Professor Howard Wasserman Spring 2017

CIVIL RIGHTS

Professor Howard Wasserman Spring 2017 Office: RDB 2065 RDB Phone: 348-7482 Monday/Wednesday, 9-10:15 a.m. e-mail: [email protected]

Special Class Scheduling Notes: • No class Monday, January 16 (Martin Luther King Day)

Office Hours: Monday, 1-2 p.m. Tuesday/Thursday, 10 a.m.-Noon Friday, 12-1:30 p.m. Anytime I am in my office; my door is always open. Post questions and comments about class discussions, course materials, etc., to the Blog

Course Outline:

This is a survey of civil rights law, emphasizing the process of making laws to protect federal civil and constitutional rights and bringing claims to vindicate those rights. We will focus primarily on 42 U.S.C. § 1983, the vehicle for bringing challenges to laws and governmental conduct that violate the Constitution and federal law. This is an essential class for anyone interested in constitutional, civil rights, employment, or employment-discrimination litigation.

The class examines the intersection of constitutional law, federal courts, civil procedure, and criminal procedure. We will discuss some substantive constitutional law, what a plaintiff must prove to get a case before a jury and to prevail on the merits of a constitutional claim, and what forms of relief are available. We also will discuss the procedural and jurisdictional hurdles that the plaintiff must clear, including various defenses of absolute and qualified immunity, sovereign immunity, standing requirements, federal jurisdiction and abstention requirements, and res judicata. One objective of the course is to give students an understanding of the mechanics of bringing, prosecuting, and defending civil rights actions seeking to redress constitutional violations. The class also will examine the scope, extent, and limitations on the power of Congress to create, provide, and protect civil rights by statute, particularly the limitations on Congress’ power under § 5 of the Fourteenth Amendment.

Perhaps more than any subject matter you will see, United States civil rights law is a unique construct, grounded as it is in the federalist system of dual sovereignty, notions of limited national government, and the role race plays and historically has played in American society. Required Course Materials:

Required Text: HOWARD M. WASSERMAN, UNDERSTANDING CIVIL RIGHTS LITIGATION (LexisNexis 2013) Appendix A: Constitution of the United States Appendix B: United States Code and Federal Rules of Civil Procedure (selected provisions)

Required Course Materials:

1) Individual cases, unedited. You are responsible for downloading; you can find them on Westlaw, Lexis, Oyez Project's Case List (http://www.oyez.org), Justia (http://supreme.justia.com/), or any other online or print source. 2) Edited articles and other materials posted to the Blog, as indicated.

My primary goal in assigning "raw" cases is to get you into the habit of reading and preparing as you will in practice and in the "real world"--working through the whole case, figuring out how to separate what is more and less important in the cases, getting the full procedural history and context of the case, and seeing how that case fits within the broader doctrine. Moreover, many of the cases in this area are detailed and scholarly, so they will give you not only information about the particular case, but also a sense of the history and evolution of the doctrine. You should have all assigned cases with you in class.

Understanding Civil Rights functions as a supplement to these raw cases, helping to synthesize and organize the jurisprudence, as well as to show how lower courts have developed different strands of the Supreme Court’s pronouncements. It also includes appendices with the text of the Constitution of the United States and relevant provisions of the United States Code and other statutory sources. Since some of our time will be spent on statutory text, you must bring this book with you to every class.

2 Course Evaluation:

Grades will be based on four components. Details on each are provided separately.

1) Opinion: 50 points Due at the beginning of the final day of class, Tuesday, Nov. 25. See Course Evaluation Information on Blog for details.

2) Oral Arguments: 25 points Held on Friday, May 13. Everyone will argue one case and sit as a Supreme Court Justice on at least one case. See Course Evaluation information on Blog for details.

3) Commentary: 30 points total (15 points each) Two (2) short commentaries. See below and Course Evaluation information on Blog for details. These commentaries will be posted to the Blog (anonymously) and are fair game for posts responding and commenting.

4) Class Participation: 15 points

Class discussion will combine panels and volunteers.

A panel of 3-4 students will be “on call” for each topic on the syllabus (number of students on the panel and number of panels depends on final enrollment). Panelists will be the first ones called on during class discussions and will be expected to help lead the conversation, which obviously entails a high level of preparation of the cases and problems assigned on that material. Depending on the size of the class, everyone will be on a panel 4-5 times during the semester.

In addition, the two commentaries (see above and “Course Evaluation Information” on Blog for details) will be written on two of the topics on which you were a panelist.

Panelists should not and will not be the only ones prepared for class or participating, of course. I want and expect all members of the class to engage with the material and in the classroom conversations.

In evaluating class participation, I will consider overall performance, both for the classes in which you were assigned as a panelist and overall participation in the broader conversation throughout the semester.

Civil Rights Blog:

To read the blog, go to http://fiucivilrights.blogspot.com; posts can be read going down from most recent. To post to the blog, go to www.blogger.com, log in, and follow the prompts to the Civil Rights blog.

To post, you must register as an author. To register, please e-mail me ([email protected]). In the subject line, type “Civil Rights Blog Registration;” in the body of the e-mail, please type your name and your e-mail address. You then will receive an e-mail “Invitation” inviting you to join as an author on the blog. You must then follow the steps in the invitation e-mail to register (under your full, first-and-last name, no handles or usernames, no first-names only) as an author. Once you are registered, you can

The blog serves several purposes. First is to make available the Syllabus and assignment information, as well as additional reading assignments. Second, all classes will be audio-recorded and the audio file will be posted to the blog. Those of you who are worried about being able to catch everything said in class can

3 go back and listen to the class again and fill-in any gaps. Third, I will write a post shortly after every class meeting; it will contain a summary and some additional points about the just-completed session, as well as assignments, materials, questions and issues you should think about for the next class.

Fourth, and most importantly, the blog is a forum for an ongoing conversation about the law of Civil Rights and § 1983. The blog is intended to carry class discussions and conversations on the material outside the classroom, to enhance discussions outside the limits of a 75-minute class session. This forum enables us to examine and discuss how these issues arise in real-world stories, cases, occurrences, events, as well as in the books you read and the TV shows and movies you watch. This also requires you to look beyond the course materials and to keep up with legal, social, cultural, and political events and link what happens to your own work.

This discussion will take the form of original posts by class members and me (I frequently will pose questions to be answered and discussed in this forum rather than class). Do not use the Comments section of a post; begin a new post with a new title. Topics for blog posts include thoughts, ideas, and commentary on issues and materials discussed in class; responses to other posts; responses to Commentaries posted to the blog (see above); questions about the material (I strongly encourage using this forum to discuss questions and concerns that arise in class); and discussion and analysis of news stories, cases, articles, books, movies, and television shows, current events, and anything else relating to the law of civil rights and the substance of this class.

All of this is by way of saying that you should get in the habit of checking the blog at least once or twice during the day.

There are no guidelines about length, content, or style, other than to insist that it be relevant to this class, that it be respectful, and that it be somewhat thought-out and well-written. Humor is great. Also, if the post is substantive, it ordinarily should contain some original thought or commentary. In other words, please do not simply cut-and-paste long portions of a case or article into the post; provide a link or cite to it and provide very brief synopsis or summary, along with your own thoughts or comments on it.

Please put your full name on the post. You may post as much or as little as you wish to the Blog.

The site contains a “Blogroll,” with links to a number of web sites and blogs that report on and discuss new legal developments, cases, and issues relevant to the class. You should get in the habit of reading some of these and similar sites. They may offer some cases or events to write about.

College of Law Academic Policies and Regulations

This class is administered and conducted in accordance with all the provisions of the Florida International University College of Law Academic Policies and Regulations, reprinted in the College of Law Student Handbook. Students are expected to be familiar with and to conduct themselves in line with those policies and regulations.

Technology and Class Conduct

Laptops are not permitted in the classroom.

Owing to the absence of a single casebook, you may use an iPad, tablet, book reader (Kindle, Nook, etc.), or phone solely for purposes of bringing assigned cases and extra materials to class (in lieu of printing

4 them out) and for no other purpose. You also may purchase Understanding Civil Rights Litigation as an e-book and bring it to class this way. You may not type notes during class on these devices. And you may not surf the web, play games, or otherwise use these devices for non-class purposes. I reserve the right to alter the rules regarding technology if I see the privilege being abused.

For those of you who prefer having (or being able to obtain) more precise notes, all classes will be audio- recorded and the MP3 file for each class session will be posted on the Blog. You are welcome and encouraged to listen to the recording and supplement your notes. This is, in fact, comparable to what you will experience in practice—you go through a day of trial working with your own brief notes and your participation in events, then receive a transcript a day or two later.

Your regular, timely attendance and preparedness are expected and will contribute to your course mastery and that of your fellow students. Missing an occasional class is understandable and unremarkable, as is occasional unavoidable lateness. But if you are going to miss multiple classes, e-mail me and let me know why. If you know you are going to be late on a given day, please let me know in advance, if possible.

Please do not leave the classroom during class unless you absolutely need to do so. And try to leave and return to the room as quietly and unobtrusively as possible.

I reserve the right to alter the rules regarding timeliness and leaving the room if I see the privilege being abused.

Class Assignments:

Below are the assignments for the semester. Each section or sub-section is divided into four parts: 1) “Provisions,” meaning constitutional, statutory, and rules provisions, which are in the appendices in Understanding Civil Rights Litigation, unless otherwise indicated 2) “Cases,” meaning judicial opinions (citations provided); and 3) “Commentary,” meaning assigned pages from Understanding Civil Rights Litigation, as well as additional articles and essays from the Blog.

I will try to give guideposts as to how far we will get within a particular topic for each class, although it probably is a good idea to read slightly ahead.

Class discussions will focus on synthesizing and tying together all the materials—the relevant constitutional provisions, rules, or statutes; the cases; and the scholarly and political commentary—into a doctrinal and theoretical whole. “Reading” a statute, rule, or case means understanding it; by the time you come to class, you should be able to discuss and explain what the statute, rule, or case says and means and how it will apply. Do not simply read and brief or take notes on individual rules, statutes, cases, and articles. Rather, after reading each individual assigned piece, spend some time thinking about and taking notes on how the readings relate to one another—what are the common themes and principles, how do the cases complement or conflict with one another (and can any conflicts be reconciled?), how has a fact- bound case interpreted and applied the plain language and history of a rule or statute?

You must bring any assigned statutes, rules, or constitutional provisions with you to class.

Several chapters in Understanding include “Puzzles,” which you should prepare for class discussion when assigned.

5 Introduction/Historical Context

Provisions: U.S. Const. amend. XIII, XIV

Commentary: Understanding Ch. 1

Elements of Civil Rights Claims

Introduction

Commentary: Understanding § 2.01

“Under Color of Law” and State Action

Provisions: 42 U.S.C. § 1983 18 U.S.C. § 242

Cases: Monroe v. Pape, 365 U.S. 167 (1961) (disregard Part III of Majority) Brentwood Academy v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001) United States v. Price, 383 U.S. 787 (1966) West v. Atkins, 487 U.S. 42 (1988) Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961)

Commentary: Understanding Ch.2, Part A

Puzzles: Understanding §§ 2.03[4], 2.04[6]

6 “Rights, Privileges, and Immunities”

Enforcing Federal Statutes

Provisions: 42 U.S.C. § 1983 28 U.S.C. § 1331 28 U.S.C. § 1343(a)

Cases: Alexander v. Sandoval, 532 U.S. 275 (2001) Gonzaga University v. Doe, 536 U.S. 273 (2002) Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015) (Majority; Dissent)

Commentary: Understanding Ch. 2, Part C

Enforcing the Fourteenth Amendment

Provisions: U.S. Const. amend. XIV 42 U.S.C. § 1983

Cases: Davidson v. Cannon, 474 U.S. 344 (1986) Daniels v. Williams, 474 U.S. 327 (1986) Hudson v. Palmer, 468 U.S. 517 (1984) Zinermon v. Burch, 494 U.S. 113 (1990) Chavez v. Martinez, 538 U.S. 760 (2003) Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415 (2d Cir. 2009)

Commentary: Understanding Ch. 2, Part B

Puzzle: Understanding § 2.08[5] Briggs v. Norristown (Complaint) (Blog)

Parallel and Concurrent Constitutional Claims

Provisions: 42 U.S.C. § 1983

Cases: Fitzgerald v. Barnstable Sch. Dist., 555 U.S. 246 (2009)

7 Claims Against Federal Officials

Provisions: 28 U.S.C. §§ 1346, 2679

Cases: Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) Wilkie v. Robbins, 551 U.S. 537 (2007) Minneci v. Pollard, 132 S. Ct. 617 (2012)

Commentary: Understanding Ch.2, Part D

Individual Immunities

Overview

Legislative Immunity

Provisions: U.S. CONST. art. I, § 6, cl.2

Cases: Gravel v. United States, 408 U.S. 606 (1972) Bogan v. Scott-Harris, 523 U.S. 44 (1998) Supreme Court of Virginia v. Consumers Union of United States, 446 U.S. 719 (1980)

8 Judicial Process (Judicial/Prosecutorial) Immunity

Provisions: 42 U.S.C. § 1983 (final sentence, added in 1988)

Cases: Stump v. Sparkman, 435 U.S. 349 (1978) Mireles v. Waco, 502 U.S. 9 (1991) Archie v. Lanier, 95 F.3d 438 (6th Cir. 1996) Buckley v. Fitzsimmons, 509 U.S. 259 (1993) Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009) Rehberg v. Paulk, 132 S. Ct. 1497 (2012)

Commentary: Understanding Ch.3, Part B

Puzzles: Understanding § 3.08[5]

Executive Qualified Immunity

Cases: Pearson v. Callahan, 555 U.S. 223 (2009) Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) Lane v. Franks, 134 S. Ct. 2369 (2014) Tolan v. Cotton, 134 S. Ct. 1861 (2014) Taylor v. Barkes 135 S. Ct. 2042 (2015)

Commentary: Understanding Ch.3, Part C

Puzzles: Understanding § 3.15[3]

Entity Liability

Introduction

9 Municipal Liability

Cases: Monell v. Department of Social Services, 436 U.S. 658 (1978) City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) Board of County Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997) Los Angeles County v. Humphries, 131 S. Ct. 447 (2010) Connick v. Thompson, 131 S. Ct. 1350 (2011)

Puzzles: Understanding § 4.08

Supervisory Liability

Provisions: 42 U.S.C. 1988(a)

Cases: Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (Majority: Parts I, III; Souter Dissent: Intro, Part I.B) Dodds v. Richardson, 614 F.3d 1185 (10th Cir. 2010) McMillian v. Monroe County, 520 U.S. 781 (1997)

Commentary: Understanding Ch. 4, §§ 4.14-4.15

State Sovereign Immunity I

Provisions: U.S. Const. amend. XI

Cases: Alden v. Maine, 527 U.S. 706 (1999) Fitzpatrick v. Bitzer, 427 U.S. 445 (1976) Tennessee v. Lane, 541 U.S. 509 (2004) United States v. Georgia, 546 U.S. 151 (2006) Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989)

Commentary: Understanding Ch.4, §§ 4.09-4.12

10 State Sovereign Immunity II

Provisions: 42 U.S.C. § 14141 28 U.S.C. § 2201-2202 (Declaratory Judgment Act) 28 U.S.C. §§ 2281-2282 (repealed) 28 U.S.C. § 2284 28 U.S.C. § 1253

Cases: Ex Parte Young, 209 U.S. 123 (1908) Edelman v. Jordan, 415 U.S. 651 (1974) VOPA v. Stewart, 131 S. Ct. 1632 (2011) Steffel v. Thompson, 415 U.S. 452 (1974) (Focus only on discussion of Declaratory Relief) Armstrong v. Exceptional Child Center, Inc., 135 S. Ct. 1378 (2015) (Majority, Parts I-II)

Commentary: Understanding Ch.4, § 4.13 Solimine, Congress, Ex Parte Young, And The Fate Of The Three-Judge District Court (Blog)

Puzzle: Tyler v. Commonwealth (Complaint and District Court opinion) (Blog)

Procedural Issues

Jurisdiction, Motions, and Appeals

Provisions: 28 U.S.C. §§ 1331, 1343(a)(3) 28 U.S.C. §§ 1291, 1292 28 U.S.C. § 1254

Cases: Ashcroft v. Iqbal, 556 U.S. 662 (2009) (Majority, Part II) Ortiz v. Jordan, 131 S. Ct. 884 (2011) Camreta v. Greene, 131 S. Ct. 2020 (2011) (Majority, Parts I & II; Dissent, Part I)

11 Exhaustion and Finding the Correct Litigation Vehicle

Provisions: 28 U.S.C. § 1997e(a) 28 U.S.C §§ 2253, 2254

Cases: Heck v. Humphrey, 512 U.S. 477 (1994) Wilkinson v. Dotson, 544 U.S. 74 (2005) Hill v. McDonough, 547 U.S. 573 (2006) Skinner v. Switzer, 131 S. Ct. 1289 (2011)

Res Judicata

Provisions: 28 U.S.C. §§ 1738, 1988 28 U.S.C. § 1257 (Current and pre-1988)

Cases: Allen v. McCurry, 449 U.S. 90 (1980) Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75 (1984)

Statutes of Limitations, Accrual of Claims, and the Intersection of Procedures

Provisions: 42 U.S.C. § 1988(a)

Cases: Wallace v. Kato, 549 U.S. 384 (2007)

12 Abstention

Introduction to Abstention and Equitable Relief

Provisions: 28 U.S.C. §§ 1253, 2281, 2282, 2284 28 U.S.C. §§ 2201-2202 Fed. R. Civ. P. 65

Cases: Steffel v. Thompson, 415 U.S 452 (1974) (Focus only on discussion of Declaratory Relief) Shapiro v. McManus, 136 S. Ct. 450 (2015)

Commentary: Understanding §§ 6.01-6.02

Pullman Abstention

Cases: Railroad Commission v. Pullman, 312 U.S. 496 (1941) Wisconsin v. Constantineau, 400 U.S. 433 (1971) City of Houston v. Hill, 482 U.S. 451 (1987) (Disregard Part II of opinion) Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)

Statutory Abstention

Provisions 28 U.S.C. § 2283 28 U.S.C. § 1341 28 U.S.C. § 7421

13 Younger Abstention: Basics

Provisions: 28 U.S.C. §§ 2201-2202 28 U.S.C. §§ 2281-2282, 2284 28 U.S.C. § 1253 28 U.S.C. § 2283 28 U.S.C. § 1257 (pre-1988 and Current)

Cases: Younger v. Harris, 401 U.S. 37 (1971) Samuels v. Mackell, 401 U.S. 66 (1971) Mitchum v. Foster, 407 U.S. 225 (1972)

Younger Abstention: Extension

Cases: Steffel v. Thompson, 415 U.S 452 (1974) (Review) Doran v. Salem Inn, Inc., 422 U.S. 922 (1975) Huffman v. Pursue, Ltd., 420 U.S. 592 (1975) Hicks v. Miranda, 422 U.S. 332 (1975) Sprint Communications v. Jacobs, 134 S. Ct. 584 (2013)

Commentary: Understanding §§ 6.11-6.12

Rooker-Feldman Doctrine

Cases: Lance v. Dennis, 546 U.S. 459 (2006)

14 Abstention Review

Puzzles: Understanding § 6.17 Marie v. Moser, 65 F. Supp. 3d 1175 (D. Kan. 2014)

Civil Rights Remedies

Introduction

Damages

Cases: Carey v. Piphus, 435 U.S. 247 (1978) Memphis Community Sch. Dist. v. Stachura, 477 U.S. 299 (1986) Smith v. Wade, 461 U.S. 30 (1983)

Injunctive Relief

Provisions: 42 U.S.C. § 1983 (final sentence) 28 U.S.C. §§ 2201-2202 28 U.S.C. §§ 2281, 2282, 2284 28 U.S.C. § 1292(a) 18 U.S.C. § 242 42 U.S.C. § 14141 Fed. R. Civ. P. 60, 65

Cases: Pulliam v. Allen, 466 U.S. 522 (1984) Los Angeles County v. Humphries, 131 S. Ct. 447 (2010) Clapper v. Amnesty Int’l, 133 S. Ct. 1138 (2013) Susan B. Anthony List v. Driehaus 134 S. Ct. 2334 (2014) Agostini v. Felton, 521 U.S. 203, 209 (1997)

Other: Department of Justice, Dual and Successive Prosecution Policy (Petite Policy) (Blog)

15 Attorneys’ Fees

Provisions: 28 U.S.C. § 1988(b)

Cases: Hewitt v. Helms, 482 U.S. 755 (1987) Buckhannon Board and Care Home v. West Virginia Dept. of Health and Human Serv., 532 U.S. 598 (2001) Sole v. Wyner, 551 U.S. 74 (2007) Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662 (2010)