Nahmod Law

The Fisher Case on Affirmative Action and the Shelby County Case on Voting Rights: Two of a Kind

The Supreme Court handed down two important decisions on race in this last week of its 2012 Term that have more in common than appears on first reading.


The first is Fisher v. University of Texas (PDF), 133 S. Ct. — (2013), where the Court held, 7-1, in an opinion by Justice Kennedy, that the lower federal courts did not properly apply the required strict scrutiny to the University’s affirmative action plan.

Rather than deferring to University administrators and their good faith regarding the question of whether the affirmative action plan was narrowly tailored to accomplish the compelling interest in diversity, the lower federal courts should have instead engaged in “stricter” scrutiny and asked whether the University adequately considered the availability of race-neutral alternatives to its affirmative action plan.

In so ruling, the Court did not have to address the question raised by Justices Scalia and Thomas in their separate concurring opinions as to the propriety of using race at all in university admissions for diversity purposes.

Shelby County

The second is Shelby County v. Holder (PDF), 133 S. Ct. — (2013), a blockbuster decision where the Court held, 5-4, in an opinion by Chief Justice Roberts, that Congress had exceeded its powers under section 2 of the Fifteenth Amendment when it re-enacted the pre-clearance coverage formula of section 4 of the Voting Rights Act of 1965 because that coverage formula was based on outdated data regarding voting and race in the covered Southern states.

Fisher is a Fourteenth Amendment equal protection case and Shelby County is a Fifteenth Amendment case. But the two cases obviously have race in common.

Increasing Supreme Court Discomfort with Affirmative Action

But they also have in common the Court’s increasing discomfort with affirmative action plans involving race. Fisher, of course, expressly dealt with an affirmative action plan for university admissions.

But I read Shelby County as similarly involving a kind of affirmative action plan, this one involving a Congressional remedy directed against states and local governments that have previously discriminated on the basis of race in voting.

Reluctance to Defer to Politically Accountable Bodies

Perhaps more deeply, both cases demonstrate the Court’s unwillingness to defer to politically accountable bodies of government at all levels–federal, state and local–that have enacted such plans in order to provide for diversity and remedy past racial discrimination.

The Court has apparently concluded that “enough is enough” because the United States is sufficiently close to a “color blind” society to justify much “stricter” scrutiny–which may be fatal in fact–of such admissions and voting plans.

Of course, whether this is an accurate description of our society remains a matter of considerable debate.


I previously blogged on the basics of affirmative action on November 5, 2009. Then, on October 10, 2012, I posted two short videos of interviews on Fisher. You might find these informative.

Written by snahmod

June 26, 2013 at 3:59 pm

Posted in Constitutional Law

A Section 1983 Primer (10): Statutes of Limitations and Accrual After Heck v. Humphrey

In my post of October 27, 2011,  entitled A Section 1983 Primer (5): Statutes of Limitations, I blogged about statutes of limitations in section 1983 cases. There I briefly discussed the complicated issues of (1) choosing the right state statute of limitations, (2) accrual of section 1983 claims and (3) when section 1983 claims are tolled.

In the course of my discussion of accrual, I wrote the following:

There is a special, and quite complicated, accrual rule, set out in Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action. In such cases, the section 1983 claim does not accrue until the underlying conviction is overturned or vacated. See also the important 2007 decision in Wallace v. Kato, 549 U.S. 384 (2007), dealing with Heck, accrual and section 1983 false arrest/imprisonment claims.

I want to elaborate on this a bit more.

The Basics of Heck v. Humphrey

At the outset, it is crucial to understand the important distinction between federal habeas corpus and section 1983 claims. Federal habeas corpus challenges, brought pursuant to 28 U.S.C. sec. 2254, are challenges to the fact or duration of confinement and exhaustion of state judicial remedies is required .

In contrast, section 1983 claims are directed against conditions of confinement (such as allegedly inadequate medical care that violates the Eighth Amendment), and exhaustion of state judicial remedies is not required. See my post of November 29, 2009, on the seminal decision in Monroe v. Pape, 365 U.S. 167 (1961).

In Heck, the Court dealt with an issue at the “intersection” of habeas corpus and section 1983. The best way to get at this “intersection” is with two hypotheticals. Read the rest of this entry »

Written by snahmod

June 17, 2013 at 5:51 pm

DeShaney in the Circuits (IV): The Seventh Circuit’s Reformulation

My last post was on DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189 (1989), and the Fifth Circuit‘s restrained approach to affirmative duties.

So I thought it might also be useful to mention the Seventh Circuit‘s recent attempt at reformulating some of the doctrinal aspects of affirmative duties.

The Seventh Circuit’s Slade opinion

Slade v. Bd. of School Directors of City of Milwaukee, 2012 WL 6701869, *1 (7th Cir. 2012), involved the drowning of a public school student at a class outing. His parents and estate then brought a § 1983 substantive due process claim against various defendants.

The Seventh Circuit, in an opinion by Judge Posner, affirmed the district court’s grant of summary judgment for the defendants because there was at most gross negligence, which was insufficient as a matter of substantive due process.

In the course of his discussion, however, Judge Posner restated the applicable substantive due process test as follows: “A state does not deprive a person of his life in violation of the Fourteenth Amendment merely by failing to prevent his dying, but does violate the amendment if the death was caused by the reckless act of an employee of the state acting within the scope of his or her employment.” Read the rest of this entry »

Written by snahmod

June 6, 2013 at 11:25 pm

DeShaney in the Circuits (III): The Fifth Circuit En Banc Holds the Line

Affirmative Duty Issues After DeShaney v. Winnebago County, 489 U.S. 189 (1989)

I have blogged twice previously about DeShaney affirmative due process duty issues in the circuits. The first time was on August 22, 2011, and the second time was on June 1, 2012.

DeShaney issues continue to arise in the circuits in all-too-often tragic circumstances. I came across the following Fifth Circuit en banc decision as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012), published by West.

Doe ex rel Magee v. Covington County School Dist.

A panel of the Fifth Circuit addressed this question: “Are there circumstances under which a compulsory-attendance, elementary public school has a ‘special relationship’ with its nine-year-old students such that it has a constitutional ‘duty to protect’ their personal security?” The panel answered in the affirmative as a matter of first impression in the circuit. Doe ex rel Magee v. Covington County School Dist., 649 F.3d 335, 338 (5th Cir. 2011) , reh’g en banc granted and rev’d, 675 F.3d 849 (5th Cir. 2012)(en banc).

The plaintiffs, the father and grandmother of a nine-year-old girl, on whose behalf they acted, sued a county school district, board of education, school officials and others in connection with the repeated release of the girl into the custody of an unauthorized adult for the purpose of facilitating his taking her off school premises, where he raped her. The defendants thereby allegedly acted with deliberate indifference to her safety.  The Fifth Circuit panel determined that there was a special relationship in this case between the school and the child because it repeatedly handed her over to the unauthorized adult during school hours, surrendering to him the school’s statutory full and exclusive custody over her. The school isolated her from her teachers and classmates without any school supervision and against her will and that of her grandmother (her legal guardian). It thus failed in its duty “to protect her from such a quintessential and widely known threat to young children as pedophilia.” Accordingly, the plaintiffs’ complaint survived the defense motion to dismiss under Rule 12(b)(6).

However, because this was a case of first impression in the circuit, the individual defendants sued in their individual capacities were protected by qualified immunity: the law was not clearly established when these events occurred in 2007. Indeed, some Fifth Circuit decisions at the time may have suggested that schools could never be in a special relationship with their students.

Judge King dissented, arguing that the panel got the special relationship issue wrong: “Our en banc court, and every other circuit to consider the issue, has unequivocally concluded that public school students do not have such a [protected liberty interest in remaining safe at school] under the Constitution. … The majority’s decision is an unwarranted expansion of the ‘special relationship’ exception to the general rule that state actors are not required to protect individuals from private harm….” Read the rest of this entry »

Written by snahmod

May 20, 2013 at 2:52 pm

Class-of-One Equal Protection Claims: Uncertainty in the Seventh Circuit

Class-of-One Equal Protection Claims

It may surprise some of you to know that one can have a successful equal protection claim without being a member of a racial, gender, ethnic or other group.

In Village of Willowbrook v. Olech, 528 U.S. 562 (2000), a zoning case originating in the Seventh Circuit, the Supreme Court held that an equal protection claim can be based on arbitrary and capricious discrimination against an individual. Thereafter, in Engquist v. Oregon Dep’t of Agric., 553 U.S. 591 (2008), the Court excluded public employees from such class-of-one equal protection coverage. Otherwise, however, class-of-one equal protection claims are available.

Unfortunately, the Court in Olech did little to explain what the elements of such a claim are and whether such a plaintiff must allege and prove some sort of impermissible motive in order to state a class-of-one equal protection claim. This has created uncertainty in the circuits, as demonstrated by a recent decision of the Seventh Circuit.

Enter the Seventh Circuit En Banc

In Del Marcelle v. Brown County Corp., 680 F.3d  887 (7th Cir. 2012)(en banc), aff’g dismissal of complaint by equally divided court, the plaintiff sued law enforcement officers alleging that they failed to respond to his complaints that gangs were harassing him and his wife, thus forcing them to sell their home and move to another village “with the gangs in hot pursuit.” Read the rest of this entry »

Written by snahmod

April 30, 2013 at 6:29 pm

Certiorari Granted in Madigan v. Levin: An Important Section 1983/ADEA Preclusion Case


Certiorari Granted in Madigan v. Levin

The Supreme Court granted certiorari on March 18, 2013, in Levin v. Madigan, 692 F.3d 607 (7th Cir.), cert. granted sub nom. Madigan v. Levin, 132 S. Ct. — (2013), an important section 1983/ADEA preclusion case.

In Levin, the Seventh Circuit held, as a matter of first impression in its circuit, that a terminated Illinois Assistant Attorney General could use section 1983 to sue state law enforcement officials for damages in their individual capacities for an alleged equal protection age discrimination violation. It rejected the defense argument that the existence of a comprehensive regulatory scheme under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. sec. 621 et. seq., demonstrated Congressional intent to limit such claims to the ADEA and thereby to preclude section 1983 equal protection age discrimination claims. Judge Kanne wrote the opinion, joined by Judges Posner and Bauer.

In so ruling, the Seventh Circuit attracted the Supreme Court’s attention because it took a position on this preclusion issue contrary to that of the District of Columbia, First, Fourth, Fifth, Ninth and Tenth Circuits, thus creating a circuit split.

Two Supreme Court Precedents

There are only two directly relevant Supreme Court precedents on this preclusion issue.

The first is Smith v. Robinson, 468 U.S. 992 (1984), where the Court held that Congress intended the Education of the Handicapped Act (EHA), 20 U.S.C. sec. 1400 et. seq., to preclude section 1983 equal protection claims to publicly financed special education. Congress thereafter superseded this decision by enacting the Handicapped Children’s Protection Act of 1986, Pub. L. No. 99-372.

The second is much more recent. In Fitzgerald v. Barnstable School Comm., 555 U.S. 246 (2009), the Court held that Title IX of the Education Amendments of 1972, 20 U.S.C. sec. 1681(a), did not preclude a section 1983 equal protection sex discrimination claim. In reaching this conclusion, the Court focused on the important differences between the scope and elements of Title IX claims and those of section 1983 equal protection sex discrimination claims.

In both cases, the Court was attempting to discern Congressional intent where Congress had not said anything explicit about this preclusion issue. The Supreme Court in Levin will attempt to do the same.


1.  If Congress had declared explicitly that the ADEA either did or did not preclude section 1983 equal protection age discrimination claims, that would have been the end of it. The section 1983 equal protection/ADEA issue arose only because Congress was silent on the matter.

2. There are similarities between this preclusion issue and the use of section 1983 to redress certain federal statutory violations–what I call “laws” actions. Still, it should be harder to demonstrate Congressional intent to preclude a section 1983 constitutional claim than to demonstrate that Congress intended that particular federal statutory violations not be actionable for damages under section 1983.

To put this point somewhat differently, the presumption that section 1983 is available should be stronger for constitutional claims than for federal statutory claims in “laws” actions.

3. Levin will be argued and decided in the Court’s 2013 Term.

See generally on “laws” actions and preclusion of section 1983 constitutional claims, chapter 2 of my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION  1983 (4th ed. 2012)(West), also available on WESTLAW and as an ebook.

UPDATE: After I published this post, I discovered that Murray Duncan, a Chicago-Kent student, published a note on this same case. I think you will find it of interest, whatever your view of the merits. It is available here:

Written by snahmod

April 17, 2013 at 2:13 pm

All My Posts Through 4-10-13

It has been a while since I reorganized all of my posts (including several videos and podcasts) in order to provide greater and more efficient accessibility for readers. There are now more than 100 posts.

I consider this reorganization important, and I hope it is also useful to you, because my posts are not intended to be of short-term utility.

Instead, they are intended to serve the continuing educational needs of  lawyers, law students, academics and the public at large.

I thank all of you for your growing support of this blog.

Sheldon Nahmod (


What follows is a list comprising all of my posts (with links) divided into the following four parts: PART I: SECTION 1983; PART II: CONSTITUTIONAL LAW; PART III: FIRST AMENDMENT; PART IV: EDUCATION


Section 1983 Supreme Court Decisions–2009: A Video Presentation

A Section 1983 Podcast: Damages and Procedural Defenses

From Monroe to Connick: Video

From Monroe to Connick: Podcast

Article: The Long and Winding Road from Monroe to Connick

“Section 1983 Is Born”: A Working Paper

A Section 1983 Primer (1): History, Purposes and Scope

A Section 1983 Primer (2): The Seminal Decision of Monroe v. Pape

A Section 1983 Primer (3): Constitutional States of Mind

A Section 1983 Primer (4): Causation and the Mt. Healthy Burden-Shift Rule

A Section 1983 Primer (5): Statutes of Limitations

A Section 1983 Primer (6): Claim and Issue Preclusion

A Section 1983 Primer (7): Introduction to Absolute Individual Immunity

A Section 1983 Primer (8): Absolute Legislative Immunity

A Section 1983 Primer (9): Absolute Judicial Immunity

Read the rest of this entry »

Written by snahmod

April 10, 2013 at 2:30 pm

Posted in Uncategorized


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