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Civil Rights Outline Shon Hopwood
II 1 I. Implied Causes of Action through a Federal Statute A. Gonzaga v. Doe (1992): Courts first determine whether Congress intended to create a federal right. Court holds that the question whether Congress intended to create a private right of action is definitively answered in the negative where a statute by its terms grants no private rights to any identifiable class. For a statute to create such private rights, its text must be "phrased in terms of the persons benefited. But even where a statute is phrased in such explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent "to create not just a private right but also a private remedy."
II. What Rights Can Be Enforced in a SS 1983 Action?
A. Maine v. Thiboutot (1980): SS 1983 encompasses violations of federal statutory as well as const. law B. A determination that SS 1983 is available to remedy a statutory or constitutional violation involves a two-step inquiry:
1. Plaintiff must assert the violation of a federal right. Courts consider whether the provision in question creates obligations binding on the governmental unit or rather does no more than express a congressional preference for certain kinds of treatment. Courts have also asked whether the provision in question was intended to benefit the putative class. Golden State Transit v. City of LA (1989) p. 120. a. Gonzaga v. Doe (1992): We made clear that unless Congress "speak[s] with a clear voice," and manifests an "unambiguous" intent to confer individual rights, federal funding provisions provide no basis for private enforcement by SS 1983. b. With this principle in mind, there is no question that FERPA's nondisclosure provisions fail to confer enforceable rights. To begin with, the pro- visions entirely lack the sort of "rights-creating" language critical to showing the requisite congressional intent to create new rights. Unlike the individually focused terminology of Titles VI and IX ("No person ... shall ... be subjected to discrimination"), FERPA's provisions speak only to the Secretary of Education, directing that "[n]o funds shall be made available" to any "educational agency or institution" which has a prohibited "policy or practice." This focus is two steps removed from the interests of individual students and parents and clearly does not confer the sort of "individual entitlement" that is enforceable under SS
1983. These administrative procedures squarely distinguish this case from others, where an aggrieved individual lacked any federal review mechanism, and further counsel against our finding a congressional intent to create individually enforceable private rights. c. FERPA's nondisclosure provisions further speak only in terms of institutional policy and practice, not individual instances of disclosure d. Our conclusion that FERPA's nondisclosure provisions fail to confer enforceable rights is buttressed by the mechanism that Congress chose to provide for enforcing those provisions. Congress expressly authorized the Secretary of Education to "deal with violations " of the Act.
2. Comprehensive remedial scheme: Even when the P has asserted a federal right, the D may show that Congress specifically foreclosed a remedy under SS 1983, by providing a comprehensive enforcement mechanism for protection of a federal right. The availability of administrative mechanisms to protect P's interests is not necessarily sufficient to demonstrate that Congress intended to foreclose a SS 1983 remedy. Rather, the statutory framework must be such that allowing a P to bring a SS 1983 action would be inconsistent with Congress' carefully tailored scheme. The burden is on the D. And courts do not lightly conclude that a Congressional remedy supplants SS 1983. Golden State a Once a plaintiff demonstrates that a statute confers an individual right, the right is presumptively enforceable by SS 1983. Gonzaga b Express right to sue under the statute; court liable to say that is your only right a. State funds cut is not comprehensive remedy b. Can't use SS 1983 to enforce Title 6 and 7 c. Caps on damages is a factor for showing that SS 1983 is not a remedy d. Fitzgerald v. Barnstable (2008): This Court has never held that an implied right of action had the effect of precluding suit under SS 1983, likely because of the difficulty of discerning congressional intent in such a situation. We conclude that Title IX was not meant to be an exclusive mechanism for
2 addressing gender discrimination in schools, or a substitute for SS 1983 suits as a means of enforcing constitutional rights. e. Preiser v. Rodriguez: state prisoner cannot pursue equitable relief for lost good time credits under SS
1983 because federal habeas corpus provides the exclusive remedy. f. Levin v. Madigan (7th Cir. 2012): the Age Discrimination in Employment Act does not preclude a SS
1983 claim for constitutional rights. Nothing in the statutory text precludes a SS 1983 claim; ADEA is not designed to remedy constitutional claims and provides a mechanism to enforce only the substantive rights created by the ADEA; ADEA only allows a suit against an employment agency or labor organization, not against a D; ADEA expressly limits claims by certain individuals; and state employees suing under ADEA are left without a damages remedy since such claims are barred by 11th Amendment immunity.
III. Civil Rights Actions Against Federal Defendants A. Two-step process for finding implied Bivens actions:
1. Alternative remedy: is there an existing process for protecting the constitutionally recognized interest to refrain from providing a new Bivens remedy?
2. Even in the absence of an alternative, federal courts must make a remedial determination paying particular heed to any special factors counseling hesitation before authorizing a new kind of federal litigation. B. In 30 years of Bivens jurisprudence, the Court has extended Bivens only twice, to provide an otherwise nonexistent cause of action against individual officers alleged to have acted unconstitutionally, or to provide a cause of action for a plaintiff who lacked any alternative remedy for harms caused by individual officers. Correctional Services v. Malesko (2001) C. Purpose of Bivens: is to deter individual federal officers from committing constitutional violations. Not concerned with suits against employers. D. Malesko: no Bivens remedy for federal prisoner against a private corporation operating a halfway house in contract with the Bureau of Prisons. E. Minneci v. Pollard (2012): no Bivens action against employees of a privately operated federal prison. Pollard's 8th Amendment claim focuses on the kind of conduct typically falling within the scope of state tort law and thus state tort law provides an alternative remedy.
1. Pollard points out that state trot law may sometimes prove less generous by capping damages, forbidding recovery for emotional suffering, or by imposing procedural obstacles. But we can't find this a sufficient basis to determine state law inadequate. Indeed, state-law remedies and potential Bivens remedies need not be perfectly congruent. The question is whether the state law remedies provide roughly similar incentives for potential defendants to comply with the 8th while also providing roughly similar compensation to victims of violations.
3 IV. State Action Doctrine A. TEST FOR STATE ACTION: Threshold: Is the Defendant government? Does it fall within one of the three exceptions: traditional public function, judicial enforcement, joint participation B. Is there government: legislative bodies, rules and decisions from government agencies
1. Government-created corporations: a. San Fransciso Arts v. USOC (1988): Court held that Olympic Committee was not government even though it was chartered by Congress, regulated by federal law, and partially funded; The fact that Congress granted it a corporate charter does not render the USOC a Government agent. All corporations act under charters granted by a government, usually by a State. They do not thereby lose their essentially private character. Even extensive regulation by the government does not transform the actions of the regulated entity into those of the government. The Government may subsidize private entities without assuming constitutional responsibility for their actions. b. Lebron v. National Railroad Passenger (1995): Amtrak is state action because it was created by federal law, with a board appointed by the president and received substantial federal funding, also the US holds all preferred stock in Amtrak C. Traditional Public Function: FOCUS: involves actions that traditionally ONLY the government performs. If private individuals are performing actions that have traditionally been performed exclusively by the government, their actions may be deemed state action
1. The fact that a private entity performs a function which serves the public does not make its acts state action. San Fran Arts v. US Olympic (1987): NO state action even though US funded Olympic committee and regulated it. Olympic committee not performing traditional public function
2. Court held that a company town must afford speakers the protection of the 1st Amdt, Marsh v. State (1946), but a shopping center need not, Hudgens v. NLRB (1976) (exclusion of picketers from mall). In Marsh, the company town operated just like a regular town and town provided services traditionally left to the state or municipalities. Also, court noted that picketing was protected if it had taken place on a public sidewalk.
3. West v. Atkins (1988): State action because private doctor with contact with the state treats prison inmates; state action since medical treatment in prisons has traditionally been a government function: doctor state actor because the government is required to provide medical treatment under the 8th Amendment; if it was a prison-employed yoga instructor, a service not required by the Constitution, then there is no state actor
4. NCAA v. Tarkanian (1988): NCAA imposed sanctions on Tark. He argued denial of procedural due process. NO state action because UNLV delegated no power to NCAA to take specific action against university employee, even though UNLV had played a role in formulating NCAA rules
5. Flagg Brothers v. Brooks (1978): Creditor-debtor dispute where creditor, under state law, threatens to sell debtor's goods. NO state action because resolution of private disputes not a traditional government function. Our cases state "that a State is responsible for the . . . act of a private party when the State, by its law, has compelled the act." This Court, however, has never held that a State's mere acquiescence in a private action converts that action into that of the State. D. Judicial Enforcement: provides that, in some instances, a court's decision to uphold a private action may violate the Constitution. Is there a court or government enforcement that facilitates the wrongful action challenged?
1. Shelley v. Kramer (1948): judicial enforcement of a restrictive covenant that requires a party to discriminate on the basis of race violates 14th. "These are not cases...in which the State have merely abstained from action, leaving private individuals free to impose such discriminations as they see fit. Rather, these are cases in which the States have made available to such individuals the full coercive power of government...." Court has not extended this case because to do so would mean that any private action would be transformed into state action. E. Joint Participation (entanglement): sometimes when a private party and a state actor jointly participate in an activity, they are both engaged in state action. FOCUS: Is there entanglement for purposes of finding state action in situations in which the government licenses or regulates the action challenged? Two elements
4 1. The deprivation is caused by the exercise of some right or privilege created by the state or by a person for whom the State is responsible.
2. The party charged with the deprivation must be a person who may fairly be said to be a state actor. Fairly said state actor depends upon the circumstances. Private litigant who exercised peremptory challenge in a racially discriminatory manner engaged in state action, see Lugar. Important: where there is a link between government's motive and the private wrong, the Court is likely to find state action. Where that link is absent or attenuated, the Court is less likely to find state action. Burton v. Wilmington Parking Authority (1961): Private restaurant owner, whose building was owned by the state, refused service because of race, WAS state action because the State has "elected to place its power, property and prestige behind the admitted discrimination. How much money the parking lot made depended on the coffee shop so there was a symbiotic relationship and state action: joint economic project. Burton not overruled it is undermined by: a. Moose Lodge v. Irvis (1972): state grant of liquor license to a private club that refused service to an African American held not to be state action. b. Jackson v. Metropolitan (1974): heavily regulated private utility w/ state certificate to sell electricity NO state action; No close nexus between gov actor and private wrong
3. NCAA v. Tarkanian (1988): But a private intercollegiate sports org deemed NOT a state actor, even though it jointly acted with a state university, because the two institutions HAD OPPOSING GOALS. In the typical case, a private party has taken a step causing harm and the question is whether the State was sufficiently involved to treat the step as state action.
4. Edmonson v. Leesville (Kennedy 1991): Use or preemptory challenge by private litigant in civil trial held to be state action. State involvement: 1) state summons jurors, 2) gov control over jurors; 3) private lawyer invokes authority of state court. The court ENFORCES the private conduct that is discriminatory. Private party could not exercise its peremptory challenge absent state court.
5. Brentwood Academy (2001): The issue is whether a statewide association incorporated to regulate interscholastic athletic competition among public and private secondary schools may be regarded as engaging in state action when it enforces a rule against a member school. The association in question here includes most public schools located within the State, acts through their representatives, draws its officers from them, is largely funded by their dues and income received in their stead, and has historically been seen to regulate in lieu of the State Board of Education's exercise of its own authority. We hold that the association's regulatory activity may and should be treated as state action owing to the pervasive entwinement of state school officials in the structure of the association, there being no offsetting reason to see the association's acts in any other way. F. Government Empowerment or Encourgement
1. Norwood v. Harrison (1973): textbook loans to private schools that were racially segregated held to be state action: the evasion principle, this may be an example of a government providing a benefit and letting the org parcel it out in a discriminatory way
2. Gilmore v. Montgomery (1974): exclusive use of public parks by private racially segregated schools held to be state action. "The city's actions significantly enhanced the attractiveness of segregated private schools, formed in reaction against the federal court school order, by enabling them to offer complete athletic programs."
3. Rendell-Baker v. Kohn (1982): private school received over 90% of funds from the state, fired teacher because of her speech: NO state action because government funding ALONE will not suffice to establish state action, must be significant nexus between gov and complained wrong G. Chemerinsky says that Norwood, Gilmore and Rendell-Baker are distinguishable: "The Court is most likely to find that government subsidies are state action when the gov's purpose is to undermine the protection of constitutional rights. Absent such a gov motivation, it is very difficult to find that government funding is sufficient for a finding of state action."
V. Criminal Sanctions and Constitutional Authority A. U.S. v. Guest (1966): the Court extended the protection of the 14th Amendment to citizens who suffer rights deprivations at the hands of private conspiracies, where there is minimal state participation in the conspiracy. B. 14th Amdt. Regulates only State Action: Court held this in The Civil Rights Cases and reaffirmed it in US v. Morrison (2000): Violence Against Women Act: Prophylactic legislation under SS5 must have congruence and proportionality between the injury to be prevented or remedies and the means adopted to that end. The VAW is
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