3rd Cir.: No Section 1981 suit against state actors

The Third Circuit held that 42 U.S.C. § 1981 does not create an implied right of action for race discrimination against state and local governments.

 Thus, in suits against state actors plaintiffs are bound by the shorter limitations periods of § 1983 and Title VII rather than the four-year limit of § 1981. Following five other circuits, the panel held that the 1991 Civil Rights Act (CRA) was meant only to expand the substantive coverage of § 1981, not the availability of remedies. McGovern v. City of Phila., 554 F.3d 114 (3d Cir. Jan. 28, 2009).

 

          Jett v. Dallas Ind. Sch. Dist., 491 U.S. 701 (1989) held that § 1981 does not provide for suits against state actors, meaning that such suits must be brought under § 1983. Courts have split, however, on whether the 1991 CRA overruled Jett by adding express language that § 1981 rights are protected against “impairment under color of State law” as well as private action. Five circuits have rejected this argument. See Arendale v. City of Memphis, 519 F.3d 587 (6th Cir. 2008) (citing 4th, 5th, 10th and 11th Circuit cases). The Ninth Circuit has found that § 1981 creates a right of action against municipal, but not state, entities. Pittman v. Or. Dept. of Employment, 509 F.3d 1065 (9th Cir. 2007) (summary).

 

          The panel emphasized that under Alexander v. Sandoval, 532 U.S. 275 (2001), implied rights of action depend upon whether Congress clearly intended to create not just a right but also a remedy. Under this analysis, “[t]he fact that § 1981(c) places an individual's rights on equal footing against discrimination by private and public actors does not necessarily imply the existence of an equal remedy against all defendants,” the court said. The court said its conclusion was bolstered by the 1991 CRA’s legislative history, which showed Congress’s intent to overrule several decisions but did not mention Jett. Rather, § 1981(c) was added apparently added in response to another decision that cast doubt on § 1981’s application to private contracts.