Misinterpreting 'Sounds of Silence': Why Courts Should Not 'Imply' Congressional Preclusion of § 1983 Constitutional Claims
47 Pages Posted: 11 Aug 2008 Last revised: 17 Feb 2010
Date Written: August, 11 2008
Abstract
In 1803, Chief Justice Marshall proclaimed in the landmark decision of Marbury v. Madison, that the very essence of civil liberty . . . consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. Since then the Supreme Court has struggled with the question of when courts should recognize a remedy for the violation of rights. The Court has grown increasingly reluctant to imply enforceable rights from federal statutes in the absence of an unambiguous manifestation of congressional intent. However, this Article focuses on textual constitutional rights and 42 U.S.C. § 1983, which explicitly provides a cause of action to remedy federal constitutional violations perpetrated under color of state law.
Despite the clear text of § 1983, its promise to protect constitutional rights has been obfuscated by the theory that Congress, by enacting civil rights laws, has impliedly foreclosed the historic use of § 1983 to address constitutional wrongdoing. It is counterintuitive to believe that Congress, in an attempt to expand equality or due process, intended to cut off existing remedies for constitutional violations. Nonetheless, a growing number of federal appellate courts are invoking the implied foreclosure doctrine to curtail § 1983 litigation.
Increasingly, plaintiffs are being denied their right to vindicate constitutional wrongdoing, either because the new preempting federal statute does not trigger individual liability or because it makes institutional liability more difficult to establish. For example, some circuits have held that Title IX of the 1972 Education Amendments, which prohibits sex discrimination in schools that receive federal financial assistance, should be understood to preclude a remedy under 42 U.S.C. § 1983 for gender-based discrimination by state educators. The same issue arises whenever civil rights statutes create overlapping remedies for civil rights violations. Congress does not specifically state that it is precluding the use of § 1983 to enforce constitutional claims, but federal courts are inferring that Congress has done so, contrary to established rules of statutory construction.
The United States Supreme Court is on the brink of deciding the validity of this doctrine in the context of a Title IX claim. After tracing the genesis and expansion of the doctrine, this Article provides the arguments for rejecting implied congressional foreclosure of § 1983 constitutional claims that should govern this case and future cases.
Keywords: Section 1983, congressional foreclosure, civil rights
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