Amicus Brief — Carey v. Piphus

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JARIUS PIPHUS, A Minor, and GENEVA PIPHUS, Guardian

Ad Litem for JARIUS PIPHUS,

Respondents.

JOHN D. CAREY, et al.

Petitioners,

vs.

PEOPLE UNITED TO SAVE HUMANITY, SILAS BRISCO,

A Minor, and CATHERINE BRISCO, Guardian Ad Litem for

SILAS BRISCO,

Respondents.

BRIEF OF

NATIONAL SCHOOL BOARDS ASSOCIATION

AS AMICUS CURIAE

LEON FIELDMAN

BARRY SULLIVAN

One IBM Plaza

Chieago, Illinois 60611

Attorneys for the

Amicus Curiae

Of Counsel:

JENNER & BLOCK

— elnrepeieeere ne IERIE

UNITED STATES LAW PRINTING CO., CHICAGO, ILLINOIS 60618 (312) 525-6581

—

TABLE OF CONTENTS

PAGE

Interest Of The Amicus Curiae 2.......0.....ccccccceceseeeees 1

ssue Presented For Revier 3

r 3

Constitutional Provisions And Statutes Involved 3

e ¶ 5

CE 8

. —. . 8

I. The Court Of Appeals Erred In Holding That

Plaintiffs Were Entitled To General Compensa-

tory Damages For A Technical Denial Of Their

Due Process Rights, Without Proof Of Actual

Injury, Because Generally Accepted Legal Prin-

ciples Preclude An Award Of Damages Or Allow

Only Nominal Damages In These Circumstances 11

A. In Fashioning Interstitial Adjustments Of

Remedies For Redress Of Civil Rights Vio-

lations, The Federal Courts Must Be Guided

By Traditional Principles Of The Law Of

I a 13

B. The Federal Courts Have Not Traditional-

ly Allowed An Award Of General Compen-

satory Damages For A Bare Violation Of

Constitutional Rights, Without Proof Of

Actual Injury, Even In Areas Subject To

Special Scrutiny Such As First Amendment

Activity And Racial Discrimination In

11. T—— 16

PAGE

©. At Most, Nominal Damages May Be

Awarded In Recognition Of A Technical

Breach Of A Legal Duty Which Does Not

Result In Actual Injury 23

D. The Court Of Appeals Erred In Holding

That General Compensatory Damages Must

Be Awarded When A Student Proves That

He Was Denied His Constitutional Right

To Due Process But Fails To Establish The

Existence Of Any Actual Injury ................ 28

II. Awards Of General Compensatory Damages For

Technical Due Process Violations Are Improper

Because They Are Punitive In Effect, Unneces-

sary To The Proper Enforcement Of The Civil

Rights Acts, And Their Potential Harm To The

Public Schools Far Outweighs Any Possible

ID TED CITED / 33

A. General Compensatory Damages Are Im-

proper Because They Are Punitive In Their

1 ͤ ̃ —a2— 34

B. An Arsenal Of Adequate Remedies Current-

ly Exists To Vindicate The Civil Rights

Ec 37

C. The Detriment To The Publie Schools From

General Compensatory Damage Awards

Far Outweighs The Potential Benefit To

— Ce a ae 42

iii

TABLE OF AUTHORITIES

Cases

PAGE

Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975) ... 22

Basista v. Weir, 340 F.2d 74 (3rd Cir. 1965) .............. 14, 39

Bell v. Gayle, 384 F.Supp. 1022 (N.D. Tex. 1974) — 27

Berry v. Macon County Board of Education, 380 F.

Supp. 1244 (M.D. Ala. 1971) ....... * 28

Bivens v. Six Unknown Agents of the Federal Bureau

of Narcotics, 403 U.S. 388 (1971777 37

Brown v. Board of Education, 347 U.S. 483 (1954) — 46

Chesapeake & Potomac Tel. Co. v. Clay, 194 F.2d 888

(D.C. Cir. 162) —— 23

Cordeco Development Corporation v. Santiago Vas-

quez, 539 F.2d 256 (Ist Cir. 1976), cert. denied.

= I? ͤ— 28

Donovan v. Reinbold, 433 F.2d 738 (9th Cir. 1970) ..... 38

Epperson v. Arkansas, 393 U.S. 97 (19685 47

Fort v. White, 530 F.2d 1113 (2d Cir. 1976) 22

Franks v. Bowman Transportation Co., 424 U.S. 747

(1976) ..... 22

Gibson v. Berryhill, 411 U.S. 564 (1973 — 39

Goss v. Lopez, 419 U.S. 565 (197fſßl1.———————-ͤͤ—ͤ·-—„Ä7êxU—— 8

Hague v. Committee For Industrial Organization, 101

F. 2d 774 (3rd Cir. 1939), mod. on other grounds, 307

OG ñ— 39

PAGE

Holmberg v. Ambrecht, 327 U.S. 392 (1946) — 15

Hortonville Joint School District No. 1 v. Hortonville

Education Association, 426 U.S. 482 (1976) 40

Hostrop v. Board of Junior College District No. 515,

523 F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S.

963 (1976) : . — 2, 31

Ingraham v. Wright, ........ U.S. , 97 8.Ct. 1401

(1977) 1 N 40, 41

Jannetta v. Cole, 493 F.2d 1334 (4th Cir. a 20

Lee v. Macon County Board of Education, 453 F.2d

1104 (5th Cir. 197177 . . 20

Linwood v. City of Peoria, 463 F.2d 763 (7th Cir.

1972), cert. denied, 409 U.S. 1027 (19727 8

Magnett v. Pelletier, 488 F.2d 33 (ist Cir. 1973) — 27

McBeth v. Board of Education, 300 F.Supp. 1270 (E. D.

1 — 20

Monroe v. Pape, 365 U.S. 167 (19617777 14, 46

Moor v. County of Alameda, 411 U.S. 693 (1973) ........ 16

Mt. Healthy School District v. Doyle. U.S. 0

97 S.Ct. 568 (1977) : 17

Nixon v. Herndon, 273 U.S. 536 (1927) 29, 30

Paton v. LaPrade, 524 F.2d 862 (ard Cir. 1975) 27

Piphus v. Carey, 545 F.2d 30 (7th Cir. 1976) 5, 9,

16, 17, 24, 29, 34, 38

Rizzo v. Goode, 423 U.S. 362 (1976) 14, 16

Rolfe v. County Board of Education, 391 F.2d 77 (6th

Oa 19

PAGE

San Antonio Independent School District v. Rodriguez,

EEE 47

Scott v. Donald, 165 U.S. 58 (18977777 31, 32, 33

S-rews v. United States, 325 U.S. 91 (194595 40, 45

Seaton v. Sky Realty Co., Inc., 491 F.2d 634 (7th Cir.

I _ —„— — 22

Silver v. Cormier, 529 F.2d 161 (10th Cir. 1976) ...... 39

Smith v. Losee, 485 F.2d 334 (10th Cir. 1973) (en

banc), cert. denied, 417 U.S. 908 (197) 21

Smith v. Sol D. Adler Realty, 436 F.2d 344 (7th Cir.

mn A 22

Spence v. Staras, 507 F.2d 554 (7th Cir. 1974) 39

Steele v. Title Realty Co., 478 F.2d 380 (10th Cir.

|, | — 22

Stolberg v. Members of Board of Trustees of State

Colleges of Connecticut, 474 F.2d 485 (2d Cir. 1973) 21,

24, 38, 39

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) 15, 16

United Auto Workers v. Russell, 356 U.S. 634 (1958) 36

United States ex rel. Tyrrell v. Speaker, 535 F.2d 823

tt Se 26

Wayne v. Venable, 260 Fed. 64 (8th Cir. 1919) 31, 32

Wellner v. Minnesota State Junior College Board,

7 F.3d 158 (Oth Cir. 1973) ...................................... 21

Wiley v. Sinkler, 179 U.S. 58 (1900) — 31, 32

PAGE

Williams v. Albemarle City Board of Education, 508

F.2d 1242 (4th Cir. 1974) (en bann) 20

Wood v. Strickland, 420 U.S. 308 (197595 8, 9,

10, 35, 38, 43, 45

Wright v. Council of City of Emporia, 407 U.S. 451

—— . —————— 47

Younger v. Harris, 401 U.S. 37 (19717 45

STATUTES

111. ee 40

1. — ˙ —ò§ié 30

111 üĩüͤ%ö 3, 7, 13, 14, 15, 28, 33, 37

11 14 ?ü—»—»-⸗“üͤü ? 4, 6, 13, 14, 15, 33, 39, 40, 48

r crrriteernicinsccesieneeininieneemiiaetemne 22

Ga ee ee OO ceicirtrreteeeteeerrenctine 22

re --- 22

OTHFR AUTHORITIES

Cong. Globe, 42d Cong., Ist Sess., App. 216 (1871) ... 25

Dellinger, Of Rights And Remedies: The Constitution

As A Sword, 85 Harv.L.Rev. 1532 (1972) 37

D. Dobbs, Handbook On The Law Of Remedies (1973) 11

N. Edwards, The Courts And The Public Schools (3rd

3 46

vii

PAGE

Griffis & Wilson, Constitutional Rights And Remedies

In The Non-Renewal Of A Public School Teacher's

Employment Contract, 25 Baylor L.Rev. 549 (1973) 19

James, Tort Liability Of Government Units And Their

Officers, 22 U.Chi.L.Rev. 610 (195895 42

Judicial Conference Of The United States, Rep. of

Proc.: Ann. Rep. of Director of Ad. Off. of U.S.

88898 ——ñññññññññ—ññ 40

Kirp, Proceduralism And Bureaucracy: Due Process

In The School Setting, 28 Stan.L.Rev. 841 (1976) ... 37

McBride, Where Will The Money Come From? Fi-

nancing Education Through 1980-81, 58 Phi Delta

89 44

C. MeCormick, Handbook On The Law of Damages

un a an 24, 36

Morris, Punitive Damages In Tort Cases, 44 Harv.L.

A 11

National Center For Education Statistics, The Condi-

tion Of Education: A Statisticai Report On The

Condition Of Education In The United States

— — —Dꝛ 44

Note, The Proper Scope Of The Civil Rights Act, 66

, = 40

Note, Punitive Damages Under Federal Statutes: A

Functional Analysis, 60 Cal.L.Rev. 191 (1972) ..... 36

viii

PAGB

Note, The Right Insurance May Protect Your District

And Your Wallet Alike, 163 Am.Sch.Board J. 30

+ 44

W. Prosser, Handbook Of The Law Of Torts (4th ed.

| | ͤ—VTü6 wcnn 12

Restatement Of Torts (193999999:96 11

T. Sedgwick, On Damages (9th ed. 1912) 24

Shalala & Kelly, Politics, The Courts And Educational

Policy, 75 Teachers C. Rec. 223 (1973) 45

Shannon, Goss and Wood: Their Implications For

School Practice, 4 J. Law & Ed. 611 (1975) 41, 44

U.S. Code Cong. & Ad. News 5908 (1976) 40

Yudof, Liability For Constitutional Torts And The

Risk-Averse Public School Official, 49 S. Cal. L. Rev.

20 — —ůĩů 35, 44

In the

Supreme Court of the Anited States

Ocrouer Team, 1976

No. 76-1149

JOHN D. CAREY, et 1.

Petittoners,

JARIUS PIPHUS, A Minor, and GENEVA PIPHUS, Guardian

Ad Litem for JARIUS PIPHUS,

Respondents.

JOHN D. CAREY, et al. |

Petitioners,

VS.

PEOPLE UNITED TO SAVE HUMANITY, SILAS BRISCO,

A Minor, and CATHERINE BRISCO, Guardian Ad Litem for

SILAS BRISCO,

Respondents.

BRIEF OF

NATIONAL SCHOOL BOARDS A.30CIATION

AS AMICUS CURIAE

Amicus Curiae, National School Boards Association, is

a nonprofit federation of this nation’s state public school

boards associations, the District of Columbia school board

and the school boards of the offshore flag areas of the

United States. It is organized to promote the general ad-

vancement of education, to encourage the most efficient and

effective organization and administration of the public

schools, and to preserve the unique American tradition of

local lay control, with educational policy decisions ren-

dered by those directly accountable to the public through

the elective or appointive process. In its thirty-seventh

year, National School Boards Association is the only ma-

jor educational organization representing school boards

and their members. Its membership is responsible for the

education of more than ninety-five percent of this nation’s

public school children.

The individuals who make up this nation’s school boards

are predominantly lay elected or appointed community

representatives, responsible under state law for the fiscal

management, staffing, continuity and educational produc-

tivity of the public schools within their jurisdictions.

National School Boards Association submits this brief

with the conviction that the decision of the United States

Court of Appeals for the Seventh Cireuit should be re-

versed because it erroneously holds that local school board

members should be liable for general compensatory dam-

ages when students are suspended from school without a

constitutionally adequate due process hearing, even when

the school officials acted without actual malice and the

students suffered no actual injury. Amicus further believes

that the decision of the Court of Appeals should be re-

versed because it improperly interferes with the ability

of the nation’s school boards to govern effectively the

schools entrusted to their care by the local communities

to whom they are responsible. The concept of local lay

control of the nation’s public schools, a concept rooted

42.2, consented to the filing of this brief.

Whether a public school student is entitled to general

actual malice and the student fails to establish that he

suffered any actual injury.

STATEMENT OF THE CASE

Amicus Curiae relies on the statement of the case set

forth in the brief for petitioners.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The Fourteenth Amendment to the United States Con-

stitution (in pertinent part) :

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due pro-

cess of law; nor deny to any within its juris-

diction the equal protection of the laws.

Section 1983 of Title 42 of the United States Code:

a violation of, a provision of the United

Revenue Code, or title VI of the Civil

1964, the court, in its discretion, may

prevailing party, other than the United

reasonable attorney’s fee as part of the

THE

SUMMARY OF ARGUMENT

The Court of Appeals for the Seventh Circuit held that

public school officials are liable for general compensatory

damages if they suspend a student from school, without

a constitutionally adequate due process hearing, even if

the school officials acted without actual malice, and the

student fails to prove that he suffered any actual injury.

According to the Court of Appeals, a student need not

sustain the burden of proving actual injury because the

existence of general compensatory damages is presumed

from the fact of the constitutional violation itself. If a

technical violation is established, damages must be award-

ed in an amount ‘‘neither so small as to trivialize the right

nor so large as to constitute a windfall.’’ Piphus v. Carey,

545 F.2d 30, 32 (7th Cir. 1976) (footnote omitted).

The threat of liability for substantial damages, in a

highly speculative amount, will seriously impede the work

of the public schools. The recruitment of qualified candi-

dates for school board positions will certainly be encum-

bered if school board members, who generally serve with-

out remuneration, must contemplate using their personal

financial resources to satisfy judgments of this nature

during their terms of service. The cosi to the public

schools from this loss of human resourees would be im-

mense. If school districts, on the other hand, undertake

to indemnify school board members in these circumstances,

as an inducement for them to serve, already scarce pub-

lie funds would be further diverted from the schools’

principal task of providing educational services. In either

event, liability for general compensatory damages will

cause a serious dislocation of traditional arrangements

for managing public education.

The absence of a compelling need for imposing this

difficult choice on local communities is underscored by the

fact that an award of general compensatory damages,

without proof of actual injury, would necessarily consti-

tute a windfall to the student whose rights have been

technically violated, regardless of the amount of the judg-

ment. Moreover, the allowance of general compensatory

damages would effectively sanction an award, which must

by definition be punitive in nature, without requiring the

proof of aggravating circumstances or actual malice which

is the normal prerequisite for punitive damages.

Congress has charged the federal courts with the task

of fashioning appropriate legal and equitable remedies

for the enforcement of the federal civil rights acts. 42

U.S.C. § 1988 (1976). In fashioning appropriate remedies,

the courts must be guided by existing federal law, where

applicable, and by the common law, as modified by the

constitutions and laws of the states. Existing legal prin-

ciples will not support an award of general compensatory

damages for a technical violation of a student’s due pro-

cess rights.

Even in actions to redress racial discrimination and to

protect the exercise of First Amendment rights, the fed-

eral courts have required that damage awards be princi-

pled and measured. When public employees have been

discharged for constitutionally impermissible reasons, for

instance, the courts have allowed them to recover only

the difference in salary between that which they would

have earned if they had retained their employment with

the government, and that which they reasonably could

have earned through suitable alternative employment. In

this context, the courts have emphasized the compensatory

character of damage awards; they have not allowed an

additional award of general compensatory damages based

on the unconstitutionality of the discharge itself. At most,

the courts have awarded nominal damages in recognition

of the technical breach of a legal duty which does not

result in actual injury. The allowance of general compen-

satory damages is inconsistent with the restitutional na-

ture of compensatory damages, and with the background

of tort principles against which remedies for Section 1983

violations have traditionally been fashioned in the federal

courts. 42 U.S.C. § 1983 (1974).

Moreover, it is clear that vigilant enforcement of the

civil rights acts neither requires nor warrants the crea-

tion of a general compensatory damage remedy in these

circumstances. Adequate means for enforcement of the

civil rights acts exist without this added deterrent. In

most cases, it may be assumed that some actual injury

will result from significant infringements of federal civil

rights, and that actual compensatory damages will be

proved. Moreover, proof of actual malice or other ag-

gravating circumstances may justify an award of punitive

damages. Injunctive and declaratory relief are also avail-

able. The federal courts may also encourage the vindica-

tion of federal constitutional rights by allowing an award

of attorneys’ fees to the prevailing party in civil rights

litigation. Finally, a wilful deprivation of civil rights may

lead to criminal prosecution.

This Court has previously recognized that effective local

lay control of the public schools requires that the inter-

vention of the federal courts in school matters should be

narrowly tailored to remedy existing constitutional vio-

lations, without unduly interfering with the local manage-

ment of the schools. General compensatory damages are

not necessary for the effective vindication of constitution-

al rights and, because of their inherently speculative na-

ture, they would seriously interfere with the efficient man-

agement of the public schools.

For these reasons, the judgment of the Court of Ap-

peals for the Seventh Circuit should be reversed.

Introduction

This case presents a question of acute importance to

the continued viability of local lay control of the nation’s

public schools: whether local school officials must be held

liable for general compensatory damages when the con-

stitutional due process rights of students are violated,

without actual malice on the part of school officials and

without proof of actual injury to the students affected.

In Wood v. Strickland, 420 U.S. 308 (1975), this Court

held that local school officials enjoy a qualified immunity

from liability in Section 1983 damage actions. The Court

held that a school official may be liable for compensatory

damages ‘‘only if the school board member acted with

such an impermissible motivation or with such disregard

of the student’s clearly established constitutional rights

that his action cannot reasonably be characterized as being

in good faith.“ Id., 322. The Court did not consider the

precise nature of the compensatory damages to be

awarded.

In this case, the United States District Court for the

Northern District of Illinois held that the plaintiff public

school students were denied due process when they were

suspended from school without constitutionally adequate

hearings. The district court found that the defendant

school officials were not improperly motivated, but held

that they should have been aware that their procedures

did not comply with constitutional requirements.“ While

1 Silas Brisco was suspended from school on September 11, 1973.

Jarius Piphus was suspended on January 23, 1974. Both suspen-

sions occurred prior to this Court's decision in Goss v. Lopez, 419

U.S. 565 (1975). The district court held, however, that the defen-

dant school officials should have known that Brisco and Piphus

were entitled to some type of adjudicative hearing pursuant to the

Seventh Circuit's decision in Linwood v. City of Peoria, 463 F.2d

763 (7th Cir. 1972), cert. denied, 409 U.S. 1027 (1972).

the district court found that defendants were not immune

from liability under the principle established in Wood,

the court held that plaintiffs were not entitled to damages

because they had failed to prove that any actual injury

resulted from the denial of due process. App. 14.2 The

Court of Appeals for the Seventh Circuit reversed the

judgment of the district court, holding that plaintiffs

were entitled to an award of general compensatory dam-

ages, without proof of individualized injury, because the

right to general compensatory damages is inherent in the

due process violation itself. The Seventh Circuit held

that the damage award ‘‘should be neither so small as to

trivialize the right nor so large as to provide a windfall.’’

Piphus v. Carey, 545 F.2d 30, 32 (7th Cir. 1976) (footnote

omitted).

The principle adopted by the Seventh Cireuit autho-

rizes damage awards against public school officials, in a

speculative and uncertain amount, for negligent depriva-

tions of federal constitutional rights that do not result in

actual injury to students. If approved by this Court, the

principle articulated by the Seventh Circuit would seri-

ously affect the continued viability of local lay control of

this nation’s public schools. As the Court noted in Wood,

„The most capable candidates for school board positions

might be deterred from seeking office if heavy burdens

upon their private resources from monetary liability were

a likely prospect during their tenure.’’ Wood v. Strickland,

420 U.S. 308, 320 (1975) (footnote omitted). The persis-

tent threat of open-ended liability, in the nature of general

compensatory damages, would further encumber the al-

ready difficult task of persuading competent and respon-

2 References to Appendix A, Petitioners’ Petition For Writ of

Certiorari To The United States Court of Appeals For The Seventh

Circuit, are designated herein as “App.”

sible citizens to lend their services, usually without re-

muneration, to the management of public education. More-

over, even if school districts were to indemnify board

members, as an encouragement for them to serve, scarce

public resources would be diverted from the schools prin-

cipal task of educating students.

In Wood, the Court recognized that strong considera-

tions of public policy would favor an absolute immunity

for public school officials. The Court held, however, that

countervailing policy considerations required that the im-

munity of school officials should be qualified. [Absolute

immunity would not be justified since it would not sufli-

ciently increase the ability of school officials to exercise

their discretion in a forthright manner to warrant the

absence of a remedy for students subjected to intentional

or otherwise inexcusable deprivations.’’ Jd. While the

Court held that public school officials are not absolutely

immune from liability for compensatory damages, the

policy considerations supporting a qualified immunity

from liability for actual compensatory damages also re-

quire that the principle established in Wood should not

be extended to sanction liability for general compensatory

damages. In the absence of actual injury, the need to

provide a remedy for deprivations of students’ rights,

which informed the Court’s decision in Wood, loses its

force.

Traditionally, the common law has awarded compensa-

tory damages to an injured party as compensation, in-

demnity or restitution for actual injury sustained by him.

Restatement of Torts § 903 (1939). »The law of torts has

a reparative effect; it preserves economic stability by pro-

viding money substitutes for losses. Morris, Punitire

Damages In Tort Cases, 44 Harv.L.Rev. 1173 (1931). Com-

pensatory damages are not allowed in the absence of ac-

tual injury.* The federal courts have followed these prin-

While compensatory damages will not be awarded in the absence

of proof of actual injury, compensatory damages are sometimes

awarded without proof of the amount of actual loss caused by the

injury. With respect to certain torts, such as libel and slander

per se, the law generally presumes that actual damages naturally

result from the mere fact that the tort was committed :

When general damages are awarded in cases of libel or slander

per se, they often represent a reasonable guess, or at least some

kind of guess, that actual damages have been sustained, though

the amount is not capable of proof. If a man is called a com-

munist, he may not lose his customers or friends, but he may

nevertheless lose their confidence in some unprovable way,

and this may indeed cost him money in the future even

though he could never hope to prove it. Thus one important

factor in the award of general damages is some estimate, how-

ever rough, of the probable degree of actual loss a man will

suffer given the particular charge against him, even though

that loss cannot be identified in money terms.

D. Dobbs, Handbook On The Law Of Remedies § 7.2. pp. 513-4

(1973) (footnote omitted) (emphasis in original).

(footnote continued )

ciples in compensating victims for tortious interference

with their federal civil rights. Numerous cases exist in

which state officials have violated First Amendment free-

(footnote continued)

The rationale for general damage awards in cases of libel and

slander per se rests on a presumption that these types of defama-

tion generally give rise to actual damages, as a matter of course,

but that the precise nature and extent of the damages may be in-

ordinately difficult to prove within the time limits necessarily im-

posed on trials. It would be impossible, of course, to receive testi-

mony from everyone in the community who might have been in-

fluenced by the defamation. For policy reasons, therefore, the law

of torts modifies the customary burden of proof in cases of libel

and slander per se, so as to allow an award of general damages

without proof of the extent of actual loss. The policy reasons

underlying this rule are inextricably interwoven with the sub-

stantive policies and principles of the law of defamation. In-

deed, they are peculiar only to the law of libel and slander per

se, inasmuch as general damages are not allowed in cases of slan-

der per quod. “All other slanderous words, no matter how grossly

defamatory or insulting they may be, which cannot be fitted into

the [four traditional and] arbitrary categories . are actionable

only upon proof of ‘special’ damage—special in the sense that it

must be supported by specific proof, as distinct from the damage

assumed to follow in the case of libel or the kinds of slander al-

ready considered.” W. Prosser, Handbook Of The Law Of Torts

§ 112, p. 760 (4th ed. 1971). The law of damages in defamation

cases is unique because of policy considerations peculiar to the

substantive law of defamation as well as uneven historical develop-

ment within the law of defamation. Consequently, the damage

principles developed in this area are not readily transferable. Neither

do they provide any assistance whatsoever in determining whether

general compensatory damages should be allowed in federal civil

rights cases. In cases of slander per se and libel, the law allows

an award of general damages to compensate for actual foss. In cases

of technical violations of a student’s due process rights, actual loss

is not self-evident and, consequently, it would be inappropriate

to allow general damages by analogy to the law of defamation.

doms, discriminated on the basis of race, or denied citi-

zens their constitutional right to due process of law. In

these cases, the federal courts have allowed compensatory

damages upon proof of actual injuries, including mental

distress, pain and suffering, and pecuniary losses, result-

ing from the deprivations.

Federal courts have not allowed compensatory dam-

ages, in a substantial amount, for purely speculative harm

‘‘inherent’’ in the constitutional deprivation itself. In

those cases where the courts have awarded damages based

on an ‘‘inherent injury’’ theory, they have limited recov-

ery to a symbolic award in a nominal or trifling amount.

The federal courts have adhered to generally accepted

legal principles which preclude the award of substantial

damages in the absence of proof of actual injury.

While Congress has charged the federal courts with

the task of fashioning appropriate remedies in actions for

redress of civil rights violations, the discretion of the

courts is narrow. 42 U.S.C. § 1988 (1976). The courts are

zt licensed to devise novel sanctions in fashioning ap-

propriate remedies for violations of civil rights. The

Court of Appeals for the Seventh Circuit erred in direct-

ing the district court to award general compensatory dam-

ages in the present case.

A. In Fashioning Interstitial Adjustments Of Remedies

For Redress Of Civil Rights Violations, The Federal

Courts Must Be Guided By Traditional Principles Of

The Law Of Remedies.

Section 1983 establishes a private cause of action for

persons who have been deprived of their federal constitu-

tional rights by state officials or other persons acting

„under color of state law. 42 U.S.C. § 1983 (1974). See-

tion 1983 does not, in terms, authorize any particular type

of damage remedy for deprivations of civil rights under

color of state law.“ Section 1983 . . . is completely silent

as to the kind of damages which may be awarded an in-

jured plaintiff in a civil rights suit. Basista v. Weir, 340

F.2d 74, 85 (3rd Cir. 1965). Instead, Congress provided

only that persons acting to deprive another of his federal

civil rights, under color of state law, should ‘‘be liable to

the party injured in an action at law, suit in equity, or

other proper proceeding for redress.’’ 42 U.S.C. § 1983

(1974). As the Third Circuit said in Basista, the language

of the statute ‘‘[o]bviously . . . connotes damages of some

kind, but goes no further.’’ Basista v. Weir, 340 F.2d 74,

85 (3rd Cir. 1965). Logically, the right to proceed in an

action at law would seem to entail the right to prove and

recover actual compensatory damages. It is well-estab-

lished that a Section 1983 plaintiff may, within the terms

of the statute, recover damages sustained because of offi-

cial conduct which violated his federal civil rights. See,

Monroe v. Pape, 365 U.S. 167 (1961).. ‘‘The plain words

of the statute impose liability—whether in the form of

payment of redressive damages or being placed under an

injunction—only for conduct which ‘subjects, or causes to

be subjected’ the complainant to a deprivation of a right

secured by the Constitution and laws.“ Rizzo v. Goode,

423 U.S. 362, 370-71 (1976).

Section 1983. was originally enacted as Section One of the Ku

Klux Klan Act of April 20, 1871, 17 Stat. 13. Congress enacted this

legislation pursuant to its constitutional power to enforce, by ap-

propriate legis uion, the substantive provisions of the Fourteenth

Amendment. U.S. Const. amend. XIV, § 5. Congress could have

provided specific remedies for violations of Section 1983. Indeed,

if Congress were to determine that an unusual remedy, such as

general compensatory damages, should be allowed in Section 1983

cases, Congress could specifically so provide. In the absence of

congressional action, the federal courts are bound to follow custom-

ary principles of damages. 42 U.S.C. § 1988 (1976).

While Congress did not designate specific remedies, in

Section 1983, for the vindication of federal civil rights,

Congress did provide a general framework for judicial

fashioning of remedies in civil rights cases. In Section

1988, Congress provided that the federal courts should

be guided by the laws of the United States, to the extent

that they are applicable, and by the common law of reme-

dies, as modified by the constitutions and laws of the

states, in providing appropriate relief for violations of

federal civil rights. 42 U.S.C. § 1988 (1976). This Court

had occasion to construe Section 1988 in Sullivan v. Little

Hunting Park, 396 U.S. 229 (1969). The Court said:

This means, as we read § 1988, that both federal and

state rules on damages may be utilized, whichever

better serves the policies expressed in the federal

statutes. ... The rule of damages, whether drawn

from federal or state sources, is a federal rule re-

sponsive to the need whenever a federal right is im-

paired.

Id., 240.

The Court's construction of Section 1988 is consistent

with the general power of the federal courts to supply

interstitial remedial details when Congress has omitted

to do so. The incorporation of state statutes of limitation

provides a useful analogy: ‘‘The implied absorption of

State statutes of limitation within the interstices of the

federal enactments is a phase of fashioning remedial de-

tails where Congress has not spoken but left matters for

judicial determination within the general framework of

familiar legal principles. Holmberg v. Ambrecht, 327

U.S. 392, 395 (1946). By enacting Section 1988, Congress

effectively delegated to the federal courts the task of

fashioning appropriate remedies, within the framework of

familiar legal principles, for violations of the federal civil

rights acts. Moor v. County of Alameda, 411 U.S. 693,

698-707 (1973).

As the Court noted in Sullivan, the formulation of ap-

propriate remedies for the enforcement of the federal civil

rights acts must be informed by a proper understanding

of the precise need for specific types of relief. The rule

of damages . is a federal rule responsive to the need.

Sullivan v. Little Hunting Park, 396 U.S. 229, 240 (1969).

Moreover, the Court must be guided both by familiar prin-

ciples within the law of remedies and by constitutional

principles of comity and federalism, as well as by the

legislative purposes of the federal civil rights acts. Reme-

dies must be carefully measured in that they must assist

in the vindication of constitutional rights without need-

lessly disrupting the administrative processes of the

states. Obviously, even the most effective deterrent may

not be adopted if it places an unnecessary or dispropor-

tionate burden on legitimate state activities. Rizzo v.

Goode, 423 U.S. 362 (1976).

B. The Federal Courts Have Not Traditionally Allowed

An Award Of General Compensatory Damages For A

Bare Violation Of Constitutional Rights, Without

Proof Of Actual Injury, Even In Areas Subject To

Special Scrutiny Such As First Amendment Activity

And Racial Discrimination In Public Employment.

In the present ease, the Court of Appeals held that the

district court erred in failing to award general compensa-

tory damages to Piphus and Brisco. The Court of Ap-

peals reasoned that the school officials’ failure to afford

adequate due process procedures, prior to the students’

suspensions, gave rise to an action for damages which are

‘‘inherent in the nature of the wrong’’ and may be award-

ed without proof of actual loss. Piphus v. Carey, 545 F.2d

30, 31 (7th Cir. 1976). The court further held that the

award of general compensatory damages should be in an

amount neither so small as to trivialize the right nor so

large as to provide a windfall.’’ A., 32 (footnote omitted).

If plaintiffs had sustained their burden of proof, they

would have been entitled, of course, to an award of special

compensatory damages for any actual injury which they

suffered as a result of defendants’ failure to afford ade-

quate hearings prior to their suspensions. An award of

special damages might have encompassed elements such

as mental distress and the value of the school days lost

because of the invalid suspensions. Id., 31-2.“ To recover

special damages, plaintiffs would have been required to

establish causation: These damages. .. and any others

flowing from the suspension . . would be recoverable only

if a plaintiff’s suspension would not have occurred absent

the due process violation.“ Id., 32.“ According to the Sev-

5 The Court of Appeals affirmed the district court's finding that

plaintiffs had failed to prove the existence of an actual injury, such

as mental distress. Piphus v. Carey, 545 F.2d 30, 31 (7th Cir.

1976). The Court of Appeals held, however, that the district court

erred “in not considering the possibility of special damages for the

school days plaintiffs lost as a result of their suspensions.” Id., 32.

Neither of these holdings with respect to special damages is pres-

ently before the Court.

*The Court of Appeals was obviously correct in requiring that

causation be established to support an award of actual damages.

In Mt. Healthy School District v. Doyle IU. S. 97 S.Ct.

568 (1977), a non-tenured teacher alleged that he had been dis-

charged in violation of his First Amendment rights. He sought

reinstatement and damages. The district court found that Doyle’s

First Amendment activity had played a substantial part in the school

board’s decision to terminate his employment, and the court ordered

that he be reinstated with back pay. The Court of Appeals af-

(footnote continued )

enth Cireuit's formulation, however, plaintiffs are entitled

to an award of general compensatory damages without

any evidence beyond that which is necessary to establish

the due process violation itself.’ This approach to dam-

ages violates the principle that compensatory damages

should reflect, as nearly as possible, the value of the actual

injury sustained by the complainant. In ascertaining the

parameters of the generally accepted legal principles

which, under Section 1988, the federal courts are bound

(footnote continued)

firmed the judgment of the district court. This Court reversed,

holding that the district court erred in failing to determine “whether

the Board had shown by a preponderance of the evidence that it

would have reached the same decision as to respondent's reemploy-

ment even in the absence of the protected conduct.” 97 S.Ct. 568,

576. Noting that the First Amendment should not provide a shield

for incompetent or otherwise undesirable teachers, the Court held

that a school teacher would not be entitled to back pay and rein-

statement if the school board were able to show that the teacher

would have been discharged in any event. Although the school

board technically violated Doyle’s constitutional rights by consider-

ing his First Amendment activity in connection with the decision

to terminate his employment, the Court did not suggest that Doyle

would be entitled to general compensatory damages for the con-

stitutional violation itself.

An example illustrates one serious difficulty with the Seventh

Circuit's formulation: Suppose that a student is suspended from

school without a hearing at the beginning of the lunch period. He

returns to school during the lunch period with an attorney, who is

immediately afforded the opportunity to conduct a full adversary

hearing. Before the lunch period is over, the hearing is completed

and the school officials again determine that the student should be

suspended. Although the student has suffered no loss, the school

officials are liable for an award of general compensatory damages

pursuant to the rule established by the Seventh Circuit.

to apply in civil rights cases, it is useful to consider the

careful approach to measuring damages taken by the

lower federal courts in cases concerning other constitu-

tional rights.

The lower federal courts have consistently adhered to

the principle that compensatory damages in civil rights

cases should be strictly compensatory. The courts have

frequently considered the appropriate elements of a dam-

age award for constitutional violations in the context of

public employment discharge cases, where employees have

been terminated because of racial discrimination or in re-

taliation for the exercise of First Amendment rights. In

these cases, the courts have not allowed general compensa-

tory damages; they have consistently required proof of

actual loss to the employee. Generally, an employee is

entitled to damages only in an amount equal to that which

he would have received if he had remained on the public

payroll, less the amount that he reasonably could have

received at other suitable employment. Griffis & Wil-

son, Constitutional Rights And Remedies In The Non-Re-

newal Of A Public School Teacher’s Employment Con-

tract, 25 Baylor L.Rev. 549, 584-7 (1973). An employee

who has been discharged in violation of his constitutional

rights has a duty to mitigate his damages; he will not

receive a windfall. These cases demonstrate a careful

adjustment of remedies to compensate only for actual in-

juries sustained by victims of racial discrimination or re-

taliation for First Amendment activity. General compen-

satory damages are not allowed even in these specially

protected areas.

In Rolfe v. County Board of Education, 391 F.2d 77 (6th

Cir. 1968), two black teachers assigned to segregated

black schools were discharged because of their race when

the local school board desegregated the district’s schools.

The former teachers brought an action for reinstatement

and damages against the school board and the superinten-

dent of schools, alleging that they were discharged be-

cause of racial discrimination. The district court found

that the teachers were discharged solely because of their

race, and held that they ‘‘were entitled to recover as dam-

ages the amount they would have earned if they had been

permitted to teach, less what they might have earned in

some other suitable employment by reasonable diligence.“

Id., 81. The Court of Appeals for the Sixth Circuit ap-

proved this measure of damages. While the school board

was required to sustain the burden of proof with respect

to mitigation of damages, the court held that the teachers

themselves had a duty to mitigate their damages even in

the wake of an unconstitutional discharge based on racial

discrimination. Likewise, in Williams v. Albemarle City

Board of Education, 508 F.2d 1242, 1243 (4th Cir. 1974)

(en banc), the Fourth Circuit ‘‘assume|d] the correctness

of the school board’s contention that a teacher or school

administrator, ‘demoted’ or discharged illegally may be

precluded from the recovery of damages therefor by an

unreasonable refusal to accept alternative employment.’’

Williams, a black principal, was demoted to the rank of

assistant principal when the school district implemented

its desegregation plan. The district court found that Wil-

liam’s demotion was racially motivated. Accord, Lee v.

Macon County Board of Education, 453 F.2d 1104, 1114

(5th Cir. 1971); McBeth v. Board of Education, 300 F.

Supp. 1270, 1375 (E.D. Ark. 1969).

In Jannetta v. Cole, 493 F.2d 1334 (4th Cir. 1974),

a municipal fireman was discharged from public employ-

ment because he had circulated a petition, which he pre-

sented to the city manager, protesting the promotion of

a fellow worker whom he believed to be unqualified for

the position to which he was promoted. The district court

found that the fireman was unconstitutionally discharged

and ordered that he be awarded back pay from the date

of discharge to the date of zudgment. The Court of Ap-

peals affirmed the back pay award, in principle, but held

that ‘‘the award should have been reduced by any increase

in Jannetta’s outside earnings attributable to his lack of

employment by the fire department.“ Id., 1335. Emphasiz-

ing the compensatory character of damages for civil rights

violations under Section 1983, the Fourth Cireuit noted

that, ‘‘The employee should be made whole, but not en-

riched.’’ Id., 1338. Accord, Wellner v. Minnesota State

Junior College Board, 487 F.2d 153, 157 (8th Cir. 1973).

In Stolberg v. Members of Board of Trustees of State

Colleges of Connecticut, 474 F.2d 485 (2d Cir. 1973), a

state college professor was discharged in retaliation for

his exercise of First Amendment rights. The district court

held that the professor, who was able to secure another

college teaching position at a lower salary, was entitled

to an award of compensatory damages in an amount which

represented the difference in earnings between the salaries

he earned or would have earned at the two colleges. Addi-

tional compensatory damages for humiliation, mental dis-

tress and injury to reputation were not allowed because

the teacher had failed to sustain his burden of proof.

While affirming the judgment of the district court, the

Court of Appeals for the Second Circuit specifically noted

that the district court’s findings of fact ‘‘reveal an un-

pleasant picture, characterized by reactionary and rather

high-handed conduct on the part of a college president

toward a faculty member, approved by some trustees and

tolerated by others.“ Id., 487. Finally, in Smith v. Losee,

485 F.2d 334 (10th Cir. 1973) (en bane), cert, denied, 417

U.S. 908 (1974), the Tenth Cireuit held that a university

professor, who had been discharged without due process

because of First Amendment activity, was not entitled to

compensatory damages because he had found alternative

employment at a comparable or higher salary. In Smith,

the court found that the univercity officials had been mo-

tivated by actual malice, and that the discharged profes-

sor had been terminated without due process because he

had expressed opposition to certain administration poli-

cies. Nonetheless, the court held that ‘‘the record con-

tains no evidence to support an award of general dam-

ages. Id., 344.

In each of these cases, public employees were discharged

in violation of their constitutional rights to due process,

equal protection of the laws, or free speech. In some cases,

multiple constitutional violations occurred. Even in the

most egregious cases, however, the courts did not award

general compensatory damages in recognition of the con-

stitutional violation itself.“ The courts limited the award

The lower federal courts have taken a simila approach to the

question of damages under the Fair Housing Act, 42 U.S.C. §3601

et seq. Section 3612(c) provides that, “The court may grant as

relief, as it deems appropriate, any permanent or temporary in-

junction, temporary restraining order, or other order, and may

award to the plaintiff actual damages and not more than $1,000

punitive damages, together with court costs and reasonable attor-

ney fees in the case of a prevailing plaintiff.” 42 U.S.C. § 3612(c)

(1968). As actual damages, the courts have allowed recovery of

out-of-pocket losses suffered because of racial discrimination in viola-

tion of the substantive provisions of the Fair Housing Act. Steele

v. Title Realty Co., 478 F.2d 380 (10th Cir. 1973); Smith v. Sol

D. Adler Realty, 436 F.2d 344 (7th Cir. 1971). If a plaintiff

sustains his burden of pre of, he may also receive compensatory dam-

ages for mental anguish, humiliation and emotional distress. Seaton

v. Sky Realty Co., Inc., 491 F.2d 634, 636 (7th Cir. 1974). If a

violation of the Fair Housing Act is established, but no actual

damages are proved, only nominal damages may be awarded. Fort

v. White, 530 F.2d 1113 (2d Cir. 1976).

While a back pay award pursuant to Title VII of the Civil Rights

Act of 1964 is, strictly speaking, an equitable remedy, this Court

has emphasized that the purpose of such an award is compensatory.

In Franks v. Bowman Transportation Co., 424 U.S. 747, 764 (1976),

the Court noted that “federal courts are empowered to fashion such

relief as the particular circumstances of a case may require to effect

restitution, making whole insofar as possible the victims of racial

discrimination in hiring.” (emphasis added) (footnote omitted).

See, 42 U.S.C. § 2000e et geg. Albemarle Paper Co. v. Moody,

422 U.S. 405, 418 (1975).

of damages to an amount necessary to compensate for

injuries actually ustained because of the unconstitutional

actions of state officials. Public employees were required

to seek other employment and mitigate damages even when

discharged for the most clearly unconstitutional reasons.

Implicit in these decisions is a recognition that victims

of unconstitutional activities must be made whole, but that

public officials and the states should not be punished for

unconstitutional acts unless the proof establishes that the

proper threshold for punitive damages has been met.

C. At Most, Nominal Damages May. Be Awarded In

Recognition Of A Technical Breach Of A Legal Duty

Which Does Not Result In Actual Injury.

In many cases, the courts have simply declined, in the

absence of proof of actual injury, to award any damages

for a technical violation of rights. An alternative ap-

proach has been to allow recovery of nominal damages.

The term nominal damages means a trivial sum—usu-

ally one cent or one dollar—awarded to a plaintiff whose

legal right has been technically violated but who has

proved no real damage.’’ Chesapeake & Potomac Tel. Co.

v. Clay, 194 F.2d 888, 890 (D.C. Cir. 1952). In some cir-

cumstances, the law has allowed recovery of nominal dam-

ages when an injured party has proved a violation of cer-

tain legal rights without any showing of consequential

harm. Whether nominal damages will be allowed depends

on the nature of the legal right that has been violated.

Professor McCormick has explained this principle:

Many legal rights are rights that the person owing

the duty shall refrain from inflicting actual loss or

detriment (physical, pecuniary or otherwise) by cer-

tain kinds of conduct. Obviously, if the conduct oc-

curs but detriment does not result, the right has not

been violated. On the other hand, there is a large

group of rights which are not thus conditioned, but

are so-called ‘‘absolute’’ rights that the person sub-

ject to the duty shall not act or refrain in a given

manner at all events, regardless of whether loss or

practical disadvantage results. In effect, this means

that the courts will allow an adverse ruling against

the party owing the duty, if he violates it, though he

caused no loss. If such a right has been breached,

with loss resulting, the party aggrieved gets judg-

ment for substantial damages measured by the loss,

but if breached with no loss resulting, or no loss

proved, then the person aggrieved gets judgment any-

way, and since practically the only kind of judgment

against a party that the common law knew was a

judgment for damages, i.e., a money recovery, a

judgment for trivial or ‘‘nominal’’ damages was

given. The recognition of a right unrelated to detri-

ment sustained is merely a metaphorical prophetical

way of stating that in given conditions an adverse

judgment will be given without a showing of loss.

C. MeCormick, Handbook On The Law Of Damages § 20,

p. 86 (1935) (emphasis in original).

In short, McCormick states that the appropriate remedy

for a technical breach of an ‘‘absolute’’ right is a judg-

ment for damages in a trivial or nominal amount. Sedg-

wick also states that, It is now well established that

nominal damages may be recovered for the bare infringe-

ment of a right, or for a breach of contract, unaccompa-

nied by any actual damage.’’ 1 T. Sedgwick, On Damages

§ 98, p. 167 (9th ed. 1912) (footnote omitted). The denial

of a student’s constitutional right to due process, in the

absence of any proof of actual injury,’ is a paradigmatic

®In this context, actual injury could encompass such elements as

emotional and mental distress, humiliation and loss of reputation, as

well as out-of-pocket and consequential pecuniary losses. The lower

federal courts have recognized the availability of such damages if

proved. Piphus v. Carey, 545 F.2d 30, 31-2 (7th Cir. 1976);

Stolberg v. Members of Board of Trustees of State Colleges of

Connecticut, 474 F.2d 485 (2d Cir. 1973).

example of a technical breach of an ‘‘absolute’’ right.

Nominal damages would seem to be an appropriate rem-

edy for technical civil rights violations.

While this Court has not previously considered the

propriety of nominal damages in the context of a consti-

tutional deprivation, it is significant that the Reconstruc-

tion Congress which enacted Section 1983 specifically

noted the issue. Senator Thurman of Ohio made reference

to the fact that, in some cases, only nominal damages

might be recovered:

[Section 1983] authorizes any person who is deprived

of any right, privilege, or immunity secured to him

by the Constitution of the United States, to bring an

action against the wrongdoer in the Federal courts,

and that without any limit whatsoever to the amount

in controversy. The deprivation may be of the slight-

est conceivable character, the damages in the estima-

tion of any sensible man may not be five dollars or

even five cents; they may be what lawyers call merely

nominal damages ; and yet by this section jurisdiction of

that civil action is given to the Federal courts instead

of its being prosecuted as now in the courts of the

States. ‘ .

In the next place, I am opposed to this transfer of

jurisdiction to the Federal courts because of the ex-

pense and the inconvenience that must attend it. In

most of the States the Federal courts are held in not

more than two places; there are very few in which

they are held in as many as three places. Let an ac-

tion be brought, therefore, in the Federal court, it may

be but for five dollars, and the defendant may be

dragged hundreds of miles, at great expense, to at-

tend to the defense of the suit, and not he only, but

also the witnesses who may be necessary to make out

his defense.

Cong. Globe, 42d Cong., Ist Sesa., App. 216 (1871) (em-

phasis added).

The legislative history of the Civil Rights Act of 1871

demonstrates that Congress considered and debated this

legislation against the background of established prin-

ciples of the law of torts. Neither the supporters nor the

opponents of the legislation contemplated the possibility

of an award of damages not based on actual injury. That

Senator Thurman, an opponent of the Civil Rights Act,

based his opposition on the fact that the legislation would

open the federal courts to lawsuits involving only nominal

damages, illustrates that Congress did not contemplate

that substantial damages, in a speculative amount, might be

awarded for technical civil rights violations in the absence

of actual injury.

Following the general rule that nominal damages may

be awarded when rights are technically violated, the lower

federal courts have awarded nominal damages where vio.

lations of constitutional rights have not resulted in any

actual injury to the person whose rights were violated.

In United States ex rel. Tyrrell v. Speaker, 535 F.2d 823

(3rd Cir. 1976), for instance, a state pretrial detainee was

arbitrarily transferred from a county jail to a state prison.

When the detainee arrived at the state prison, he was

immediately placed in administrative segregation, where

he remained for more than eight months. In a Section

1983 action, the detaince alleged that this treatment de-

nied him due process of law. The district court held that

the defendarft state officials had violated the pretrial de-

tainee’s constitutional rights by subjecting him to condi-

tions of confinement more onerous than those which were

imposed on prison inmates who had been convicted of

crimes. The court also found, however, that Tyrrell was

not actually prejudiced by the transfer because the condi-

tions of his confinement in the county jail were consider-

ably more restrictive than those of the segregation unit

of the state prison to which he was wrongfully transferred.

Consequently, the district court entered judgment for the

pretrial detainee, but awarded only ‘‘nominal’’ damages

in the amount of $500. The Third Circuit affirmed the

judgment of the district court, to the extent that it allowed

only nominal damages, but reduced the amount of the

award to one dollar.

The First Cireuit, in Magnett v. Pelletier, 488 F.2d 33

(Ist Cir. 1973), affirmed a judgment for nominal damages

in a Section 1983 action based on a warrantless search. In

Magnett, a police officer searched an apartment without a

warrant and entered a room in which four small children

were sleeping. The children’s father, who was also pres-

ent in the apartment, sought damages from the police oſli-

cer for the invasion of the apartment and for an alleged

assault, which caused him physical and emotional injuries.

The district court was not persuaded by the evidence that

an assault had occurred, but awarded ‘‘nominal’’ dam-

ages in the amount of $500 because plaintiff had estab-

lished a violation of his civil rights by proving the fact

of a warrantless search. The Court of Appeals held that

an award of nominal damages was appropriate, but re-

duced the amount of the award to one dollar. The court

noted that, Nominal damages are a mere token, signify-

ing that the plaintiff’s rights were technically invaded

even though he suffered, or could prove, no loss or dam-

age. Id., 35. Accord, Paton v. LaPrade, 524 F.2d 862,

871-2 (3rd Cir. 1975).

In Bell v. Gayle, 384 F.Supp. 1022 (N.D. Tex. 1974),

three city policemen alleged that they were deprived of

their constitutional rights when they were discharged

without due process hearings. None of the three police

officers suffered any pecuniary loss because each earned

more money after the discharge than he had earned pre-

viously. The court held that the defendant city officials

had violated the police officers’ constitutional rights, but

that no actual damages should be awarded because the

officers had failed to prove any decrease in earnings. The

court awarded nominal damages, nonetheless, because a

citizen’s constitutional rights are of such a value that

nominal damages are presumed to flow from the depriva-

tion of such rights.“ Id., 1026 (emphasis added). Like-

wise, in Berry v. Macon County Board of Education, 380

F.Supp. 1244 (M.D. Ala. 1971), the court awarded only

nominal damages to wrongfully discharged school board

employees who had found jobs with higher pay after their

discharges. The district court noted that, ‘‘Proof of a

wrong done in violation of 42 U.S.C.A. § 1983 is taken as

sufficient proof of nominal damages.“ Id., 1248.

An award of nominal damages is consistent with the

well-established principle that, even in civil rights cases,

the purpose of a damage award is to compensate the in-

jured party for actual losses resulting from the conduct

of the wrongdoer, not to penalize the wrongdoer or to

invest the injured party with a windfall. Cordeco Develop-

ment Corporation v. Santiago Vasquez, 539 F.2d 256, 262

(Ist Cir. 1976), cert. denied, | yao , 97 S.Ct. 488

(1977). As the First Cireuit noted in Cordeco, ‘‘A party’s

financial loss is the ultimate measure of his damage.“ Id.

Nominal damage awards permit the courts to recognize,

symbolically, the unauthorized invasion of important

rights, without artificially shifting a non-existent loss.

D. The Court Of Appeals Erred In Holding That General

Compensatory Damages Must Be Awarded When A

Student Proves That He Was Denied His Constitution-

al Right To Due Process But Fails To Establish The

Existence Of Any Actual Injury.

In this case, the Court of Appeals disregarded well-

established principles in holding that a civil rights plain-

tiff need not prove any actual injury to recover general

compensatory damages in a substantial amount. The Sev-

enth Circuit reasoned that a citizen, who has been denied

due process, need not prove any individualized injury to

recover compensatory damages because general compen-

satory damages are ‘‘inherent in the nature of the

wrong. Piphus v. Carey, 545 F.2d 30, 31 (7th Cir. 1976).

The decision of the Seventh Circuit is inconsistent with

familiar principles governing the law of damages and is,

therefore, inconsistent with the limits which Congress has

placed on the discretion of the federal courts under Sec-

tion 1988.

The decision of the Court of Appeals in this case is

consistent only with the Seventh Circuit’s previous deci-

sion in Hostrop v. Board of Junior College District No.

515, 523 F.2d 569 (7th Cir. 1975), cert. denied, 425 U.S.

963 (1976). In Hostrop, the president of a public junior

college was dismissed, without a due process hearing, for

reasons which the district court later held to constitute

just cause. The Court of Appeals noted that ‘‘it is incon-

ceivable that even if plaintiff had been accorded his due

process rights he would have been allowed to continue in

office. Id., 579. Although Hostrop had not proved any

actual loss, the court held that he was entitled to general

compensatory damages, which were inherent in the nature

of the constitutional violation itself:

The wrong done plaintiff was not the termination of

his employment, for that has been determined to have

been justified, .. but the deprivation of his pro-

cedural due process right to notice and hearing. Plain-

tiff is entitled to damages for that constitutional vio-

lation.

Id.

The Hostrop court’s award of general compensatory

damages was based on an erroneous construction of this

Court's decision in Nixon v. Herndon, 273 U.S. 536 (1927).

The Seventh Cireuit construed Nixon as establishing the

principle that general compensatory damages must be

awarded whenever a violation of constitutional rights is

established, even if the plaintiff fails to prove any actual

loss. A close analysis of Nizon does not support that broad

conclusion. In Nixon, a black citizen brought an action

for damages, in the amount of five thousand dollars,

against certain Texas election judges who, acting in ac-

cordance with a racially discriminatory state law, pre-

vented him from voting in a party primary election. The

district court dismissed the complaint on the ground that

the subject matter of the suit was political and not within

the jurisdiction of the federal courts. This Court reversed.

Mr. Justice Holmes, writing for a unanimous court, said

that:

The objection that the subject matter of the suit is

political is little more than a play upon words. Of

course the petition concerns political action but it

alleges and seeks to recover for private damage. That

private damage may be caused by such political action

and may be recovered for in a suit at law hardly has

been doubted for over two hundred years.

Id., 540.

The Nizon court had no occasion to consider the type

or amount of damages which might be awarded to a black

citizen who was denied the right to vote in a party pri-

mary election because of his race. The district court had

dismissed Nixon’s complaint, at the pleading stage, be-

cause it believed that the regulation of state party pri-

mary elections was a political matter beyond the jurisdic-

tion of the federal courts. This Court held only that the

district court erred in dismissing the complaint. While

Nixon sought damages in the amount of five thousand dol-

lars, this Court did not consider whether he would be en-

titled to that or any specific amount.” Neither did the

% Section 24 of the Judiciary Act of March 3, 1911, 36 Stat.

1091-2, now codified in relevant part as 28 U.S.C. § 1343 (1948),

confers jurisdiction on the federal courts, without regard to the

amount in controversy, in cases of civil rights violations such as that

which formed the basis for Nixon's complaint

Court consider the merits of any particular theory upon

which Nixon would be entitled to damages of a specific

type. Indeed, this Court held only that Nixon’s complaint,

which alleged that he had been denied the right to vote

because of his race, stated a cause of action which the

district court had jurisdiction to determine. Whether

Nixon could recover compensatory, punitive or nominal

damages was an issue which the Court left open, to be

determined upon a full factual record. Contrary to the

Hostrop court’s conclusion, this Court’s decision in Nixon

did not establish that general compensatory damages

must be allowed for technical violations of constitutional

rights.“

" The Hostrop court also relied on Wayne v. Venable, 260 Fed.

64 (8th Cir. 1919), for the principle that general compensatory

damages must be awarded, without proof of individualized injury,

whenever constitutional rights are violated. At first blush, the

language of Wayne would seem to support that proposition. In

Wayne, the Circuit Court said: “In the eyes of the law the right

[to vote| is so valuable that damages are presumed from the wrong-

ful deprivation of it without evidence of actual loss of money,

property, or other valuable thing, and the amount of the damages

is a question peculiarly appropriate for the determination of the

jury, because each member of the jury has personal knowledge of

the value of the right. Scott v. Donald, 165 U.S. 89, 17 Sup Ct.

265, 41 L.Ed. 632; Wiley v. Sinkler, 179 U.S. 58, 65, 21 Sup. Ct.

17, 45 L.Ed. 84." Id.. , This Court's decisions in Scott and

Wiley do not, however, support the broad conclusion stated by the

lower court in Wayne.

In Wiley v. Sinkler, 179 U.S. 58 (1900), a resident of Charles-

ton, South Carolina, brought an action for damages against certain

local election officials who refused to allow him to vote in a con-

gressional election. The Circuit Court dismissed the complaint for

failure to state a cause of action because the plaintiff failed to allege

that he was a duly registered voter of the State of South Carolina.

(footnote continued)

Traditionally, the law has required proof of actual in-

jury as a prerequisite to an award of compensatory dam-

ages in a substantial amount. In the absence of proof of

actual injury, the courts have declined to award damages,

(footnote continued)

not allege facts sufficient to state a cause of action because it failed

to allege that the plaintiff was a duly registered voter. /d., 66.

While the Circuit Court dismissed the complaint and this Court

affirmed the dismissal solely on that ground, this Court discussed,

in dicta, the other grounds for dismissal urged in the lower court.

The defendants also argued in the Circuit Court that the com-

plaint should be dismissed because the complaint did not, on its

face, affirmatively state that a federal question was involved, and

because the face of the complaint demonstrated that a verdict for

$2,000 would be so excessive that the court would be required to set

it aside. First, this Court noted that a federal question was clearly

presented by the facts alleged in the complaint. Second, the Court

said that the complaint should not be dismissed at the pleading

stage for failure to meet the jurisdictional amount. “[N]o opinion

of the court upon that subject can justify it in holding that the

amount in controversy was insufficient to support the jurisdiction

of the Circuit Court.” Id., 65. The type and amount of damages

which Wiley might recover could be determined only upon a full

factual record. Even in dicta, the Court suggested only that the

complaint should not be dismissed on jurisdictional grounds.

The Wayne court's reliance on Scott v. Donald, 165 U.S. 58

(1897), is also misplaced. In Scott, which was also cited by this

Court in Wiley, the Court held only that punilive damages may be

awarded in a civil rights action, and that a prayer for punitive dam-

ages will satisfy the jurisdictional amount when the amount of actual

damages alleged would not. The Court said:

The intentional, malicious and repeated interference by the de-

fendants with the exercise of personal rights and privileges

secured to the plaintiff by the Constitution of the United States,

as alleged in the complaint, constitutes, as we think, a wrong

and injury not the subject of compensation by a mere money

standard, but fairly within the doctrine of the cases wherein

(footnote continued)

—— Ow ee —

or they have awarded damages only in a trivial amount

to symbolize a technical breach of an important legal duty.

Under Section 1988, the same principles must be applied

in a Section 1983 civil rights action.

II.

Awards Of General Compensatory Damages For Technical

Due Process Violations Are Improper Because They Are

Punitive In Effect, Unnecessary To The Proper Enforce-

ment Of The Civil Rights Act, And Their Potential Harm

To The Public Schools Far Outweighs Any Possible Benefit

To Students.

Considerations of public policy also preclude the allow-

ance of general compensatory damage awards when a

public school student’s due process rights are technically

violated, without actual malice on the part of the school

officials or proof of actual injury to the student. First,

general compensatory damages are inherently speculative

and unprincipled. The Seventh Cireuit's failure to articu-

late any precise standard for guiding the factfinder in

assessing general compensatory damages underscores the

arbitrary character of such an award. In effect, there is

nothing to distinguish general compensatory damages

(footnote eontinnes)

exemplary damages have been allowed. Those allegations of

the complaints, though denied in the answers, have been sus-

tained by the tribunal—in these cases the court, a jury having

been waived—which had to pass upon the issues of fact.

Id., 89.

This Court's decision in Scott does not support the proposition

that general compensatory damages must be awarded whenever a

technical violation of constitutional rights occurs. Indeed, Scott

merely supports the principle that damages, which are punitive in

nature, may be allowed only when the req lisite threshold of actual

malice is met.

from punitive damages. By requiring awards of general

compensatory damages, the Court of Appeals has required

the factfinder to award damages which are punitive in

fact, without requiring the proof of actual malice that is

the customary prerequisite for punitive awards. Second,

an adequate arsenal of remedies for the protection of

civil rights currently exists. The enforcement of the civil

rights acts will not be enhanced by allowing awards of

general compensatory damages. Third, liability for gen-

eral compensatory damage awards will seriously interfere

with the local administration of the public schools. Judg-

ments of this type must be satisfied either by individual

school officials or by their school districts. If school board

members must devote their persona] resources to this end,

capable citizens will be dissuaded from volunteering their

services to the business of managing the nation’s schools.

If school boards choose to indemnify board members, as

an incentive for them to serve, scarce public funds will

be diverted from their primary purpose of financing edu-

cation. In either case, the loss to the public schools will

be great. Moreover, the windfall character of general com-

pensatory damage awards makes this allocation of scarce

resources particularly difficult to defend. In short, the

potential harm to the public schools cannot be justified by

any benefit which the imposition of liability might contrib-

ute to the enforcement of the civil rights acts in the school

context.

A. General Compensatory Damages Are Improper Be-

cause They Are Punitive In Their Effect.

The Court of Appeals held that, ‘‘The award [of general

compensatory damages] fixed by the District Court should

be neither so small as to trivialize the right nor so large

as to provide a windfall.’’ Piphus v. Carey, 545 F.2d 30,

32 (/th Cir. 1976) (footnote omitted). The difficulty with

— ũ—— — —

—

this rule of damages is clear on its face: the broad and

unstructured discretion which the rule explicitly confers

on the factfinder, to determine the amount of an appropri-

ate award, is wholly inconsistent with the notion of prin-

cipled compensation. Inasmuch as the court’s rule offers

no objective standard for measuring the extent of the in-

jury sustained, it also fails to provide any objective stan-

dard for measuring damages. Indeed, the absence of an

objective standard in the Seventh Cireuit's formulation

implicitly invites the factfinder to measure the extent of

a ‘‘compensatory’’ award by reference to purely subjec-

tive factors, a measuring principle which has been limited

to the realm of punitive damages.

An award of general compens.tory damages based on

the Seventh Circuit’s formula must, by definition, be sub-

jective, speculative and unprincipled. Moreover, an award

of general compensatory damages for a technical viola-

tion of a student’s due process rights, without proof of

actual malice or actual injury, will be an award of dam-

ages, which is punitive in effect, without requiring the

proof of aggravating circumstances that is the traditional

prerequisite for an award of punitive damages. For pur-

poses of official liability, the rule of damages set forth by

the Court of Appeals eviscerates the distinction between

compensatory and punitive damages.“

1 One commentator has suggested that “many so-called compen-

satory awards in constitutional tort cases are, in fact, punitive in

nature.” Yudof, Liability For Constitutional Torts And The Risk-

Averse Public School Official, 49 S.Cal.L.Rev. 1322, 1380 n. 211

(1976). It does not follow, of course, that the blurring of the

compensatory-punitive distinction is a felicitous development in the

law of official liability. While constructive malice may be suffi-

cient to justify compensatory damages under Wood v. Strickland,

420 U.S. 308 (1975), public school officials should not be subject to

liability for damages which are punitive in effect without proof of

actual malice. The fact that such awards are labelled “compensa-

tory” rather than “punitive” is immaterial.

Ee eee

The damage remedy as a method of punishment is gen-

erally considered suspect; its use requires caution. Even

when the traditional malice threshold is met, [a] chief

criticism . . . of the doctrine of exemplary damages, is

the absence of any standard or criterion to guide the jury

at arriving at a proper amount.“ C. McCormick, Hand.

book On The Law Of Damages, § 85, p. 296 (1935). While

the need for discouraging truly malicious conduct may

sometimes justify an award of punitive damages, for want

of a better method of deterrence, the unstructured dis-

cretion implicit in the power to award punitive damages

cannot be justified without proof of actual malice or other

aggravating circumstances. Certainly, it may not be justi-

fied as a principle of compensation, rather than punish-

ment.

In a broader sense, punitive damages may be undesir-

able as a matter of public policy, even when actual malice

exists, because the moral force and retributive effect of

punitive damages may unnecessarily upset particularly

delicate and felicitous relationships. One commentator has

noted, for instance, that punitive damages may be counter-

productive in the labor context: ‘‘Giving judicial recogni-

tion to the kind of moral distinctions involved in retribu-

tive awards would exacerbate relations between unions

and employers and thereby contravene the central purpose

of the [Labor Management Relations] Act.’’ Note, Puni-

tive Damages Under Federal Statutes: A Functional Anal.

ysis, 60 Cal.L.Rev. 191, 207 (1972). See also, United Auto

Workers v. Russell, 356 U.S. 634, 653 (1958) (Warren,

C.J., dissenting). The sensitive nature of educational re-

lationships, the need to encourage civility in the school-

room and the need to discourage the development of ad-

versary relationships among those interested in the edu-

cational process, suggest that a similar reluctance to

award punitive damages may be advisable in the educa-

tional context. See, Kirp, Proceduralism And Bureau

cracy: Due Process In the School Setting, 28 Stan.L.Rev.

841 (1976).

Even if punitive damages, in an orthodox sense, may

occasionally be necessary in the school context, punitive

damages should not be allowed in the guise of general

compensatory damages when the traditional prerequisites

for punitive damages are not met. The allowance of gen-

eral compensatory damages would exacerbate delicate re-

lations, between students, teachers, parents and school

board members, upon which the success of the public

schools is founded. Strong considerations of public policy

require that the threshold requirements for punitive dam-

ages should be maintained in the school context. For this

reason, general compensatory damages should not be al-

lowed when students’ due process rights are violated with-

out actual malice or injury.

B. An Arsenal Of Adequate Remedies Currently Exists

To Vindicate The Civil Rights Acts.

Whether the allowance of general compensatory dam-

ages would substantially enhance the enforcement of the

federal civil rights acts is a question which must be con-

sidered against the background of presently existing rem-

edies. In the analogous area of implied constitutional

remedies, under Bivens v. Six Unknown Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971), one com-

mentator has suggested that the focus for analysis should

be ‘‘upon whether there are other remedies available to

those in the plaintiff’s position that would as fully effectu-

ate the purposes of the constitutional guarantee as the

remedy sought.’’ Dellinger, Of Rights And Remedies: The

Constitution As A Sword, 85 Harv.L.Rev. 1532, 1551

(1972). A review of existing remedies demonstrates that

an arsenal of remedies presently guarantees that a stu-

dent’s civil rights will be effectively vindicated in the

event of an unconstitutional suspension.

A student who is suspended from school without due

process may recover actual damages. In Wood v. Strick-

land, 420 U.S. 308, 322 (1975), this Court held that, A

compensatory award will be appropriate only if the school

board member has acted with such an impermissible moti-

vation or with such disregard of the student’s clearly es-

tablished constitutional rights that his action cannot rea-

sonably be characterized as being in good faith.’’ While

recognizing the necessity for a qualified immunity in the

school context, the Court held in Wood that school officials

are liable for actual damages sustained by students who

have been deprived of their constitutional rights through

actions of school officials that do not meet the qualified

immunity requirements.

In addition to pecuniary or out-of-pocket loss, the lower

federal courts have held that compensatory damages in

Section 1983 cases may also encompass compensation for

loss of reputation, mental and emotional distress, or pain

and suffering, if these elements are supported by proof.

Piphus v. Carey, 545 F.2d 30, 31 (1976). In Donovan v.

Reinbold, 433 F.2d 738, 743 (9th Cir. 1970), the Ninth Cir-

cuit held that an unconstitutionally discharged public em-

ployee was entitled to damages for emotional and mental

distress arising out of the wrongful discharge when he pre-

sented evidence sufficient to support that element of dam-

ages. Likewise, in Stolberg v. Members of Board of Trustees

of State Colleges of Connecticut, 474 F.2d 485, 489 (2d Cir.

1973), the Second Cireuit noted that an *

discharged college professor could recover compensatory

damages, in a — 1983 action, for humiliation, distress

and injury to reputation, upon proof of having sustained

—— ee

— ——

these injuries. In Stolberg, the Court of Appeals affirmed

the district court’s denial of any award for injury to repu-

tation, humiliation or distress, however, on the ground

that Stolberg had failed to prove these elements of injury.

The court emphasized that a civil rights plaintiff must

sustain the burden of proving damages for injury to repu-

tation, humiliation and distress; these elements of dam-

ages will not be presumed from the fact of the constitu-

tional violation itself.

The lower federal courts have also held that a party

whose civil rights have been violated may recover punitive

damages, in an appropriate case, if he is able to establish

either the existence of aggravating circumstances or that

the person who acted under color of state law to deprive

him of his constitutional rights was motivated by actual

malice. Hague v. Committee For Industrial Organization,

101 F.2d 774, 789 (3rd Cir. 1939), mod. on other grounds,

307 U.S. 496 (1939). In Basista v. Weir, 340 F.2d 74, 87-8

(3rd Cir. 1965), the Third Circuit held that punitive dam-

ages may be awarded for an illegal arrest when only nomi-

nal damages are proved. Other courts have held that puni-

tive damages may be awarded, provided that aggravating

circumstances are present, in the absence of proof of

actual loss. Silver v. Cormier, 529 F.2d 161 (10th Cir.

1976); Spence v. Staras. 507 F.2d 554 (7th Cir. 1974).

In addition to actual compensatory and punitive dam-

ages, numerous remedial devices exist for the vindication

of federal civil rights. In an appropriate case, a civil

rights plaintiff may secure injunctive and declaratory re-

lief against unconstitutional state activities. Gibson v.

Berryhill, 411 U.S. 564 (1973). To further encourage

private parties to vindicate their constitutional rights,

Congress has recently amended Section 1988 to provide

that the federal courts may, in their discretion, award

reasonable attorneys’ fees to the prevailing party in civil

rights litigation. 42 U.S.C. § 1988 (1976). See, 1976 U.S.

Code Cong. d Ad. News 5908. Together with the substan.

tive remedies previously recognized by the federal courts,

the attorneys’ fees provision of Section 1988 guarantees

that meritorious civil rights claims will continue to be

pressed in the federal courts.” Finally, the possibility

of criminal prosecution for certain wilful violations of fed-

eral civil rights under color of state law provides an addi-

tional incentive for compliance with the federal civil rights

statutes. 18 U.S.C. § 242 (1948). See, Screws v. United

States, 325 U.S. 91 (1945).

The American tradition of local community control of the

public schools also provides special safeguards for the pro-

tection of students’ constitutional rights. Local control of

the public schools, by persons elected or appointed by

their communities, necessarily creates a climate of responsi-

bility in which school officials are held strictly accountable

for their actions. [Bly virtue of electing them the con-

stituents have declared the Board members qualified to

deal with these problems, and they are accountable to the

voters for the manner in which they perform.’’ Hortonville

Joint School District No. 1 v. Hortonville Education Associ-

ation, 426 U.S. 482, 496 (1976). Certainly, a local com-

munity will not long tolerate school officials who do not

respect the constitutional rights of the community’s chil-

dren. As the Court noted in Ingraham v. Wright, ........

13 The number of civil rights cases filed in the federal courts has

increased steadily in recent years. In 1944, only 21 cases were filed.

Note, The Proper Scope of The Civil Rights Acts, 66 Harv.L.Rev.

1285 (1953). In 1975, 6461 civil rights cases, excluding prisoner

and employment discrimination cases, were filed. Judicial Confer-

ence of the United States, Rep. of Proc.: Ann. Rep. of Director of

Ad. Off. of U.S. Courts 346 (1976).

— Se eon

ae „7 S.Ct. 1401, 1412 (1977), „The openness of

the public school and its supervision by the community af.

ford significant safeguards against the kind of abuses from

which the Eighth Amendment protects the prisoner.“ While

the Court was speaking of corporal punishment in Ingra-

ham, the same principle applies to the protection of other

constitutional interests. The openness of the schools to

public scrutiny is a powerful deterrent to school officials

who might be tempted to violate the constitutional due

process rights of students. As one school official has sug-

gested, a school administrator’s self-interest will also aid

in dissuading him from violating students’ constitutional

rights in the interest of administrative expediency:

Any school administrator who is finally adjudged to

have violated an individual’s civil rights has not only

had a considerable punishment in terms of a hurt rep-

utation, but also in his employment relationship with

his school district. His future even may be injured

considerably.

Shannon, Goss and Wood: Their Implications For School

Practice, 4 J.Law & Ed. 611, 613 (1975).

Shannon’s observation applies equally to professional

educators and lay school board members. Just as profes-

sional educators must expect that unconstitutional activi-

ties will adversely affect their careers in public education,

school board members must face the probability that a pat-

tern of constitutional violations will adversely affect the

likelihood of their re-election or re-appointment to office.

In most cases, a civil rights plaintiff will be able to

show that he is entitled either to actual compensatory dam-

ages, because of actual injuries sustained, or to injunctive

and declaratory relief. If an injured party is able to prove

aggravating circumstances or actual malice, he may also

be entitled to punitive damages. An award of general

compensatory damages, to a party who fails to establish

actual injury sufficient to justify actual damages or actual

malice sufficient to justify punitive damages, will constitute

a mere windfall, regardless of the amount. Given the

arsenal of existing remedies, as well as the special safe-

guards provided in the school context, an award of gen

eral compensatory damages will have little material effect

on the enforcement of the civil rights acts.

Compensatory Damage Awards Far Outweighs The

Potential Benefit To Students.

The decision to impose additional liability on public of-

ficials always requires a balancing of the benefits to be

gained against the harm that will result. Professor James

has noted that:

On the one hand [official liability] will tend to curb

high-handed official action and other bureaucratic ex-

cesses. On the other, it will often inhibit objective

and fearless action and discourage responsible men

from taking public employment.

James, Tort Liability Of Government Units And Their

Officers, 22 U.Chi.L.Rev. 610, 639 (1955) (footnote

omitted).

While awards of general compensatory damages will

have little effect on the enforcement of the civil rights

acts, the threat of liability for such speculative awards

will interfere significantly with the administration of the

public schools. If public school officials are held liable

for awards of general compensatory damages, judgments

for these additional awards must be satisfied either from

the personal funds of the officials or through some system

of school district indemnification of school officials. Neither

of these alternatives is desirable in terms of educational

planning and financing.

Historically, the system of public education in the United

States has depended upon the willingness of local communi.

ty members to provide their services, usually without per

sonal remuneration, to the business of managing the na-

tion 's public schools. The threat of substantial judg-

ments for general compensatory damages could drastically

disrupt these traditional arrangements. As this Court said

in Wood, The most capable candidates for school board

positions might be deterred from seeking office if heavy

burdens upon their private resources from monetary liabili-

ty were a likely prospect during their tenure.“ Wood v.

Strickland, 420 U.S. 308, 320 (1975) (footnote omitted).

The speculative nature of general compensatory damages

necessarily prevents a rational assessment of the actual

risk of liability, and it must be assumed that the threat

of liability for awards of general compensatory damages

will have an inordinately great deterrent effect on the will-

ingness of capable citizens to undertake the tasks of school

management. The alternative of school district indemnifiea-

tion of board members may be equally undesirable in that

it would divert already searce public funds from general

educational purposes to satisfy judgments won by in-

dividual students who have suffered no actual injury.“

From an economic perspective, it might be suggested that

higher salaries would compensate public officials for the financial

risks inherent in personal liability for general compensatory damages.

This sclution is inappropriate in the school context because “[{m ſost

of the school hoard members across the country receive little or no

monetary compensation for their service.” Wood v. Strickland, 420

U.S. 308, 320 n.11 (1975). An alternative solution is insurance

coverage. The cost of insurance coverage in this area has been

great. however, because of the absence of sound actuarial statistics

concerning civil rights violations. If general compensatory dam-

ages are allowed in these cases, the speculative and uncertain

amounts of these damages will further encumber the actuarial process

(footnote continued)

The financial difficulties of the nation’s school systems

are well known. While yearly expenditures for elementary

and secondary education have risen from $18 billion to

$75.1 billion in the past sixteen years,” one-half of the

nation’s population currently believes that too little money

is being spent to improve the quality of American educa-

tion. National Center for Education Statistics, The Con-

dition Of Education: A Statistical Report On The Con-

dition Of Education In The United States, 26, 58 (1976).

(footnote continued)

and will, consequently, further increase the cost of insurance cov-

erage. Moreover, in some states, statutes prohibit insurance com-

panies from paying damages awarded against a public official. In

those states, insurance policies will be useful only in paving the costs

of defense. Note, The Right Insurance May Protect Your District

And Your Wallet Alike, 163 Am.Sch.Board J. 30 (1976). Even

when available at a reasonable premium, however, insurance policies

may be limited in value because of the difference in perspectives,

between the insurance carrier and the school district. concerning the

desirability of particular methods of conflict resolution. In an ac-

tion for money damages and injunctive relief, for instance, an in-

surance carrier will probably concentrate on its own damage ex-

posure while the school district, for sound educational reasons, may

be more interested in achieving an acceptable solution to the in-

junctive element of the litigation. Shannon, Goss and Wood:

Their Implications For School Practice, 4 |.Law & Ed. 611, 613

(1975). Professor Yudof has concluded that, “When the various

pieces of the legal defense, indemnification and governmentally pur-

chased insurance puzzle are put together, the picture that emerges

for school officials is grim.” Yudof, Liability For Constitutional

Torts And The Risk-Averse Public School Official, 49 S.Cal.L.Rev.

1322, 1386-87 (1976).

It is estimated that by 1980, an additional $24.5 billion in

The Money Come From? Financing Education Through 1980-81,

58 Phi Delta Kappan 248 (1976).

With the dramatically increasing costs of providing public

services, school boards have found themselves engaged in

fierce competition with other government agencies for

searce public funds. Shalala & Kelly, Politics, The Courts

And Educational Policy, 75 Teachers C. Rec. 223, 229

(1973).

Current difficulties of school administration and financing

would be severely aggravated if school districts were re-

quired to choose between indemnification and personal li-

ability in satisfying judgments for general compensatory

damages. In Wood, the Court recognized that strong con-

siderations of public policy supported the imposition of a

limited liability for compensatory damages upon public

school officials. Those policy considerations do not support

the imposition of liability for general compensatory dam-

ages. Inasmuch as judgments of this type would be unre-

lated to any actual harm sustained by the students whose

rights were technically violated, the public policy rationale

for imposing this costly choice on local school districts

loses its vitality. Moreover, the likelihood that such a

remedy would materially assist in enforcing the civil rights

acts is so small as to make the imposition of this choice

untenable.

This Court has frequently noted that, The Fourteenth

Amendment did not alter the basic relations between the

States and the national government. Screws v. United

States, 325 U.S. 91, 109 (1945). In Younger v. Harris,

401 U.S. 37, 44 (1971), the Court said that the relations

between the states and the national government should

be guided by ‘‘the notion of ‘comity,’ that is, a proper

respect for state functions, a recognition of the fact that

the entire country is made up of a Union of separate state

governments, and a continuance of the belief that the Na-

tional Government will fare best if the States and their in-

stitutions are left free to perform their separate functions

in their separate ways. The federal government must

act to vindicate and protect federal rights and federal in-

terests, but it must always endeavor to do so in ways

that will not unduly interfere with the legitimate activi-

ties of the States. Jd. As Mr. Justice Frankfurter has

said, ‘‘respect for principles which this Court has long

regarded as critical to the most effective functioning of our

federalism should avoid extension of a statute beyond its

manifest area of operation into applications which invite

conflict with the administration of local policies.’’ Monroe

v. Pape, 365 U.S. 167, 241-2 (Frankfurter, J., dissenting).

Whether the technical denial of a student’s due process

rights, without actual malice or injury, should give rise to

an action for damages, which are compensatory in theory

but punitive in fact, presents a question which is funda-

mental to federalism and to this nation’s tradition of local

control of the public schools. Considerations of federalism

and comity are always present in civil rights cases challeng-

ing the activities of state officials. As Mr. Justice Frank-

furter noted, ‘‘Necessarily, the construction of the Civil

Rights Acts raises issues fundamental to our institutions.“

Monroe v. Pape, 365 U.S. 167, 222 (1961) (dissenting opin-

ion). These considerations of federalism and comity are

particularly significant in cases involving the public schools

because ‘‘education is perhaps the most important function

of state and local governments. Brown v. Board of Edu-

cation, 347 U.S. 483, 493 (1954). Throughout our history,

the conduct of the nation’s public schools has rested within

the province of the states and local governmental units.

N. Edwards, The Courts And The Public Schools 23 (3rd

ed. 1971). The Court has frequently noted the important

interests served by this nation’s commitment to local con-

trol of the public schools: ‘‘The persistence of attach-

ment to government at the lowest level where education is

concerned reflects the depth of commitment of its support-

ers... . No area of social concern stands to profit more

from a multiplicity of viewpoints and from a diversity of

approaches than does public education.“ San Anton In-

dependent School District v. Rodriguez, 411 U.S. 1, 49-50

(1973). See also, Wright v. Council of City of Emporia,

407 U.S. 451, 478 (1972) (Burger, C.J., dissenting). The

federal courts must, consequently, be solicitous of the ar-

rangements which state and local governments have devised

for the management of the public schools, and those ar-

rangements must not be disturbed without good cause.

Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

By sanctioning gratuitous awards of general compensa-

tory damages, for merely technical violations of students’

due process rights, this Court would seriously alter present-

ly existing arrangements for administering the public

schools. The financial impact of speculative and sub-

stantial awards upon school board members or the local

schools would be dramatic. If judgments are to be satis-

fied by local school districts, scarce financial resources will

be diverted from educational uses. If judgments must be

satisfied by board members from their personal wealth.

many capable citizens will be needlessly deterred from

offering their services on behalf of the nation’s schools.

This restriction on the important supply of human re-

sources now available to the schools would have serious

eifects. indeed, this nation’s commitment to local lav con-

trol of the schools might well be jeopardized in either

case. The harm to the public schools clearly outweighs

any marginal benefit which might arguably be gained in

terms of effective enforcement of the civil rights acts.

Section 1988 requires that the federal courts fashion

appropriate remedies, based on generally accepted legal

principles, for vindication of the federal civil rights acts.

In the absence of proof of actual injury, traditional prin-

ciples of the law of remedies provide that no damages, or

only nominal damages, may be awarded to a party whose

rights have technically been violated. These principles,

together with considerations of comity, federalism and

school policy, foreclose an award of general compensatory

damages in the circumstances of this case. For these rea-

sons, National School Boards Association respectfully

urges that the decision of the United States Court of Ap-

peals should be reversed.

Respectfully submitted,

Leon FretpMan

Barry SuLLivan

One IBM Plaza

Chicago, Illinois 60611

Attorneys for National School

Boards Association, Amicus Curiae

Of Counsel:

Jenner & BTLocx

Dated: July 6, 1977

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.