Nahmod Law

Background

It may surprise some readers to learn that there can be cases in which a federal statute is found to preclude § 1983 constitutional claims. This kind of case is different from those cases in which the issue is whether the violation of a federal statute is actionable under § 1983 as a “laws” claim. But one thing these two kinds of cases have in common is that express Congressional intent is dispositive. However–and this unfortunately is often the case–where Congress has not expressly stated its intent, it is left to the courts to discern from Congressional silence whether, in the one case, Congress intended to preclude § 1983 constitutional claims and, in the other case, whether Congress intended to allow a § 1983 “laws” claim for the violation of a particular federal statute.

A major Supreme Court decision addressing preclusion of § 1983 constitutional claims is Smith v. Robinson, 468 U.S. 992 (1984), which held that Congress, when it enacted the Education of the Handicapped Act (EHA), intended to preclude § 1983 equal protection claims identical to statutory EHA claims. Congress responded to Smith in 1986 by amending the EHA to provide explicitly that parallel equal protection and other constitutional claims are not precluded by the EHA. In contrast to Smith, the Supreme Court in Fitzgerald v. Barnstable School Comm., 129 S. Ct. 788 (2009), addressed a similar preclusion issue in connection with the effect of Title IX on § 1983 equal protection claims, but it ruled against preclusion. [Note that Fitzgerald is the last of the five major 2008 Term Supreme Court § 1983 cases that I have blogged about]

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