Split Widened: Does § 1981 Create a Private Right of Action Against State or Municipal Actors?

Per Arendale v. City of Memphis, 2008 WL 731226, *5-*9 (6th Cir. Mar. 20, 2008)

Plaintiff Michael Arendale, a white male, is eighteen year veteran of the Memphis Police Department. He brought a civil rights suit against the city, alleging that his African-American supervisor discriminated against him in assignments, created a hostile work environment, improperly suspended him, and retaliated against him after he had lodged complaints. The complicated factual basis for these complaints is irrelevant to the instant circuit split concerning § 1981.

In Runyon (1976), the Supreme Court recognized that § 1981 created an implied right of action against private defendants. Nonetheless, in Jett (1989), the Court held that the implied right of action did not extend to state actors. The question presented in this split is whether the 1991 Civil Rights Act’s amendment of § 1981 overruled Jett. The statutory language at issue is currently codified at § 1981(c), which provides that “[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.”

The Ninth Circuit has held that this language demonstrates a clear intent to hold state actors liable (overturning Jett), whereas the CAs 4,10,11 have held that this language does not reach Jett’s holding. This Sixth Circuit panel sides with the majority school, noting that, although the 1991 act does create a new right against state actors, it is silent as to remedies. Any violation of § 1981 by a state actor, then, must be remedied through a § 1983 claim. This strikes me as the right result, being that the 1991 Act was passed after the Court had substantially limited its willingness to find implied rights of action absent some explicit indictation of Congress’s intent – witness the evolution from Borak – Cort – Cannon – Touche Ross – TransAmerica – through Sandoval.

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