Section 1981 and State Actors

Does 42 U.S.C. Section 1981 provide for a right of action against state actors? What a fascinating puzzle. It’s the stuff of a Federal Courts final exam.

First, the text. Title 42 U.S.C. Section 1981 does not, on its face, give a party a private right of action. Sure, it has rights-creating language, namely everyone “shall have the same right in every State and Territory to make an enforce contracts,” but it doesn’t say: “Anyone whose rights under this provision shall be able to sue.” Does that matter?

We all learned in law school that a right without a remedy is not a right. Or something like that. Today’s Supreme Court, however, is generally anti-lawsuit. Thus, it has taken the approach that, as the Court said in 1918: “The distinction between rights and remedies is fundamental. A right is a well founded or acknowledged claim; a remedy is the means employed to enforce a right or redress an injury.” Chelentis v. Luckenbach S.S. Co., 247 U.S. 372, 384 (1918). You can, in other words, have a right without a remedy. See Alexander v. Sandoval, 532 U.S. 275 (2001) (“The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy.”)

In several cases, however, the Supreme Court held that Section 1981 does indeed contain a private right of action. Section 1981 does not just contain a right: It also contains a remedy. However, Section 1981 was original limited to private parties. Section 1981 did not contain a provision prohibiting the government from discriminating against its citizens.

Thus, in Jett v. Dallas Independent School District, 491 U.S.701 (1989), the Supreme Court held that Section 1981’s implied right of action did not cover state actors. Jett had a bitter dissent. After all, Section 1981 did not limit its text to private parties. Nevertheless, Jett’s holding was clear: There existed no private right of action against state actors.

Here is where things get interesting.

In 1991, Congress amended Section 1981 in the Civil Rights Act of 1991. According to the legislative record, “Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended- (c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”  Gee...What could that language have intended to accomplish?

Our syllogism should be clear, shouldn’t it? Section 1981 allows a private right of action. This private right of action extends to “impairment under color of State law.” Yet all but one Circuit Court of Appeals has held that Section 1981 does not allow a private right of action against state actors. How can this be?

Within a system of separated powers, Congress doesn’t give “high fives” to the Supreme Court. When the Supreme Court interprets a law that Congress favors, then Congress has no need to amend the law. Congress knew that the Courts implied a private right of action under Section 1981. Congress also knew about Jett’s holding. Isn’t that, after all, the clear implication of this language: “Section 1977 of the Revised Statutes (42 U.S.C. 1981) is amended- (c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”

The Circuits, though, claim that because Congress did not say, “We hate Jett,” but instead merely added statutory text stating that “impairment under color of State law” is prohibited: Congress somehow didn’t intend to overrule Jett.

McGovern v. City of Philadelphia, No. 08-1632 (3d Cir. Jan 8, 2009) (here) is illustrative. In McGovern, a unanimous three-judge panel wrote that “§ 1981(c) can establish equal rights for parties against private and state defendants without establishing equal remedies [].” That banality is true. However, the United States Supreme Court, in a long line of cases, had already held that Section 1981 contains a private right of action. Congress did not need to say, “We really liked the Supreme Court’s rulings.”

Instead, the Civil Rights Act of 1991 was enacted “to strengthen and improve Federal civil rights laws.” Congress did so by clarifying that Section 1981. Congress made it clear that Section 1981 “protected against ...impairment under color of State law.”

At last count, every Circuit but one (the Ninth; and you can bet how people will use that against my arguments) has held that the Civil Rights Act of 1991 did not overrule Jett. If the case goes before the United States Supreme Court, you can bet that the Supreme Court will uphold Jett.

It's still an interesting issue.  Probably someone has written an entire law review article on it.  If you know of a good one, please leave a comment.

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