Civil Rights Litigation

Elective Course
Course Number: LAW 533
Credits: 2

Litigation over federal constitutional rights is prominent in the news at the moment. 42 U.S.C. § 1983 is the vehicle designated by Congress for the recognition and enforcement of federal constitutional rights against persons acting on the authority of a state or local government. In other words, if you want a court to protect your federal constitutional rights, you sue under § 1983.

Last June, in a trio of § 1983 cases, the Supreme Court held that officials in three States could not enforce gay-marriage bans because such bans violate the Due Process and Equal Protection Clauses of the Fourteenth Amendment. But § 1983 will not always work the way you might think. All police officers who conduct unreasonable searches know the Fourth Amendment will prohibit use of the evidence in court; but, as the “Black Lives Matter” movement points out, an officer who kills someone while using force to make an arrest might not be held legally accountable at all – even if a court in a § 1983 action finds he violated the Fourth Amendment. Employees and students may use § 1983 to vindicate their First Amendment free speech rights, and § 1983 and the Fourteenth Amendment may protect employers, teachers, or administrators who are fired for limiting that speech in the first place.

As these scenarios suggest, one individual’s constitutional rights against the government are frequently in tension with other individuals’ constitutional rights against the same government. And, although § 1983 gives individuals a way to enforce federal rights, federal supremacy is always in tension with the equally constitutional doctrine of federalism and respect for states’ rights. Federal rights should not prevent States from pursuing legitimate objectives. For these reasons, § 1983 provides both a sword to plaintiffs and shields to defendants. It is easy to misunderstand what the statute requires and what can be accomplished with it. It is also easy for lawyers, whoever they represent, to lose what should be a good case.

This class is designed for third- or second-year students who are interested in constitutional law or civil litigation. Students headed for clerkships at the trial or appellate level will also benefit. We will look at who can be sued under § 1983, what they can be sued for, what defenses are available, and why all these rules are what they are. Our focus will be practical. Instead of using a textbook, we will read landmark cases together with contemporary ones to see how the rules play out in real-world situations today. As a midterm assignment, students will be given a factual scenario and will draft a complaint under § 1983 to show they can sue the right people for the right things and avoid obvious defenses. The final exam will be a more traditional take-home law school exam.