Amicus Curiae Brief — Jett v. Dallas Independent School District

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In THE JAN 4 1989

Supreme Court of the Unite SPiartesisenw0., sn

Ocroser Term, 1988

NorMan JETT,

Petitioner,

Vv.

Datitas InpePeNDENT Scuoot District,

Respondent.

Datias Inperenpent Scuoot District,

Cross-Petitioner,

Vv.

Norman Jerr,

Respondent.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT

OF APPEALS FOR THE FIFTH CIRCUIT

——=—=—[=—[€—[>_—O——————_———[_[{[—>S>>SSSSS===——S===———S=—"a~a—=—a—aAh9a=S

BRIEF AMICI CURIAE OF THE NAACP LEGAL

DEFENSE AND EDUCATIONAL FUND, INC. AND

THE AMERICAN CIVIL LIBERTIES UNION

EEE OC*o*“—___=>>>=>>=>=>=>=_=[_=_==—_{—_—>=

Juuivs LeVorxne CHAMBERS

Eric ScuNaprer*

NAACP Legal Defense &

Educational Fund, Inc.

16th Floor

99 Hudson Street

New York, New York 10013

(212) 219-1900

Counsel for Amici Curiae

* Counsel of Record

QUESTIONS PRESENTED

1. Must a public employee who alleges

job discrimination on the basis of race show

that the discriminaton resulted from an

official “policy or custom" in order to

recover under 42 U.S.C. §1981?

2. Did the Fifth Circuit’s decision

correctly apply Monell v. Department of Social

Services, 436 U.S. 658 (1978), and it progeny?

TABLE OF CONTENTS

Questions Presented ........+.-. i

Table of Contents .....+eeee0-. ii

Table of Authorities ......... iii

Interest of Amici ....++++e+- 1

Summary of Argument ....++«-++«:. 2

ATQUMOCENE ..ccccceseseseseesees 5

I. The 1866 Civil Rights Act,

As Originally Enacted, Did

Not Require Proof of

Official Policy ......+.+--. 10

A. No Proof of Official

Policy Is Required

in Section 1981

Actions Against

Private

Defendants ......- 15

B. No Proof of Official

Policy Is Required

in Section 1981

Actions Against

Governmental

Defendants .....«.- 22

II. The Rights and Remedies

Created by the 1866 Civil

Rights Act Were Not Altered

by the Adoption of the 1871

Civil Rights Act ....... 47

GamsiesGags ceococoeeesese seccees 57

Se ee

TABLE OF AUTHORITIES

Allegheny County v. Rowley,

4 Clark (Pa.) 307

(1849) e*eneeneenrteneeeetee#esee##see#e#-*«

Amell v. United States, 384 U.S.

158 (1966) e*eeeeeese+feeee#e#eee#eee«#

Anthony v. Adams, 42 Mass. 284

(1840) eoeneeeneeeneeeneeeeee#ee

Barry v. City of St. Louis,

17 Mo. 121 (1852) .......

Batchelder v. City of Salem, 58

Mass. 599 (1849) ee fw fee ©

Botkin v. Osborne, 39 Ill.

71 (1864) esenreeee#se+feeSer. eee##ee##se#*

Browning v. City of Springfield,

eee ae

Casey v. Baldridge, 15 Ill. 43

(1853) *eeeneeneneeeneeeee#ee#e#*#

Chicago v. Robbins, 67 U.S. (2

Black) 418 (1863) *“eeneeteee

Cincinatti v. Stone, 5 Ohio St.

38 (1855) se efeeeeeneeeeeseese#e«

City of Baltimore v. Marriott,

9 Md. 160 (1856) ........

City of Dayton v. Pease, 4 Ohio

COR og. ccc ccs

iii

38,40

31,41

19,31,33

City of Detroit v. Corey, 9 Mich.

165 (1861) e*eneteneeneee#eeeee @ 36

City of Logansport v. Wright, 25

Sat, GEO GREED. icccccces 31,35

City of Milwaukee v. Davis,

6 Wisc. 377 (1858) ...... 39

City of Providence v. Clapp,

58 U.S. (17 How.) 161

(1854) *ensreeessoreesee8e fe teeeeestses 28

City of Richmond v. Long’s

Administrators, 17 Gratt.

(Va. ) 375 (1867) *enereeneree 31,32

City of St. Louis v. Gurno, 12

Mo. 414 (1849) se enereeeeeee#e# 36-37,42

Clague v. City of New Orleans,

13 La. Ann. 275

(1858) *enerteneeneenseneteeeee#s#keesese#e#* # 43

Conrad v. Trustees of Ithaca,

16 N.Y. 158 (1857) ...... 39

Cotes & Patchin v. City of

Davenport, 9 Iowa 227

(1859) *enreeeeeeeee#seetee#e © * @ 35

County Commissioners of Anne

Arundel County v. Duckett,

20 Md. 468 (1863) ....... 38

Creal v. City of Keokuk,

4 G. Greene (Iowa)

Gr Ga saetesceceus owe 41

— =

Cross v. District Township of

Dayton, 14 Iowa 28

(1862) *ene@enseneenteeneteeneeeeete#e#

Croy v. Skinner, 410 F. Supp.

117 (N.D. Ga. 1976) .....

Dargan v. Mayor of Mobile, 31

Ala. 469 (1858) .........

Dean v. New Milford Township,

5 Watts & Serg. (Pa.)

545 (1843) *eeeseneteeenee es © @

Delmonico v. Mayor, etc. of New

York, 1N.Y¥. Super. Ct. 222

(1848) eeeeeeeeeeeneeeeenee

Dickerson v. City Bank & Trust

Co., 590 F. Supp. 714

(D. Kan. 1984) *enereeee#eeserfeee#ese.

District of Columbia v. Carter,

409 U.S. 418 (1973) .....

Doyan v. School District, 35 Vt.

520 (1863) eeeeeeeeeeeeer

E.E.0.C. v. Gaddis, 733 F.2d 1373

(10th Cir. 1904) .cccccece

Flowers v. Crouch Walker Corp.,

552 F.2d 1277 (7th Cir.

1977) oe eo eeweeeeee#eekheeke#srfifeee#e#eet#ee

Fowle v. Common Council of

Alexandria, 28 U.S.

(3 Pet.) 398

Dn 6tecbdbbeenseeseee

Freeland v. City of Muscatine,

9 Iowa 461 (1859) ....46--

General Building Contractors v.

Pennsylvania, 458 U.S. 375

(1982) “eneroeeneneeenrneeneeeeeee 16,

George v. School District No. 8,

20 Vt. 493 (1848) .......

Gilman v. Bassett, 33 Conn. 298

(1866) *“enere@e#eeseee#ere#ee#s#eoee#e#e#rfee#ee#e#e#

Harrison Township v. Conrad,

26 Ind. 337 (1866) *“enneree

Hickok v. Trustees of Platts-

burgh, 16 N.Y. 158

(1854) *“e eeee eeee#ee#e#ee#ee#e#e#e# @

Hickok v. Trustees of Platts-

burgh, 15 Barbour (N.Y.)

427 (Sup. Ct. 1853) .....

Hilsdorf v. City of St. Louis,

45 Mo. 94 (1869) *enerteeeee#ese

Holden v. Shrewsbury School

District No. 10, 38 Vt.

529 (18660) wee eeeeeceees

Hooe v. Alexandria, 12 Fed. Cas.

462 (C.C.D.C. 1802) ....--

Imbler v. Pachtman, 424 U.S.

409 (1976) *“eeseeeenerteenteee ee

Inhabitants of Searsmont v.

Farwell, 3 Me. 450

(1825) eeeeeeve eevee eeeee 8

17,18

28-29

Izard v. Arndt, 483 F. Supp. 261

(E.D. Wisc. 1980) *eneeente

Jett v. Dallas Independent School

District, 837 F.2d 1244

(Sth Cir. 1988) .........

Jett v. Dallas Independent School

District, 798 F.2d 762

(5th Cir. 1986) *enreeeeneeee.

Johnson v. Municipality No. One,

5 La. Ann. 100

(1850) *enerenseegee#erseke#5e*eee#ee#ee##ee#e«

Jones v. Local 520, International

Union of Operating Engineers,

524 F. Supp. 487 (S.D. Ill.

SGN ' 640626606464666600 6

Kavanagh v. City of Brooklyn,

38 Barb. (N.Y.) 232 (Sup.

ct. 1862) *enreent#e#eeefeje5Tne 8feteee

Kelley v. Mayor, etc. of New York,

4 E.D. Smith (h.Y.) 291 (Ct.

Com. Pleas 1855) ........

Kelly v. City Council of Charles-

ton, 4 Rich. Law. (S.C.)

RE POe

Kelly v. Mayor, etc. of New York,

11 N.Y. 432 (1854) *e #fee

Lloyd v. Mayor, etc. of New York,

5 N.Y. 369 (1851) .......

vii

4,5,15

5,30,42

29,31

Lucero v. Beth Israel Hospital

Center, 479 F. Supp. 452

(D. Colo. 1979) .w.ceeeees

Lytle v. Household Manufacturing,

Inc., No. 88-334 ne fee

Malone v. Schenk, 638 F. Supp.

423 (c. D. Ill.

1968S) ccccccccccccccececs

Mason v. School District No. 14,

20 Vt. 487 (1848) .......

Mayor, etc. of Baltimore v.

Kelly, 9 Md. 160

(1856) e*enereense#sesesee#setfeee#feeeeese#*@#

Mayor, etc. of Memphis v.

Lasser, 28 Tenn. 757

(1849) cccccccccesececese

Mayor, etc. of New York v.

Bailey, 2 Denio (N.Y.)

433 (Ct. of Errors

1845) ccccccccccccccccces

Mayor, etc. of New York v. Furze,

3 Hill (N.Y.) 612, 618-19

(Sup. Ct. 1842) ....246e-

Meares v. Commissioners of

Wilmington, 31 N.C. 73

Dt xcihincenehdutedee

Mercantile Nat. Bank v. Langdeau,

371 U.S. 555 (1963) .....

viii

29,32

Miller v. Bank of America, 600

F.2d 211 (9th Cir.

1979) ernrenetenereneeeneeee#* se *# * © © 10

Monell v. Department of Social

Services, 436 U.S. 658

(197B) ccccccecccecccecces i,8,9,10,

24,44,49-52

Morey v. Town of Newfane, 8

Barbour (N.Y.) 645 (Sup.

CE. 1650) cccccccccccecces 37

Morton v. Mancari, 417 U.S.

33S C2974) ccocccccccccecs 48

Nebraska City v. Campbell, 67

U.S. (2 Black) 590

(2663) cccccccceseccceces 28

Neville v. School Directors of

District No. 1, 36 Ill.

FR €28664) ccocccceccccseces 45

Nevins v. City of Peioria, 41

SSR. Gee Gee eéeccecees 35,41

Newport v. Fact Concerts, Inc.,

453 U.S. 247 (1981) ..... 3,12,13

Offut v. Bougeois, 16 La. Ann.

163 (1861) *“ensrineenee eee e ee © 45

Oklahoma City v. Tuttle, 471 U.S.

808 (1985) *“enrioneneneneeneenene ee © 17

Owen v. City of Independence,

445 U.S. 622 (1980) ..... 4,12,13,22,

24-25, 41,45

Pack v. Mayor, etc. of New York,

ll N.Y. 432 (1854) ef ff ©

Painter v. Pittsburgh, 46 Penn.

st. 213 (1863) se fe feeeeeee

Patterson v. McLean credit/union,

No. 87-107 eereeneweenees © * © @

Paul v. School District No. 2,

28 Vt. 575 (1856) .......

Pembaur v. Cincinnati, 475 U.S.

469 (1988) *eereneeeneeeeeeee

Pierson v. Ray, 386 U.S. 547

(1967) ne feeteeneeneeeeeeeeeee

Prather v. Lexington, 13 Ben.

Monroe’s Ky. Rep. 559

(1852) re fr feeeeese eeeee#s*s * «

Pritchard v. Georgetown, 19 Fed.

Cas. 1348 (C.C.D.C.

1819) re fe fe fe eeeeeeeeeeee

Regional Rail Reorganization Act

Cases, 419 U.S. 102

(1974) re fe feeneneeneeneteee eee

Richardson v. School District

No. 10, 38 Vt. 602

(1866) nr ft eee eeeeseeese*e* *

Roberts v. City of Chicago, 26

Sea. SEP SEEES coccesese

Rochester White Lead Co. v. City

of Rochester, 3 N.Y. 463

(1850) ne frereneneneneeeeeeeae ee «@

Rolfe v. Cooper, 20 Me. 154

(1841) ne fe eewe eeees eeees © *

Ross v. City of Madison, 1 Ind.

281 (1848) ere fe eeeeneeeeee

Ruckleshaus v. Monsanto Co.,

467 U.S. 986 (1984) .....

St. Louis v. Praprotnik, 99 L.

Ed.2d 107 (1988) oe eereeeee

St. Paul v. Seitz, 3 Minn. 297

(1859) ne fe feet © ef eeeeeee

Shaw v. Mayor of Macon, 19 Ga.

468 (1856) se ereeneeneeeeeeee

Small v. Inhabitants of Danville,

51 Me. 359 (1864) .......

Smith v. Milwaukee, 18 Wisc.

GB (2864) coccccccccsceoss

Smoot v. City of Wetumpka, 24

Ala. 112 (1854) .......6..

Stewart v. City of Néw Orleans,

9 La. Ann. 461

(1854) enenetee ne eeenees eee ef © ©

Templin v. Iowa City, 14 Iowa

SO (1862) .cccccccccccces

Treadwell v. Mayor, etc. of New

York, 1 Daly (N.Y¥.) 123 (Ct.

Com. Pleas 1861) ......«.-.

Trustees of Town of Milford v.

Simpson, 11 Ind. 520

(1858) *“e @ewe#ee#e*e#seneeteneeeet * « 45

Wallace v. City of Muscatine,

4 G. Greene (Iowa) 373

(1854) *eeenee ei eeneeee#s e+ *# * 41

Weightman v. Washington, 66 U.S.

(1 Black) 39 (1861) ..... 4,26-28,32

Wilde v. City of New Orleans, 12

La Ann. 15 (1857) ....... 40

Wood v. Strickland, 420 U.S. 308

(1975) “ne @ewew#eer+ete @e*ee#ee##eeet#se * * 12

Other Authorities

Civil Rights Act of 1866, 42

U.S.C. $198 cccccccecsecs passin.

Civil Rights Act of 1871, 42

U.S.C. $1983 wccccccccces passim.

42 U.8s. Ge 1986 *e feeeesee eee 53

Blackstone’s Commentaries .... 19

F. Hillard, The Law of Torts

et) ) BP PPTTTrrre+e+rreeere 20

W. Paley, A Treatise on the

Law of Principal and

Rn GEE aessceoeseoes 20

Prosser and Keeton on Torts

(Sth GB. 1966) ccccccecces 13

xii

Cc. Smith, A Treatise on the

Law of Master and

Servant (1852) .....se46. 20

J. Story, Commentaries on the

Law of Agency (1857) .... 14,19,20

W. Theobald, The Law of Principal

and Surety and Principla and

Agent (1836) ne fe eeeeene eee 20

Cong. Globe, 39th Cong.,

lst sess. ese ereineneeeneneeeeeeee 8

Cong. Globe, 42nd Cong.,

lst S@SS. «cess “eee eeeenee 8, 54-56

xiii

BRIEF AMICI CURIAE

OF THE NAACP LEGAL DEFENSE AND

EDUATIONAL FUND, INC.

AND THE AMERICAN CIVIL

LIBERTIES UNION

INTEREST OF AMICI CURIAE*

The NAACP Legal Defense and Educa-

tional Fund, Inc., is a non-profit

corporation formed to assist Blacks to

secure their constitutional and civil

rights by means of litigation. Over the

course of the last two decades, the Fund’s

attorneys have represented plaintiffs ina

substantial number of section 1981 cases,

both in the lower courts and in this

Court. See, @€:9., Patterson v. McLean

Credit Union, No. 87-107; Lytle v.

Household Manufacturing, Inc., No. 88-334.

1 Letters from the parties consenting

to the filing of this brief have been

filed with the Court.

-2-

We currently represent in pending section

1981 actions a number of plaintiffs whose

rights will necessarily be significantly

affected by this Court’s decision in the

instant case.

The American Civil Liberties Union

(ACLU) is a nationwide, non-partisan,

membership organization dedicated to

defending civil liberties and civil

rights. In pursuit of that goal, the ACLU

has participated in numerous cases before

this Court involving the interpretation of

federal civil rights statutes. This case

raises again the question of whether those

laws will remain an effective tool for

combatting discrimination. The resolution

of that question is a matter of vital

concern to the ACLU.

SUMMARY OF THE ARGUMENT

The interpretation of the 1866 Civil

Rights Act must be based on the terms and

— 2

legislative history of that statute, not

on the meaning and history of the 1871

Civil Rights Act. The membership of the

House of Representatives in the thirty-

ninth and forth-second Congresses, which

adopted the 1866 and 1871 acts respec-

-tively, was almost entirely different. Of

the 122 Representatives who voted in 1866

for the first Civil Rights Act, only 15

were still in the House in 1871, and only

4 of these voted against the Sherman

amendment.

Whether respondeat superior, or

comparable contract doctrines, should be

applied to a section 1981 claim turns on

the principles of common law which would

have governed similar claims in 1866.

Newport v. Fact Concerts, Inc., 453 U.S.

247 (1981). The Fifth Circuit in the

instant case correctly acknowledged that

respondeat superior would apply to a

- 4 -

section 1981 claim against a private

defendant. Jett v. Dallas Independent

School District, 798 F.2d 748, 763 (5th

Cir. 1986). It would be incongruous if a

lesser standard of liability were appliéd

to claims against government defendants.

In 1866 the doctrine of respondeat

superior was widely utilized to determine

the degree of municipal liability for a

violacion of a legal duty by a city

employee. Weightman _v. Washington, 66

U.S. (1 Black) 39 (1861). In this era

municipal corporations were generally

subject to "the same standards of liabil-

ity as any private corporation." Owen v.

City of Independence, 445 U.S. 622, 644

(1980). The principles of respondeat

superior were applied by state courts

prior to 1866 to determine whether a

Slaveowner could recover damages from a

city for injuries inflicted on aslave by

e § «

city employees. Johnson v. Municipality

No. One, 5 La. Ann. 100 (1850).

The 1866 Civil Rights Act, in the

period prior to the enactment of the 1871

Act, clearly did not require proof of

official policy or custom. The adoption

of the 1871 statute did not alter the

meaning of the 1866 law. Repeals by

implication are disfavored. Ruckleshaus

Vv o., 467 U.S. 986 (1984).

ARGUMENT

The decisions of the Fifth Circuit in

this case proceed from one essential but

critically flawed premise -- that the

meaning of the 1866 Civil Rights Act can

and should be divined by reference to the

meaning and now reigning construction of

the 1871 Civil Rights Act. In its initial

opinion the panel below asserted that the

doctrine of respondeat superior could not

be applied in section 1981 actions against

e@e

governmental bodies because, on its view,

"(tj]o impose such vic.rious liability

for... certain wrongs based on section

1981 apparently would contravene the

congressional intent behind section 1983."

Jett v. Dallas _ Independent School _Dis-

trict, 798 F.2d 748, 762 (5th Cir. 1986).

The panel in its second opinion relied on

what it believed to be "the appropriate-

ness of parallel treatment in this respect

of these two post-Civil War statutes."

Jett v. Dallas _ Independent School Dis-

trict, 837 F.2d 1244, 1248 (5th Cir.

1988).

Under most circumstances, however,

the interpretation of one statute must be

based on its own terns and legislative

history, not on the history and meaning of

a distinct and subsequent law. An excep-

tion might be appropriate for two related

and similarly worded statutes adopted

= _

Simultaneously by the same Congress to

solve the same problen. But such a

relationship does not exist between the

1866 Civil Rights Act and the 1871 Civil

Rights Act. The 1866 Act was enacted by

the thirty-ninth Congress pursuant to the

Thirteenth Amendment, and covers. both

private and governmental acts of discrimi-

nation; the 1871 Act was adopted by the

forty-second Congress pursuant to the

Fourteenth Amendment, covers a wide

variety of constitutional and statutory

claims, and extends only to conduct under

color of state of law. In District of

Columbia v. Carter, 409 U.S. 418 (1973),

this Court unanimously rejected a similar

claim that the 1866 and 1871 acts should

be accorded “parallel treatment"; Carter

held that, although the words "state and

territory" in the 1866 Act encompass the

° @ @

District of Columbia, those same words in

the 1871 Act do not refer to the District.

The legislation enacted by the forty-

second congress is a particularly unreli-

able guide to the intent of the thirty-

ninth congress because of the almost total

change in the membership of the House of

Representatives between 1866 and 1871. Of

the 122 members of the thirty-ninth

congress who voted for the 1866 Civil

Rights Act, only 15 were still members of

the House when the 1871 Act was adopted.

The interpretation of section 1983 in

Monell _v. Dept. of Social Services, 438

U.S. 658, 664-701 (1978), turned largely

< Compare Cong. Globe, 39th Cong.,

lst sess. 3, 1861 (1866) with Cong. Globe,

42nd Cong., ist sess. 5, 801 (1871). The

representatives who voted for the 1866 act

and were still in-the House in 1871 were

Nathaniel Banks, Burton Cook, Henry Dawes,

John Farnsworth, James Garfield, Samuel

Hooper, William Kelley, John Ketcham, John

Lynch, Ulysses Mercur, Leonard Myers,

Philetus Sawyer, Glenni Scofield, Samuel

Shellabarger and William Washburn.

o@«

on the vote of the House of Representa-

tives in 1871 rejecting the Sherman

amendment. But the rejection of the

Sherman amendment by the congressmen in

the House in 1871 tells us absolutely

nothing about the views of the wholly

different group of congressmen who served

in 1866. Indeed, among the 15 former

members of the thirty-ninth congress who

were elected to the forty-second congress,

only 4 voted against the Sherman amend-

ment.2 Representative Shellabarger, the

House sponsor of and chief spokesman for

the bill containing the Sherman amendment,

436 U.S. at 669-73, was one of the few

supporters of the 1866 Act still in

Congress in 1871; of the five congressmen

whose remarks in opposition to the Sherman

amendment were referred to in Monell, only

3 Banks, Cook, Farnsworth and

Garfield.

@ 16 «

one had even been a member of the earlier

thirty-ninth congress. ‘4

For these reasons, the 1866 and 1871

acts should be separately evaluated. The

first issue is whether the 1866 Civil

Rights Act, as originally enacted,

required proof of official policy or

custom; if, as we urge, the Court holds

that the 1866 Act contained no _ such

requirement, it should then consider

whether, by adopting the 1871 Act,

Congress intended by implication to amend

that earlier law and impose such a

requirement.

I. THE 1866 CIVIL RIGHTS ACT, AS

ORIGINALLY ENACTED, DID NOT REQUIRE

PROOF OF OFFICIAL POLICY

The question raised by this case is

not whether a city or private corporation

can be held liable because of discrimina-

4 436 U.S. at 673-82 (Reps. Blair,

Burchard, Farnsworth, Poland and Willard).

° 23

tion by one of its employees, but only

when the imposition of such liability is

appropriate. Corporations, be they

private or municipal, can only act through

natural persons; if, as respondent does

not deny, cities ave subject to suit under

section 1981, it will necessarily be as a

consequence of discrimination by one or

more municipal employees or agents.

The terms of the 1866 Civil Rights

Act do not themselves expressly establish

any rule regarding when an employer may

and may not be held liable for discrimi-

natory acts by its employees. But that

silence does not, as the Fifth Circuit

believed, authorize the courts to create

whatever liability rules they may think

supported by their own views of social

policy or current “judge-made law." 837

F.2d at 1248. Rather, here, as in»

ordinary cases of statutory construction,

- 12 =-

Congress is presumed to have intended that

such liability issues would be controlled

by the common law rules applicable to

similar claims at the point in time when

the statute in question was adopted:

One important assumption underlying

the Court’s decisions in this area is

that members of the ... Congress were

familiar with common-law principles

-++ and that they likely intended

these common-law principles to

obtain, absent specific provisions to

the contrary.

Newport v. Facts Concerts, Inc., 453 U.S.

247, 258 (1981).5 Such common law

principles are assumed to control litiga-

tion under section 1981 except in those

cases where they would “defeat the promise

, Qwen v. City of Independence,

445 U.S. 662, 637 (1980) (principles

“firmly rooted in the common law"); Imbler

vy. Pachtman, 424 U.S. 409, 418 (1970)

(statute “read in harmony with general

principles of tort immunity and defenses

rather than in derogation of them"); Wood

v. Strickland, 420 U.S. 308, 318 (1975)

("common law tradition") ; ’

386 U.S. 547, 553-54 (1967) ("doctrines

-»+ SOlidly established at common law").

- 13 -

of the statute." Newport v. Fact Con-

certs, Inc., 453 U.S. at 259.°®

The court below assumed that, in

evaluating the potential liability of an

employer, all section 1981 claims should

be regarded as torts, and that the issue

presented by this case is thus simply

whether the doctrine of respondeat

superior should be applied in these cases.

The common law, however, encompassed two

6 Respondent suggested below that the

imposition of liability on the city in

this case would be inappropriate because

intentional racial discrimination is

analogous to an intentional tort for which

an employer, even under common law prin-

ciples, could not be held liable. The

actual common law rule, however, exon-

erates an employer only for intentional

torts unrelated to the employer’s busi-

ness. Prosser and Keeton on Torts, 505

(5th ed. 1984). This argument, moreover,

proves too much, for if racial discrimina-

tion were regarded as an intentional tort

for which an employer could not be held

liable, thet doctrine would "“insulate[)

the sunicipality from unconsented suits

altogether,” Qwen v. City of Independence,

445 U.S. 622, 647 (1980), even if the tort

were committed jointly by a mayor and a

city council.

distinct types of rules regarding when an

employer was to be held liable for actions

of an employee, one set, under the rubric

respondeat superior, for torts, and a

second set for claims arising in a

contract. J. Story, Commentaries on the

Law of Agency 521-36 (contract), 536-600

(tort) (1857). Under some circumstances,

which we do not here undertake to con-

sider, the differences in those rules

might be of significance. The claim in

the instant case of constructive discharge

is probably more analogous to a contract

Claim for the wrongful dismissal of an

employee than to a tort claim arising, for

example, from the injury caused by a

negligently maintained street. As we

suggest below, however, the disposition of

petitioner’s claim is the same regardless

of whether it is regarded as sounding in

contract or in tort.

The Fifth Circuit in the instant case

expressly held that the doctrine of

respondeat superior jis applicable to

section 1981 claims against a private

defendant:

Plaintiff relies on several cases

applying respondeat superior theory

under section 1981 in the context of

private employment.... Our reason-

ing, of course, does not prevent the

imposition of vicarious liability on

a private employer under section

1981.... We believe that the Supreme

Court’s interpretation in Monell of

Congress’ intent in enacting section

1983 provides compelling reasons for

distinguishing between private and

municipal liability under section

1981.

798 F.2d at 763. The lower courts are in

virtually unanimous agreement that the

principles of respondeat superior are

° 3 «

controlling in section 1981 claims against

private employers.’

A majority of this Court is already

committed to the view that the liability

of an employer, at least of a private

employer, can be based on the principles

of respondeat superior. In General

Building Contractors v. Pennsylvania, 458

U.S. 375 (1982), the Court considered a

variety of assertions that the employer

association in that section 1981 case

shouid be held liable for discrimination

7 £.E.0.C. v. Gaddis, 733 F.2d 1373,

1380 (10th Cir. 1984); Miller v. Bank of

America, 600 F.2d 211, 212-13 (9th Cir.

1979); Flowers v. Crouch Walker Corp., ~52

F.2d 1277, 1282 (7th Cir. 1977); Malone v.

Schenk, 638 F. Supp. 423, 424-25 (C.D.

Ill. 1985);

Trust Co., 590 F. Supp. 714, 717 C.D. Kan.

1984);

524 F. Supp.

487, 492 (S.D. Ill. 1981); Lucero vy. Beth

, 479 F. Supp. 452,

455 (D. Colo. 1979); Croy vy. Skinner, 410

F. Supp 117, 123 (N.D. Ga. 1976): Cf.

isard v. Arndt, 483 F. Supp. 261, 263 (E.

D. Wisc. 1980) (section 1982).

by a union hiring hall. Justices O’Connor

and Blackmun irsisted, in a concurring

opinion, that the plaintiffs would be

entitled on remand to redress against the

employers if they cculd demonstrate that a

principal-agent relationship in a fact

existed between the employers and the

union, thus establishing “the traditional

element{] of respondeat superior." 458

U.S. at 404. Justices Marshall and

Brennan expressly endorsed this aspect of

Justice O’Connor’s opinion. 458 U.S. at

417 n. 5 (dissenting opinion). Although

Justice Stevens did not address that

issue, he has repeatedly insisted that

respondeat superior should be applied even

in a section 1983 case. Pembauer v.

Cincinnati, 475 U.S. 469, 489 (1866)

(concurring opinion); Oklahoma City v.

Tuttle, 471 U.S. 808,834-44 (1985)

(dissenting opinion). Despite the fact

°- 18 «

that the defendant employers in General

Building Contractors expressly urged this

Court to apply to section 1981 the "policy

or custom" requirement of Monell,® the

remaining members of the Court in General

Building Contractors premised their

opinion on “the assumption that respondeat

superior applies to suits based on 1981",

458 U.S. at 395, and held, because of the

apparent absence of a master-servant

relationship, that the imposition _ of

liability in that case would have required

an unwarranted “extended application of

respondeat superior." 458 U.S. at 392 n.

18; see also id. at 394 n. 19 (Suprene

Court itself to decide whether the facts

of the case were "sufficient to invoke the

doctrine of respondeat superior").

8 Brief for Petitioners, No. 81-280,

pp. 10, 22-24.

e 19 «

Certainly with regard to a private

employer there can be no doubt that the

extent of an employer’s liability for

violations of section 1981 by its

employees would, where the violation

sounded in tort, be controlled by the

principles of respondeat superior. In the

nineteenth century the doctrine of

respondeat superior was recognized as “one

of the oldest and best settled doctrines

of the common law." City of Dayton v.

Pease, 4 Ohio St. 80, 95 (1854). The

principle of respondeat superior had its

roots in Roman law, J. Story, Commentaries

on the Law of Agency, 594 (1857), and was

familiar to Blackstone. 1 Blackstone’s

Commentaries 431-32. By the middle of the

nineteenth century both the doctrine of

respondeat superior, and various applica-

tions and ramifications of the rule, were

well settled. See J. Story, Commentaries

- 20 -

on the Law of Agency, 536-600 (Boston,

1857); F. Hilliard, The Law of Torts, v.

2, Pp. 524-29 (Boston, 1859); C. Smith, A

Treatise on the Law of Master and Servant,

pp. 151-93 (Philadelphia, 1852); W. Paley,

A_Treatise on the Law of Principal and

Agent, pp. 294-98 (Philadelphia, 1840); W.

Theobald, The Law of Principal and Surety

and Principal and Agent, pp. 296-300 (New

York, 1836). Similarly, under contract

law, although there were complex rules

regarding when an agent could make a

contract binding his or her principal,

once such a contract was made the prin-

cipal was clearly liable if the agent

breached the agreement. Story, supra, pp.

521-36; Smith, supra, pp. 122-43. In

1866, if the employee of a private concern

were wrongfully dismissed, or if a third

party were injured by the tortious conduct

of a servant acting within the course of

@ 21 «

his employment, the employer or master

would have been liable under state law for

the ensuing damages. There is no indica-

tion that Congress intended to depart from

those established principles and to impose

for a violation of section 1981 any lesser

degree of responsibility or liability.

Indeed, such a departure from common

law principles would fairly fly in the

face of the 1866 Civil Rights Act itself.

Section 1981 requires in part that blacks

be accorded "the same ... full and equal

benefit of all laws and proceedings for

the security of persons and property as is

enjoyed by white citizens." If in 1866 a

white worker had been wrongfully dis-

charged, he could have obtained an award

of lost wages in state court without proof

that his employer had a “policy or custom"

of wrongfully dismissing employees. The

contract clause of the 1866 Civil Rights

- 22 «

Act made it wriagful to discharge an

employee on account of his race; it is

inconceivable that Congress intended to

give to a black employee wrongfully

discharged in violation of federal law a

remedy in any way less efficacious than

the remedy available to a white employee

wrongfully discharged in contravention of

state law.

B. No Proof of Official Policy Is

Required in Section 1983 Actions

Against Governmental Defendants

If respondeat superior, and compar-

able contract principles, apply to a

section 1981 action against a private

employer or other entity, it would be

strange indeed if a lesser standard of

liability, and responsibility, applied to

governmental defendants. This Court

observed in Qwen v. City of Independence

that it would be

“uniquely amiss" ... if the govern-

ment itself -- "the social organ to

- 23 -

which all in our society look for the

promotion of liberty, justice, fair

and equal treatment ..." -- were

permitted to disavow liability for

the injury it has begotten.

445 U.S. at 651. Surely it would be even

more amiss if a city or school board could

under federal law assert immunity from a

claim for which a private defendant would

be financially liable. The fifth circuit

evidently reached this peculiar result

because, although acknowledging that

section 1981 covered private conduct, it

harbored doubts as to whether the 1866 Act

applied to cities at all. 837 F.2d at

247-48. While we adhere to the view which

we expressed in Patterson v. McLean Credit

Union, No. 87-107, that the 1866 Act

applies to private as well as governmental

discrimination, nothing in that history

suggests any intent on the part of

Congress to prohibit only private dis-

crimination, or to apply to private

mes

- 24 - |

institutions principles of liability more

stringent than were applicable to govern-

mental defendants.

The common law principles which would

have been familiar to the thirty-ninth

congress encompassed no rule comparable to

the “policy or custom" doctrine in Monell.

That doctrine was virtually unknown to

Anglo-American jurisprudence prior to the

1978 decision in Monel] itself. In the

mid-nineteenth century, as this Court

explained in Qwen v. City of Independence,

there were two somewhat ill-defined

circumstances in which a municipality

could be sued in tort in state or federal

court. First, cities could be held liable

for injuries caused by eerticus actions of

a “proprietary” rather than “governmental”

nature. The building and maintenance of

city bridges and streets were the most

widely recognized type of proprietary

functions, while the adoption of ordi-

nances was ordinarily deered a govern-

mental act. Second, cities were subject

to suit if they violated a duty imposed by

state law or by their own charters, but

not for “discretionary”, “legislative” or

"judicial" activities. 445 U.S. at 644-

49. The instant case does not require

this Court to resurrect and apply these

elusive distinctions, because it is clear

that Congress did intend to allow suits

against municipalities under section 1981,

and thus that it would have rejected the

absolute immunity accorded to “discretion-

ary" “governmental” acts. Rather, the

historical issue of importance is to

ascertain what principles of liability

would in 1866 have been applied to

municipalities in those instarces -- be

they for “proprietary” or “ministerial”

e 96 «

actions -- when cities were subject to

suit.

It is quite clear that in 1866, when

a city was subject to suit in tort, both

federal and state courts consistently

applied the doctrine of respondeat

eames” .

violation of a statutory or ministerial

Tort actions based on a

duty are of particular importance, since

they are most closely analogous to a4

violation of section 1981. In Weightman

vy. Washington, 66 U.S. (1 Black) 39

(1861), the plaintiff sued the District of

Columbia for injuries sustained as a

result of the collapse of a bridge then

spanning Rock Creek at K Street. 66 U.S.

at 45-46. The city argued that it was

“not responsible for the nonfeasances or

misfeasances of the persons necessarily

employed" by the city to build and

maintain the bridge. This Court unani-

- 27 -

mously rejected that argument, holding

that the city was subject to suit because

the case involved a violation of a

ministerial rather than a discretionary

duty, and that liability could be based on

negligence by city employees:

Municipal corporations undoubtedly

are invested with certain powers

which, from their nature, are discre-

tionary, such as the power to adopt

regulations or by-laws ... [(I)t has

never been held that an action ...

would lie against the corporation ...

for the failure ... to rform such a

duty. But duties arising under such

grants ... must not be confounded

with the burdens imposed, and the

consequent responsibilities arising

under another class of powers usually

to be found in (municipal) charters,

where a specific and clearly defined

duty is enjoined.... Where such a

duty ... is enjoined, and ... the

means to rform the duty are placed

at the disposal of the corporation

oes —- are clearly liable to the

public if they unreasonably neglect

to comply with the requirement of the

charter.... (T)hey are liable for

the negligent and unskillful acts of

whenever

those acts occasion special injury to

the person or property of another.

66 U.S. at 50-51 (emphasis added). On two

other occasions prior to 1866 this Court

sustained claims against municipalities

based on similar claims of negligence by

city employees. Nebraska City v. Camp-

bell, 67 U.S. (2 Black) 590 (1863)

(neglect to repair bridge, in violation of

city charter); City of Providence v.

Clapp, 58 U.S. (17 How.) 161 (1854)

(negligent failure to remove snow from

sidewalk, in violation of state statute).

The applicability of respondeat

superior in such cases was indeed “well

settled." Nebraska City v. Campbell, 67

U.S. at 592. In Hickock v. Trustees of

Village of Plattsburgh the New York Court

of Appeals observed, with regard to “the

liability of municipal corporations for

damages arising from the negligence of

malfeasance of their officers," that it

- 29 -

was already “established” that when a

municipal corporation

has become bound ... to do certain

things, such corporation ... is

liable, in case of —— to perform

... to a private action at the suit

of any person injured by such neglect

..s (W)henever it exercises its

corporate powers, it is bound to see

that due care and caution are used to

avoid injury to individuals. It can,

of course, be no excuse for the

corporation, any more than it would

be for an individual, that the work

was done and the want of care shown

by an employee or servant whom [it)

had set to work.

16 N.Y. 158, 162-72 n..? The Louisiana

Supreme Court agreed in 1850 that “The

9 several other New York cases also

so held. Kavanagh vy. City of Brooklyn, 38

Barb. 232, 237 (Sup. ct. 1862) (city

liable where a “duty, purely ministerial,

is violated or negligently performed by 4

public body or officer"); Lioyd yv. Mayor,

etc. of New York, 5 N.Y. 369, 374 (1851)

(where a city’s “duty to perform ... is

clearly ministerial ... (t)he principle of

respondeat superior consequentiy

applies");

, 3 Hill (N.Y.), 618-619 (Sup. ct.

1842) ("a municipal corporation is .s-

liable ... where a duty, specifically

enjoined upon the a. as such, has

been wholly neglected by its agents").

liability of municipal corporations for

the acts of their agents, as a general

rule, is too well settled at this day to

be seriously questioned", noting that

while some exceptions to the rule existed,

it necessarily applied where a city

employee had failed to perform a duty

established by state statute. Johnson vy.

Municipality No. One, 5S La. Ann. 100

(1850). Similar decisions were issued

prior to 1866 by state courts in

e 31 -

Illinois,1° tndiana,11 Maryland,}? onio,}*

and Pennsylvania.14 The North Carolina

Browning v. City of Springfield,

17 Ill. 143-45 (1855) (municipalities

"like individuals are liable for the

negligent, unskillful acts of their

servants and agents" where they are

"charged with a full, specific and

complete duty").

11 city of Logansport v. Wright, 25

’

Ind. 512, 515 (1869) (where an act “is

ministerial in its character" municipal

corporations are liable for "the negli-

gence or unskillfulness of their agents").

_ of Baltimore _v.

Marriott, 9 Md. 160, 174-44 (1856)

(upholding jury instruction imposing

liability on city for lack of “ordinary

care and diligence" by “its agents”

because statute imposing duty on Baltimore

placed it “upon the same footing which is

held by individuals and private corpora~

tions ... and so are the consequences the

same for its disregard").

13 city of Dayton v. Pease, 4 Ohio

St. 80, 99 (1854) (quoting Lloyd v. Mayor,

etc. of New York).

14 pean _v. New Milford Township, 5

Watts & Serg. (Pa.) 545, 546 (1843)

(upholding claim against municipality

because “whenever an individual has

sustained injury by the misfeasance or

nonfeasance of an officer who acts or

omits to act, contrary to his duty, the

law affords redress"): See also Ci

- 32 -

Supreme Court, in an expansive view of the

nature of a municipality’s obligations,

reasoned that any grant of power to a

city implied a condition that actions

taken pursuant to that grant would be

performed “in a skillful and proper

manner." Meares __v. Commissioners of

Wilmington, 31 N.C. 73, 81 (1848). A

plaintiff injured by a violation of that

duty was entitled to sue the city commis-

sioners “as a corporation, in which

capacity they procured the work to be

done, and are liable for the damage done

Richmond v. Long’s Administrators, 17

Gratt. (Va.) 375, 381 (1867) (“Wherever it

can be said that distinct duties are

imposed upon a [municipal] corporation,

purely ministerial and involving no

exercise of discretion, the same liability

attaches as in the case of private persons

owing the same service under the law. To

this ... class belong numerous cases of

recovery against corporations for the

torts or negligence of their servants")

(citing, inter alia, Weightman _—-v.

- 33 -

by their agent, under the rule respondeat

superior." 31N.C. at 79.

The principle of respondeat superior

was also widely applied to delineate the

scope of municipal liability where a city

was subject to suit because of injuries

occasioned by “proprietary” activities.

The Ohio Supreme Court held that

When a municipal corporation under-

takes to ... construct[{]) improvements

for the especial interest or advan-

tage of its own inhabitants, the

authorities are all agreed, that it

is to be treated merely as a legal

individual ... and subject to all the

liabilities that pertain to private

corporations or individual citizens.

City of Dayton v. Pense, 4 Ohio St. 80,

100 (1854). In such circumstances

We have again and again affirmed,

that the liabilities of corporations,

private and municipal, are no less

extensive, and that the maxim,

, properly applies

to them, in the same manner, and to

the same extent, as in its applica-

tion to the liabilities of private

individuals.

- 314 -

4 Ohio St. at 95. In Tennessee, Mayor,

etc. of Memphis _v. Lasser, 28 Tenn. 757

(1849), held that where the object of a

city

activity was “to confer a direct

benefit or convenience upon the inhabi-

tants" or “to swell the revenues,"

(mjunicipal corporations are ...

liable for the wrongful acts and

neglects of their servants and

agents, upon the same grounds, in the

same manner, and to the same extent

as natural persons.

28 Tenn. at 761. The Indiana Supreme

Court ruled in 1848:

It may ... be considered settled law

that municipal corporations are

responsible to the same extent and in

the same manner as natural persons

for injuries occasioned by the

negligence or unskillfulness of their

agents in the construction of works

for the benefits of the cities....

Ross v. City of Madison, 1 Ind. 281, 284

(1848). The Iowa Supreme Court agreed

that

[t)he doctrine that a municipal

corporation is liable for malfea-

sance, or the negligence of its

agents in the construction of public

- 35 -

improvements upon precisely the same

principle and under the same circunm-

stances as the individual citizen ...

may be. regarded as well estab-

lished. +5

Cotes & Patchin v. City of Davenport, 9

Iowa 227, 235 (1859).2© Similar decisions

in the decades prior to 1866 are to be

found in Alabama,!7? Illinois, *®

15 see also Logansport v. Wright, 25

Ind. 512, 515 (1865).

16 see also Templin v. Iowa City, 14

Iowa 59, 60 (1862).

17 pargan v. Mayor of Mobile, 31 Ala.

469, 475-77 (1858) (city liable for

"negligence," "misconduct" and “unskillful

and incautious" acts of employees “where

they are employed about its private

interests; as, for instance in the

improvement of its private property").

18 Nevins v. City of Peoria, 41 Ill.

502, 515 (1866) ("a city in the management

of corporate property must be held to the

same responsibilities that attach to

individuals for injury to the property of

others ... respondeat superior ..-")-

e 36 <

Kentucky,+2% Louisiana,?° Maine,??*

Maryland,?2 Michigan,?3 Missouri,?4 and

19 prather v. » 13 Ben.

Monroe’s Ky. Rep. 559, 560-61 (1852)

("cities are responsible to the same

extent, and in the same manner, as natural

persons for injuries occasioned by the

negligence or unskillfulness of their

agents in the construction of works for

their benefit").

20 stewart v. City of New Orleans, 9

’

La. Ann. 461, 462 (1854) (a city “in the

exercise of powers ... which are conferred

upon it for private purposes... is

answerable for the acts. of those who are

in law its agents ... and ... is to be

regarded as a private company").

51 Me. 359, 362 (1864).

Arundel County v. Duckett, 20 Md. 468,

476-77 (1863) (county “is responsible for

the acts of those who are in law its

agents" for injuries occurring in the

exercise of “private franchises").

23 city of Detroit v. Corey, 9 Mich.

165, 183-86 (1861) (where a city’s

“private purposes” or “private property”

are envolved, “the rule of respondeat

superior is applicable").

_ *4 City of St. Louis v. Gurno, 12 Mo.

414, 419-21 (1849) (city “liable for the

negligence and unskillfulness of its

agents” in activities “for her emolument

- 37 <-

New York.?°

In the mid-nineteenth century

municipal liability was not consistently

limited to conduct involving proprietary

or convenience").

Mayor, etc. of New York v. Bailey,

2 Denio 433, 447 (Ct. of Errors 1845)

("municipal corporations ... have been

held liable for the acts of their officers

and agents of whom they had the appoint-

ment and supervision ... when the duty to

be performed was for the benefit of the

corporation"); Morey v. Town of Newfane, &

Barbour 645 (Sup. Ct. 1850) ("The doctrine

is now well settled that a municipal

corporation ... enjoying franchises and

privileges for its own convenience or

benefit, is liable in a civil action for

any injury resulting either from its

misfeasance or that of its officers");

Delmonico v. Mayor, etc. of New York, 1

N.Y. Super. Ct. 222, 226 (1848) ("It has

frequently been decided in this court,

that the corporation of the city is liable

for injuries occasioned by the negligence,

unskil?fulness or malfeasance of its

agents and contractors, engaged in the

construction of its public works"); Hickok

v. Trustees of Plattsburgh, 15 Barbour

(N.Y¥.) ~427, 436 (Sup. Ct. 1853) (city is

“responsible for its negligence or

unskillfulness of its agents and servants

when employed in the construction of a

work for the benefit of the city or town")

(emphasis in original).

activities or violations of legal duties;

in those opinions apparently imposing

liability without regard to the nature of

the activity or duty involved, the

principle of respondeat superior was also

applied. In Pritchard v. Georgetown, 19

Fed. Cas. 1348 (C.C.D.C. 1819), the

plaintiff complained that his property had

been injured when city workers regraded

the street beside his home; Chief Judge

Cranch held that "if the act was done by

the agents, ignorantly or negligently, the

corporation [of Georgetown] is liable.*

19 Fed. Cas. at 1349. The court in

Anthony v. Adams, 42 Mass. 284, 285

(1840), observed:

We can have no doubt that an action

-»+ Will lie against municipal

corporations, when such corporations

are in the execution of powers

conferred on them, or in the perfor-

mance of duties required of them by

law, and their officers, servants and

agents, shall perform their acts so

carelessly, unskillfully or

- 39 -

improperly, as to cause damage to

others.

In Missouri, Hilsdorf v. City of St.

Louis, 45 Mo. 94, 97 (1869), held:

corporations, whether municipal or

aggregate, are now held to the same

liability as individuals, and will

not be permitted to screen themselves

behind the plea that they are

impersonal, and their acts are but

the acts of individuals; and if an

agent or servant of a corporation, in

the line of his employment, shall be

guilty of negligence or commit a

wrong, the corporation is responsible

in damages.

(Emphasis in original). Similar state-

ments can be found in a number of other

opinions of this era.7*®

Respondeat superior doctrines

permeated municipal liability litigation

’

Ill. 249, 252 (1861); Allegheny County v.

Rowley, 4 Clark (Pa.) 307, 308 (1849);

, 6 Wisc. 377,

26 Roberts v City of Chicago 26

387 (1858); Conrad v. Trustees of Ithaca,

10 N.Y. 158, 172-73 (1857); cf. Fowle v.

Common Council of Alexandria, 28 U.S. (3

Pet.) 398, 409 (1830) (city not liable

because wrongdoer not "the officer or

agent of the corporation.")

- 40 -

in this era. Even when the alleged

wrongdoer was a high ranking official,

liability was premised on the fact that he

was an employee acting within the scope of

his employment, rather than on any notion

that such officials were policy makers or

otherwise unique.*”? In several instances

claims against municipalities turned on

the familiar question of whether the

relevant employee was in fact acting

within the scope of his employment,2® and

a large volume of litigation concerned

whether particular workers were city

employees, thus rendering appropriate the

application of respondeat superior, or

*7 Hooe v. Alexandria, 12 Fed. Cas.

462 (C.C.D.C. 1802) (city street commissioner) .

28 Hooe y Alexandria, 12 Fed. Cas.

462 (C.C.D.C 1802); Anthony v. Inhabitants

of Adams, 42 Mass. 284, 286 (1840); Wilde

» 12 La. Ann. 15

(1857).

» 43 «

were independent contractors. 79 The

application of respondeat superior to

municipalities -- in those instances when

they could be sued at all -- was consis-

tent with the general nineteenth century

practice of holding cities "to the same

standards of liability as any private

corporation." Owen v. City of Indepen-

dence, 445 U.S. 622, 644 (1980).39 In

29 Nevins v. City of Peoria, 41 Ill.

502, 515-16 (1866); St. Paul v. Seitz, 3

Minn. 297 (1859); Barry v. City of St.

Louis, 17 Mo. 121 (1852); Kelley v. Mayor,

etc. of New York, 4 E.D. Smith (N.Y.) 291

293 (Ct. Com. Pleas 1855); Treadwell v.

, 1 Daly (N.Y.)

Mayor, etc. of New York

123, 127-28 (Ct. Com. Pleas 1861); Pack v.

Mayor, etc. of New York; 8 N.Y. 222

(1853); Kelly v. Mayor, etc. of New York,

11 N.Y. 432, 435-36 (1854); Cincinnati v.

Stone, 5 Ohio St. 38 (1855); Painter v.

Pittsburgh, 46 Penn. St. 213, 220 (1863);

Smith v. Milwaukee, 18 Wis. 63 (1864).

30 see also Smoot v. City of

Wetumpka, 24 Ala. 112, 121 (1854);

ield, 17 Iil.

143, 147-48 (1855);

Keokuk, 4 G. Greene (Iowa) 47, 50 (1853);

, 9 Iowa 461,

464 (1859); ’

4 G. Greene (Iowa) 373, 374~75 (1854);

e 42 «

Chicago v. Robbins, 67 U.S. (12 Black) 418

(1863), this Court held that it would be

wrong to permit joint tortfeasor indemni-

fication to be "determined by a different

rule of decision from the rights of

private persons," 67 U.S. at 425, merely

because one of the tortfeasors was a

municipality.

The principle of respondeat superior

was applied, ironically, to claims by

Slaveowners that their slaves had been

injured or been permitted to escape as a

result of misconduct by city employees.

In Johnson v. Municipality No. One, 5 La.

Ann. 100 (1850), jail officials had

violated their legal duty to advertise the

name of any slave in their custody, and

had failed to keep the slave at issue

, 9 Md. 160,

174 (1856); City of St. Louis v. Gurno, 12

Mo. 414, 419 (1849);

, 3 N.Y. 463, 468

(1850).

- 43 -

under tolerable conditions. A Louisiana

judge awarded the former slaveowner $600

for the death of a slave who became

fatally ill while in the New Orleans jail:

The disease was contracted in prison;

... it was aggravated by prison fare;

and ... the circumstances in which

the patient was found ... were

neither fit nor decent for a human

being of any color. I think a

sufficiently strong case of omission

of duty has been made out against the

agents of the defendants.

5 La. Ann. at 101.32 Surely if the

doctrine of respondeat superior controlled

a city’s tort liability for injuries

suffered by the "property" of slaveowners

in violation of state law, Congress could

not have intended to hold cities to a

31 see also Clague v. City of New

, 13 La. Ann. 275 (1858) (slave-

owner entitled to recover from muncipality

if her slave escaped as a result of

"illegal" or “negligent” acts by "agents

of the city"); Kelly v. City of Council of

Charleston, 4 Rich. Law (S.C. 426, 433

(1850) (slaveowner claim for damages due

to death of slave rejected because of lack

of proof city employees had violated any

"duty").

- 44 -

lesser standard of liability for harms to

freedmen inflicted in violation of the

1866 Civil Rights Act.

The same conclusion is compelled if a

particular claim under the 1866 Act sounds

in contract, although the matter is

considerably simpler. The sometimes

elusive distinctions regarding when a city

would be sued in tort never existed in

contract; under the common law a principal

was always liable for any breach of its

contract occasioned by the act or omission

of an agent or employee. This Court noted

in Monell that counties and municipalities

were regularly sued in federal court for

violations of the financial undertakings

in their bonds. 436 U.S. at 673 n. 28.

In state court, coincidentally, the

largest volume of contract claims against

local government bodies were proceedings

brought against cities or school boards by

— =

teachers who had allegedly been wrongfully

dismissed?2 or improperly denied their

salaries.73 cf. Owen v. City of Indepen-

dence, 445 U.S. at 639 and n. 19. In most

of the successful wrongful discharge cases

the courts found that the dismissal at

issue violated the relevant city charter,

32 Gilman _v. Bassett, 33 Conn. 298

(1866); Shaw _v. Mayor of Macon, 19 Ga.

468, 469 (1856) (city Marshall); City of

Crawfordsville _v. Hays, 42 Ind. 200

(1873); Inhabitants of Searsmont v.

Farwell, 3 Me. 450 (1825); Mason v. School

District No. 14, 20 Vt. 487 (1848);

Richardson v. School District No. 10, 38

Vt. 602 (1866); Holden v. Shrewsbury

School District No. 10, 38 Vt. 529 (1866).

33 Neville v. School Directors of

District No. 1, 36 Ill. 71 (1864); Botkin

v. Osborne, 39 Ill. 101 (1866); Casey v.

Baldridge, 15 Ill. 65 (1853); Trustees of

Town of Milford v. Simpson, 11 Ind. 520

(1858); Harrison Township _v. Conrad, 26

Ind. 337 (1866); Cross v. District

Township of Dayton, 14 Iowa 28 (1862),

Offut v. Bourgeois, 16 La. Ann. 163

(1861); Rolfe v. Cooper, 20 Me. 154

(1841); Batchelder _v. City of Salem, 58

Mass. 599 (1849); George v. School

District No. 8, 20 Vt. 493 (1848); Paul v.

School District No. 2, 28 Vt. 575 (1856);

Doyan v. School District, 35 Vt. 520 (1803).

° 46

or that the dismissal had been ordered by

an official who lacked any authority

whatever to fire a teacher. The state

courts regarded such a lack of authority

as establishing the plaintiff’s right to

recover, not, as in St. Louis vy.

Praprotnik, 99 L. Ed. 2d 107 (1988), as

constituting some sort of affirmative

defense.

If, in 1867, a public school teacher

had been dismissed on account of race, it

is clear that the teacher would have been

entitled to relief under section 1981

against the school board or town for which

he or she worked, without regard to the

existence or absence of any relevant

general policy or custom. The result

would have been the same regardless of

whether the teacher’s claim was treated as

an action in contract or in tort. Unless

the adoption of the 1871 Civil Rights Act

—

@» 49 «

has somehow changed the meaning of the

1866 Act, no proof of policy or custom is

necessary today under section 1981.

II. THE RIGHTS AND REMEDIES CREATED BY

ALTERED BY THE ADOPTION OF THE 1871

CIVIL RIGHTS ACT

Had the 1871 Civil Rights Act never

been adopted, there would be no doubt that

petitioner could prevail in this action

without being required to prove the

existence of any policy or custom. As

“originally enacted the 1866 Civil Rights

Act created a cause of action against

governmental bodies both for discrimina-

tory acts pursuant to some official

policy, and for discriminatory acts not

rooted in such policies. The second type

of claim may still be asserted by

petitioner unless it was somehow repealed

by the acoption of the 1871 Act.

"This Court has recognized, however,

that ‘repeals by implication are dis-

- 48 -

favored.’" Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 1017 (1984). A party

asserting that Congress intended any

repeal by implications "bears a heavy

burden of persuasion." Amell _v. United

States, 384 U.S. 158, 165-66 (1966). Such

an implied repeal will be found only where

there is "some manifest inconsistency or

positive repugnance between the’ two

statutes." Merrantile Nat. Bank ov.

Langdeau, 371 U.S. 555, 565 (1963).

"(W)hen two statutes are capable of co-

existence, it is the duty of the courts,

absent a clearly expressed congressional

intent to the contrary, to regard each as

effective." Morton v. Mancari, 417 U.S.

535 551 (1974); see Regional Rail Reorgan-

ization Act Cases, 419 U.S. 102, 133-34

(1974).

The court below did not purport to

find any positive repugnance between

@ 46 «

section 1983, as construed by Monell, and

a broader form of liability under section

1981. It is entirely understandable that

Congress would have chosen to utilize

different principles of liability and

responsibility under the two statutes.

First, because section 1981 forbids only

certain types of racial discrimination,

and because racial discrimination is the

evil that lies at the very heart of the

three reconstruction era constitutional

amendments, Congress might well have

favored more stringent remedies under the

section 1981 than it thought appropriate

for the wide range of constitutional and

statutory claims made actionable under

section i983. Second, because the types

of conduct forbidden by section 1981 are

specified in detail, while the substantive

requirements enforceable under section

1983 are only incorporated by reference

« @8 «

and are considerably less clear, Congress

could have believed that only in section

1981 cases would it be fair to apply the

common-law doctrine of respondeat

superior. Finally, because section 1981

extends to private as well as governmental

conduct, a failure to apply common-law

principles to government bodies would have

created disparate results under the same

statute; since, however, section 1983

reaches only action under color of law, no

comparable problem arises under that

provision.

In Monell this Court concluded that

the “policy or custom" requirement of

section 1983 was rooted in the language of

the 1871 Civil Rghts Act imposing lia-

bility only on persons who "subject, or

u b jec , any person ... to

the deprivation of any rights, privileges

or immunities secured by the Constitu-

e G3 «

tion." 436 U.S. at 691-92 (emphasis

added). But if that is how the forty-

second Congress understood section 1 of

the 1871 Civil Rights Act, it would surely

have realized that section 1 of the 1866

Civil Rights Act would not be construed in

the same manner, since the earlier statute

clearly contains no _ such restrictive

terms. Congress’ failure to amend the

1866 Act to add comparable language,

conforming it to the 1871 Act, can only be

understood as indicating an intent that

the differently worded statutes would in

fact have distinct meanings.

The Fifth Circuit read Monell to

suggest that any federal law basing

liability on the principle of respondeat

superior would have raised in the mind of

the forty-second Congress severe constitu-

tional problems. 837 F.2d at i247. In

fact, however, Monell contains no such

= $2 «

holding, and no such conclusion would be

warranted by either the debates on the

Sherman amendment or the state of consti-

tutional and common law principles in the

mid-nineteenth century. Although the

Sherman amendment did involve a species of

vicarious liability, that was not the

feature of the bill which the House found

objectionable. Rather, as Monell made

clear, critics of the amendment had

reservations about the power of Congress

to impose on state officials affirmative

substantive duties to carry out federal

law. Monell _v. Dept. of Social Services,

436 U.S. at 673-83. The Sherman amendment

was criticized, not because it imposed

damages as such on cities and counties,

but because the effect of those damages

would have been to conscript local

officials and government bodies into

affording protection against the Ku Klux

» G8 «

Klan; those critics would have objected

more, not less, strongly if the amendment,

rather than establishing any civil cause

of action, had instead directly and

expressly imposed such a duty on local

authorities.

Equally important, this constitu-

tional argument -- at least in its most

absolute version -- did not command the

support of a majority of the House. After

rejecting the Sherman amendment, the House

adopted a substitute provision, now

codified in 42 U.S.C. §1986, which did

impose some affirmative duties. Section

1986 imposes liability on any person who,

having the ability to prevent or aid in

the prevention of certain offenses, "shall

neglect or refuse to do so;" clearly the

impact of that provision would, for

example, create affirmative obligations

for a sheriff or police official who was

- 54 -

aware that the Klan was conspiring to

violate federal law. The distinction

between the Sherman amendment and section

1986 is that the rejected amendment

imposed liability even on cities and

counties which lacked any authority or

_ Means under state law to stop the Klan or

other rioters, while section 1986 imposes

liability only on persons "having the

power to prevent or aid in preventing" the

specified offenses. Much of the criticism

of the Sherman amendment emphasized that

it applied to cities and counties that

might in fact be powerless to stop the

private misconduct at issue.?4

Perhaps most significantly, members

of the House criticized the type of

liability proposed by the Sherman amend-

34 Cong. Globe, 42nd Cong., lst sess.

788 (Rep. Kerr), 791-93 (Rep. Willard),

795 (Rep. Blair), 795 (Rep. Burchard), 799

(Rep. Farnsworth) (1871).

@ @8 «

ment precisely because it departed from

the principles of liability ordinarily

applicable to governmental and private

defendants. Representatives Kerr, Willard

and Poland referred approvingly to the

then common civil litigation against

cities, described above, for violations of

their contracts and of state imposed

duties, and objected that such actions

were “a very widely different thing"?>

from the Sherman amendment. Representa-

tive Kerr denounced the amendment because

it departed from "the common law" and

“fundamental principles;"?® Congressman

Buchard asserted that the amendment was

“altogether without a precedent in this

country. "37 These objections would have

35 tq. at 794 (Rep. Poland); see also

id. at 789 (Rep. Kerr), 792 (Rep. Willard).

36 Id. at 788.

37 Id. at 795.

- 56 -

made no sense if the speakers harbored any

reservations about the well established

common-law doctrine of respondeat

superior. Several members of the House

acknowledged that the civil liability

imposed by the Sherman amendment would be

appropriate if cities were or could

constitutionally be placed under a duty to

keep the peace,28 and distinguished the

amendment from state statutes imposing

liability on cities and counties whose

officers and authorities had negligently

or willfully failed to prevent riots.?9

These remarks bespeak an intent to adhere

to, not to repeal by implication, the

common law rules of liability.

38 Id. at 791 (Rep. Willard), 795

(Rep. Burchard).

39 Id. at 791 (Rep. Willard), 794

(Rep. Poland).

= 87 «

CONCLUSION

For the above reasons, the decision

of the Fifth Circuit, insofar as it

requires proof of an official policy or

custom in a section 1981 action, should be

reversed.

Respectfully submitted,

JULIUS LE. ONNE CHAMBERS

- ERIC SCHNAPPER*

NAACP Legal Defense &

Educational Fund

16th Floor

99 Hudson Street

New York, N.Y. 10013

(212) 219-1900

Lf ici Curi

*Counsel of Record

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.