For Monday

Tuesday audio. RPI papers due at the beginning of class next Tuesday. Please take the time to work the puzzles before class--things go a lot more smoothly that way.

Two quick notes on state-created danger.

First, see this case from the Ninth Circuit. The majority held that a police officer violates SDP on a state-created danger theory by disclosing the confidential police report and other information to the abuser. A concurrence in the judgment rejects SCD as a judge-made "Frankenstein's monster" without support in the Fourteenth Amendment, history, or precedent. It is not impossible that the Court reconsiders this doctrine in the not-so-distant future. The plaintiff lost the case on qualified immunity (which is why the concurrence was not a dissent); we will get to that in a few weeks.

But note the particular facts--the abuser communicating with the defendant officer was a fellow officer. This comes up in a fair number of (usually unsuccessful) SCD claims, often around domestic violence--an off-duty officer causes harm not under color and the plaintiff victim argues that the kid gloves with which on-duty colleagues treat that officer increase the danger to the victim.

Second, on James' idea to pursue Watts as a First Amendment claim. The plaintiff could try it. It seems problematic because it is not clear from the facts that the ref engaged in protected speech--making racist comments to players while working for the state as an athletic official probably does not enjoy constitutional protection. And it is hard to disentangle those undefined comments from his bad calls. But yes, the argument that "the coach ordered two students to assault me because of my speech" is a fair framing for a potential 1st Amendment claim, subject to the court's (likely) finding the speech unprotected. And that forces you back into SDP. 

Finally: Compare § 1981 with Title VII, illustrating the distinct issue of overlapping statutes. Both can be used for certain types of employment-discrimination claims, although in many cases only one or the other will apply.

We will begin Claims Against Federal Officials. As you read this, think about about Bivens in three time frames--its origins and through the 1970s; retraction from 1980 through 2017; and then the past seven years of Ziglar, Mesa, and Egbert. Prep the puzzles with care--the likely answer ("no Bivens") is obvious, but the question becomes why. Without Bivens, how can the federal officials or the federal government be held to account for constitutional violations?

Civil Rights Bootcamp

Sponsored by the ABA. (H/T: Madeline). Might make an interesting supplement to and expansion on some of what we have been doing here.

For Tuesday

Monday audio. Today marked the third straight class in which only 9 people have showed up. That is unacceptably low. Regular class attendance is an expected part of this class, whether or not you are on panel. We should not regularly have more than 1/3 of the class not showing up.

Panel # 1 papers are due tomorrow at the beginning of class. Please note that your paper must deal with state action/under color, not something we will cover later in the book and the class.

Complete the reading for Chapter 3, including the assigned Puzzles. Note where the various cases have been brought and how that affects the arguments you make as the plaintiff. I expect to finish this chapter tomorrow, so papers will be due next Tuesday.

Civil Rights Division freezes all civil rights litigation (Updated)

Story here, although no one has included a copy of the actual memorandum. (Protip: If a story about a legal development does not include a link to the document discussed, the reporter is bad at his job).

As reported, the division must stop litigating ongoing cases, bring no new cases, and submit recent settlements (under § 12601) for reconsideration. The latter includes consent decrees with many police departments, including Minneapolis following the murder of George Floyd and Louisville following the murder of Breanna Stewart.

We have discussed government enforcement a bit and will talk more when we reach Remedies at the end of the semester. One drawback to US (rather than private) enforcement is the risk of changes in priorities when administrations change. But one administration undoing another's work and freezing all litigation efforts is unusual. In 2017, the Obama DOJ rushed to finalize a bunch of settlements with police departments to get them under the wire before the Trump DOJ took over. But the new department did not undo those settlements.

Changes in administrations historically affect things at the margins and ake some time to implement. This is why there is usually some legal continuity across administrations, regardless of party and ideology. (For example, it took several years for the Reagan DOJ to shift away from the antitrust approach of the Carter DOJ). The new administration is trying to speed that process considerably.

This could create an interesting conflict with federal judges. They may not like or accept the government slowing down the docket, especially with pending criminal cases (which by the Constitution and statute must be conducted in a "speedy" manner). And they are suspicious of government changing positions in pending litigation when the presidential administration changes. This is a vestige of the view that courts do "law" and law is above the politics of who is in the presidency. Many scholars consider that view naive, but judges take it seriously.

Update: This from Prof. Steve Vladeck (recommend subscribing to his Substack--he does great stuff on Fed Courts and Civil Rights. We will discuss a bit about the 8th Amendment piece in class on Monday.

For Monday

Tuesday audio. Under Color Reax papers due at the beginning of class Tuesday. Reminder that you must write on under color and the issues discussed in Chapter 2 (you don't know enough to write about stuff later in the class). Puzzles that we did not cover in class are fair game. Argument cases that you are not otherwise assigned are fair game (although not applicable here). And there is a lot of stuff on this topic, so it should be very easy to find recent case(s) to write about--if you go down that path, spend most of your time on the law and application.

We did not get to the discussion of § 1981 so I will place it here. As discussed on p.90, § 1981 (from the CRA of 1866 and 1870) creates a private right of action against private discrimination but not public discrimination; it is enforced against the government through a § 1983 "and laws" action. There was a lopsided circuit split as to whether the CRA of 1991, which added § 1981(c), changed that and created a new, independent right of action--the Ninth Circuit said yes, everyone else said no. In 2023, the Ninth Circuit changed direction, overruled precedent, and go on board with everyone else--§1981(c) does not create a right of action and § 1981(a) is still enforced against the government through § 1983. This relates to one of our argument cases, on the statute of limitations for such actions.

Move to Enforcing the Constitution, Part A of Chapter 3, as well as § 3.13 (on parallel claims). We will not be getting deep into substantive constitutional doctrine, only getting a sense of the basic rights enforceable and how.

    • How does the Supremacy Clause connect to § 1983?

    • How does the evolution of constitutional law explain the increase in § 1983 activity in modern times?

    • What does "due process" entail? What multiple pieces does "substantive due process" entail?

    • Really work the due process puzzles.

For Tuesday

Tuesday audio. Happy MLK Day and Inauguration Day. FWIW, this is the second time that an Inauguration has aligned with MLK Day (since it became a national holiday in 1986). The first was Bill Clinton's Second Inauguration in 1997. It will not happen again until 2081.

We will finish Chapter 2 with VDARE and the Hate Speech Act Puzzle in § 2.05[3]; what postures can the property owner assert his First Amendment arguments? That will finish Under Color. Reaction Papers will be due on Tuesday, January 28.

We move Chapter 3 and Panel II. Read § 3.01 and Part B of Chapter 3; take the time to prep the statutory provisions assigned.

What is the difference between a right, a right of action, and a jurisdictional grant? What express rights of action has Congress provided for civil rights statutes? Absent an express right of action, where can parties and courts look for a right of action to enforce a statute? How does the Spending Clause operate? How does the analyses for implied right, Ex parte Young, and § 1983 overlap and how do they diverge? Absent private civil litigation (which requires a right of action), how do civil rights statutes get enforced?

For Tuesday

Monday audio. Argument assignments will be posted shortly.

Prep the rest of Chapter 2. Please do the work in advance of figuring out the Puzzles, particularly the ones in § 2.03[6]--identify the appropriate test, the requirements of that test, and the facts that work for both sides. You should not be flipping through to figure out the facts during class.

Quick final word on Lindke: The Court somewhat conflated the officials' First Amendment protected activities of posting to the site and the conduct triggering the lawsuit of blocking people from the site. The former triggers action under color and thus the limits on the latter. That is, the content of the page dictates whether the person managing it is under color and thus whether the person managing it can block citizens. To be clear: We genuinely do not know whether President Trump II can block people on Twitter.

For Monday

Tuesday audio.

I believe the class is now final but I am waiting until the end of the week. I will post final panels by Monday. I also expect to get the argument cases to you by Monday. 

You should now see how you need to prepare to discuss the Puzzles. Given the class size, I hope to get everyone involved every day.

Review the reading and puzzles for the rest of Chapter 2, including Lindke. This will carry us through most the two days next week.

Final Panels

We appear to have our final numbers--14. Panel # 1 (Under Color) obviously is ongoing and remains unchanged. After the jump are the new-and-final Panels ## 2-8. Ignore whatever you had previously.

For Tuesday

Monday audio. Panel # 1 (Thomas, Assaf, Andrew, Julian, Yohance, Madeline) is on for tomorrow. And tell your friends.

Review the Syllabus, Assessments, and Panels; I will take questions at the beginning of class. In particular: Arguments are on the schedule for Friday, May 9 (day after exams end). We could do them on Thursday, May 8 (last day of exams) if it will not interfere with anyone's other exams and assignments.

For tomorrow, prep §§ 2.01 and 2.02. In addition, read Lindke v. Freed in place of the material on p.30.

    • What do § 242 and § 1983 do? How are they similar and how are they different?

    • What is the core or obvious meaning of "under color?" How did the Court expand that core in Classic, Screws, and Monroe?

    • Prep the puzzles in § 2.02[6]. Prep Davison (Puzzle # 2) in light of the Court's decision in Lindke. Is there a way that Wilson and Gomez can come out differently?

Welcome to Civil Rights

Welcome to Civil Rights and the FIU Civil Rights Blog. Below are several posts you must read and follow prior to our first class meeting on Monday, January 6.

All classes will be recorded and posted to the Civil Rights Blog. 

To read the blog, go to http://fiucivilrights.blogspot.com; posts can be read going down from most recent to least recent. For complete information on the purposes and uses of the blog, see Syllabus and Semester Assessments.

 

Panels will be assigned and posted the week prior to class, once I have a better sense of enrollment.

 

And, to put you in the mood for the course: