Sixth Circuit Weighs in on Split Re Whether 1991 Amendment to Sec. 1981 Created Action against State Actors

Per Arendale v. City of Memphis, --- F.3d ----, 2008 WL 731226 (6th Cir. Mar. 20, 2008):

While § 1981 does not expressly afford a cause of action to private parties, the Supreme Court held in Runyon v. McCrary, 427 U.S. 160 (1976), that private defendants may be held liable under its provisions. Id. at 174-175. Plaintiff claims that § 1981 also contains an implicit cause of action against municipalities that engage in racial discrimination in employment. In Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989), however, the Supreme Court held that § 1981's implicit cause of action does not extend to suits brought against state actors. Id. at 732. While Plaintiff argues that a 1991 amendment to § 1981 overruled Jett, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071, 1071-72 (1991), we disagree.

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The circuits are split on whether subsection (c) creates a private cause of action against state actors, thus overruling the Supreme Court's decision in Jett. Compare id. with Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir.2006) (“[S]ubsection (c) ... hardly confronts the holding in Jett.”); Butts v. County of Volusia, 222 F.3d 891, 894 (11th Cir.2000) ( “[Section] 1981 makes clear that the section creates a right that private or state actors may violate but does not itself create a remedy for that violation.”); Dennis v. County of Fairfax, 55 F.3d 151, 156 n. 1 (4th Cir.1995) (“[S]ubsection (c) did not purport to overrule Jett's holding with respect to municipal liability....”). In order to determine which side of this split the Sixth Circuit will join, this Court must determine whether subsection (c) “displays an intent to create not just a private right but also a private remedy.” Sandoval, 532 U.S. at 286. Such an inquiry reveals that § 1981(c) does not provide Plaintiff with the cause of action he seeks.

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[W]e conclude that § 1981(c) was directed at preserving the Supreme Court's decision in Runyon, not, as Plaintiff argues, at overruling Jett.