Justices Won't Review Ruling Section 1983 Is Exclusive Remedy for Bias by State Actors

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By Kevin McGowan

Jan. 12 — Denying a former Illinois public park employee's petition, the U.S. Supreme Court Jan. 12 declined to review a federal appeals court ruling that the Civil Rights Act of 1866 (42 U.S.C. § 1981) doesn't provide a remedy for alleged race discrimination by public employers.

Without comment, the justices denied review of a U.S. Court of Appeals for the Seventh Circuit decision that David Campbell, a black parks employee fired after a security camera recorded Campbell having sex with a co-worker on the job, has no Section 1981 claim because the 1866 act doesn't provide a remedy for race discrimination by public employers (752 F.3d 665, 122 FEP Cases 1417 (7th Cir. 2014)).

The Seventh Circuit cited Jett v. Dallas Independent School District, 491 U.S. 701, 50 FEP Cases 27 (1989), for the principle that municipal employees alleging race discrimination instead must proceed under the Civil Rights Act of 1871 (42 U.S.C. § 1983), which provides a specific remedy for discrimination by public officials “under color of state law.”

In seeking review, Campbell argued the Civil Rights Act of 1991 overruled Jett and made Section 1981 remedies available to municipal employees alleging race discrimination. He urged the Supreme Court to resolve a federal circuit split over whether the 1991 act overruled Jett's plurality opinion that Section 1983 is the exclusive federal remedy for discrimination by a state actor.

Opposing review, the Forest Preserve District of Cook County argued that the Seventh Circuit correctly ruled that the 1991 act didn't overrule Jett. Only one federal appeals court has ruled differently. The Seventh Circuit properly found the Ninth Circuit's analysis in Federation of African American Contractors v. City of Oakland, 96 F.3d 1204 (9th Cir. 1996), was flawed because an implied Section 1981 remedy against state actors is unnecessary when Congress already has provided an express remedy under Section 1983, the parks district said.

1991 Act Overruled Jett, Petitioner Argues

Campbell, a former laborer at the Cermak Aquatic Center in Lyons, Ill., sued the parks district for race discrimination under both Section 1981 and Section 1983 after being fired without progressive discipline for his sexual indiscretion on the job, according to Campbell's petition.

A federal district court granted the parks district's motion to dismiss, reasoning that Section 1981 provides no right of action against state actors and Campbell's lawsuit, filed more than two years after his termination, was untimely under Section 1983. On appeal, the Seventh Circuit joined the majority of federal appeals courts by ruling the 1991 Civil Rights Act, although it amended Section 1981, didn't overturn the Supreme Court's holding in Jett that Section 1983 provides the exclusive remedy for Section 1981 violations committed by state actors.

In his petition, Campbell argued that Supreme Court review is “urgently warranted” on the “important” issue of whether the 1991 Civil Rights Act overturned Jett so that public employees can proceed directly under Section 1981 with their race discrimination claims against state actors.

Among other things, a four-year statute of limitations applies to Section 1981 claims, which means Campbell's lawsuit below would have been timely filed, Campbell said.

The Seventh Circuit's decision conflicts with the Ninth Circuit's ruling in Federation of African American Contractors and “disregards the legislative branch's authority to enact laws and amend laws which they feel the courts are misapplying,” Campbell said.

Congress said its purpose in enacting the 1991 act was to respond to recent Supreme Court decisions “by expanding the scope of relevant civil rights statutes in order to provide adequate protection” to discrimination victims. When Congress in 1991 amended Section 1981, it specified in subsection (c) that the relevant statutory rights are protected “against impairment by nongovernmental discrimination and impairment under color of state law.”

Although Congress didn't expressly mention Jett, Campbell argued that the 1991 amendment to Section 1981 was intended to codify Runyon v. McCrary, 427 U.S. 160 (1976), in which the Supreme Court held Section 1981 applies to both private and public employers, Campbell said.

“By reaffirming Runyon, Congress showed its intent for 42 U.S.C. § 1981 to be applied to government entities as well, thereby effectively overruling Jett,” Campbell said.

Congress added language to Section 1981, through subsection (c), to “allow for its application to public employers, just as it has been applied to private employers,” Campbell said. Congress didn't intend unequal treatment of Section 1981's protection against discrimination by public employers, he argued.

“The circuits being divided on the application of [Section] 1981 to governmental employers and it being a matter of interpretation of congressional intent, as to the Civil Rights Act of 1991 amendments to [Section 1981], the issue is ripe” for Supreme Court review, Campbell said.

David A. Novoselsky in Chicago was counsel of record for Campbell.

Impact of 1991 Act Limited

But the Forest Preserve District in opposing review argued that Congress in the 1991 act had no intent to overrule Jett.

Instead, Congress amended Section 1981 to make clear it covered post-contract formation conduct, such as alleged racial harassment of black employees, thereby overruling Patterson v. McLean Credit Union, 491 U.S. 164, 49 FEP Cases 1814 (1989), the parks district said. The legislative history of subsection (c) shows Congress intended merely to codify Runyon, not to overrule Jett, the parks district said.

The Seventh Circuit in Campbell's case joined seven other federal appeals courts in correctly ruling the 1991 act didn't overturn Jett, and Section 1983 therefore remains the exclusive route to remedy alleged discrimination by state actors, the parks district said. The Ninth Circuit, through a flawed analysis in Federation of African American Contractors, is the only circuit to rule differently, and that doesn't warrant Supreme Court review, the parks district said.

Hubert O. Thompson of Brothers & Thompson in Chicago was counsel of record for the Forest Preserve District of Cook County.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com