Limiting suits to enforce federal laws.

In July 2002, Chief Justice William Rehnquist, speaking at the Fourth Circuit Judicial Conference, identified Gonzaga University v. Doe as one of the "sleeper decisions" of the term--the case received relatively little media attention but is likely to have great importance in the future. (1) For plaintiffs seeking to enforce federal laws against violations by state and local governments via [section] 1983 actions. (2) Gonzaga University may pose a substantial obstacle to litigation.

In this case, the Supreme Court held that a federal law adopted by Congress under its spending power may be enforced through a [section] 1983 action only if Congress clearly intended to create a private right of action with the legislation. The Court concluded that [section] 1983 may not be used to enforce the provisions of the Family Educational Rights and Privacy Act. (3)

Many federal statutes enacted under the spending power, such as provisions of the Social Security Act concerning Medicare and Medicaid, do not expressly provide a private right of action for enforcement. Gonzaga University jeopardizes plaintiffs' ability to sue to enforce these laws. The Court's willingness to find private rights of action under statutes that do not explicitly authorize suits for enforcement has been limited. (4) By restricting the use of [section] 1983, the Court has created a serious new obstacle for civil rights plaintiffs.

Interpretation of [section] 1983

Law students are often surprised to learn that there are literally hundreds of federal laws that do not create a private right of action. Laws to be enforced by federal regulatory agencies often do not expressly authorize suits to enforce their provisions. Criminal laws frequently do not have a comparable civil statute to permit those harmed to sue. Statutes enacted under Congress's spending power often specify duties for those receiving federal money but are silent as to whether violations by the recipients can be the basis for a lawsuit.

In 1980, the Court held in Maine v. Thiboutot that [section] 1983 may be used to enforce any federal statute--not only those Congress adopted under [section] 5 of the Fourteenth Amendment. The Court said the plain language of [section] 1983 permits suits to enforce "the laws" of the United States when violated by action taken under color of state law. In this case, the Court specifically said that provisions of the Social Security Act (SSA) concerning calculation of welfare benefits could be enforced via a [section] 1983 suit. (5)

Subsequently, the Court recognized two exceptions. First, a [section] 1983 action is unavailable if Congress, expressly or implicitly, meant to foreclose such suits. In Middlesex County Sewerage Authority v. National Sea Clammers Association, the Court ruled that the "comprehensive enforcement mechanisms" of the Federal Water Pollution Control Act and the Marine, Protection, Research, and Sanctuaries Act showed "congressional intent to preclude the remedy of suits under [section] 1983." (6) In other words, the law's detailed enforcement provisions indicated that Congress did not want suits through the separate mechanism of [section] 1983 actions.

In Wright v. City of Roanoke Redevelopment & Housing Authority, the Supreme Court clarified its Middlesex County decision and said that the burden is on the defendant to demonstrate "by express provision or other specific evidence from the statute itself that Congress intended to foreclose" [section] litigation. (7) The existence of remedial schemes within a statute does not preclude [section] 1983 litigation unless Congress has unambiguously indicated an intent to do so.

The second exception to Thiboutot is that [section] 1983 is available to enforce only those federal laws that confer individual rights. In Pennhurst State School & Hospital v. Halderman, the Court ruled that such suits could not be used to enforce the Developmentally Disabled Assistance and Bill of Rights Act of 1975 because the statute did not create individual rights. (8) The Court said that unless Congress "speak[s] with a clear voice" and manifests an "unambiguous" intent to confer individual rights, federal funding provisions establish no basis for [section] 1983 enforcement. (9) The Court reaffirmed this in Suter v. Artist M., saying that a statute must "unambiguously confer an enforceable right upon the act's beneficiaries." (10)

Similarly, in Blessing v. Freestone, the Court refused to allow the plaintiffs to use [section] 1983 to enforce a provision of the SSA that requires states receiving federal child-welfare funds to "substantially comply" with rules designed to ensure timely child-support payment. (11) The Court said: "[T]o seek redress through [section] 1983, ... a plaintiff must assert the violation of a federal right, not merely a violation of a federal law." (12)

Rights and remedies

The Supreme Court's recent decision in Gonzaga University concerns the second exception: [section] 1983 can be used to enforce federal statutes only when they create enforceable rights. John Doe, a graduate of the private Gonzaga University in Spokane, Washington, sought to become a public school teacher and needed to obtain an affidavit of good moral character from a dean at Gonzaga. A university official had overheard one student tell another of sexual misconduct by Doe. The official contacted the state agency responsible for teacher certification and discussed the allegations. Subsequently, the university informed Doe that it would not provide the affidavit.

Doe sued Gonzaga and the school official in state court for torts and breach of contract, as well as for violating the Family Educational Rights and Privacy Act (FERPA), which prohibits educational institutions that receive federal funds from releasing educational records to unauthorized persons. A jury found for Doe on all counts, awarding him compensatory and punitive damages on the FERPA claim. Although the act does not expressly create a cause of action, Doe sued under [section] 1983. (13) The Washington Supreme Court, like every federal court of appeals that had considered the issue, ruled that [section] 1983 could be used to enforce FERPA. (14)

The Supreme Court reversed, and in an opinion written by Rehnquist, held that FERPA does not unambiguously confer a right on individuals and thus cannot be enforced via a [section] 1983 action. Rehnquist wrote, "We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under [section] 1983." (15)

The Court concluded that "FERPA's nondisclosure provisions fail to confer enforceable rights." (16) The statute, it explained, says the federal government may not provide funds to educational institutions that have a "policy or practice" of releasing students' educational records in violation of the act. This is not sufficient to bestow enforceable rights on individuals, the Court said.

The greatest significance of the decision is the Court's expressly tying the availability of a [section] 1983 suit to the question of whether there would be a private right of action to enforce the federal statute. Rehnquist wrote, "[W]e further reject the notion that our implied-right-of-action cases are separate and distinct from our [section] 1983 cases. To the contrary, our implied-right-of-action cases should guide the determination of whether a statute confers rights enforceable under [section] 1983." (17) He explained that "a court's role in discerning whether personal rights exist in the [section] 1983 context should therefore not differ from its role in discerning whether personal rights exist in the implied-right-of-action context." (18)

Rehnquist concluded the majority opinion: "[I]f Congress wishes to create new rights enforceable under [section] 1983, it must do so in clear and unambiguous terms--no less and no more than what is required for Congress to create new rights enforceable under an implied private right of action." (19)

This is troublesome for civil rights plaintiffs because the Supreme Court has been very restrictive in its willingness to infer private rights of action for statutes that do not expressly authorize suits. (20) Thus, Gonzaga University will be a barrier for plaintiffs seeking to use [section] 1983 to enforce federal laws that do not create private rights of action.

There are, however, some important ways of limiting the impact of the decision. First, the ruling concerns laws Congress adopted under its spending power. Arguably, the decision's impact is restricted to statutes enacted under this congressional authority. Second, in considering whether there is a private right of action under a law, courts must consider both whether there is an enforceable right and whether the law was meant to provide a remedy. Section 1983 expressly creates a remedy in its authorization for both money damages and injunctive relief. Therefore, statutes that do not provide a private right of action--not because of the absence of a right but for the lack of a remedy--may still be enforceable via a [section] 1983 action.

Laws have little meaning unless they can be enforced. Gonzaga University is troubling because it continues the recent trend of precluding lawsuits to enforce federal laws. There is no doubt that government defendants will attempt to use Gonzaga University to block such litigation.

Notes

(1.) 122 S. Ct. 2268 (2002).

(2.) 42 U.S.C. [section] 1983 (2002) may be used to sue local governments and state and local officials who violate the Constitution or federal laws. State governments, however, cannot be named as defendants in [section] 1983 suits. Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989).

(3.) 20 U.S.C. [section] 1232g (2002).

(4.) See, e.g., Alexander v. Sandoval, 532 U.S. 275 (2001) (refusing to find a private right of action to enforce the regulations to Title VI of the 1964 Civil Rights Act, which prohibits recipients of federal funds from engaging in practices that have a racially discriminatory impact).

(5.) 448 U.S. 1 (1980).

(6.) 453 U.S. 1, 20 (1981).

(7.) 479 U.S. 418, 423 (1987).

(8.) 451 U.S. 1 (1981).

(9.) Id. at 17.

(10.) 503 U.S. 347, 363 (1992). In Wilderv. Va. Hosp. Ass'n, 496 U.S. 498 (1990), the Court found that [section] 1983 could be used to enforce a reimbursement provision of the Medicaid Act because the act left no doubt as to its intent for private enforcement.

(11.) 520 U.S. 329 (1997).

(12.) Id. at 340 (emphasis in original).

(13.) Although [section] 1983 applies only if there is state action and Gonzaga University is a private entity, the Washington courts found that the university acted "under color of state law" when it disclosed Doe's personal information to state officials. The Washington Supreme Court did not grant certiorari on the issue, saying that it was assuming, without deciding, that the actions occurred under color of state law. See Gonzaga, 122 S. Ct. 2268, 2272 n.1.

(14.) Id. at 2283 (Stevens, J. dissenting) ("[A]ll of the federal courts of appeals expressly deciding the question have concluded that FERPA creates federal rights enforceable under [section] 1983.").

(15.) Id. at 2275.

(16.) Id. at 2277.

(17.) Id. at 2275.

(18.) Id. at 2276.

(19.) Id. at 2279.

(20.) See, e.g., Alexander, 532 U.S. 275; Touche Ross & Co. v. Redington, 442 U.S. 560 (1979).

Erwin Chemerinsky is the Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California in Los Angeles.