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Using Section 1983 to enforce housing rights: more bad news from the 6th Circuit

MPLP Summer 2006 Housing Law Section Newsletter Article

Issue 31, Summer 2006

Using Section 1983 to enforce housing rights: more bad news from the 6th Circuit, but some good news from elsewhere, and some insight into Section 1983 litigation and jurisprudence

As reported in previous issues of this Newsletter and covered at Housing Task Force meetings and other MPLP trainings, the question of whether 42 USC §1983 can be used to enforce HUD tenant rights under federal housing statutes and regulations is unsettled. The trend in the U.S. Court of Appeals for the 6th Circuit has been unfavorable, as reflected in Johnson v. City of Detroit, 446 F.3d 614 (6th Cir. 2006), which is summarized below. Fortunately, there was a good decision earlier this year in the 5th Circuit, in Johnson v. Housing Authority of Jefferson Parish, 442 F.3d 356 (5th Cir. 2006), which held that Section the right of §8 voucher holders to adequate utility allowances under 42 USC 1437f(o)(2) and 24 CFR 982.517 is enforceable under §1983. This decision recognized the continuing viability of Wright v. Roanoke, 479 U.S. 418 (1987), the U.S. Supreme Court decision finding that statutorily and regulatorily based rent limits for public housing tenants are enforceable under §1983.

Concerning possible U.S. Supreme Court treatment of this general issue, Lauren Saunders, who recently left the National Seniors Citizens Law Center to become the managing attorney of the National Consumer Law Center’s Washington DC office, has written extensively and insightfully about it. In her "parting missive" from NSCLC, Are There Five Votes to Overrule Thiboutot, which appears below, she speculates about whether the Supreme Court "will eliminate the use of Section 1983 to enforce statutes such as the Medicaid Act, federal housing laws, the Food Stamps Act, and the foster care/child support/child welfare/adoption assistance provisions of Title IV-D of the Social Security Act." In a e-mail prologue of sorts to that commentary, she writes that:

advocates should never seek Supreme Court [federal or state] review, or even court of appeals review, in a Section 1983 case without consulting with experts on the issue and making sure that there is a consensus that your case is worth the risk of eliminating Section 1983, at a minimum for your statute in your circuit, but potentially for all statutes for the entire country.

So, don’t abandon the possibility of using Section 1983 to enforce federal housing rights - it still has great potency, but be very judicious in deciding to pursue a claim (being sure that the right asserted is clearly stated and focused on individuals, and please consider consulting others about such a claim (definitely do so if you are contemplating an appeal in this area). For a good overview of doing work in this area see Using Section 1983 to Enforce Federal Laws by Jane Perkins, Legal Director of the National Health Law Program, which appeared in the March-April 2005 (at p. 720) of the Clearinghouse Review Journal of Poverty Law and Policy ( (this article was distributed at last year’s Roadshow training).

Sixth Circuit Upholds Dismissal of Section 1983 Claims Based on the United States Housing Act and Lead Based Paint Poisoning Prevention Act

This summary was prepared by Travis Montgomery, a Michigan State University law student interning at MPLP this Summer.

On May 3, 2006, the U.S. Court of Appeals for the Sixth Circuit solidified its unsettling jurisprudential position regarding post-Gonzaga [1] analysis of 1983 claims.

In August 2003, Demita Johnson brought an action [2] on behalf of her son, who allegedly suffered lead-based paint poisoning while a tenant at the Jeffries Homes public housing project in Detroit, owned and operated by the City of Detroit and the Detroit Housing Commission. Johnson's seven-count complaint alleged, among other things, a cause of action under 42 U.S.C. 1983 for deprivation of federal rights granted by provisions of the United States Housing Act of 1937 [3] (USHA), the Lead Based Paint Poisoning Prevention Act [4] (LBPPPA)and federal regulations created under each. Johnson further alleged an implied private right of action under the LBPPPA. The district court granted a defense 12(b)(6) motion to dismiss all counts. On appeal, the Sixth Circuit court affirmed [5] , finding that its textual analysis of the USHA and LBPPPA failed to uncover any "rights-creating" language showing the necessary, unequivocal intent of Congress to confer enforceable rights on a class of persons. The majority further held that if a statute does not create enforceable federal rights, the regulations promulgated pursuant to the statute are incapable of creating them as well.

The relevant provisions of the LBPPPA relied upon by Ms. Johnson direct HUD to establish procedures aimed at eliminating the hazards of lead-based paint in HUD assisted housing to the furthest extent practicable. The statute enumerated several minimum safeguards, including the provision of lead hazard information pamphlets to tenants. Johnson argued that the LBPPPA created a specific right in an identifiable class of persons by requiring the dissemination of such information to "tenants and purchasers." She further asserted that, in the absence of an alternative method of enforcement, the LBPPPA would be nothing more than an empty promise if children of public housing who suffer from preventable lead paint poisoning have no private right of action. The court acknowledged that public housing tenants clearly stand to benefit from the LBPPPA but held, based on the Supreme Court decision in Gonzaga, that Congressionally conferred rights must be something more than mere benefits and that the language of the LBPPPA focusing on institutional policy and procedure rather than individual rights was insufficient to confer the type of entitlement enforceable under §1983.

Johnson's 1983 claim under the USHA met a similar fate. She alleged that defendants violated 42 U.S.C. 1437 and 1437f by failing to provide decent, safe and sanitary housing at Jeffries Homes. However, the court found that Section 1437 is nothing more than a policy declaration that fails to incorporate any specific and unequivocal language giving beneficiaries of the act a private right of action. Similarly, the court held that Section 1437f, better known as Section 8 of the Housing Act, focuses on the responsibilities of the HUD Secretary and local housing authorities. Though it confers authority on the Secretary to regulate housing quality standards for public housing by making local housing authorities withhold payments to landlords who fail to maintain safe and habitable housing, it does not unambiguously give tenants of Section 8 housing any rights. According to the court, the focus on entity regulation and policy is fatal to Ms. Johnson's claim of conferred rights to tenants, despite the obvious benefits tenants receive as a result of the housing quality standards.

In light of Gonzaga, as well as the Sixth Circuit's earlier decision in Caswell [6] , the Johnson court further held that a federal regulation alone can no longer create a right enforceable through 1983. If, as Gonzaga holds, an enforceable right may only be granted by Congress in clear and unambiguous right-creating language, the majority reasoned, then a non-Congressional administrative regulation is incapable of conferring such a right. Judge Martin disagreed, arguing that Gonzaga dealt specifically with an attempt to enforce a right allegedly conferred by a statute and that the Supreme Court's language about Congressional intent was simply a result of the specific facts of the case, not an attempt to preclude administrative regulations from conferring federal rights on their own. Regardless, the majority opinion marks another setback for plaintiffs seeking to bring 1983 claims, whether under a federal statute or federal regulation, as the strict, post-Gonzaga requirements (rightly or wrongly construed) for conferring private rights take a foothold in federal district and circuit courts.

[1] Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).

[2] Johnson v. City of Detroit, 319 F. Supp. 2d 756 (E.D. Mich. 2004).

[3] 42 U.S.C. 1437-1437bbb (2000). View here.

[4] 42 U.S.C. 4821-46 (2000). Beginning here.

[5] Johnson v. City of Detroit, 446 F.3d 614 (6th Cir. 2006).

[6] Caswell v. City of Detroit Hous. Comm'n, 418 F.3d 615 (6th Cir. 2005).


The Threat to Enforcement of Federal Medicaid, Housing, Child Welfare,

and Other Safety Net Programs

By Lauren Saunders

National Senior Citizens Law Center

The Civil Rights Act of 1871 gives individuals a remedy against "deprivations of any rights, privileges, or immunities secured by the Constitution and laws." Now codified at 42 U.S.C. § 1983 and popularly known as "Section 1983," the statute is an important vehicle for enforcing federal statutes as well as the Constitution. Section 1983 is especially important to the enforcement of safety net statutes. It is the primary, and often the only, vehicle for enforcing state compliance with the Medicaid Act, federal subsidized housing laws, the Food Stamps Act, and the child welfare/child support/foster care/adoption assistance provisions of Title IV-D of the Social Security Act.

In 1980, in Maine v. Thiboutot, the Supreme Court explained the obvious: "the phrase 'and laws,' as used in 1983, means what it says," and provides a remedy for violations of statutory as well as constitutional rights. Both before and after Thiboutot, Section 1983 has been used to enforce federal laws in a wide variety of areas.

However, advocates are now faced with the serious prospect that there may by five votes on the Supreme Court to overrule Thiboutot either directly, or in effect. This is not merely speculation based on ideology; Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito all have specific track records on Section 1983. Recent successes in the courts of appeal which are bound by existing law should not lull advocates into ignoring this very real threat to Thiboutot.

Therefore, advocates must use extreme caution before seeking certiorari in a Section 1983 case. If the Supreme Court were to overrule Thiboutot, it would affect not only the particular statute at issue in the case, but every statute enforced through Section 1983.

Advocates should also consider not only the increasing difficulty of meeting the Section 1983 requirements of Gonzaga University v. Doe, [1] but also the possibility of a case getting to the Supreme Court, in deciding whether to appeal to a court of appeals. The possibility of making bad law, which should always be a consideration, is ironically greater if the case has a reasonable chance of winning in the court of appeals, because the plaintiff will not have control over whether the defendant seeks Supreme Court review. This is not to say that strong cases should not be appealed to the courts of appeal, but only that the situation at the Supreme Court should be a factor considered.


Justice Rehnquist's opinion advised that in "legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State." [2] Since Pennhurst, the Supreme Court has decided five Section 1983 cases involving Spending Clause statutes. In the first two, the Court upheld use of Section 1983 to enforce provisions of federal statutes, but in the last three cases, the Court has found that the statutes were not enforceable.

In the most recent case, the 2002 Gonzaga decision, the Court quoted the Pennhurst statement above and developed an especially restrictive test for determining whether a statute creates a "right" enforceable through Section 1983. [3] A statute must contain an "unambiguously conferred right" phrased with "explicit rights-creating terms" and "its text must be 'phrased in terms of the persons benefited.'" [4] Even conservative Seventh Circuit Judge Frank Easterbrook has quipped about the "[Gonzaga] Court's oxymoron" of searching for "'clear and unambiguous terms' when statutory silence is what poses the question whether a right may be implied." [5]

More troubling, in a series of opinions, Justices Scalia, Thomas and Kennedy have proposed or supported theories that would prevent any use of Section 1983 to enforce Spending Clause Statutes. They have now been joined on the Court by Chief Justice John Roberts and Justice Samuel Alito, both of whom have troubling records in Section 1983 cases.

Below is a brief overview of the positions of the five justices whose views pose concern.

Justice Scalia

Justices Scalia believes that the federal government's ability to cut off a state's funds is the only method of enforcing a Spending Clause statute that does not contain an explicit right of action or other explicit private remedy. As he summarized in a Medicaid preemption case in 2003:

I would reject petitioner's statutory claim on the ground that the remedy for the State's failure to comply with the obligations it has agreed to undertake under the Medicaid Act, see Blessing v. Freestone, 520 U.S. 329, 349, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (SCALIA, J., concurring); Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), is set forth in the Act itself: termination of funding by the Secretary of the Department of Health and Human Services, see 42 U.S.C. 1396c. Petitioner must seek enforcement of the Medicaid conditions by that authority-and may seek and obtain relief in the courts only when the denial of enforcement is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." 5 U.S.C. 706(2)(A). [6]

In his Blessing concurrence, cited above, Justice Scalia argued that Spending Clause legislation is simply a contract between the federal government and state or local government, and individuals cannot enforce that contract because third party beneficiary rights did not exist in the 19th Century, when individuals were first given a federal remedy against states:

That conclusion [that the plaintiffs could not enforce the child support provision at issue] makes it unnecessary to reach the question whether 1983 ever authorizes the beneficiaries of a federal-state funding and spending agreement-such as Title IV-D-to bring suit.

As we explained in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), such an agreement is "in the nature of a contract," id., at 17, 101 S.Ct., at 1540: The State promises to provide certain services to private individuals, in exchange for which the Federal Government promises to give the State funds. In contract law, when such an arrangement is made (A promises to pay B money, in exchange for which B promises to provide services to C), the person who receives the benefit of the exchange of promises between the two others (C) is called a third-party beneficiary. Until relatively recent times, the third-party beneficiary was generally regarded as a stranger to the contract, and could not sue upon it; that is to say, if, in the example given above, B broke his promise and did not provide services to C, the only person who could enforce the promise in court was the other party *350 to the contract, A. See 1 W. Story, A Treatise on the Law of Contracts 549-550 (4th ed. 1856). This appears to have been the law at the time 1983 was enacted. See Brief for Council of State Governments et al. as Amici Curiae 10-11, and n. 6 (citing sources). If so, the ability of persons in respondents' situation to compel a State to make good on its promise to the Federal Government was not a "righ[t] secured by the laws" under 1983. While it is of course true that newly enacted laws are automatically embraced within 1983, it does not follow that the question of what rights those new laws (or, for that matter, old laws) secure is to be determined according to modern notions rather than according to the understanding of 1983 when it was enacted. Allowing third-party beneficiaries of commitments to the Federal Government to sue is certainly a vast expansion.

It must be acknowledged that Wright and Wilder permitted beneficiaries of federal-state contracts to sue under 1983, but the argument set forth above was not raised. I am not prepared without further consideration to reject the possibility that third-party-beneficiary suits simply do not lie. I join the Court's opinion because, in ruling against respondents under the Wright/Wilder test, it leaves that possibility open. [7]

In other words, Justice Scalia claims that statutes like the Medicaid Act, the Social Security Act, or federal housing statutes are not "laws" within the use of that word in Section 1983 and thus cannot be enforced through that provision.

This is a theory that gained special notoriety after the district court in Westside Mothers v. Haveman, [8] used it to prohibit use of Section 1983 to enforce the Medicaid Act. The court in that case went even further, claiming that Spending Clause statutes are also not "laws" within the meaning of the Supremacy Clause. Under that theory, even if a Spending Clause statute contains an explicit or a recognized implied cause of action such as Title IX of the Education Amendments it cannot be enforced against states, even in purely injunctive actions, under the Ex parte Young exception to sovereign immunity.

Justice Thomas

Justice Thomas has endorsed the theory of Justice Scalia's Blessing concurrence:

This contract analogy [of Pennhurst] raises serious questions as to whether third parties may sue to enforce Spending Clause legislation-through pre-emption or otherwise. See Blessing v. Freestone, 520 U.S. 329, 349-350, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (SCALIA, J., concurring). In contract law, a third party to the contract (as petitioner is here) may only sue for breach if he is the "intended beneficiary" of the contract. See, e.g., Restatement (Second) of Contracts 304 (1979) ("A promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty"). When Congress wishes to allow private parties to sue to enforce federal law, it must clearly express this intent. Under this Court's precedents, private parties may employ 42 U.S.C. 1983 or an implied private right of action only if they demonstrate an "unambiguously conferred right." Gonzaga Univ. v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). Petitioner quite obviously cannot satisfy this requirement and therefore arguably is not entitled to bring a pre-emption lawsuit as a third-party beneficiary to the Medicaid contract. Respondents have not advanced this argument in this case. However, were the issue to be raised, I would give careful consideration to whether Spending Clause legislation can be enforced by third parties in the absence of a private right of action. [9]

Justice Kennedy

Justice Kennedy joined Scalia's Blessing concurrence quoted above.

In addition, in Golden State Transit Corp. v. City of Los Angeles, he made a gratuitous slap at Thiboutot, commenting: "Our cases in recent years have expanded the scope of 1983 beyond that contemplated by the sponsor of the statute and have identified interests secured by various statutory provisions as well." [10]

Chief Justice Roberts

As a lawyer, Roberts has been on the side opposing use of Section 1983 in almost every recent Supreme Court case. For a long discussion of concerns about Roberts' views on Section 1983, see "Will John Roberts Enforce Federal Laws Protecting Individuals." [11]

Even more troubling than his record which I will discuss below is Roberts' testimony on Section 1983 in his Supreme Court confirmation hearings. In response to several questions about Section 1983 and Gonzaga, he gave essentially the same answer: "Well, if Congress wants them to sue, all Congress has to do is write one sentence saying individuals harmed by a violation of this statute may bring a right of action in federal court."

In response to Senator Coburn's question about Gonzaga and how Congress could do better, Roberts replied:

[The Supreme Court was] getting case after case after case. And they finally adopted an approach in the early 1980's that said, look, we're not going to imply rights of action anymore. Congress, if you want somebody to have a right of action, just say so.

And after the court developed that jurisprudence in the early 1980's, you know, the hope was -- and I think it has been realized to a large extent -- that there would be more addressing of that question in Congress, which is where it should be addressed.

That statement is especially troubling, because in Gonzaga, the Supreme Court said that it was going to use virtually the same test for determining whether a statute can be enforced through Section 1983 and whether it creates an implied right of action. The Supreme Court has not directly said, in Roberts' words, "we're not going to imply rights of action anymore," but that has been the effect of the "tests" it has developed. Roberts' comments indicate that he may think that Congress would do a better job if it eliminated Section 1983 as well.

Roberts' record also raises serious concerns. He represented the defendant in Gonzaga, and his brief to the Supreme Court argued:

Spending Clause legislation[] does not confer on the beneficiaries of funding conditions rights enforceable under 1983. See Westside Mothers v. Haveman, 133 F.Supp. 2d 549, 581 (E.D. Mich. 2001) (in light of 1871 rule on third-party beneficiaries, ' 1983 independently creates no right for beneficiaries of federal programs enacted pursuant to the Spending Power to sue') (Medicaid statute). [12]

In case there was any doubt that Roberts was calling for the overruling of Thiboutot (which also involved a Spending Clause law), he quoted Justice Powell's complaint in dissent that "the Court 'ma[de] new law.' [13]

Roberts also questioned whether "the conditions in Spending Clause legislation qualify as 'laws' under 1983,"and quoted an Eighth Circuit concurrence that "Congress may indirectly regulate state conduct by attaching 'strings' to grants of money given to state and local governments, but those strings aren't laws." [14]

In Wilder v. Virginia Hospital Association, 496 U.S. 498 (1990), as deputy Solicitor General, Roberts argued unsuccessfully that Medicaid rights were not privately enforceable. In Suter v. Artist M., 503 U.S. 347 (1992), as deputy Solicitor General, Roberts successfully argued that children could not enforce provisions of the Adoption Assistance and Child Welfare Act requiring states to make reasonable efforts to preserve and reunite the children with their families.

In 1982, when he was working in the Justice Department's Office of Legal Counsel, Roberts commented on a legislative proposal to overturn Thiboutot: "Our legislative proposals could perhaps even be cast as efforts to 'clarify' rather than 'overturn' that decision." He discussed Pennhurst and other post-Thiboutot cases that narrowed whether a statute created "rights" within the meaning of section 1983, and then concluded "I do not, of course suggest that we rely on this incipient judicial effort to undo the damage created by Thiboutot" (emphasis added).

The strategy that Roberts advised "clarifying" Thiboutot to death is exactly what has been happening in the Supreme Court, and he might be disposed to deliver the final blow.

Justice Alito

Justice Alito's record on Section 1983 is sparser, but it does raise grounds for serious concern.

In 2003, Alito joined a decision reversing the district court's dismissal of a Section 1983 claim to enforce the Medicaid Act. But he qualified his vote, explaining that he was bound by current law that he ominously expected to change:

While the analysis and decision of the District Court may reflect the direction that future Supreme Court cases in this area will take, currently binding precedent supports the decision of the Court. I therefore concur in the Court's decision. [15]

The district court's analysis interpreted Gonzaga to prevent use of Section 1983 to enforce any statute written as a set of requirements for state plans such as the Medicaid Act, Title IV-D of the Social Security Act, or most federal housing laws.

There are other trouble spots in Alito's record. As a Justice Department lawyer in the 1980s, he urged President Reagan to veto the Truth in Mileage Act based on federalism concerns: "It is the states, and not the federal government, that are charged with protecting the health, safety, and welfare of their citizens."

Others have also found that Alito's Third Circuit opinions have a strong tendency to side with states over individuals. Therefore, there is considerable reason to fear that Justice Alito would provide the fifth vote to overrule Thiboutot.


There is a serious possibility that, if given the opportunity, the Supreme Court would overrule Thiboutot and eliminate the primary, and often the only, mechanism for enforcing many safety net statutes. This may not take the form of a direct frontal assault on Thiboutot. As Roberts advised as a Justice Department lawyer, the decision could be "clarified" to the same effect. That is what has happened to the Supreme Court's tests for discerning implied rights of action which still are possible in theory, but in reality the Supreme Court has said, in Roberts' words, "we're not going to imply rights of action anymore." Those words are especially chilling after Gonzaga, in which the Court warned: "we further reject the notion that our implied right of action cases are separate and distinct from our 1983 cases. To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under 1983." [16]

The threat to Thiboutot is not a certainty. Chief Justice Roberts' record is entirely based on his advocacy as a lawyer for clients (whether private or the Reagan Administration), and the little that can be said about the Roberts Court as of the writing of this memo is that it seems to favor narrow, unanimous decisions. Justice Alito's record on Section 1983 is, conversely, quite thin, and involves reading between the lines.

But the very real threat to Thiboutot means that advocates should never seek a writ of certiorari in a Section 1983 case unless they have the solid backing of national public interest organizations who rely on Section 1983 to enforce the primary statutes where it is used: the Medicaid Act, federal housing laws, Title IV-D of the Social Security Act, and the Food Stamps Act. No client has a right to have their case taken to the Supreme Court, and no client or attorney should risk destroying Section 1983 for the entire nation unless there is a solid consensus that it is the right case.

It is also critical that if any Section 1983 case is allowed to reach the Supreme Court, it must be one that seasoned Supreme Court litigators believe stands a reasonable chance with the new Roberts Court. That assessment will depend on factors other than the strength of the case under existing law.

Finally, advocates must be smart and strategic and give serious thought before appealing to a court of appeal or a state supreme court. The most dangerous possibility is that you will win, and then you will not have control over the state's appeal to the U.S. Supreme Court. Moreover, after Gonzaga, courts have been much more reluctant to endorse enforcement of statutes through Section 1983, and cases that previously seemed strong now risk making bad law within the circuit. Even some of the recent successes have been qualified by admonitions that the Supreme Court's approach "has been increasingly restrictive; in the end, very few statutes are held to confer rights enforceable under 1983. [T]he result we reach in this case is a rarity, particularly after Gonzaga." [17] Success at the court of appeals level often depends on the luck of the panel and on how closely the case is on point with previous Supreme Court decisions.

It is best therefore to consult with a Section 1983 expert for advice both on litigation strategy and on whether a particular statutory provision is likely to be held enforceable, and with Supreme Court litigators if certiorari is contemplated. Appellate decisions in Section 1983 cases affect the entire public interest community, and it is important that advocates consider the broader impact when making decisions about appealing.

For more background on Section 1983, see Jane Perkins [18] , "Using Section 1983 to Enforce Federal Laws," 38 Clearinghouse Review Journal of Poverty Law and Policy 720 (March-April 2005), or Bob Capistrano's [19] chapter on Section 1983 in the upcoming edition of the Federal Practice Manual for Legal Aid Attorneys published by the Sargent Shriver National Center on Poverty Law. For more background on the threat to Section 1983, see Lauren Saunders, "The Judicial Threat to Congressional Power" 16 to 18 (July 19, 2005), available at, and Lauren Saunders, "Will John Roberts Enforce Federal Laws Protecting Individuals" (Aug. 12, 2005), available at

To join the Federal Rights listserv, which posts court updates and strategies on Section 1983 and other issues affecting access to justice, send an email to Christy Ross at the National Senior Citizens Law Center,

[1] Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002).

[2] Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981).

[3] Gonzaga Univ. v. Doe, 536 U.S. 273, 280 (2002).

[4] Id. at 283-84 (quoting Canon v. Univ. of Chicago, 441 U.S. 677, 692 n.13 (1979)).

[5] McCready v. White, 417 F.3d 700, 703 (7th Cir. Aug. 2005).

[6] See Pharmaceutical Research and Mftrs. v. Walsh, 538 U.S. 644, 675 (2003) (Scalia, J., concurring in the judgment).

[7] Blessing, 520 U.S. at 349-50 (Scalia, J., joined by Kennedy, J., concurring).

[8] 133 F.Supp. 2d 549, 581 (E.D. Mich. 2001), ), rev'd 289 F.3d 852 (6th Cir.), cert. denied, 537 U.S. 1045 (2002). For a discussion of the implications of the Westside Mothers opinion, see Lauren Saunders, "The Judicial Threat to Congressional Power" 17 to 18 (July 19, 2005), available at

[9] See Pharmaceutical Research and Mftrs. v. Walsh, 538 U.S. 644, 683 (2003) (Thomas, J., concurring in the judgment).

[10] 493 U.S. 103, 117 (1989) (Kennedy, J., dissenting) (emphasis added).

[12] Brief for Petitioners, Gonzaga Univ. v. Doe, No. 01-679, at 42.

[13] Id. (quoting Thiboutot, 448 U.S. at 33 (Powell, J., dissenting)).

[14] Id. at 42 n.14 (quoting Morgan , 230 F.3d at 1073, (Bye, J., concurring)).

[15] Sabree ex rel. Sabree v. Richman, 367 F.3d 180, 194 (3rd Cir. 2004).

[16] Gonzaga, 536 U.S. at 283.

[17] Johnson v. Housing Authority of Jefferson Parish, No. 04-31201, __ F.3d __2006 WL 533831 (5th Cir. Mar. 6, 2006).

[18] Jane Perkins Legal Director of the National Health Law Program, based in their North Carolina office.

[19] Bob Capistrano is Litigation Director of Bay Area Legal Aid in Oakland, California.



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