforced against
state actors through the express remedy for damages contained in §
1983.
See Chapman, supra, at
441 U. S. 617
(footnote omitted) (Section 1 of the 1871 Act "served only to
ensure that an individual had a cause of action for violations of
the Constitution, which in the Fourteenth Amendment embodied and
extended to all individuals as against state action the substantive
protections afforded by § 1 of the 1866 Act");
id. at
441 U. S. 668
(WHITE, J., concurring in judgment).
See also Maine v.
Thiboutot, 448 U. S. 1,
448 U. S. 7 (1980)
("There is no express explanation offered for the insertion of the
phrase
and laws.' On the one hand, a principal purpose of the
added language was to ensure that federal legislation providing
specifically for equality of rights would be brought within the
ambit of the civil action authorized by that statute") (internal
quotations omitted).
III
We think the history of the 1866 Act and the 1871 Act recounted
above indicates that Congress intended that the explicit remedial
provisions of § 1983 be controlling in the context of damages
actions brought against state actors alleging violation of the
rights declared in § 1981. That we have read § 1 of the 1866 Act to
reach private action, and have implied a damages remedy to
effectuate the declaration of rights contained in that provision,
does not authorize us to do so in the context of the "state action"
portion of § 1981, where Congress has established its own remedial
scheme. In the context of the application of § 1981 and § 1982 to
private actors, we
"had little choice but to hold that aggrieved individuals
Page 491 U. S. 732
could enforce this prohibition,
for there existed no other
remedy to address such violations of the statute."
Cannon, 441 U.S. at
441 U. S. 728
(WHITE, J., dissenting) (emphasis added; footnote omitted). That is
manifestly not the case here, and, whatever the limits of the
judicial power to imply or create remedies, it has long been the
law that such power should not be exercised in the face of an
express decision by Congress concerning the scope of remedies
available under a particular statute.
See National Railroad
Passenger Corporation v. National Assn. of Railroad
Passengers, 414 U. S. 453,
414 U. S. 458
(1974) ("A frequently stated principle of statutory construction is
that, when legislation expressly provides a particular remedy or
remedies, courts should not expand the coverage of the statute to
subsume other remedies");
accord, Fleischmann Corp. v. Maier
Brewing Co., 386 U. S. 714,
386 U. S. 720
(1967);
Cannon, supra, at
441 U. S.
718-724 (WHITE, J., dissenting).
Petitioner cites 42 U.S.C. § 1988, and argues that that
provision "compels adoption of a
respondeat superior
standard." Brief for Petitioner 27. That section, as amended,
provides in pertinent part:
"The jurisdiction in civil . . . matters conferred on the
district courts by the provisions of this [chapter and Title 18],
for the protection of all persons in the United States in their
civil rights, and for their vindication, shall be exercised and
enforced in conformity with the laws of the United States, so far
as such laws are suitable to carry the same into effect; but in all
cases where they are not adapted to the object, or are deficient in
the provisions necessary to furnish suitable remedies and punish
offenses against law, the common law, as modified and changed by
the constitution and the statutes of the State wherein the court
having jurisdiction of such civil or criminal cause is held, so far
as the same is not inconsistent with the Constitution and laws of
the United States, shall be extended to and govern the said courts
in the trial and disposition of the cause. . . . "
Page 491 U. S. 733
Far from supporting petitioner's call for the creation or
implication of a damages remedy broader than that provided by §
1983, we think the plain language of § 1988 supports the result we
reach here. As we noted in
Moor v. County of Alameda,
411 U. S. 693,
411 U. S. 706
(1973), in rejecting an argument similar to petitioner's contention
here:
"[Section 1988] expressly limits the authority granted federal
courts to look to the common law, as modified by state law, to
instances in which that law 'is not inconsistent with the
Constitution and laws of the United States.'"
Ibid. See also Johnson v. Railway Express Agency, Inc.,
421 U. S. 454,
421 U. S. 465
(1975). As we indicated in
Moor,
"Congress did not intend, as a matter of federal law, to impose
vicarious liability on municipalities for violations of federal
civil rights by their employees."
411 U.S. at
411 U. S. 710,
n. 27. Section 1983 provides an explicit remedy in damages which,
with its limitations on municipal liability, Congress thought
"suitable to carry . . . into effect" the rights guaranteed by §
1981 as against state actors. Thus, if anything, § 1988 points us
in the direction of the express federal damages remedy for
enforcement of the rights contained in § 1981, not state common law
principles.
Our conclusion that the express cause of action for damages
created by § 1983 constitutes the exclusive federal remedy for
violation of the rights guaranteed in § 1981 by state governmental
units finds support in our decision in
Brown v. GSA,
425 U. S. 820
(1976). In
Brown, we dealt with the interaction of § 1981
and the provisions of § 717 of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-16, which proscribe discrimination in
federal employment and establish an administrative and judicial
enforcement scheme. The petitioner in
Brown had been
passed over for federal promotion on two occasions, and, after the
second occasion, he filed a complaint with his agency alleging that
he was denied promotion because of his race. The agency's Director
of Civil Rights concluded, after investigation, that race had not
entered into the promotional process, and informed Brown by
Page 491 U. S. 734
letter of his right under § 717(c) to bring an action in Federal
District Court within 30 days of the agency's final decision.
Forty-two days later, Brown filed suit in federal court, alleging
violations of both Title VII and § 1981. The lower courts dismissed
Brown's complaint as untimely under § 717(c), and this Court
affirmed, holding that § 717 of Title VII constituted the exclusive
remedy for allegations of racial discrimination in federal
employment.
The Court began its analysis by noting that "Congress simply
failed explicitly to describe § 717's position in the constellation
of antidiscrimination law." 425 U.S. at
425 U. S. 825.
We noted that, in 1972, when Congress extended the strictures of
Title VII to federal employment, the availability of an implied
damages remedy under § 1981 for employment discrimination was not
yet clear.
Id. at
425 U. S. 828. The Court found that this perception on
the part of Congress
"seems to indicate that the congressional intent in 1972 was to
create an exclusive, preemptive administrative and judicial scheme
for the redress of federal employment discrimination."
Id. at
425 U. S.
828-829. The Court bolstered its holding by invoking the
general principle that "a precisely drawn, detailed statute
preempts more general remedies."
Id. at
425 U. S.
834.
In
Brown, as here, while Congress has not definitively
spoken as to the relationship of § 1981 and § 1983, there is very
strong evidence that the 42d Congress which enacted the precursor
of § 1983 thought that it was enacting the first, and at that time
the only, federal damages remedy for the violation of federal
constitutional and statutory rights by state governmental actors.
The historical evidence surrounding the revision of 1874 further
indicates that Congress thought that the declaration of rights in §
1981 would be enforced against state actors through the remedial
provisions of § 1983. That remedial scheme embodies certain
limitations on the liability of local governmental entities based
on federalism concerns which had very real constitutional
underpinnings for the Reconstruction Congresses. As petitioner
Page 491 U. S. 735
here would have it, the careful balance drawn by the 42d
Congress between local autonomy and fiscal integrity and the
vindication of federal rights could be completely upset by an
artifice of pleading.
Since our decision in
Monell, the Courts of Appeals
have unanimously rejected the contention, analogous to petitioner's
argument here, that the doctrine of
respondeat superior is
available against a municipal entity under a
Bivens-type
action implied directly from the Fourteenth Amendment.
See,
e.g., Tarpley v. Greene, 221 U.S.App.D.C. 227, 237, n. 25, 684
F.2d 1, 11, n. 25 (1982) (Edwards, J.) ("Because Congress has
elected not to impose
respondeat superior liability under
§ 1983, appellant invites this court to expand the remedial options
under
Bivens [v. Six Unknown Fed. Narcotics Agents,
403 U. S. 388
(1971)]. We can find no good logic nor sound legal basis for this
view; we therefore decline the invitation");
accord, Owen v.
Independence, 589 F.2d 335, 337 (CA8 1978);
Thomas v.
Shipka, 818 F.2d 496 (CA6 1987);
Ellis v. Blum, 643
F.2d 68, 85 (CA2 1981);
Cale v. Covington, 586 F.2d 311,
317 (CA4 1978);
Molina v. Richardson, 578 F.2d 846 (CA9),
cert. denied, 439 U.S. 1048 (1978). Given our repeated
recognition that the Fourteenth Amendment was intended in large
part to embody and expand the protections of the 1866 Act as
against state actors, we believe that the logic of these decisions
applies with equal force to petitioner's invitation to this Court
to create a damages remedy broader than § 1983 from the declaration
of rights now found in § 1981. We hold that the express "action at
law" provided by § 1983 for the "deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,"
provides the exclusive federal damages remedy for the violation of
the rights guaranteed by § 1981 when the claim is pressed against a
state actor. Thus, to prevail on his claim for damages against the
school district, petitioner must show that the violation of his
"right to make contracts" protected
Page 491 U. S. 736
by § 1981 was caused by a custom or policy within the meaning of
Monell and subsequent cases.
IV
The jury found that Principal Todd had violated petitioner's
rights under § 1981, the First Amendment, and the Equal Protection
Clause in recommending petitioner's removal from the athletic
director and head coaching positions at South Oak. As to the
liability of the DISD, the trial judge gave the jury the following
instruction:
"A public independent school district (such as and including the
Dallas Independent School District), acts by and through its Board
of Trustees and/or its delegated administrative officials
(including the Superintendent and school principals), with regard
to action taken against or concerning school district
personnel."
"A public independent school district (such as and including the
Dallas Independent School District) is liable for the actions of
its Board of Trustees and/or its delegated administrative officials
(including the Superintendent and school principals), with regard
to wrongful or unconstitutional action taken against or concerning
school district personnel."
App. 31.
We agree with the Court of Appeals that this instruction was
manifest error. The instruction seems to rest either on the
assumption that both Principal Todd and Superintendent Wright were
policymakers for the school district, or that the school district
is vicariously liable for any actions taken by these employees.
Since we have rejected
respondeat superior as a basis for
holding a state actor liable under § 1983 for violation of the
rights enumerated in § 1981, we refer to the principles to be
applied in determining whether either Principal Todd or
Superintendent Wright can be considered policymakers for the school
district such that their decisions may rightly be said to represent
the official policy of the DISD subjecting it to liability under §
1983.
Page 491 U. S. 737
Last Term, in
St. Louis v. Praprotnik, 485 U.
S. 112 (1988), (plurality opinion), we attempted a
clarification of tools a federal court should employ in determining
where policymaking authority lies for purposes of § 1983. In
Praprotnik, the plurality reaffirmed the teachings of our
prior cases to the effect that "whether a particular official has
final policymaking authority' is a question of state
law." Id. at
485 U. S. 123 (emphasis in original), quoting
Pembaur, 475 U.S. at 475 U. S. 483
(plurality opinion). As with other questions of state law relevant
to the application of federal law, the identification of those
officials whose decisions represent the official policy of the
local governmental unit is itself a legal question to be resolved
by the trial judge before the case is submitted to the
jury. Reviewing the relevant legal materials, including state and
local positive law, as well as "`custom or usage' having the force
of law," Praprotnik, supra, at 485 U. S. 124,
n. 1, the trial judge must identify those officials or governmental
bodies who speak with final policymaking authority for the local
governmental actor concerning the action alleged to have caused the
particular constitutional or statutory violation at issue. Once
those officials who have the power to make official policy on a
particular issue have been identified, it is for the jury to
determine whether their decisions have caused the
deprivation of rights at issue by policies which affirmatively
command that it occur, see Monell, 436 U.S. at
436 U. S. 661,
n. 2, or by acquiescence in a longstanding practice or custom which
constitutes the "standard operating procedure" of the local
governmental entity. See Pembaur, supra, at 475 U. S.
485-487 (WHITE, J, concurring).
We cannot fault the trial judge for not recognizing these
principles in his instructions to the jury, since this action was
tried in October, 1984, and the District Court did not have the
benefit of our decisions in either
Pembaur or
Praprotnik to guide it. Similarly, the Court of Appeals
issued its decision in this action before our decision in
Praprotnik. Pursuant to its cross-petition in No. 88-214,
the school district urges us
Page 491 U. S. 738
to review Texas law and determine that neither Principal Todd
nor Superintendent Wright possessed the authority to make final
policy decisions concerning the transfer of school district
personnel.
See Brief for Respondent 6-8. Petitioner Jett
seems to concede that Principal Todd did not have policymaking
authority as to employee transfers,
see Brief for
Petitioner 30, but argues that Superintendent Wright had been
delegated authority to make school district policy concerning
employee transfers, and that his decisions in this area were final
and unreviewable.
Id. at 30-32.
We decline to resolve this issue on the record before us. We
think the Court of Appeals, whose expertise in interpreting Texas
law is greater than our own, is in a better position to determine
whether Superintendent Wright possessed final policymaking
authority in the area of employee transfers, and, if so, whether a
new trial is required to determine the responsibility of the school
district for the actions of Principal Todd in light of this
determination. We thus affirm the judgment of the Court of Appeals
to the extent it holds that the school district may not be held
liable for its employees' violation of the rights enumerated in §
1981 under a theory of
respondeat superior. We remand the
case to the Court of Appeals for it to determine where final
policymaking authority as to employee transfers lay in light of the
principles enunciated by the plurality opinion in
Praprotnik and outlined above.
It is so ordered.
JUSTICE SCALIA, concurring in part and concurring in the
judgment.
I join Parts I and IV of the Court's opinion, and Part III
except insofar as it relies upon legislative history. To hold that
the more general provisions of 42 U.S.C. § 1981 establish a mode of
liability for a particular category of offense by municipalities
that is excluded from the closely related statute (42 U.S.C. §
1983) which deals more specifically with that precise category of
offense would violate the rudimentary
Page 491 U. S. 739
principles of construction that the specific governs the
general, and that, where text permits, statutes dealing with
similar subjects should be interpreted harmoniously.
JUSTICE BRENNAN, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, dissenting.
To anyone familiar with this and last Terms' debate over whether
Runyon v. McCrary, 427 U. S. 160
(1976), should be overruled,
see Patterson v. McLean Credit
Union, ante p. 164, today's decision can be nothing short of
astonishing. After being led to believe that the hard question
under 42 U.S.C. § 1981 -- the question that prompted this Court, on
its own initiative, to set
Patterson for reargument,
485 U. S. 617
(1988) -- was whether the statute created a cause of action
relating to
private conduct, today we are told that the
hard question is, in fact, whether it creates such an action on the
basis of
governmental conduct. It is strange, indeed,
simultaneously to question whether § 1981 creates a cause of action
on the basis of private conduct (
Patterson) and whether it
creates one for governmental conduct (these cases) -- and hence to
raise the possibility that this landmark civil rights statute
affords no civil redress at all.
In granting certiorari in these cases we did not, as the
plurality would have it, agree to review the question whether one
may bring a suit for damages under § 1981 itself on the basis of
governmental conduct. The plurality hints that petitioner Jett
offered this issue for our consideration,
ante at
491 U. S. 711
("In essence, petitioner argues that in 1866 the 39th Congress
intended to create a cause of action for damages against municipal
actors and others who violated the rights now enumerated in §
1981"), when in fact, it was
respondent who raised this
issue, and who did so for the first time in its brief on the merits
in this Court. [
Footnote 1] In
six years of proceedings in
Page 491 U. S. 740
the lower courts, including a jury trial and an appeal that
produced two opinions, respondent never once suggested that Jett's
only remedy was furnished by § 1983. Petitioner was able to respond
to this argument only in his reply brief in this Court. While it is
true that we often affirm a judgment on a ground not relied upon by
the court below, we ordinarily do so only when that ground at least
was raised below.
See, e.g., Heckler v. Campbell,
461 U. S. 458,
461 U. S. 468,
n. 12 (1983);
Washington v. Yakima Indian Nation,
439 U. S. 463,
439 U. S. 476,
n. 20 (1979);
Hankerson v. North Carolina, 432 U.
S. 233,
432 U. S. 240,
n. 6 (1977);
Massachusetts Mutual Life Ins. Co. v. Ludwig,
426 U. S. 479
(1976);
Dandridge v. Williams, 397 U.
S. 471,
397 U. S. 475,
n. 6 (1970).
It is not only unfair to decide the action on this basis; it is
unwise. The question is important; to resolve it on the basis of
largely one-sided briefing, without the benefit of the views of the
courts below, is rash. It is also unnecessary. The Court appears to
decide today (though its precise holding is less than pellucid)
that liability for violations by the government of § 1981 may not
be predicated on a theory of
respondeat superior. The
answer to that question would dispose of Jett's contentions. In
choosing to decide, as well, whether § 1983 furnishes the exclusive
remedy for violations of § 1981 by the government, the Court makes
many mistakes that might have been avoided by a less impetuous
course.
Because I would conclude that § 1981 itself affords a cause of
action in damages on the basis of governmental conduct violating
its terms, and because I would conclude that such an action may be
predicated on a theory of
respondeat superior, I
dissent
I
Title 42 U.S.C. § 1981, originally enacted as part of § 1 of the
Civil Rights Act of 1866 (1866 Act), provides in full:
Page 491 U. S. 741
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other."
The question is whether this statute permits a cause of action
in damages against those who violate its terms.
The plurality approaches this issue as though it were new to us,
recounting in lengthy and methodical detail the introduction,
debate, passage, veto, and enactment of the 1866 Act. The story
should by now be familiar to anyone with even a passing
acquaintance with this statute. This is so because we have reviewed
this history in the course of deciding -- and reaffirming the
answer to -- the very question that the plurality deems so novel
today.
See Jones v. Alfred H. Mayer Co., 392 U.
S. 409 (1968);
Sullivan v. Little Hunting Park,
Inc., 396 U. S. 229
(1969);
Tillman v. Wheaton-Haven Recreation Assn., Inc.,
410 U. S. 431
(1973);
Johnson v. Railway Express Agency, Inc.,
421 U. S. 454
(1975);
Runyon v. McCrary, 427 U.
S. 160 (1976);
McDonald v. Santa Fe Trail
Transportation Co., 427 U. S. 273
(1976);
Delaware State College v. Ricks, 449 U.
S. 250 (1980);
General Building Contractors Assn.,
Inc. v. Pennsylvania, 458 U. S. 375
(1982);
Saint Francis College v. Al-Khazraji, 481 U.
S. 604 (1987);
Shaare Tefila Congregation v.
Cobb, 481 U. S. 615
(1987);
Goodman v. Lukens Steel Co., 482 U.
S. 656 (1987);
Patterson v. McLean Credit Union,
ante p.
491 U. S. 164. An
essential aspect of the holding in each of these cases was the
principle that a person injured by a violation of § 1 of the 1866
Act (now 42 U.S.C. §§ 1981 and 1982) may bring an action for
damages under that statute against the person who violated it.
Page 491 U. S. 742
We have had good reason for concluding that § 1981 itself
affords a cause of action against those who violate its terms. The
statute does not explicitly furnish a cause of action for the
conduct it prohibits, but this fact was of relatively little moment
at the time the law was passed. During the period when § 1 of the
1866 Act was enacted, and for over 100 years thereafter, the
federal courts routinely concluded that a statute setting forth
substantive rights without specifying a remedy contained an implied
cause of action for damages incurred in violation of the statute's
terms.
See, e.g., 5 U. S.
Madison, 1 Cranch 137,
5 U. S. 162-163
(1803);
Kendall v. United
States, 12 Pet. 524,
37 U. S. 624
(1838);
Pollard v.
Bailey, 20 Wall. 520,
87 U. S. 527
(1874);
Hayes v. Michigan Central R. Co., 111 U.
S. 228,
111 U. S. 240
(1884);
De Lima v. Bidwell, 182 U. S.
1,
182 U. S.
176-177 (1901);
Texas & N.0. R. Co. v. Railway
Clerks, 281 U. S. 548,
281 U. S. 569,
281 U. S. 570
(1930);
Bell v. Hood, 327 U. S. 678,
327 U. S. 684,
and n. 6 (1946);
J.I. Case Co. v. Borak, 377 U.
S. 426,
377 U. S. 433
(1964). The classic statement of this principle comes from
Texas & Pacific R. Co. v. Rigsby, 241 U. S.
33,
241 U. S. 39-40
(1916), in which we observed:
"A disregard of the command of the statute is a wrongful act,
and, where it results in damage to one of the class for whose
especial benefit the statute was enacted, the right to recover the
damages from the party in default is implied, according to a
doctrine of the common law."
This case fits comfortably within
Rigsby's framework.
It is of small consequence, therefore, that the 39th Congress
established no explicit damages remedy in § 1 of the 1866 Act.
[
Footnote 2]
Page 491 U. S. 743
Indeed, the debates on § 1 demonstrate that the legislators'
worry was not that their actions would do too much, but that they
would do too little. In introducing the bill that became the 1866
Act, Senator Trumbull explained that the statute was necessary
because
"[t]here is very little importance in the general declaration of
abstract truths and principles [contained in the Thirteenth
Amendment] unless they can be carried into effect,
unless the
persons who are to be affected by them have some means of availing
themselves of their benefits."
Cong.Globe, 39th Cong., 1st Sess., 474 (1866) (emphasis added).
Representative Thayer of Pennsylvania echoed this theme:
"When I voted for the amendment to abolish slavery . . . I did
not suppose that I was offering . . . a mere paper guarantee."
"The bill which now engages the attention of the House has for
its object to carry out and guaranty
Page 491 U. S. 744
the reality of that great measure. It is to give to it practical
effect and force. It is to prevent that great measure from
remaining a dead letter upon the constitutional page of this
country."
Id. at 1151.
In these circumstances, it would be unreasonable to conclude
that inferring a private cause of action from § 1981 is
incompatible with Congress' intent. Yet, in suggesting that § 2 of
the 1866 Act demonstrates Congress' intent that criminal penalties
serve as the only remedy for violations of § 1,
ante at
491 U. S.
715-721, this is exactly the conclusion that the
plurality apparently would have us draw. Not only, however, is this
argument contrary to legislative intent, but we have already
squarely rejected it. In
Jones v. Alfred H. Mayer Co.,
respondent argued that, because § 2 furnished criminal penalties
for violations of § 1 occurring "under color of law," § 1 could not
be read to provide a civil remedy for violations of the statute by
private persons. Dismissing this argument, we explained:
"[Section] 1 was meant to prohibit all racially motivated
deprivations of the rights enumerated in the statute, although only
those deprivations perpetrated 'under color of law' were to be
criminally punishable under § 2."
392 U.S. at 426. [
Footnote
3]
Page 491 U. S. 745
The only way that the plurality can distinguish
Jones,
and the cases following it, from this action is to argue that our
recognition of an implied cause of action against private persons
did not include recognition of an action against local governments
and government officials. But before today, no one had questioned
that a person could sue a government official for damages due to a
violation of § 1981. We have, in fact, reviewed two cases brought
pursuant to § 1981 against government officials or entities without
giving the vaguest hint that the lawsuits were improperly brought.
See Hurd v. Hodge, 334 U. S. 24
(1948);
Takahashi v. Fish and Game Comm'n, 334 U.
S. 410 (1948). Indeed, in
Jones v. Alfred H. Mayer
Co., the dissenters relied on
Hurd v. Hodge in
arguing that § 1981 applied
only to governmental conduct.
392 U.S. at
392 U. S. 452.
The lower courts have heeded well the message from our cases: they
unanimously agree that suit may be brought directly under § 1981
against government officials who violate the statute's terms.
See, e.g., Metrocare v. Washington Metropolitan Area Transit
Auth., 220 U.S.App.D.C. 104, 679 F.2d 922 (1982);
Springer
v. Seamen, 821 F.2d 871 (CA1 1987);
Mahone v. Waddle,
564 F.2d 1018 (CA3 1977),
cert. denied, 438 U.S. 904
(1978);
Jett v. Dallas Independent School Dist., 798 F.2d
748 (CA5 1986),
on motion for rehearing, 837 F.2d 1244
(CA5 1988) (case below);
Leonard v. Frankfort Electric and
Water Plant Board, 752 F.2d 189 (CA6 1985);
Bell v.
Milwaukee, 746 F.2d 1205 (CA7 1984);
Taylor v. Jones,
653 F.2d 1193 (CA8 1981); Greenwood v. Ross, 778 F.2d 448 (CA8
1985);
Sethy v. Alameda County Water Dist., 545 F.2d 1157
(CA9 1976) (en banc).
Perhaps recognizing how odd it would be to argue that one may
infer from § 1 of the 1866 Act a cause of action against private
persons, but not one against government officials, the Court
appears to claim that the 1871 Act erased
Page 491 U. S. 746
whatever action against government officials previously existed
under the 1866 Act. The Court explains:
"That we have read § 1 of the 1866 Act to reach private action
and have implied a damages remedy to effectuate the declaration of
rights contained in that provision does not authorize us to do so
in the context of the 'state action' portion of § 1981, where
Congress has established its own remedial scheme. In the context of
the application of § 1981 and § 1982 to private actors, we 'had
little choice but to hold that aggrieved individuals could enforce
this prohibition,
for there existed no other remedy to address
such violations of the statute.' . . . That is manifestly not
the case here, and, whatever the limits of the judicial power to
imply or create remedies, it has long been the law that such power
should not be exercised in the face of an express decision by
Congress concerning the scope of remedies available under a
particular statute."
Ante at
491 U. S.
731-732, quoting
Cannon v. University of
Chicago, 441 U. S. 677,
441 U. S. 728
(1979) (WHITE, J., dissenting) (emphasis in original; footnote
omitted). This argument became available only after § 1983 was
passed, and thus suggests that § 1983 changed the cause of action
implicitly afforded by § 1981. However, not only do we generally
disfavor repeals by implication,
see, e.g., Morton v.
Mancari, 417 U. S. 535,
417 U. S.
549-550 (1974);
Posadas v. National City Bank,
296 U. S. 497,
296 U. S. 503
(1936);
Henderson's
Tobacco, 11 Wall. 652,
78 U. S.
656-658 (1871), but we should be particularly hostile to
them when the allegedly repealing statute specifically rules them
out. In this regard, § 7 of the 1871 Act is highly significant; it
provided
"[t]hat nothing herein contained shall be construed to supersede
or repeal any former act or law except so far as the same may be
repugnant thereto."
§ 7, 17 Stat. 15. [
Footnote
4]
Page 491 U. S. 747
The Court's argument fails for other reasons as well. Its
essential point appears to be that, in § 1983, "Congress has
established its own remedial scheme" for the "state action" portion
of § 1981. [
Footnote 5]
Ante at
491 U. S. 731.
For this argument, the Court may not rely, as it attempts to do, on
the principle that
"'when legislation expressly provides a particular remedy or
remedies, courts should not expand the coverage of the statute
Page 491 U. S. 748
to subsume other remedies.'"
Ante at
491 U. S. 732,
quoting
National Railroad Passenger Corporation v. National
Assn. of Railroad Passengers, 414 U.
S. 453,
414 U. S. 458
(1974). That principle limits the inference of a remedy for the
violation of a statute only when
that same statute already
sets forth specific remedies. It cannot be used to support the
argument that the provision of particular remedies in § 1983 tells
us whether we should infer a damages remedy for violations of §
1981.
The suggestion, moreover, that today's holding "finds support
in"
Brown v. GSA, 425 U. S. 820
(1976), is audacious.
Ante at
491 U. S. 733.
Section 1983 -- which, for example, specifies no exhaustion
requirement, no damages limitation, no defenses, and no statute of
limitations -- can hardly be compared with § 717 of the Civil
Rights of 1964, at issue in
Brown, with its many detailed
requirements and remedies,
see 425 U.S. at
425 U. S.
829-832. Indeed, in
Preiser v. Rodriguez,
411 U. S. 475,
411 U. S. 489
(1973), we emphasized the "general" nature of § 1983 in refusing to
allow former prisoners to challenge a prison's withholding of
good-time credits under § 1983, rather than under the federal
habeas corpus statute, 28 U.S.C. § 2254. We never before have
suggested that § 1983's remedial scheme is so thorough that it
preempts the remedies that might otherwise be available under other
statutes; indeed, all of our intimations have been to the contrary.
See, e.g., Middlesex County Sewerage Authority v. National Sea
Clammers Assn., 453 U. S. 1,
453 U. S. 19-21
(1981).
According to the Court, to allow an action complaining of
government conduct to be brought directly under § 1981 would
circumvent our holding in
Monell v. New York City Dept. of
Social Services, 436 U. S. 658
(1978), that liability under § 1983 may not be based on a theory of
respondeat superior. Ante at
491 U. S.
735-736. Not only am I unconvinced that we should narrow
a statute as important as § 1981 on the basis of something so vague
and inconclusive as "federalism concerns which had very real
constitutional underpinnings
Page 491 U. S. 749
for the Reconstruction Congresses,"
ante at
491 U. S. 734,
but I am also unable to understand how
Monell's limitation
on § 1983 liability begins to tell us whether the same restriction
exists under § 1981, enacted five years earlier than § 1983 and
covering a far narrower range of conduct. It is difficult to
comprehend, in any case, why the Court is worried that construing §
1981 to create a cause of action based on governmental conduct
would render local governments vicariously liable for the delicts
of their employees, since it elsewhere goes to great lengths to
suggest that liability under § 1981 may
not be vicarious.
See ante at
491 U. S.
718-720.
The Court's primary reason for distinguishing between private
and governmental conduct under § 1981 appears to be its impression
that, because private conduct is not actionable under § 1983, we
"had little choice" but to hold that private individuals who
violated § 1981 could be sued directly under § 1981.
See
ante at
491 U. S. 731.
This claim, however, suggests that whether a cause of action in
damages exists under § 1981 depends on the scope of § 1983. In
deciding whether a particular statute includes an implied cause of
action, however, we have not in the past suggested that the answer
will turn on the reach of a different statute. In
National Sea
Clammers, for example, we analyzed both the question whether
the Federal Water Pollution Control Act included an implied cause
of action for damages, 453 U.S. at
453 U. S. 13-19,
and the question whether an action could be brought under § 1983
for violations of that statute,
id. at
453 U. S. 19-21,
thus indicating that the answer to the latter question does not
tell us the answer to the former one.
The Court's approach not only departs from our prior analysis of
implied causes of action, but also attributes an intent to the 39th
Congress that fluctuates depending on the state of the law with
regard to § 1983. On the Court's theory, if this case had arisen
during the period between our decisions in
Monroe v. Pape,
365 U. S. 167
(1961), and
Monell v. New York City Dept. of Social Services,
supra, when we believed
Page 491 U. S. 750
that local governments were not "persons" within the meaning of
§ 1983, we would apparently have been required to decide that a
cause of action could be brought against local governments and
their officials directly under § 1981. The plurality, in fact,
confirms this conclusion in distinguishing
Hurd v. Hodge,
334 U. S. 24
(1948), solely on the ground that we decided it at a time when §
1983 did not apply to the District of Columbia.
See ante
at
491 U. S. 713.
In other words, on the Court's view, a change in the scope of §
1983 alters the reach of § 1981. I cannot endorse such a bizarre
conception of congressional intent.
II
I thus would hold that Jett properly brought his suit against
respondent directly under § 1981. It remains to consider whether
that statute permits recovery against a local government body on a
theory of
respondeat superior.
Because § 1981 does not explicitly create a cause of action in
damages, we would look in vain for an express statement that the
statute contemplates liability based on the doctrine of
respondeat superior. In
Monell v. New York City Dept.
of Social Services, supra, however, our background assumption
appears to have been that, unless a statute subjecting institutions
(such as municipalities) to liability evidences an intent not to
impose liability on them based on
respondeat superior,
such liability will be assumed.
Id. at
436 U. S. 691.
The absolute language of § 1981 therefore is significant:
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts . . . as is enjoyed by white citizens."
42 U.S.C. § 1981. Certainly nothing in this wording refutes the
argument that vicarious liability may be imposed under this
law.
Section 1983, in contrast, forbids a person to "subjec[t], or
caus[e] to be subjected" another person to a deprivation of the
rights protected by the statute. It is telling that § 1981 does not
contain this explicit language of causation. In holding in
Monell that liability under § 1983 may not be
predicated
Page 491 U. S. 751
on a theory of
respondeat superior, we emphasized that
§ 1983
"plainly imposes liability on a government that, under color of
some official policy, 'causes' an employee to violate another's
constitutional rights. . . . Indeed, the fact that Congress did
specifically provide that A's tort became B's liability if B
'caused' A to subject another to a tort suggests that Congress did
not intend § 1983 liability to attach where such causation was
absent."
436 U.S. at
436 U. S. 692.
The absence of this language in § 1 of the 1866 Act, now § 1981,
argues against the claim that liability under this statute may not
be vicarious.
While it acknowledged that § 1 of the 1866 Act did not contain
the "subjects, or causes to be subjected" language of § 1983, the
Court of Appeals nevertheless emphasized that § 2 of the 1866 Act
did contain this language. 837 F.2d 1244, 1247 (CA5 1988). There is
not the least inconsistency, however, in arguing that the
criminal penalties under the 1866 Act may not be imposed
on the basis of
respondeat superior, but that the civil
penalties may be. Indeed, it is no surprise that the history
surrounding the enactment of § 2, as the plurality stresses,
ante at
491 U. S.
719-720, indicates that Congress envisioned criminal
penalties only for those who, by their own conduct, violated the
statute, since vicarious criminal liability would be extraordinary.
The same cannot be said of vicarious civil liability.
Nor does anything in the history of § 1981 cast doubt on the
argument that liability under the statute may be vicarious. The
Court of Appeals placed heavy reliance on Congress' rejection of
the Sherman amendment, which would have imposed a dramatic form of
vicarious liability on municipalities, five years after passing the
1866 Act. 837 F.2d at 1246-1247. That the plurality appears to
accept this argument,
see ante at
491 U. S.
726-729, is curious, given our frequent reminder that
"
the views of a subsequent Congress form a hazardous basis for
inferring the intent of an earlier one.'" Consumer
Product Safety Comm'n v. GTE Sylvania, Inc., 447
U.S.
Page 491 U. S. 752
102,
447 U. S. 117
(1980), quoting
United States v. Price, 361 U.
S. 304,
361 U. S. 313
(1960). I do not understand how Congress' rejection of an amendment
imposing a very new kind of vicarious liability on municipalities
can tell us what a different and earlier Congress intended with
respect to conventional vicarious liability.
According to the plurality, the history of the Sherman amendment
is relevant to the interpretation of § 1981 because it reveals
Congress' impression that it had no authority to subject
municipalities to the kind of liability encompassed by the
amendment.
See ante at
491 U. S.
727-729. The plurality fails to recognize, however, that
the circumstances in which municipalities would be vicariously
liable under the Sherman amendment are very different from those in
which they would be liable under § 1981. As the plurality describes
it, the Sherman amendment
"provided that, where injuries to person or property were caused
by mob violence directed at the enjoyment or exercise of federal
civil rights,"
"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."
Ante at
491 U. S. 727,
quoting Cong.Globe, 42d Cong., 1st Sess., 755 (1871). Because the
threat of such liability would have forced municipalities to ensure
that private citizens did not violate the rights of others, it
would have run up against Justice Story's conclusion in
Prigg v.
Pennsylvania, 16 Pet. 539,
41 U. S. 616
(1842), that Congress could not "insist that the states are bound
to provide means to carry into effect the duties of the national
government." To hold a local government body liable for the
discriminatory cancellation of a contract entered into by that
local body itself, however, is a very different matter. Even
assuming that the 39th Congress had the same constitutional
concerns as the 42d therefore, those concerns cast no doubt on
Congress' authority to hold local government bodies vicariously
liable under § 1 of the 1866 Act in circumstances such as those
present here.
Page 491 U. S. 753
I thus would conclude that liability under § 1981 may be
predicated on a theory of
respondeat superior.
III
No one doubts that § 1983 was an unprecedented federal statute.
See ante at
491 U. S.
723-726. The question is not whether § 1983 wrought a
change in the law, but whether it did so in such a way as to
withdraw a remedy that § 1 of the 1866 Act had implicitly afforded.
Unlike the plurality, I would conclude that it did not.
[
Footnote 1]
The plurality twice cites petitioner Jett's opening brief,
ante at
491 U. S. 712,
as if it presents this question. Neither of the passages to which
the plurality refers, however, even remotely suggests that Jett
anticipated, let alone raised, the argument that respondent
advanced for the first time in its own brief on the merits.
[
Footnote 2]
During the 1970's, we modified our approach to determining
whether a statute contains an implied cause of action, announcing
the following four-part test:
"First, is the plaintiff 'one of the class for whose especial
benefit the statute was enacted' -- that is, does the statute
create a federal right in favor of the plaintiff? Second, is there
any indication of legislative intent, explicit or implicit, either
to create such a remedy or to deny one? Third, is it consistent
with the underlying purposes of the legislative scheme to imply
such a remedy for the plaintiff? And finally, is the cause of
action one traditionally relegated to state law, in an area
basically the concern of the States, so that it would be
inappropriate to infer a cause of action based solely on federal
law?"
Cort v. Ash, 422 U. S. 66,
422 U. S. 78
(1975) (citations omitted), quoting
Texas & Pacific R. Co.
v. Rigsby, 241 U.S. at
241 U. S. 39. It
would make no sense, however, to apply a test first enunciated in
1975 to a statute enacted in 1866. An inquiry into Congress' actual
intent must take account of the interpretive principles in place at
the time.
See Cannon v. University of Chicago,
441 U. S. 677,
441 U. S.
698-699 (1979);
Merrill Lynch, Pierce, Fenner &
Smith, Inc. v. Curran, 456 U. S. 353,
456 U. S.
375-378 (1982).
See also Welch v. Texas Dept. of
Highways and Public Transportation, 483 U.
S. 468,
483 U. S. 496
(1987) (SCALIA, J., concurring) (advising against construing a
statute on the basis of an interpretive principle announced after
the statute was passed). Thus, I would interpret § 1981 in light of
the principle described in
Rigsby, rather than the one
described in
Cort.
Application even of the test fashioned in
Cort,
however, would lead to the conclusion that Jett may bring a cause
of action in damages against respondent under § 1981. Jett belongs
to the special class of persons (those who have been discriminated
against in the making of contracts) for whom the statute was
created; all of the indicators of legislative intent point in the
direction of an implied cause of action; such an action is
completely consistent with the statute's purposes; and, in view of
the fact that this Reconstruction-era legislation was in part
designed to curtail the authority of the States, it would be
unreasonable to conclude that this cause of action is one relegated
to state law.
[
Footnote 3]
The Court's heavy emphasis on § 2 of the 1866 Act also ignores
the fact that the modern-day descendant of § 1 of the Act, 42
U.S.C. § 1981, includes no remedy or penalty at all. Section 2 of
the 1866 Act now appears at 18 U.S.C. § 242,
see United States
v. Classic, 313 U. S. 299,
313 U. S. 327,
n. 10 (1941), a part of the Code entirely separate from § 1981, and
is applicable to provisions other than § 1981. These facts strongly
argue against placing too much weight on the availability of
criminal penalties in deciding whether § 1981 contains an implied
cause of action.
The plurality's assertion that the 1866 Act created no original
federal jurisdiction for civil actions based on the statute,
see ante at
491 U. S. 721,
is similarly unavailing. The language of § 3 easily includes
original jurisdiction over such suits, and we have in fact
concluded as much.
See Moor v. County of Alameda,
411 U. S. 693,
411 U. S.
704-705 (1973) ("The initial portion of § 3 of the Act
established federal jurisdiction to hear, among other things, civil
actions brought to enforce § 1"). In addition, the plurality's
argument confuses the question of which courts (state or federal)
will enforce a cause of action with whether a cause of action
exists.
[
Footnote 4]
Several
amici argue that we need not conclude that §
1983 impliedly repealed the cause of action furnished by § 1981 in
order to decide that § 1983 provides the sole remedy for violations
of § 1981.
See Brief for International City Management
Association
et al. as
Amici Curiae 18-19. Their
theory is that an implied cause of action did not exist when the
1871 Act was passed, and that therefore one may argue that the 1871
Act furnished the only remedy for the 1866 Act without arguing that
the later statute in any way repealed the earlier one. To support
their premise, they observe, first, that it was not until the
1960's that courts recognized a private cause of action under § 1
of the 1866 Act. In doing so, they ignore our earlier cases
approving actions brought directly under § 1981.
See Hurd v.
Hodge, 334 U. S. 24
(1948). In any event, the relevance of the date on which we
expressly recognized that one could bring a suit for damages
directly under § 1 escapes me; that we did so in the 1960's does
not suggest that we would not have done so had we faced the
question in the 1860's.
Amici assert, in addition, that, "[i]n recognizing an
implied cause of action" under § 1981, we "rested in part on
congressional actions that postdate the creation in 1871 of an
explicit civil cause of action for violations of Section 1981."
Brief for International City Management Association
et al
as
Amici Curiae 19. It is true that
Jones v. Alfred H.
Mayer Co., 392 U. S. 409,
392 U. S. 412,
n. 1 (1968), and
Sullivan v. Little Hunting Park, Inc.,
396 U. S. 229,
396 U. S. 238
(1969), cited 28 U.S.C. § 1343(4) in support of federal
jurisdiction over those cases. I do not understand, however, how
this shows that the 1866 Act, as originally enacted, did not confer
federal jurisdiction over actions to recover damages for violations
of the statute. Moreover, even if the 1866 Act did not confer such
jurisdiction, the jurisdictional question is separate from the
question whether a cause of action may be inferred from the
statute. Indeed,
amici appear to recognize as much when
they argue that, although § 1 did not establish federal
jurisdiction to hear civil actions based on the statute, Congress
"left the task of civil enforcement to the state courts." Brief for
International City Management Association
et al. as
Amici Curiae 17. I cannot imagine what "civil enforcement"
amici have in mind, unless it is the civil remedy that
Jett seeks.
[
Footnote 5]
The one bright spot in today's decision is its reaffirmation of
our holding in
Maine v. Thiboutot, 448 U. S.
1 (1980).
JUSTICE STEVENS, dissenting.
My agreement with JUSTICE BRENNAN'S dissent is buttressed by the
views I expressed in
Middlesex County Sewerage Authority v.
National Sea Clammers Assn., 453 U. S. 1,
453 U. S. 22
(1981) (opinion concurring in judgment in part and dissenting in
part), and in
Oklahoma City v. Tuttle, 471 U.
S. 808,
471 U. S. 834
(1985) (dissenting opinion).