Archive for the ‘Constitutional Law’ Category
A Video Presentation on Town of Greece v. Galloway
My most recent post set out the pending Supreme Court case, Town of Greece v. Galloway, dealing with legislative prayer and the Establishment Clause.
I was recently interviewed by my colleague, Professor Carolyn Shapiro, about this case, for Chicago-Kent’s ISCOTUS/Oyez Project.
This short interview, which covers the Town of Greece case, the Establishment Clause and incorporation, is available here.
I hope you find it of interest.
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Town of Greece v. Galloway: Pending Supreme Court Decision on Legislative Prayer and the Establishment Clause
The Town of Greece Case
Suppose a town, over a period of a decade or so, regularly invited Christian clergymen to lead the opening prayers in town board meetings. Suppose also that these clergymen, more often than not, invoked Jesus and/or the Holy Ghost in their prayers and that, typically, everyone was asked to stand, bow his/her head or join in the prayer, which some did. At the same time, the town occasionally, albeit infrequently, invited a few others, including non-Christian clergy, to lead the opening prayer. Did this pattern violate the Establishment Clause?
The Second Circuit, in Galloway v. Town of Greece, 681 F.3d 20 (2d Cir. 2012), held that it did. It explained (emphasis added):
“We emphasize what we do not hold. We do not hold that the town may not open its public meetings with a prayer or invocation. Such legislative prayers, as Marsh holds and as we have repeatedly noted, do not violate the Establishment Clause. Nor do we hold that any prayers offered in this context must be blandly “nonsectarian.” A requirement that town officials censor the invocations offered — beyond the limited requirement, recognized in Marsh, that prayer-givers be advised that they may not proselytize for, or disparage, particular religions — is not only not required by the Constitution, but risks establishing a “civic religion” of its own. Occasional prayers recognizing the divinities or beliefs of a particular creed, in a context that makes clear that the town is not endorsing or affiliating itself with that creed or, more broadly, with religion or non-religion, are not offensive to the Constitution. Nor are we adopting a test that permits prayers in theory but makes it impossible for a town in practice to avoid Establishment Clause problems. To the contrary, it seems to us that a practice such as the one to which the town here apparently aspired — one that is inclusive of multiple beliefs and makes clear, in public word and gesture, that the prayers offered are presented by a randomly chosen group of volunteers, who do not express an official town religion, and do not purport to speak on behalf of all the town’s residents or to compel their assent to a particular belief — is fully compatible with the First Amendment.
“What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.”
The Supreme Court granted certiorari, Town of Greece v. Galloway, No. 12-696, and will give us its answer to the Establishment Clause question this Term. Oral argument takes place on November 6, 2013.
Commentary
The Second Circuit used Justice O’Connor‘s endorsement test in holding that the Establishment Clause was violated. See Lynch v. Donnelly, 465 U.S. 668 (1984), involving religious displays. There were also hints of the oft-derided (especially by Justice Scalia) Lemon test with its insistence on a secular effect. See Lemon v. Kurtzman, 403 U.S. 602 (1971), dealing with aid to religious schools.
What was not really mentioned by the Second Circuit is Justice Kennedy‘s coercion test, set out in Lee v. Weisman, 505 U.S. 577 (1992), which involved a middle-school authorized prayer at graduation . If such a test were applied here, the result probably would be that these opening prayers did not violate the Establishment Clause because adults were involved and the situation was not really coercive. So an important question is: which of these tests will the Court use?
The Court could scuttle the endorsement test in the course of reversing the Second Circuit and apply the less restrictive, more deferential coercion test. Or it could retain the endorsement test and rule narrowly that the circumstances did not amount to an endorsement of religion.
In the background, and perhaps the foreground, is Marsh v. Chambers, 463 U.S. 783 (1983), the only case in which the validity of legislative prayer has been considered by the Supreme Court. Here, the Court ruled that the Nebraska legislature’s practice of opening its sessions with a prayer delivered by a state-employed clergyman did not violate the Establishment Clause. The Court used an historical approach to interpreting the Establishment Clause, emphasizing that the Framers themselves, by their practice in Congress, did not view legislative prayers led by government-employed clergy as violations of the Establishment Clause. In addition, and importantly, the Court noted that the Judeo-Christian content of the prayers in Marsh did not establish religion because the prayers did not proselytize, advance any religion or disparage any religion.
I have long thought that Marsh was a questionable decision: the Framers’ practice should not have been determinative of the validity under the Establishment Clause of legislative prayers led by government employed clergy.
But assuming that Marsh was sound and should be followed, is Town of Greece nevertheless distinguishable from Marsh on the ground that the prayers here advanced Christianity?
My prediction is that the Court will reverse the Second Circuit. The more important issue is how the opinion will be written and by whom.
(For general background on the Establishment Clause, see my post, The Religion Clauses: ‘Tis the Season).
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New University Academic Freedom Decision from Ninth Circuit: Demers v. Austin
Background on Garcetti and Public Employee Free Speech
Some time ago I blogged critically about the Supreme Court‘s game-changing public employee free speech decision in Garcetti v. Ceballos, 547 U.S. 410 (2006). In Garcetti, the Court held, 5-4, that a public employee whose speech is part of his or her official duties is not protected by the First Amendment from employer discipline for that speech.
Subsequently, I argued in a law review article, Academic Freedom and the Post-Garcetti Blues, that Garcetti should not apply to a college or university professor’s teaching and scholarship.
The Ninth Circuit’s Decision in Demers v. Austin
This month, the Ninth Circuit, in Demers v. Austin (PDF), No. 11-35558 (9th Cir. Sept. 4, 2013), agreed with the proposition that Garcetti should not apply to a university professor’s teaching and scholarship.
In Demers, a tenured associate professor, suing under section 1983 for damages and injunctive relief, claimed that the defendant university administrators retaliated against him in violation of the First Amendment because he distributed a short pamphlet and drafts from an in-progress book. The pamphlet, which dealt critically with a reorganization plan at the university. was distributed both internally and to the print and broadcast media as well as published on a website. In addition, the plaintiff attached drafts of his in-progress book, which included material critical of the University, on his application for sabbatical. The defendants argued that the pamphlet and the drafts were written and circulated as part of the plaintiff’s official duties and were therefore not protected by the First Amendment under Garcetti.
Rejecting that argument, the Ninth Circuit, opinion by Judge W. Fletcher, declared broadly:
“We hold that Garcetti does not apply to teaching and writing on academic matters by teachers employed by the state. Rather, such teaching and writing by publicly employed teachers is governed by Pickering v. Board of Education, 391 U.S. 563 (1968).” The Ninth Circuit emphasized the importance of academic freedom for teaching and writing, particularly at the university level.
Here, according to the Ninth Circuit, the pamphlet addressed a matter of public concern within the meaning of Pickering and was protected by the First Amendment. The district court therefore erred in granting summary judgment to the defendants on this issue. On the other hand, there was insufficient evidence to show that the in-progress book drafts triggered any retaliation.
Still, the defendants won on the plaintiff’s section 1983 damages claim because the defendants were entitled to qualified immunity given the uncertain state of the law after Garcetti. However, on remand, the district court should address the propriety of the plaintiff’s section 1983 injunctive relief claim.
Comments
1. The pamphlets were distributed to the public as well as internally, thereby triggering Pickering directly. Thus, there might have been no need for the Ninth Circuit to address the applicability of Garcetti: the plaintiff, at least in part, wrote as a citizen, and not as an employee.
2. The drafts of the in-progress book were not a motivating factor in the alleged retaliation against the plaintiff. Thus, strictly speaking, the Ninth Circuit’s language about Garcetti‘s inapplicability to writing (in the sense of scholarship) was dictum. The pamphlets were not scholarship.
3. Nevertheless, this decision overall is sound in its emphasis on the First Amendment protection of a college or university professor’s teaching and scholarship.
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First Amendment Retaliatory Arrest Decisions After Reichle
I blogged on March 29, 2012, about the Supreme Court‘s grant of certiorari in Reichle v. Howards, a case arising out of the Tenth Circuit. The Supreme Court had granted certiorari to deal with the important question of whether there should be a probable cause defense to a Bivens First Amendment claim that federal law enforcement officers arrested the plaintiff because of their disagreement with his speech.
That post should be consulted for relevant background, including the important decision in Hartman v. Moore, 547 U.S. 250 (2006). Note also that the answer to the question will apply equally to section 1983 claims.
On June 4, 2012, the Court, in an opinion by Justice Thomas, avoided the merits and ruled instead that the defendants were protected by qualified immunity. See my post of June 13, 2012, analyzing the decision.
I came across the following post-Reichle decisions from the Fourth, Seventh and Ninth Circuits as I was preparing the 2013 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.)(West)(available on Westlaw at CIVLIBLIT).
Note that, of these circuits, only the Ninth Circuit has taken the position that probable cause is not a defense.
Fourth Circuit
In Tobey v. Jones, 706 F.3d 379 (4th Cir. 2013), the plaintiff alleged that he was retaliated against by Transportation Security Agency (TSA) agents in violation of the First Amendment when they seized and arrested him at an airport for displaying the text of the Fourth Amendment on his chest. According to the Fourth Circuit, the defendants were not entitled to qualified immunity because it was clearly settled in September 2010 that the First Amendment protected peaceful non-disruptive speech in an airport and that such speech could not be punished because government disagreed with it. A case on all fours was not required. In addition, the Supreme Court’s decision in Reichle v. Howards was distinguishable because here the plaintiff specifically alleged that his arrest was not supported by probable cause. Judge Wilkinson dissented, 706 F.3d 379, 394, arguing that this airport security case was an especially appropriate one justifying the applicability of qualified immunity.
Seventh Circuit
The Seventh Circuit, following Reichle, held that the defendant police officers who allegedly arrested the plaintiff because of what he said, even though there was probable cause for the arrest, were protected by qualified immunity. Thayer v. Chiczewski, 705 F.3d 237 (7th Cir. 2012). The Seventh Circuit also noted that the First Amendment retaliation/probable cause issue was unresolved in its circuit.
Ninth Circuit
In contrast to the Seventh Circuit in Thayer, the Ninth Circuit stated that it was adhering to its earlier position in Skoog v. County of Clackamas, 469 F.3d 1221 (9th Cir. 2006), that an arrestee has a “First Amendment right to be free from police action motivated by retaliatory animus, even if probable cause existed for that action.” Ford v. City of Yakima, 706 F.3d 1188 (9th Cir. 2013). The plaintiff alleged that the defendant officers violated his First Amendment rights when they booked and jailed him in retaliation for his protected speech—criticizing them for an allegedly racially motivated traffic stop—even though there was probable cause for the initial arrest. The Ninth Circuit also went on to rule that the defendants violated clearly settled law in July 2007 and were thus not entitled to qualified immunity.
Judge Callahan dissented, arguing, first, that the Ninth Circuit’s precedents did not necessarily apply after an arrestee has been detained, and second, that the defendants did not violate clearly settled law “forbidding an officer from considering the comments of a legally detained individual when determining whether to book the individual.” 706 F.3d, at 1197.
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New Supreme Court Decision on Free Speech and Government Funding: The Agency for International Development Case
The Supreme Court handed down an important First Amendment decision on June 20, 2013, that has attracted relatively little attention thus far. The decision is Agency for International Development v. Alliance for Open Society (PDF), 133 S. Ct. — (2013), No. 12-10 (Justice Scalia, joined by Justice Thomas, dissented; Justice Kagan recused herself).
In order to understand it, I’d like to provide the First Amendment background.
First Amendment Background
It is black letter First Amendment law that, with few exceptions, government cannot directly regulate the speech of its citizens because of disagreement with the viewpoint expressed. Ideally, government should be neutral when it comes to the content of speech. See my post of January 19, 2010, where I discuss the three dominant rationales of the First Amendment.
It is also black letter First Amendment law that government cannot compel its citizens to express political or other views. West Virginia Bd. of Education v. Barnette, 319 U. S. 624 (1943); Wooley v. Maynard, 430 U. S. 705 (1977).
Government Funding and Unconstitutional Conditions
What happens, however, where government does not do either of these directly but instead conditions the receipt of government funds in ways that affect the content of the recipient’s speech? To what extent should government be permitted to buy a citizen’s First Amendment (and other) rights by exercising the power of the purse? This implicates what is known as the doctrine of unconstitutional conditions.
Let me set the stage for Agency for International Development with several examples from earlier Supreme Court cases.
1. Suppose the federal government provides funds that may only be used by recipient organizations to promote childbirth, not abortion.
According to the Supreme Court in Rust v. Sullivan, 500 U. S. 173 (1991), this was a constitutional condition–it did not violate the First Amendment–because the government was entitled to insure that its funds were used by recipients for their intended purpose, the promotion of childbirth. In addition, nothing prevented the recipient from obtaining funding from other private sources that could be used for abortion counseling, so long as the two activities, childbirth and abortion counseling, were kept separate.
2. Suppose the federal government not only provides funds for a particular purpose, say, paying for legal services for indigents, but also imposes a condition on the recipient that it not take a particular position in the course of providing those legal services, even if taking a particular position in the course of providing legal services is separately funded by private sources.
Notice how this condition goes beyond the use of the funds themselves, thereby making it more suspect under the First Amendment.
According to the Supreme Court in Legal Services Corp. v. Velasquez, 531 U.S. 533 (2001), this condition on funding violated the First Amendment. It was an unconstitutional condition.
The Agency for International Development Case
Finally, consider the Agency for International Development case. Here the United States, as part of a program to eliminate HIV/AIDS worldwide, funded various non-governmental organizations (NGOs) operating around the world to participate in this program. However, two conditions on receiving funding were imposed. The first condition posed no First Amendment problem under Rust: no funds could be used to promote or advocate the legalization or practice of prostitution and sex trafficking.
However, the second condition did present a problem: no funds could be used by any recipient organization that did not have a policy expressly opposing prostitution and sex trafficking.
Various recipient organizations challenged the second condition under the First Amendment because, if they complied with it, they would, first, alienate certain host governments and, second, they would have to censor privately funded discussions in publications, conferences and other forums.
In an opinion by Chief Justice Roberts, the Supreme Court held this second condition unconstitutional. It went well beyond the funding condition upheld in Rust. And it even went beyond the funding condition struck down in Legal Services Corporation. It did not just prohibit recipients from expressing a position with which the federal government disagreed, but it required them affirmatively to take the government’s position as their own. This requirement conflicted with the First Amendment’s prohibition against compelled speech.
As Chief Justice Roberts put the matter, “It requires them to pledge allegiance to the Government’s policy of eradicating prostitution.”
In context, then, this was not a difficult First Amendment case, but it was an important one.
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.
Fisher
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.
Background
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.
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 »
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 »
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 »
Certiorari Granted in Madigan v. Levin: An Important Section 1983/ADEA Preclusion Case
NOTE: ON OCTOBER 15, 2013, AFTER ORAL ARGUMENT IN THE PRIOR WEEK, THE SUPREME COURT DISMISSED THE CERTIORARI PETITION IN LEVIN AS IMPROVIDENTLY GRANTED
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.
Comments
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: http://www.kentlaw.iit.edu/Documents/Academic%20Programs/7CR/v8-1/duncan.pdf
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