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NOTES

MUNICIPAL LIABILITY UNDER


1983: THE DIFFICULTY IN
DETERMINING IMPROPER MOTIVES
OF A MULTI-MEMBER MUNICIPAL
BOARD

Peter T DePasquale*

Abstract: Many significant public decisions impacting local communities


are not directly made by elected officials, but rather by an array of public
boards consisting of appointed members. These multi-member municipal
boards are often tasked with considering various issues residing at the core of
governmental function-matters of health, housing, education, and
transportation. When the actions taken by a board violate constitutionally
protected rights, a litigant bringing a 1983 action may desire to establish
liability against the board as a whole rather than against the members in their
individual capacities. The United States Supreme Court has held that a public
board can only be found liable for its members' actions where its members
have final authority to establish municipal policy and the final decision was
taken with an improper (i.e. unconstitutional) motive. However, the circuit
courts are currently split on how to determine if a municipal board acts with
"an improper motive." Therefore, a real dilemma exists-a municipal board
found liable in one circuit may not be liable in another circuit. This Note
examines the three approaches that the circuits have utilized to determine
when an improper motive exists and submits that the "but for" approach
recently adopted by the Sixth Circuit should be uniformly adopted.

* Candidate for Juris Doctor, New England School of Law (2008); B.A., College of
Charleston (2002).
NEW ENGLAND LAW REVIEW [Vol. 42:865

INTRODUCTION

Throughout ancient and modem times many notable thinkers and


celebrated texts have pondered the importance and difficulty of uncovering
the motives that compel man to action.' While the majority of this type of
discourse is properly confined within the walls of philosophy, American
courts of2
law often find themselves examining very similar questions of
motive.
Consider the following scenario: Mary Smith, the Superintendent of
Schools for town X, recently delivered a politically unpopular speech for a
third-party candidate running in an upcoming state election. Shortly
following her statement, the nine-member School Board held an
'emergency meeting" to discuss the numerous complaints they received
from their various constituents regarding Smith's recent address. At the
conclusion of the meeting, one member of the board moves for a vote in
favor of terminating Smith's employment. The motion is seconded and the
votes are cast. By a five-to-four margin, the Board votes to move forward
with Smith's termination.
Smith seeks judicial redress by filing a lawsuit, naming the School
Board as a defendant, alleging that the action taken by the Board violates
1983. 3 In order to be successful with her claim, Smith will be required to
prove that the Board acted with an improper motive when casting their
votes.4 In doing so, the following question arises: How many members will
Smith need to prove harbored the requisite improper motive in order to
fairly argue that the Board itself possessed that motive? There are various

1. See, e.g., JOHN LOCKE, SOME THOUGHTS CONCERNING EDUCATION 54, at 115 (John
W. Yolton & Jean S. Yolton eds., Oxford Univ. Press 1989) ("Good and Evil, Reward and
Punishment, are the only motives to a rational creature."); H.L. MENCKEN, A MENCKEN
CHRESTOMATHY 12 (1949) ("The value the world sets upon motives is often grossly unjust
and inaccurate."); 1 Chronicles 28:9 (New Int'l Version) ("[F]or the Lord searches every
heart and understands every motive behind the thoughts."); BHAGAVAD-GITA 2:47 (Antonio
de Nicolas trans., Nicholas-Hays, Inc. 1990) ("Let not the fruits of action ...be what impels
you.").
2. See, e.g., Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261-63 (6th
Cir. 2006) (examining the circuit split in determining if a municipal board acts with
improper motive); Church v. City of Huntsville, 30 F.3d 1332, 1342-47 (11th Cir. 1994)
(finding that the City did not advance a formal policy to expel the homeless). But see, e.g.,
LaVerdure v. County of Montgomery, 324 F.3d 123, 125-26 (3d Cir. 2003) (declining to
examine the motive of one municipal board member because his vote was not included in
the majority of the board votes).
3. 42 U.S.C. 1983 (2000). Section 1983 provides a federal remedy for the
"deprivation of any rights, privileges, or immunities secured by the Constitution and laws."
Id.
4. See Scarbrough, 470 F.3d at 261.
2008] MUNICIPAL LIABILITY UNDER 1983

possible answers to this question: (1) all five members who voted for
Smith's termination could be required to be improperly motivated to hold
the Board liable; (2) it may be sufficient only to prove that the one member
whose vote "broke the tie" was motivated and that "but for" his or her vote
Smith would still be employed; or (3) the facts of the case could be
carefully examined to determine if it was more likely than not that the
Board was improperly motivated.
In considering the previous hypothetical, it should not be surprising
that a significant portion of the most important policy decisions affecting
our communities are enacted and promulgated by local governments. 5
Although their area of jurisdictional authority is far less than their state or
federal counterparts, municipal governmental entities are6 frequently best
situated to address the unique needs of a local community.
American municipal law traces its origins to an intricate body of
seventeenth century law that was applied to the local self-government of
English communities.7 For centuries, scholars have observed that this area
of law is always changing and growing in scope and sophistication, often
making the study of the subject difficult.8 This growth continues today, and
it has been reported that local governments within the United States consist
of "more than 83,000 political subdivisions of the states-3,000 counties,
19,000 municipal corporations, 17,000 townships, 15,000 school districts,
and 30,000 special districts." 9
Municipal boards or councils consisting of various members "exercise
combined legislative and executive powers and sometimes perform judicial
. . functions" and ultimately make decisions by casting votes. 10 On
occasion, the official policies endorsed by this type of board or council may
violate federally protected rights of a citizen." Under 1983, plaintiffs are
able to initiate civil actions against a municipal board as an entity rather 12
than filing claims against the individual members who sit on the board.
Such actions are proper when the members of the board have final

5. CLAYTON P. GILLETTE, LOCAL GOVERNMENT LAW 2 (1994).


6. Id.
7. CHARLES S. RHYNE, THE LAW OF LOCAL GOVERNMENT OPERATIONS 1.2, at 1
(1980).
8. Id. 1.1, at 1.
9. GILLETTE, supra note 5, at 2.
10. RHYNE, supra note 7, 1.6, at 8.
11. See, e.g., Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250 (6th Cir. 2006);
Laverdure v. County of Montgomery, 324 F.3d 123 (3d Cir. 2003); Church v. City of
Huntsville, 30 F.3d 1332 (11th Cir. 1994); see also supra note 2.
12. See Monell v. Dep't of Soc. Serv., 436 U.S. 658, 690 (1978) (holding that
municipalities can be considered "persons" under 1983 when the entity executes a policy
statement, ordinance, or regulation that is constitutionally proscribed).
NEW ENGLAND LAW REVIEW [Vol. 42:865
3
authority to establish municipal policy' and the board has acted with a
14
constitutionally impermissible motive. In order to prove that the board
has acted with a constitutionally impermissible motive, the plaintiff must
prove that his protected conduct was a substantial factor in the board's
ultimate decision and not just a factor within the minds of a few members.15
Courts have utilized various approaches to determine when a board as
a whole acts with an improper motive that would subject it to 1983
liability. 16 Historically, since the United States Supreme Court held in
Monell v. Department of Social Services that municipal entities could be
named as defendants under 1983 actions,1 7 the tests employed to
determine when a collective group of municipal directors, councilmen, or
other official decision makers act with an improper motive have been
poorly articulated. 8 The Supreme Court has "provided more of a 'sketch'
than a map" in the area of municipal liability, and it is clear that the "'full
contours"' of municipal liability are ever "shifting and ill-defined." '1 9 For
the purpose of this Note, these approaches can be categorized into three
separate tests. Throughout this Note, these three tests will be referred to as:
(1) the "majority of voting members" test, (2) the "significant bloc" test,
and (3) the "but for" test. These three tests illustrate the inherent difficulty
in this type of motivation jurisprudence, i.e. ascribing specific motivations
to an entity, rather than an individual.20
Part I of this Note contains a brief discussion regarding the birth and
evolution of municipal liability under 1983.21 In Part II, this Note

13. Scarbrough, 470 F.3d at 262 (citing City of St. Louis v. Prapromik, 485 U.S. 112,
127-28 (1988)).
14. Id.at 261 (citing Hull v. Cuyahoga Valley Bd. of Educ., 926 F.2d 505, 515-16 (6th
Cir. 1991)).
15. Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675 (1996).
16. Compare Matthews v.'Columbia County, 294 F.3d 1294, 1297-98 (11 th Cir. 2002)
(analyzing the motives of a majority of a multi-member board to determine 1983 liability),
with Scott-Harris v. City of Fall River, 134 F.3d 427, 436-40 (1st Cir. 1997) (utilizing the
"significant bloc" test to determine 1983 liability of a multi-member municipal board),
rev'd on other grounds, 523 U.S. 44 (1998), and Scarbrough,470 F.3d at 261-63 (utilizing
a "but for" causal analysis to determine 1983 liability of a multi-member municipal
board).
17. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 690 (1978).
18. See Scarbrough,470 F.3d at 262.
19. David Jacks Achtenberg, Taking History Seriously: Municipal Liability Under 42
U.S.C. 1983 and the Debate over Respondeat Superior, 73 FORDHAM L. REV. 2183, 2187
(2005) (quoting Moor v. County of Alameda, 411 U.S. 693, 695 (1973)).
20. Edwards v. Aguillard, 482 U.S. 578, 637-39 (1987) (Scalia, J., dissenting) ("[There
are] many hazards involved in assessing the subjective intent of governmental
decisionmakers .... ").
21. See infra Part I.
2008] MUNICIPAL LIABILITY UNDER 1983 869

examines the three primary tests presently used by courts to determine


when multi-member municipal boards are to be considered
unconstitutionally motivated for purposes of 1983.22 This Note
additionally examines the policies that support these tests and the
weaknesses that undermine them. 3 Part III argues that determining the
motives of municipal board members presents evidentiary difficulties not
present in analogous examinations such as investigating legislative intent.24
However, the "but for" test recently adopted by the Sixth Circuit Court of
Appeals, although imperfect, creates a functional middle ground that does 25
not unfairly favor either the municipal defendant or the injured plaintiff.
This Note submits that the "but for" test creates a shifting evidentiary
burden 26 that furthers the original intent 28of 198327 and maintains the
causation analysis essential to tort liability.

I. THE ADVENT AND EVOLUTION OF MUNICIPAL LIABILITY UNDER


1983
In 1871, Representative Shellabarger, a member of the House Select
Committee, reported House Bill 320, "a bill 'to enforce the provisions of
the [F]ourteenth Amendment to the Constitution of the United States, and
for other purposes."' ' 29 The bill contained four sections 30 and section one,
now codified as 1983 of United States Code, provides in part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory . . .
subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured by
the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity, or other proper proceeding for
redress .... 31
Passed in the wake of the Civil War, "the ... purpose of 1983 was
to interpose the federal courts between the States and the people, as

22. See infra Part 1I.


23. See infra Part II.
24. See infra Part III.A.
25. See infra Part III.
26. See infra Part III.B.
27. See infra Part III.C.
28. See infra Part III.D.
29. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 665 (1978).
30. Id.
31. 42 U.S.C. 1983 (2000) (emphasis added).
NEW ENGLAND LAW REVIEW [Vol. 42:865

guardians of the people's federal rights." 32 The text of 1983 reflected a


dramatic change in the nation's pre-existing notions of federalism. 33 It
clearly established that it was "the role of the Federal Government [to be] a
guarantor of basic federal rights against state power., 34 Since the enactment
of 1983, the Supreme Court's jurisprudence regarding municipal liability
under the statute has dramatically transformed. 35 The following is a brief
analysis of this evolution.

A. The Initial Rejection


36
of Municipal Liability Under 1983 in
Monroe v. Pape
In 1961, the United States Supreme Court reiterated what had been an
established rule: municipal corporations were not considered "persons"
under 1983; therefore, they could not be subjected to liability under the
statute.37 In Monroe, thirteen Chicago police officers entered the plaintiffs
home in the middle of the night without a warrant and extensively searched
every room.38 Subsequently, the plaintiff was detained and interrogated at
the police station for ten hours without the opportunity to contact family or
an attorney. 39 The plaintiff filed suit alleging that the officers' actions
violated 1983 since "they acted 'under the color of the . . . customs and
usages' . . . of the City of Chicago., 40 Writing for the majority, Justice
Douglas explained that the legislative history of 1983 reflected a spirited
debate regarding the "question of constitutional power of Congress to
impose civil liability on municipalities.' 1 Justice Douglas concluded that

32. Mitchum v. Foster, 407 U.S. 225, 242 (1972).


33. See id. at 238.
34. Id.at 239.
35. See Mt. Healthy City Sch. Dist. Bd.of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
Compare Monroe v. Pape, 365 U.S. 167, 191 (1961) (holding that municipalities are not to
be considered "persons" under 1983), with Monell v. Dep't of Soc. Serv. of City of New
York, 436 U.S. 658, 691 (1978) (holding that municipalities can be considered "persons"
under 1983 when the entity executes a policy statement, ordinance, or regulation that is
constitutionally proscribed). In determining whether a school board will be liable for a
constitutional violation, the plaintiff has the initial burden to show that his conduct is
constitutionally protected and was a substantial factor in the official action taken by the
governmental entity. Doyle, 429 U.S. at 287. The burden then shifts to the governmental
entity to show that it would have taken the same action even in the absence of the protected
conduct. Id.
36. 365 U.S. 167 (1961), overruled by Monell v. Dep't of Soc. Serv., 436 U.S. 658
(1978).
37. Id.at 191.
38. Id.at 169.
39. Id.at 168-69.
40. Id.
41. Id.at 190.
2008) MUNICIPAL LIABILITY UNDER 1983

the debate and ultimate rejection of a proposed amendment4 2 was


convincing evidence supporting the conclusion that "'in [the House's]
judgment[,] Congress had no constitutional power to impose any obligation
upon county and town organizations.' ' '43 Therefore, the Supreme Court
affirmed the trial court's ruling that the plaintiffs complaint "alleged no
cause of action under [ 1983]." 44

B. The Acceptance of Municipal Liability


45
Under 1983 in Monell
v. Departmentof Social Services
However, seventeen years after the decision, the Supreme Court
overruled Monroe in Monell v. Department of Social Services and
announced that "Congress did intend municipalities and other local
government units to be included among those persons to whom 1983
applies. 46 In Monell, a class of female employees, working for New York
City's Department of Social Services and the Board of Education, filed an
action under 1983 naming the Department and Board as defendants.4 7
The complaint alleged that the Department and Board adopted a
discriminatory policy compelling pregnant employees to take unpaid leaves
of absence before those leaves were required for medical reasons.48 Writing
for the majority, Justice Brennan declared that although the legislative
history of 1983 indicates that a governmental entity could not be held
liable under a respondeat superior theory, it could be held liable when an
"action pursuant to official municipal policy of some nature caused a
' 9
constitutional tort. 4
Scholars have been suspicious of the legislative history analysis
conducted in both Monroe and Monell because the Court used the same
legislative history to reach two contrary results. 50 Nonetheless, following

42. The proposed and ultimately rejected Sherman Amendment would have made "'the
inhabitants of the county, city, or parish' in which certain acts of violence occurred liable 'to
pay full compensation' to the person damaged or his widow or legal representative."
Monroe, 365 U.S. at 188 (quoting CONG. GLOBE, 42d Cong. I stSess, 663 (1871)).
43. Id. at 190 (citing CONG. GLOBE, 42d Cong., 1st Sess. 804 (1871) (statement of
Representative Poland)).
44. Id. at 170.
45. 436 U.S. 658 (1978).
46. Id.at 690.
47. Id.at 660-6 1.
48. Id.
49. Id.at 691.
50. PETER W. Low & JOHN CALVIN JEFFRIES, JR., CIVIL RIGHTS ACTIONS: SECTION 1983
AND RELATED STATUTES 80 (1988) ("[T]here is something a bit unsettling about the
relentless historicity of 1983 opinions .... In Monroe and Monell... despite a seemingly
thorough search, neither side was able to ...clearly demonstrate[] legislative intent one way
NEW ENGLAND LAW REVIEW [Vol. 42:865

the Monell decision, "[l]ocal governing bodies [could] be sued directly


under 1983 for monetary, declaratory, or injunctive relief."5 1 There are
various rationales for imposing municipal liability-including the
presumption that the threat of liability would provide an incentive to
encourage municipalities to impose internal controls that would ultimately
provide greater supervision of its employees, such as municipal board
members and other elected officials.5 2 In his dissent, Justice Rehnquist
questioned the prudence of Monell's holding and the Court's apparent
disregard of various precedents.53 Furthermore, Justice Rehnquist lamented
that removing the protections that Monroe afforded to municipalities would
adversely affect the municipality's ability to adequately defend significant
1983 actions due to the limited financial resources available to mount
such a defense.5 4
The rule of law emerging from Monell is that a governmental or
municipal entity will be held liable under 1983 if a litigant shows an
"unconstitutional action that 'implements or executes a policy statement,
ordinance, regulation, or decision officially adopted and promulgated by
that body's officers."' ' 55 This has been called the "official policy"
requirement and is meant to "distinguish acts of the municipality from acts
of employees of the municipality, and thereby make clear that municipal
liability is limited
56
to action for which the municipality is actually
responsible.,
C. The Causation Requirement for Constitutional Torts Established
in Mount Healthy City School DistrictBoard of Education v.
Doyle5 7
In 1977, the Supreme Court considered a case where an untenured
teacher alleged he was not rehired by the school district and that the
district's refusal to continue his employment violated the First and
Fourteenth Amendments of the Constitution.58 Writing for the majority,

or the other .... ").


51. Monell, 436 U.S. at 690.
52. GILLETTE, supranote 5, at 747-48.
53. Monel, 436 U.S. at 714 (Rehnquist, J., dissenting) ("I cannot agree that this Court is
'free to disregard these precedents,' which have been 'considered maturely and recently' by
this Court.") (quoting Runyon v. McCrary, 427 U.S. 160, 186 (1976) (Powell, J.,
concurring)).
54. Id. at 724.
55. Shamaeizadeh v. Cunigan, 338 F.3d 535, 556 (6th Cir. 2003) (quoting Monell, 436
U.S. at 690-91).
56. Pembaur v. City of Cincinnati, 475 U.S. 469, 479-80 (1986).
57. 429 U.S. 274 (1977).
58. Id. at 276.
2008] MUNICIPAL LIABILITY UNDER 1983

Justice Rehnquist clarified the allocation of evidentiary burdens in such an


action. 9 Initially, the Court observed, the burden must be placed on the
plaintiff to prove that "his conduct was constitutionally protected., 60 Next,
the plaintiff must show that his constitutionally protected conduct was a
"'substantial''' or "'motivating''' factor in the school board's decision not
to rehire the plaintiff.61 It is notable that Justice Rehnquist considered the
phrases "substantial factor" and "motivating factor" as synonyms and not
as two independent concepts.62 If the plaintiff successfully carries this
burden of proof, the burden shifts to the defendant to show, by a
preponderance of evidence, that it would "have reached
63
the same decision.
.even in the absence of the protected conduct.,
Commentators have noted that the Mount Healthy decision, decided
one year prior to Monell, infuses tort language into the Court's analysis of
municipal action. 64 Although the Supreme Court has made it clear that
proof of causation is a requirement for 1983 actions, the causation
requirement continues to pose difficulty and the Court "has done little to
identify the appropriate test for actual causation in a constitutional tort
context or to indicate how much or what kind of proof of actual causation
is necessary. 65
Although the Monell and Mount Healthy decisions dictate clear
instructions that liability under 1983 is proper against a municipal entity
when constitutionally protected conduct is a "motivating factor" in the
entity's action, lower courts have discovered that this mandate, although
concise, is extremely difficult to implement.66

59. See id. at 287.


60. Id.
61. Id.(quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270-71
n.21 (1977)).
62. See id.
63. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977).
64. See Susanah M. Mead, Evolution of the "Species of Tort Liability" Created by
U.S.C. 1983: Can Constitutional Tort Be Saved from Extinction?, 55 FORDHAM L. REv. 1,
53-54 (1986).
65. Id.at 54.
66. See, e.g., Scott-Harris v. City of Fall River, 134 F.3d 427, 436-37 (1st Cir. 1997),
rev'd on other grounds, 523 U.S. 44 (1998) ("[T]he accumulated jurisprudence leaves
perplexing problems of proof unanswered.").
NEW ENGLAND LAW REVIEW [Vol. 42:865

II. THE THREE TESTS TO DETERMINE IMPROPER MOTIVES OF MUNICIPAL


BOARD MEMBERS

Due in part to the lack of clarity in the decisions discussed above,


circuit courts are split on how to ascertain when a board, consisting of
multiple members, acts with improper motives. 67 Three distinct tests have
emerged illustrating the varying approaches to answer this question, and as
identified above, these tests are: (1) the "majority of the voting 68 members"
test, (2) the "significant bloc" test, and (3) the "but for" test.

A. The "Majority of the Voting Members" Test


In the hypothetical mentioned above, a nine-member board voted to
fire Mary Smith. The Board of Education's vote can be characterized as the
process in which a municipal entity executes an official decision. 69 If, for
example, Smith were required to prove that the majority of the voting body
was improperly motivated, she would have to present evidence that at least
five members were improperly motivated in order to maintain an action
against the Board itself.
The Eleventh Circuit has been a strong proponent of the "majority
test" in determining the improper motivations of a municipal board. 7' In
Matthews v. Columbia County, a plaintiff, who was employed by a county
as the Director of Administrative Services, alleged she was wrongfully
terminated after making critical comments regarding a corporation the
county was considering for a contract. 72 The five-member County Board of
Commissioners decided to proceed to terminate her in a three-to-two

67. See, e.g., Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 262 (6th Cir.
2006) ("Circuits are split on how to determine if a board, rather than its members, acts with
improper motive.").
68. Compare Matthews v. Columbia County, 294 F.3d 1294, 1297-98 (11th Cir. 2002)
(analyzing the motives of a majority of a multi-member board to determine 1983 liability),
with Scott-Harris, 134 F.3d at 436-40 (utilizing the "significant bloc" test to determine
1983 liability of a multi-member municipal board), and Scarbrough, 470 F.3d at 261-63
(utilizing a "but for" causal analysis to determine 1983 liability of a multi-member
municipal board).
69. Scarbrough,470 F.3d at 261. An official action is an action that "'implements ... a
policy statement, ordinance, regulation, or decision officially adopted and promulgated by
that body's officers."' Id. (quoting Shamaeizadeh v. Cunigan, 338 F.3d 535, 556 (6th Cir.
2003)).
70. See, e.g., Matthews v. Columbia County, 294 F.3d 1294, 1297 (1 1th Cir. 2002)
(requiring that more than just one member of a three-member majority be improperly
motivated such that the improper motivation is imputed to the entire board).
71. See id.; see also Dixon v. Burke County, 303 F.3d 1271, 1276 (11th Cir. 2002);
Church v. City of Huntsville, 30 F.3d 1332, 1342-43 (11th Cir. 1994).
72. Matthews, 294 F.3d at 1295.
2008] MUNICIPAL LIABILITY UNDER 1983

vote.73 In her suit against the county, the plaintiff was able to successfully
prove that one member of the Board acted with an unconstitutional
motive.74 Refusing to find sufficient improper motives among the board
members in order for the plaintiff to maintain a 1983 action against the
Board, the Eleventh Circuit stated, "[a]n unconstitutional motive on the
part of one member of a three-member majority is insufficient to impute an
unconstitutional motive to the Commission as a whole.""
Another example of the Eleventh Circuit's utilization of the "majority
test" was illustrated in a case where an unsuccessful applicant for a position
on the County Board of Education brought a 1983 action in which she
alleged gender discrimination as the basis for her rejection.76 In this case,
the Georgia Secretary of State requested that a county grand jury
recommend an applicant to fill a vacancy on the Board who would be
subsequently approved by a superior court judge.77 The grand jury,
consisting of nineteen people, considered eleven applications but only
nominated white male applicants to be voted on.78 Eventually, the grand79
jury voted twelve-to-seven in favor of one of the white male applicants.
Ruling on summary judgment, the district court considered the grand jury a
"policymaker" for the county and found no liability. 80 In affirming the
judgment, the Eleventh Circuit agreed that although there was evidence
supporting the allegation that one member of the Board was improperly
motivated by gender, 81
"no municipal liability can attach for one tainted vote
out of twelve cast."
Commenting on the Eleventh Circuit's decisions, the First Circuit has
described the approach as requiring the plaintiff to "adduce evidence
sufficient to show that a majority of the members of the legislative body
acted from a constitutionally
82
proscribed motive before . . . municipal
liability can attach.
The Third Circuit has also adopted the majority test. 83 In a case where
a Disease Intervention Specialist working for a county health department
was fired following her failure to follow up on multiple reports from

73. Id.
74. Id.at 1296.
75. Id.at 1297.
76. Dixon, 303 F.3d at 1273, 1276.
77. Id.at 1273.
78. Id.
79. Id. at 1274.
80. Id.at 1276.
81. Id.
82. Scott-Harris v. City of Fall River, 134 F.3d 427, 437 (1 st Cir. 1997), rev'd on other
grounds, 523 U.S. 44 (1998).
83. See Laverdure v. County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003).
NEW ENGLAND LAWREVIEW [Vol. 42:865

parents concerning an E. coli outbreak, the court found insufficient


evidence for the plaintiff to maintain her 1983 suit. 84 The plaintiff alleged
that following the vote in favor of her termination by the three-member
County Board of Commissioners, the chairman of the Board gave a press
conference where he publicly rebuked the plaintiff, which entitled her to a
"name-clearing" hearing.85 Affirming the lower court's grant of the
defendant's Rule 50 motion, the Third Circuit explained, "[i]t is
undisputed that only a majority of the three-member board is authorized to
establish policy on behalf of the County. Therefore, whatever the contents
of [the chairman's] statements, because he was only one 87 member of the
Board, those comments do not constitute County policy."
Proponents of the "majority approach" submit that this approach is
more consistent with the Supreme Court's holding in Monell-that for
1983 liability to be possible the impermissible action must represent
"official policy." Advocates argue:

Since municipal corporations with multi-member boards create


policy only through a majority of their members, not through the
vote of less than a majority, it would be incongruous to permit
liability unless the full majority voted with discriminatory intent.
The vote of fewer than a majority would not create an official
discriminatory policy to which liability could attach. The
"official policy" simply would not exist. 88
Furthermore, supporters of the majority rule maintain that the
decision in Monell made clear that municipalities cannot be liable under
1983 for the actions of one municipal employee unless his or her actions
can appropriately be categorized as "'represent[ing] official [municipal]

84. Id. at 124, 126.


85. Id. at 124. The U.S. Supreme Court has held that public employees who are
terminated with "public stigma" are entitled to a "name-clearing" hearing under the
Fourteenth Amendment of the Constitution. See id. (citing Bd. of Regents v. Roth, 408 U.S.
564, 573-74 (1972)).
86. Rule 50 of the Federal Rules of Civil Procedure states:
If a party has been fully heard on an issue during a jury trial and the
court finds that a reasonable jury would not have a legally sufficient
evidentiary basis to find for the party ... the court may ... resolve the
issue against the party; and . . . grant a motion for judgment as a matter
of law against the party....
FED. R. CIv. P. 50(a)(1).
87. Laverdure, 324 F.3d at 125 (internal citations omitted).
88. Jeffery C. Melick & Bruce R. Fox, Municipal Corporations: Proving Improper
Motives of Multiple Member Policymakers,66 DEF. CouNs. J. 208, 214 (1999).
2008] MUNICIPAL LIABILITY UNDER 1983

policy.' ' 89 Therefore, a single board member or less than a majority of


board members do not have the authority to implement official policy and
"holding a municipality liable for anything less than the 90full majority
discriminatory intent would violate the 'final authority' rule."
However, the "majority of the members" test is criticized as placing
an evidentiary burden upon the plaintiff that will ultimately be nearly
impossible to carry. 9' The First Circuit has correctly observed that
"discriminatory animus is insidious," therefore, board members are able to
conceal true motivations and often "a clever pretext can be hard to
unmask., 92 As other courts have found, relaxing the standard in order to
accommodate a plaintiffs burden of proof can be an appealing
alternative.9 3
In deciding not to apply the majority test, the United States District
Court, Western District, San Antonio Division, observed that:
[F]ew legislators will admit to unconstitutional motivations
behind their vote. It thus becomes an exceedingly difficult and
perilous enterprise to establish the intent of a lone legislator. And
when the legislative body consists of numerous legislators, each
with his or her own myriad and conflicting motivations,
94 the
plaintiff's burden is multiplied, if not impossible.
Therefore, amidst the persuasive arguments concerning the strengths
and weaknesses of 95
the majority test, other courts have decided to follow
alternative routes.

B. The "Significant Bloc" Test


The "significant bloc" test appears to have its origin in 1982 when a
United States district court in Michigan heard a case of racial

89. Id. at 209-10. (quoting Monell v. Dep't of Soc. Serv., 436 U.S. 658, 665 (1978)).
90. Id. at 214. The "final authority" rule is Monell's requirement that only individuals
with "final authority and responsibility to establish municipal policy for the action involved"
can subject the municipality to liability under 1983. Id. at 210.
91. See Scott-Harris v. City of Fall River, 134 F.3d 427, 438 (1st Cir. 1997), rev'd on
other grounds, 523 U.S. 44 (1998).
92. Id.
93. Melick & Fox, supra note 88, at 214.
94. Esperanza Peace and Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433, 453
(W.D. Tex. 2001).
95. See, e.g., Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261-63 (6th
Cir. 2006) (utilizing a "but for" causal analysis to determine 1983 liability of a multi-
member municipal board); Scott-Harris, 134 F.3d at 436-40 (utilizing the "significant bloc"
test to determine 1983 liability of a multi-member municipal board).
NEW ENGLAND LAW REVIEW [Vol. 42:865

discrimination. 96 In this case, the Department of Justice filed suit alleging


that the city of Birmingham took affirmative steps to prevent the
development of a racially integrated senior citizen and family housing
community. 97 With negative votes by four members, the City Commission
decided to not extend a contract with the organization intending to
construct the interracial facility, despite the fact that the Commission knew
the city was in dire need of affordable senior housing. 98 The United States
district court found evidence suggesting that at least two of the four voters
were motivated by racial concerns. 99 Despite the fact that there was no
evidence that the majority of the Commission was improperly motivated,
the court declared:
Racial concerns were a motivating factor behind the opposition
of at least two of the four members of the majority faction. That
fact alone may be sufficient to attribute a racially discriminatory
intent to the City .... [The four members] were aware that a
significant number of the opponents of [the senior center] were
motivated
00
in part by a desire to exclude black people from the
City.1
Therefore, the court rejected the notion that a majority of a voting
board needed to be unconstitutionally motivated in order to impute 1983
liability to the entire Commission.' 0 ' In this case, the court only required
two individuals to be improperly motivated as long 102 as the other two
members had reason to know of the improper motivation.
The First Circuit best illustrates a more recent example of the
"significant bloc" test in Scott-Harris v. City of Fall River.'0 3 Describing
the inquiry as "tantalizing," the court attempted to determine how many
city council members would have to be acting with a "discriminatory
animus" in order for this animus to be imputed to the board itself. 10 4 In
Scott-Harris, the plaintiff, who was the town's first African-American to
hold a managerial position in the city government, was hired as the 05
administrator of the City's Department of Health and Human Services.

96. See United States v. City of Birmingham, 538 F. Supp. 819 (E.D. Mich. 1982).
97. Id.at 821.
98. Id. at 822, 829.
99. Id. at 829.
100. Id.
101. See id
102. City of Birmingham, 538 F. Supp. at 829.
103. See Scott-Harris v. City of Fall River, 134 F.3d 427, 436-39 (1st Cir. 1997), rev'don
othergrounds, 523 U.S. 44 (1998).
104. Id. at 430.
105. Id.
2008] MUNICIPAL LIABILITY UNDER 1983

During the course of her career, the plaintiff had multiple disputes with
other city leaders including one individual who repeatedly made racial
slurs.10 6 Subsequently, the Mayor insisted that her position be eliminated in
an effort to reduce spending through budget cuts. 10 7 Pursuant to the city
charter, the abolition of the position required the majority vote of the city
council.' 0 8 In a six-to-two vote the Council approved the elimination of the
position. 0 9 The court surveyed the various circuits and decided that the
"majority of voting members" test should, in "sufficiently compelling"
cases, be relaxed.1 0 In particular, the court noted that "the law sometimes
constructs procedural devices to ease a victim's burden of proof.""' The
First Circuit was persuaded that for victims of discrimination, especially in
cases of race and gender, it is "overly mechanistic to hold [the plaintiff] to
strict proof of the subjective intentions of a numerical majority of council
members."'112 Therefore, the court constructed a two-prong test that is less
strict and requires a plaintiff to present evidence sufficient to prove both:
"bad motive on the part of at least a significant bloc of legislators, and
circumstances suggesting the probable complicity of others." '" 3 Under this
test, courts identify whether the plaintiff presented sufficient direct or
circumstantial evidence that made it more probable than not that
"discrimination was the real reason underlying the enactment of the
ordinance or the adoption of the policy."'' 14
The United States District Court, Western District of Texas has
followed this line of reasoning advanced by the First Circuit.' 1 5 In a case
where a non-profit arts organization brought a 1983 claim against the city
of San Antonio when the city council discontinued the organization's
funding, the court1 6 discovered what it considered ample reason to relax the
"majority test."'' Believing that the burden of proof required by the
"majority test" would be too onerous, the Texas District Court adopted the
Scott-Harrisapproach from the First Circuit since, in the court's reasoning,
it "strikes the proper balance between difficulty of proving a legislative
body's motivation and the fact that a municipal ordinance can only become

106. Id. at 431.


107. Id.
108. Id.
109. Scott-Harris,134 F.3d at 431.
110. Id. at 438.
111. Id.
112. See id.
113. Id.
114. Id.
115. See Esperanza Peace & Justice Ctr. v. City of San Antonio, 316 F. Supp. 2d 433,
452-54 (W.D. Tex. 2001).
116. Id. at 442-43, 453.
NEW ENGLAND LAW REVIEW [Vol. 42:865
' 17
law by majority vote of council." "
Critics of the "significant bloc" test argue that this test is ambiguous
and problematic since it leaves significant discretion up to the reviewing
court. 1 8 The Sixth Circuit observed that the relaxed test in Scott-Harris
"leaves many questions unanswered."" 9 Among the unanswered questions ' 120
is what amount would constitute "'a significant bloc of legislators[.]
Additionally, it is unclear how to exactly identify "'circumstances
suggesting the probable complicity of others.""' 121 Whereas the "majority
test" is faulted for being too mechanistic, the "significant bloc" test has
been criticized for not considering 122 the number of voters in its more
conceptual and abstract equation.

C. The "But For" Test


In the fall of 2006, the Sixth Circuit decided the case of Scarbrough v.
Morgan County Board of Education and adopted a test to determine when
the improper motives of a multi-member board will be imputed to the
entire board.' 2 3 In Scarbrough, the position of the school superintendent
was about to expire and a new law replaced the position with a Director of
Schools. 124 Although the duties of the positions were identical, the new
Director of Schools position would be appointed by the Board of Education
rather than elected through a general election. 12 5 Scarbrough, the former
elected School Superintendent, applied for the new position and was
included by the Board of Education on its list of five finalists. 126 During the
application process, Scarbrough was asked to speak at a local convention
sponsored by a predominantly gay and lesbian church. 2 7 Although he was
unable to attend the convention, the city newspaper published an article
incorrectly indicating that Scarbrough would be the keynote speaker. 128 In
response to the article, the Board of Education began receiving numerous

117. Id. at 453.


118. See Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 262 (6th Cir. 2006).
119. Id.
120. Id.(quoting Scott-Harris v. City of Fall River, 134 F.3d 427, 438 (1st Cir. 1997),
rev'd on other grounds, 523 U.S. 44 (1998)).
121. Id. (quoting Scott-Harris, 134 F.3d at 438).
122. See id.at 261-62.
123. Id.at 261-63 (adopting the "but-for" approach from the Second, Third, and Ninth
Circuits).
124. Scarbrough, 470 F.3d at 253.
125. Id.
126. Id.
127. Id.
128. Id.at 253-54.
2008] MUNICIPAL LIABILITY UNDER 1983

complaints regarding Scarbrough's potential fitness to serve as Director of


Schools.12 9 Various members of the Board became concerned that support
for Scarbrough would indicate the Board's endorsement of
homosexuality. 130 The six-member board initiated a vote to narrow the five
candidates to a field of three.' 3 1 The result of the vote was that Scarbrough
would no longer be considered for the Director of Schools position.
Scarbrough filed suit alleging several violations of his constitutional rights,
"including freedom of speech, freedom of association, free exercise of
religion, and equal protection."'' 33 In addition to the alleged constitutional
violations, Scarbrough sought to hold the Board liable under 1983,
arguing that the Board acted out of "a constitutionally impermissible
motive."' 34 The district court granted summary judgment in favor of the
Board finding that "the Board could not be held liable under 1983
because Scarbrough failed
' 35
to prove that a majority of the Board acted with
an improper motive."'
On appeal, the Sixth Circuit reviewed the rationales underlying both
the "majority" test and the "significant bloc" test and refused to accept
either option.136 In reversing the district court's order of summary
judgment, the court reiterated that although Scarbrough had the burden of
showing that his "protected conduct was a substantial factor in the Board's
decision" and not merely a factor in the minds of a few voters, this did not
necessarily lead to the conclusion that the "majority" test must be
followed. 3 ' Furthermore, the Sixth Circuit explained that the "significant
bloc" test is unworkable and ambiguous. 138 39
Instead, the Sixth Circuit adopted a test based in tort law language.'
Under this test, a court's examination must focus on the causal relationship
between the tainted motives and the ultimate decision. 40 The Sixth Circuit
cited a 1995 decision by the Second Circuit as support for this test.' 4' In

129. Id.at 254.


130. See Scarbrough,470 F.3d at 254.
131. Id.
132. Id.
133. Id. at 253.
134. Id.at 261 (citing Hull v. Cuyahoga Valley Bd. of Educ., 926 F.2d 505, 515-16 (6th
Cir. 1991)).
135. Id. at 261-62.
136. See Scarbrough, 470 F.3d at 261-63.
137. See id. at 262.
138. Id.
139. Id. ("The 'but for' approach from the Second, Third, and Ninth Circuit cases is more
in accord with the decision from Mt. Healthy.").
140. Id.
141. Id.
NEW ENGLAND LAW REVIEW [Vol. 42:865

Jeffries v. Harleston, the Second Circuit considered a case where Jeffries,


an African American professor, was allegedly removed as a department
chairman following a controversial off-campus speech containing various
anti-Semitic comments. 142 The fourteen-member Board of Trustees voted in
the following manner: nine trustees voted to limit his tenure as chair to a
one-year term instead of the normal three, four trustees voted to remove
Jeffries immediately, and one trustee abstained from voting.143 Following
the vote, Jeffries was notified that his term as chairman would be limited to
one year. 144 In analyzing the vote, the Second Circuit noted that the jury
found that only four trustees were motivated to take action due to Jeffries'
speech and they voted to dismiss Jeffries immediately. 45 The court
declared that the "nine votes based on legitimate grounds constitute a
superseding cause breaking the causal chain between the tainted motives . .
* and the decision to limit Jeffries' term. ' ' 4 6 The Sixth Circuit's reading of
the Jeiffries opinion provided that court with a tort-based analytical
framework that could be expanded beyond the factual situation in the
Jeffries case to one where, for example, a board's vote was more
contentious.
Under the "but for" test, "a board is liable for actions that it would not
have taken 'but for' members acting with improper motive. ' 47 The Sixth
Circuit submitted that the "but for" test focuses the court's attention on the
question "whether a board would have acted the same way, absent
improper motive.' 148 The Sixth Circuit opined that the "but for" test is
more in accord with49
the Supreme Court precedent, including the Mount
Healthy decision. 1
III. THE SIXTH CIRCUIT'S "BUT FOR" TEST ARTICULATED IN
SCARBROUGH SHOULD BE ADOPTED THROUGHOUT THE CIRCUITS

A troubling consequence of the three different tests, each used by


different Circuits, is that under 1983 a multi-member municipal board
may be found liable in one part of the nation while the same board in

142. Jeffries v. Harleston, 52 F.3d 9, 11 (2d Cir. 1995).


143. Id.
144. Id.
145. Id.One of the trustees who voted to remove Jeffries immediately died during the
trial and was not part of the appeal. Id.
146. Id.at 14.
147. Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 262 (6th Cir. 2006)
(citing Laverdure v. County of Montgomery, 324 F.3d 123, 125 (3d Cir. 2003)).
148. Id.at 262-63.
149. Id.at 262.
2008] MUNICIPAL LIABILITY UNDER 1983

another part of the nation will not be liable." 0 The "but for" test articulated
by the Sixth Circuit should be adopted by all the Circuits to resolve the
question of how to determine the "motive" of a multi-member municipal
board.

A. The "But For" Test Recognizes the Fact that Discerning the
Motives of a Multi-member Municipal Board Is Far More
Difficult than Uncovering Legislative Intent.
Invidious motives are not routinely openly discussed; rather they are
frequently hidden within the private biases and prejudices of board
members.' 51 Speaking at the Touro Law Review's annual symposium,
former Second Circuit Judge George C. Pratt briefly commented on the 52
difficulty of identifying the "motive" of a municipal board when it acts.1
In particular, Pratt commented on a case where the Second Circuit wrestled
with the question of attributing improper motives to individual board
members, ultimately concluding that the "majority test" should be
adopted. 53 In questioning that approach, Pratt remembered a case that
came before him when he was serving as a district judge.154 Pratt recalled:
I once wanted to try a case that was remanded by the circuit
court to determine the motive of a school board in some action
that it took. I was convinced it was an impossible task, and my
intent was to demonstrate for all time that you cannot work on
the basis of a board's motivation because there are so many
things that influence its various members. Unfortunately,
155
they
settled the case and I never got that opportunity.
Pratt's remarks illustrate that even some judges believe that proving
improper motives of a board is an unfeasible endeavor. The three tests
examined above each address this difficulty in their own way; however, the
"but for" test is the only approach that adequately manages the difficulty
56
and necessity of determining the motive of a multi-member board.1
The difficulty in ascertaining the motives of multi-member boards is
analogous to the complexity of statutory interpretation through legislative

150. Melick & Fox, supra note 88, at 213.


151. See, e.g., Esperanza Peace & Justice Ctr. v. San Antonio, 316 F. Supp. 2d 433, 453
(W.D. Tex. 2001) (discussing the fact that legislators do not reveal their unconstitutional
motives).
152. George C. Pratt, Section 1983 in the Second Circuit, 15 TouRo L. REv. 879, 883
(1999).
153. Id.
154. Id.
155. Id.
156. See supra Part II.C.
NEW ENGLAND LAW REVIEW [Vol. 42:865

intent.' 57 In articulating this similar difficulty, one commentator observes:


[I]f the legislators did not clearly write [their intention] into the
statutory text, how can we figure out what they "intended"?...
To talk about the "intent" of the legislature, as that term is
normally used, multiplies these difficulties, because we must
ascribe an intention not only to individuals, but to a sizable
group of individuals ...whose views we only know from the
[legislative] record.' 5 8
Some notable judges disagree with the proposition that multi-member
legislatures can even have a "collective intent.' ' 159 Textualists such as
Supreme Court Justice Scalia and Judge Easterbrook of the Seventh Circuit
argue that the only true way to figure out what a legislature60
intended is to
examine the precise language within the statutes it enacts.
Determining the motive of a multi-member municipal board is more
complicated than determining the intent of legislators, in part because
municipal boards are generally not required to have extensive records of
their deliberations. 161 The absence of detailed transcripts makes reviewing
courts dependent upon limited information sources such as meeting
minutes that can be sterilized and are frequently incomplete.' 62 Since
meeting minutes of multi-member municipal board deliberations are the
"only evidence of official actions by the municipality," the board's actions
cannot be scrutinized to the extent that a legislature's can. 163 Municipal
boards also possess broad authority to amend meeting minutes, and once
authenticated, meeting minutes are considered presumptively accurate for
purposes of litigation. 164 When meeting minutes are incomplete, a
reviewing court will apply the maxim "ut res valeat quam pereat" (what
ought to have been done 65
was done) and not question the absence of
important information. 1

157. Cf William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation as


PracticalReasoning, 42 STAN. L. REv. 321, 326 (1990) (analyzing the various approaches
courts use to interpret statutes).
158. Id.
159. See Caleb Nelson, What is Textualism?, 91 VA. L. REv. 347, 354 & n.19 (2005).
160. Id.
161. See 62 C.J.S. Municipal Corporations 244, at 381-82 (2007). "[T]he minutes of a
council meeting are not conclusive proof of the events which occurred at the meeting." Id. at
382.
162. See id.
163. Id. at 381 (citation omitted).
164. Id.at 383 (noting, however, that the power to amend is not "unlimited or
unqualified") (citation omitted).
165. Id. at 382.
2008] MUNICIPAL LIABILITY UNDER 1983

It is evident that the informal nature of municipal board deliberations


makes the traditional means of uncovering intent futile. Therefore, the
evidentiary burden a plaintiff must carry should be specifically tailored to
alleviate this difficulty.
B. The "But For" Test Creates a Shifting Evidentiary Burden that
Increases as the Municipal Board's Action Becomes More
Contentious.
Even though discerning the motives of a multi-member municipal
1 66
board is a daunting task, it remains a requirement for 1983 liability.
Therefore, the test for identifying the motives of individual members needs
to be modified in light of the evidentiary complexity. As the First Circuit
has articulated, the "majority test" places an unbearable evidentiary burden
upon the plaintiff. 67 The "but for" test is appropriate since it does not
unfairly favor the municipal defendant by demanding that the litigant prove
168
the motives of a majority of the members regardless of the circumstance,
nor does it ambiguously 69
relax the burden in a manner that would compel
unpredictable results.'
As stated above, the "majority test" provides a constant evidentiary
burden upon a plaintiff despite the voting results of the multi-member
body. 170 In the example at the beginning of this Note, if the "majority test"
were applied to the facts, Mary Smith would be required to prove that five
of the nine board members were improperly motivated.' 7' This burden
would not change even though the voting results may. For example, it
would not matter, in regard to the plaintiffs evidentiary burden, whether
the fictional board voted five-to-four, six-to-three, seven-to-two, eight-to-
one, or nine-to-zero. In any of these circumstances, under the "majority
test," the plaintiff, Smith, would always be required to show that five
members had improper motives.
It is unclear what the ultimate outcome would be if the "significant
bloc" test was applied to the Smith facts. Since the "significant bloc" test is
ambiguous, imparting substantial deference to the trial court, predictability
under the approach is severely diminished. 172 In surveying the precedents
utilizing the "significant bloc" test, Smith's counsel would lack practical

166. See Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006).
167. See Scott-Harris v. Fall River, 134 F.3d 427, 438 (1st Cir. 1997), rev'd on other
grounds, 523 U.S. 44 (1998).
168. See Scarbrough,470 F.3d at 262.
169. See id
170. See supra Part II.A.
171. See supra Part II.A.
172. See supra Part 1.B.
NEW ENGLAND LAW REVIEW [Vol. 42:865

guidance to assist in the determination of how many members of a nine-


member board is a "significant bloc. 173
However, the situation is markedly different under a "but for"
analysis that requires the court to focus only on the motives of the board
members who "supply the deciding margin.' 74 Under the "but for" test the
ultimate voting tally carries substantial weight. 175 In the Smith
hypothetical, where the ultimate vote was five-to-four, Smith would have
the evidentiary burden of proving that one board member had an improper
motive since the termination would not have occurred if one voter changed
his or her position. 76 If the ultimate tally is six-to-three, the plaintiffs
burden increases, demanding the plaintiff to show that two board members
were improperly motivated. In a seven-to-two decision, the plaintiff will be
required to show the improper motives of three voters because "but for" the
votes of those members, the termination would not have been approved.
The burden further increases in an eight-to-one decision requiring the
plaintiff to show the improper motives of four members. These examples
illustrate that the "but for" test creates a framework that increases the
plaintiffs evidentiary burden in relation to the contentiousness of the
issue-the more contentious the decision the less the evidentiary burden-
the less contentious the issue, or in the case of a unanimous vote, the
burden will be raised. This increasing evidentiary burden creates what can
be characterized as an arithmetic progression 77 and will favor a litigant in
circumstances where the official municipal action is decided by a slim
margin. However, the burden will favor the municipal defendant when the
official action taken by the board is close to unanimous.

C. The "But For" Test Advances 1983's Purpose of Providing


Greater Institutional Accountability as Articulated in Monell.
The Monell majority observed that there was "no doubt" that 1983
was meant to provide broad judicial redress against "all forms of official
violation of federally protected rights."' 78 Surveying the congressional

173. See Scott-Harris v. City of Fall River, 134 F.3d 427, 437-38 (1st Cir. 1997), rev'don
other grounds, 523 U.S. 44 (1998); Esperanza Peace & Justice Ctr. v. City of San Antonio,
316 F. Supp. 2d 433, 461 (W.D. Tex. 2001); United States v. City of Birmingham, 538 F.
Supp. 819, 828-29 (E.D. Mich. 1982).
174. Scarbrough, 470 F.3d at 262.
175. See id.
176. See supra Part II.C.
177. WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 118 (3d ed. 1986) (defining
"arithmetic progression" as "a sequence of numbers (as 3, 5, 7, 9 etc.) in which the
difference between any number of the sequence and the number immediately preceding it is
always the same").
178. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 700-01 (1978).
2008] MUNICIPAL LIABILITY UNDER 1983

debate surrounding what would become 1983, it is evident that the statute
is intended to be construed liberally in order to adequately provide a
remedy in response to complaints of official neglect and
"maladministration. 1 79 The test chosen by courts to determine the motive
of a multi-member municipal board must further this purpose.
Recent research conducted on the subject of school board
membership provides a telling illustration leading to the conclusion that 80
greater accountability is needed among multi-member municipal boards.
It has been suggested that school board membership, in particular, does not
impart substantial awards upon its members.' 81 Frequently, school board
members are not credited for positive results but are blamed for situations
that go wrong.182 Although motivations for becoming a school board
member vary greatly, research does indicate that the tenure of members
who often join out of altruistic motives are significantly less than members
who are motivated out of gaining personal prestige and community
power. Research further indicates that school board members who serve
out of a sense of civic duty experience better relationships with school
officials, fellow board members, and feel that they are a stakeholder in the
community. 184 Alternatively, members who serve based on private agendas
of power or vengeance experience increased conflict. 85 Considering this
research-that many municipal board members serve terms for
objectionable reasons-it is logical to conclude that municipal boards
lacking a strong accountability mechanism will be at a substantial risk that
their members will cast votes out of constitutionally impermissible
motives. 86
The increasing evidentiary burden that the "but for" test creates
produces an effective mechanism for accountability and has unique
advantages. First, in situations where the multi-member board is confronted
with a contentious issue and is deadlocked, the "but for" test places a
significant amount of internal pressure on members who will cast deciding
votes. 187 This added pressure created by the "but for" test may serve to

179. Id.at 685 n.45 (quoting Rep. Garfield) (internal citation omitted).
180. See Meredith Mountford, Motives and Power of School Board Members:
Implications for School Board-Superintendent Relationships, 40 EDUC. ADMIN. Q. 704
(2004).
181. See id. at 705-11.
182. Id. at 706-07.
183. Id.at 706.
184. Id.at 706-08.
185. See id at 707 (discussing the different ways that power is exercised depending on
the motivations for acquisition of it).
186. See supra Part III.A.
187. See Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 263 (6th Cir. 2006)
NEW ENGLAND LAW REVIEW [Vol. 42:865

encourage individual voters, positioned to break a deadlock tie, to question


their own motives as well as the motives of those around them since they
will be aware that one improperly motivated individual may subject the
board as a whole to 1983 liability.
Second, but related, the "but for" test will likely create external
pressure that will promote multi-member municipal boards to question and
investigate the motives of the individuals serving alongside them. As
discussed earlier, the rationale behind the Monell decision was that
municipalities would be encouraged to enact greater internal controls to
better supervise their employees. 1 8 The manner in which the "but for" test
connects the contentiousness of the vote with the evidentiary burden
promotes multi-member boards to identify and remove unwanted members
whose motives may pose great risks to the municipality.

D. The "But For" Test Comports with the Tort Concept of Causation
Exemplified in Mount Healthy.
The previously discussed cases in Part II illustrate the inherent
difficulty in determining motives for the purposes of 1983. I89 Questions
remain as to whether the vocabulary and conceptual structure of tort law
adequately translates when applied to municipal liability. 190 In particular,
when the tortfeasor is an individual, it is natural and comfortable to
describe the wrongful act as a "consequence[] of individual behavior" that
is inconsistent with community norms.' 9 1 However, when the tortfeasor is
an entity rather than a specific person, tort law provides an awkward
framework to analyze potential liability. 192 Moreover, "tort language leads
[courts] to look for individual choices and motives, for an actor or a 'mind'
that can be evaluated."' 93 Scholars have questioned whether the law of torts
has sufficient "language for detecting and assessing injuries caused by
[governmental] organizations" and how courts can effectively manage the
responsibility94 of institutions with an analysis traditionally meant for
individuals.'
While it is possible that the unconstitutional action of a municipal

(stating that the "but for" test examines the motives of board members who cast deciding
votes).
188. See GILLETrE, supra note 5, at 747.
189. See supra Part 11.
190. See Christina B. Whitman, Government Responsibility for Constitutional Torts, 85
MICH. L. REv. 225, 226 (1986).
191. Id.
192. See id.
193. Id.
194. Id.at 229-30.
2008] MUNICIPAL LIABILITY UNDER 1983 889

entity is apparent in official policy, the cases examined above illustrate that
impermissible motives may not be readily apparent. 195 When this is the
case, a litigant must prove that the "[entity] acted out of a constitutionally
impermissible motive."'1 96 The difficulty in ascertaining the motives of
individuals for the purpose of imputing those motives to a collective body
has become one of the "practical consequences" of the Monell decision
97
that
Justice Rehnquist may have anticipated in his insightful dissent.1
The Supreme Court in Mount Healthy defined the causation
requirement for constitutional torts, including 1983.1 98 Although the
decision provided an incomplete roadmap to guide lower courts in making
a causation analysis, the Court did declare that a central question in the
causation inquiry is whether a municipal board "would have reached the
same decision . . . in the absence of the protected conduct." 199 The Sixth
Circuit's "but for" analysis in Scarbrough posits the question "whether a
board would have acted the same way, absent improper motive."200 It is
apparent that these two questions are nearly identical in that they focus the
motive analysis on causation. 20 1 The Sixth Circuit's "but for" test brings the
municipal liability analysis back to a tort-centered inquiry that was central
to the Mount Healthy decision.

CONCLUSION
The flaws within each of the three tests discussed in this Note reveal
the underlying difficulty in determining motives in general.20 2
Commentators continue to question whether the motive analysis central to
governmental liability is even practical.20 3 It is arguable that a test too
preoccupied with discerning the motive of municipal board members may
risk ignoring the real consequences of that board's actions.
The debate concerning how to determine the amount of improperly
motivated board members necessary to subject a municipality to 1983
liability must be resolved. A resolution needs to be made in order to resolve

195. See supra Part II.


196. Scarbrough v. Morgan County Bd. of Educ., 470 F.3d 250, 261 (6th Cir. 2006)
(citing Hull v. Cuyahoga Valley Bd. of Educ., 926 F.2d 505, 515-16 (6th Cir. 1991)).
197. See Monell v. Dep't of Soc. Serv., 436 U.S. 658, 724 (1978) (Rehnquist, J.,
dissenting) (stating that none of the members of the Court could foresee the practical
consequences of removing the protection that Monroe imparted to municipalities).
198. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285-86 (1977).
199. Id. at 287.
200. Scarbrough, 470 F.3d at 262-63.
201. Compare Doyle, 429 U.S. at 287, with Scarbrough,470 F.3d at 262-63.
202. See supra Part II.
203. Whitman, supra note 190, at 256.
NEW ENGLAND LAW REVIEW [Vol. 42:865

a very real dilemma-a municipality found liable in one jurisdiction may


not be liable in another.2 4 The test that is ultimately adopted must take into
account the fact that discerning motives of a multi-member municipal 20 5
board is far more complex than investigating legislative intent.
Notwithstanding the alternative of abandoning the motive-centered inquiry
of municipal liability under 1983 altogether, the Sixth Circuit's "but for"
test should be universally adopted as the way to determine when a multi-
member board acts with improper motives. Although the "but for" test is
imperfect and does not entirely resolve the motive dilemma, it creates a
unique evidentiary burden that shifts with the contentiousness of the
board's vote.20 6 This shift promotes greater municipal accountability by
increasing the risk of 1983 liability in situations when boards are close to
a deadlock.20 7 Furthermore, the "but for" test promotes the purposes20 8of
1983 while preserving the causation analysis essential to tort liability.

204. Melick & Fox, supra note 88, at 213.


205. See supra Part III.A.
206. See supra Part III.B.
207. See supra Part III.C.
208. See supra Part III.D.