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.
