In a recent decision, Buntin v. City of Boston, the First Circuit Court of Appeals held that there is no implied private right of action for damages against state actors under 42 U.S.C. Section 1981. In reaching that conclusion, the court of appeals determined that Congress, when it amended the statute in 1991, did not overrule the Supreme Court of the United States’ 1989 holding in Jett v. Dallas Independent School District, 491 U.S. 701 (1989), that Section 1981 affords no such right of action and that 42 U.S.C. Section 1983 is the exclusive source for federal damages actions against state actors alleged to have violated Section 1981. The First Circuit’s ruling in Buntin is consistent with that of eight other federal appellate courts, and the Ninth Circuit remains the only federal appeals court to have held that Congress overruled Jett by amending the statute.
In February of 2015, Jeannette Buntin filed a complaint on behalf of her late father, Oswald Hixon, against his former employer, the City of Boston, and his former supervisors, Scott Alther and James McGonagle, for violations of Sections 1981 and 1983. In her complaint, Buntin alleged that the defendants had discriminated against Hixon on the basis of his race and had retaliated against him for complaining about that discrimination by terminating his employment with the city on February 10, 2011. Buntin also alleged that during Hixon’s unemployment benefits hearings in 2013, Alther and McGonagle testified falsely that he had been under the influence of controlled substances at work and that he did not get a name-clearing hearing thereafter.
The complaint did not include claims for employment discrimination in violation of Title VII of the Civil Rights Act of 1964 or Massachusetts General Laws Chapter 151B. Hixon had filed employment discrimination charges with the Massachusetts Commission Against Discrimination in 2013 and 2014, but both had been dismissed as untimely because Hixon did not file them until after the 300-day limitations period for filing administrative complaints had expired.
The district court dismissed Buntin’s Section 1981 and Section 1983 claims because she had failed to satisfy the administrative exhaustion requirements that apply to Title VII and Chapter 151B claims, and because Buntin had failed to assert the Section 1983 claim within the three-year limitations period that applies to such claims. On appeal, the First Circuit upheld dismissal of the Section 1983 claim on limitations grounds, but held that the administrative exhaustion requirement did not apply to Section 1981 and therefore reversed with respect to that claim. On remand, the district court granted the defendants’ motion for summary judgment on the Section 1981 claim, applying Jett and holding that Section 1981 provides no implied private right of action for damages against state actors.
The First Circuit’s Ruling
On appeal from the district court’s decision, the court of appeals was required to address an issue of first impression in the First Circuit: whether Congress’s post-Jett amendments to Section 1981, promulgated by the Civil Rights Act of 1991, had overruled Jett’s holding that Section 1981 affords no private right of action against state actors for damages. The court observed that the 1991 amendments, which came only two years after the Supreme Court’s ruling in Jett, added two new subsections to the statute: subsection (b), which defines the clause “to make and enforce contracts,” and subsection (c), which states that rights in Section 1981 are protected against “impairment by nongovernmental discrimination and impairment under color of State law.”
The Ninth Circuit, in Federation of African American Contractors v. City of Oakland (1996), had held that Congress implicitly overruled Jett by adding the new subsection (c) via the 1991 act. The Buntin court rejected the Ninth Circuit’s view, however, for two reasons. First, it held that there was nothing in the structure or text of the Section 1981 amendments to suggest that Congress meant them to overrule Jett or to provide a new private right of action for damages against state actors. Second, it observed that while the legislative history of the 1991 act contained explicit references to several Supreme Court decisions that the act was meant either to codify or to repudiate, it contained no reference at all to the Jett decision. Accordingly, the court concluded that Congress did not intend to overrule Jett, or provide an additional private cause of action for damages against state actors, by means of the 1991 act.
The primary lessons of the Buntin decision are that, in the First Circuit (as in most others), (1) Jett remains good law, (2) claimants may not bring private suits for damages against state actors under Section 1981, and (3) Section 1983 remains the exclusive federal source for such claims. Litigants may also want to keep in mind, however, that the administrative exhaustion requirements of Title VII and Chapter 151B do not apply to Section 1983 claims.