December 31, 2015

The Long-Term Implications of Gonzaga v. Doe

by Bradford C. Mank

State and local governments are often responsible for disbursing federal medical, educational, and welfare benefits. What happens when they deny or revoke them unfairly? Some recipients have used 42 U.S.C. § 1983 as a way to enforce the underlying statutes. The Supreme Court decision in Gonzaga University v. Doe, 536 U.S. 273 (2002), made this more difficult. In doing so, the Court adopted stringent rules for the use of § 1983 to enforce any federal laws, including the nation’s civil rights laws.

In Gonzaga, John Doe sued his university for disclosing embarrassing disciplinary records to unauthorized third parties in violation of the Family Educational Rights and Privacy Act (FERPA), 20 U.S.C. § 1232g. He sought to enforce FERPA through § 1983. The Supreme Court rejected the suit, holding that FERPA did not establish an individual right enforceable through § 1983. The majority opinion adopted a rule that spending legislation that provides federal funding to various state actors does not ordinarily create individual enforceable rights under § 1983 unless Congress demonstrates through “clear and unambiguous terms” that it intends to provide individual rights against a state actor that accepts federal funding.” While previous cases had distinguished between implied-right-of-action cases, where evidence of congressional intent to provide a private remedy is required, and § 1983 cases, where a remedy is generally presumed, the majority essentially treated these two types of statutes as similarly requiring evidence of congressional intent. In doing so, the majority applied the stricter standard of implied right of action cases to § 1983, thus weakening the power of § 1983.

Gonzaga is better understood in light of prior decisions defining implied rights of action and § 1983 suits. From 1964 until the late 1970s, the Supreme Court and lower courts found implied private causes of action under several statutes. However, more recent Supreme Court decisions have made it more difficult for courts to infer that a statute establishes an implied private right by requiring significant evidence of congressional intent to create a private right of action. For instance, the Court in Alexander v. Sandoval, 532 U.S. 275 (2001) held that there is no private right of action to enforce disparate impact regulations promulgated under § 602 of Title VI of the 1964 Civil Rights Act because neither § 602’s language nor subsequent amendments to Title VI demonstrated congressional intent to establish a private cause of action to enforce § 602. Because the Court increasingly rejected implied private rights of action, plaintiffs instead turned to § 1983 suits to enforce statutory rights that do not contain explicit remedies.

Before 1980, the Supreme Court had only clearly allowed § 1983 suits in cases alleging violations of constitutional rights. During the 1960s and 1970s, Congress enacted statutes establishing federal grant-in-aid programs to states and also used these state programs to provide funds to individual welfare beneficiaries. In 1980, the Supreme Court in Maine v. Thiboutot, 448 U.S. 1 (1980), held that the plain meaning of the term “and laws” in § 1983 referred to federal statutory rights and allowed private individuals who were beneficiaries of those rights to bring suit. However, judges concerned with protecting states’ rights against what they perceived as intrusive federal suits sought to limit Thiboutot’s scope. Additionally, some judges may have been concerned that § 1983 suits allowed plaintiffs to evade the Court’s increasingly narrow view of implied rights of action. Until the Gonzaga decision, the Court’s decisions wavered between broad and narrow readings of Thiboutot.

The Gonzaga decision adopted a restrictive approach to use of § 1983 suits to require states to provide welfare benefits and other rights to individuals pursuant to federal funding statutes. The Court emphasized that § 1983 suits may only enforce clear statutory rights and may not be used to enforce vaguer benefits or interests, even if some earlier Court decisions had suggested otherwise. The majority argued that the test for determining whether rights are enforceable in § 1983 suits is whether there is clear and unambiguous evidence of a right—an inquiry similar to the one in private rights suits but without the requirement for evidence of congressional intent to create a private remedy. The Court stated that Congress must clearly establish its intent to create individual rights if it wishes to alter the balance between states and the federal government. The assumption of deference to state and local officials in the absence of clear congressional intent to confer individual rights arguably shifts the burden of showing whether a remedy or cause of action exists from the defendant in § 1983 suits to plaintiffs.

On the merits, the Court concluded that Congress, in enacting FERPA, only intended to establish aggregate duties that educational institutions owe to the Secretary of Education. Any provisions in the statute for administrative review of individual  complaints reinforced the Court’s view that Congress wanted the Secretary of Education to resolve any institutional failures, and not the courts through § 1983 suits.

In dissent, Justice Stevens, joined by Justice Ginsburg, argued that the majority’s requirement of clear textual evidence that Congress intended to establish an individual right inappropriately adopted the test used in implied-right-of-action cases, namely, whether Congress intended to establish a private remedy. He contended that the majority had acknowledged that this requirement was unnecessary in § 1983 cases because that statute allows private enforcement of any statute creating a distinct federal right, even if there is no private right of action under the substantive statute. Although the majority opinion asserted that it was not importing the entire implied-rightof- action framework into the § 1983 arena, Justice Stevens argued that the majority’s approach effectively did just that and undermined the “presumptive enforceability of rights under § 1983.”

Despite not explicitly changing the existing three-part enforcement test for § 1983, the Gonzaga decision imposes a significant burden of proof on plaintiffs by requiring unambiguous and explicit evidence that Congress intended to create an individual right benefiting a class including the plaintiff. Although proposing to determine only whether Congress intended to create an individual right, the majority in fact blurred the distinction between rights and remedies by improperly considering in a § 1983 case whether Congress intended to create a cause of action. Chief Justice Rehnquist’s majority opinion in Gonzaga arguably weakened civil liberties by undermining the principle that federal statutory rights are presumptively enforceable through § 1983’s express provision for enforcement of statutory rights. In exceptional cases, a defendant can rebut the presumption that all federal rights are enforceable through § 1983. However, a defendant has the burden of demonstrating that Congress has specifically foreclosed enforcement under § 1983 or that a statute provides comprehensive remedies incompatible with § 1983. By blurring the line between rights and remedies, the majority effectively shifted the burden of proof from the defendant to the plaintiff to demonstrate that § 1983 may be used to enforce and provide a remedy for a federal statutory right.

The Gonzaga case claims to clarify when federal statutory rights may be enforced by § 1983. However, the majority opinion actually did not clarify how courts should determine what is “clear” and “unambiguous” evidence of congressional intent to establish an individual right. It is unclear whether the majority’s test requires a textualist approach or allows consideration of legislative history. Chief Justice Rehnquist’s majority opinion in Gonzaga largely focused on the “text and structure” of the FERPA provisions directly at issue, although the Court briefly considered one aspect of the statute’s legislative history. Despite agreeing with the Gonzaga majority that whether private individuals may enforce a federal statute through § 1983 is “a question of congressional intent,” Justice Breyer, with whom Justice Souter joined, concurred in the judgment but disagreed with the “majority’s presumption that a right is conferred only if set forth ‘unambiguously’ in the statute’s ‘text and structure.’” The majority opinion never responded to Justice Breyer’s claim that its approach was textualist. The Gonzaga decision provides little guidance on which types of evidence may be considered in determining congressional intent to confer an individual right to sue.

The strict approach to demonstrating congressional intent in Gonzaga would be less harmful to plaintiffs if they may introduce evidence about a statute’s legislative history because that history often contains important evidence regarding congressional intent or purpose. Additionally, as is demonstrated by the Court’s decision in Wright v. City of Roanoke Redevelopment & Housing Authority, 479 U.S. 418, 430–32 (1987), courts should consider agency regulations that define the scope of a right as long as there is sufficient evidence that Congress intended to establish an individual right in a statute. By rejecting a strict textualist interpretation of congressional intent, courts can partially protect the enforcement of statutory rights under § 1983 despite the Gonzaga decision’s overly restrictive test.

Despite Gonzaga’s rigorous “clear and unambiguous terms” test, lower courts have divided over whether § 1983 suits may be brought by individual beneficiaries under several federal statutes addressing a wide range of issues. Lower courts have considered claims by Medicaid patients, foster care children in state care under the Adoption Assistance and Child Welfare Act, nursing home residents under the Nursing Home Reform Amendments, patients under the Protection and Advocacy for Individuals with Mental Illnesses Act, and foster parents under the Child Welfare Act. On the other hand, lower court judges who are not sympathetic to using § 1983 suits to enforce possible individual welfare rights in federal spending statutes against states can readily rely on the strict test in the Gonzaga decision to reject such suits. There is not enough space in this article to discuss each federal spending statute potentially enforceable through § 1983 suits. However, lower courts have disagreed, for example, about whether Gonzaga suggests individual nursing home residents have enforceable rights under the Nursing Home Reform Amendments (NHRA), 42 U.S.C. § 1396r et seq. Compare Grammar v. John J. Kane Regional Centers, 570 F.3d 520, 529–32 (3d Cir. 2009) (allowing enforcement of NHRA through § 1983 using Gonzaga’s test ) (2–1 decision with one judge dissenting), with Schwerdtfeger v. Alden Long Grove Rehabilitation & Health Care Center, Inc., 2014 WL 1884471, at *5–6 & n.3 (N.D. Ill. May 12, 2014) (Durkin, J.) (denying enforcement of NHRA through § 1983 and arguing that Grammar is inconsistent with Gonzaga). Courts applying Gonzaga’s test have recognized that a court must analyze each statute’s language to determine if Congress intended to establish individual rights enforceable through § 1983, and that no absolute rule bars the use of § 1983 suits to enforce such rights in spending power statutes. See, e.g., Indiana Protection & Advocacy Services v. Indiana Family & Social Services Administration, 603 F.3d 365, 378 (7th Cir. 2010) (en banc).

Thus, Gonzaga’s test made it more difficult, but not impossible, for lower courts to hold that § 1983 suits allow individual beneficiaries to sue various state or local governments under various federal spending statutes. It is unlikely that the current Supreme Court will modify the strict Gonzaga framework for using § 1983 suits to enforce individual beneficiary rights. However, there is enough play in Gonzaga’s approach to allow lower courts to interpret some statutes in favor of § 1983 plaintiff-beneficiaries. Any significant revision in the Gonzaga framework will require a changed Supreme Court membership that is more sympathetic to § 1983 suits.

Bradford C. Mank

Bradford C. Mank, James B. Helmer Jr. Professor of Law, University of Cincinnati College of Law, teaches and writes about environmental and administrative law. He has discussed Gonzaga issues in greater depth in 39 Houston Law Review 1417 (2003) and 32 Florida State Law Review 843 (2005).