On Monday the Sixth Circuit issued its opinion in McCormick v. University of Miami. Writing for the court, Judge Damon Keith identified the following circuit split over whether the Civil Rights Act of 1991 created a new private cause of action against state actors:
(c) Protection against impairment
The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.
42 U.S.C. § 1981(c). Since the amendment to § 1981, circuit courts have split as to whether the 1991 amendment created a new private cause of action, thereby overruling Jett. The Sixth Circuit has continued to hold that Jett remains binding authority and that "the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units." Arendale v. City of Memphis, 519 F.3d 587, 598-99 (6th Cir. 2008) (quoting Jett, 491 U.S. at 733). Our decision in Arendale is consistent with authorities in the Third Circuit, see McGovern v. City of Philadelphia, 554 F.3d 114, 117-18 (3d Cir. 2009); the Tenth Circuit, see Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir. 2006); the Fifth Circuit, see Oden v. Oktibbeha Cnty., 246 F.3d 458, 463-64 (5th Cir. 2001); the Eleventh Circuit, see Butts v. Cnty. of Volusia, 222 F.3d 891, 894 (11th Cir. 2000); and the Fourth Circuit, see Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 n.1 (4th Cir. 1995). In contrast, the Ninth Circuit has expressly held that the Civil Rights Act of 1991 has overruled the Supreme Court's holding in Jett. See Fed'n of African Am. Contractors v. City of Oakland, 96 F.3d 1204, 1205 (9th Cir. 1996) ("We hold that the Civil Rights Act of 1991 creates an implied cause of action against state actors under 42 U.S.C. § 1981, and thus statutorily overrules Jett's holding that 42 U.S.C. § 1983 provides the exclusive federal remedy against municipalities for violation of the civil rights guaranteed by 42 U.S.C. § 1981."); but see Pittman v. Oregon, 509 F.3d 1065, 1074 (9th Cir. 2007) (holding that § 1981 does not contain a cause of action against arms of the state).
Using the reasoning of Jett, this circuit has held that a plaintiff cannot use § 1981 to sue a state actor in his or her official capacity. Grinter v. Knight, 532 F.3d 567, 577 (6th Cir. 2008) ("§ 1983 provides an exclusive remedy for violations against state actors sued in their official capacities. An official capacity lawsuit against . . . a state actor for constitutional violations, such as race discrimination, cannot be brought under § 1981."). The district court correctly dismissed the § 1981 claims against the individual defendants in their official capacity. However, we have not addressed whether Jett bars a § 1981 claim against an individual state actor sued in his or her individual capacity. We now hold that it does.
You can read the entire opinion here: McCormick v. Miami Univ., No. 11-3614, 2012 U.S. App. LEXIS 18950, at *13-15 (6th Cir. Ohio 2012).