Tuesday, March 16, 2010

Pearson-Iqbal: What's the big deal?

In my previous posts (Part I and Part II), I explained why the Supreme Court's recent decisions in Pearson and Iqbal are problematic on their own terms. These are some fairly well-known criticisms. In this part, I want to explain why the interaction between these two cases is problematic -- a point that has not gotten any treatment, to my knowledge, in the academic literature (in print or online).

The biggest problem is that the Pearson-Iqbal interaction threatens to catch litigants -- civil rights plaintiffs in particular -- on the horns of a dilemma. In my article, I illustrate this problem with a case that was recently decided by the District of Connecticut. (The case then went to the Second Circuit, but its disposition there was on grounds unrelated to the issues I discuss here.)

In DiStiso v. Wolcott, 539 F. Supp. 2d 562 (D. Conn. 2008), Robin DiStiso sued various school officials on behalf of Nicholas, her minor son. Robin alleged inter alia that the other students at school harassed, taunted, and assaulted Nicholas because of his race. She further alleged that she complained to Nicholas’s first-grade teacher, Tammy Couture, and the principal, John Cook, and that they did nothing to respond to the complaints. Robin and her husband testified to this effect at their depositions. For their part, Couture and Cook stated in affidavits that they never observed such conduct and never received such complaints from the parents.

At the time of Robin's suit, it was clear that, per Second Circuit case law, a claim like this one -- alleging deliberate indifference to racial harassment -- had to make out at least three elements: (1) harassment by other students; (2) awareness, on the part of school officials, of such harassment; and (3) a “clearly unreasonable" response by those officials. However, it was not clear whether the parents also had to allege (and later demonstrate) a racially hostile educational environment. Years before, the Supreme Court had held that such a showing was necessary in the context of student-on-student sexual harassment. But neither the Supreme Court nor the Second Circuit had so held in the context of racial harassment.

Now we see the Pearson-Iqbal interaction problem. Robin could plead the violation a specific constitutional right: the right to be free from student-on-student racial harassment, premised on a theory of deliberate indifference. But this claim could easily get dismissed: on the basis of Pearson, the District Court could, correctly, hold that (because no court has held whether a hostile educational environment is a necessary element of the claim) the right in question is not "clearly established."

To avoid this problem, Robin could plead the violation of a general constitutional right: the right to be free from racial discrimination. But in this case, Robin and Nicholas would almost certainly lose because of Iqbal. Any allegations regarding intentional, active discrimination by Cook
or Couture would be conclusory, because the real nub of the claim against them (on this count) was not that they did discriminatory things to Nicholas; it was that they willfully ignored others’ discriminatory treatment. In such a context, any allegation that Cook or Couture actively engaged in discriminatory conduct would be seen as “conclusory” as the allegations discarded by the Supreme Court in Iqbal.

And so, in a Pearson-Iqbal world, Robin and Nicholas would be stuck. They could plead the violation of a specific constitutional right -- indeed, the one that is most directly applicable to the fact pattern -- and risk getting tossed by Pearson. Or they could plead the violation of a more general constitutional right, and risk getting thrown out by Iqbal.

There are several important implications:

1) Pearson-Iqbal puts civil rights litigants in a position where their claims, even if they are meritorious, are at risk of dismissal whether they say "too much" (Pearson) or "too little" (Iqbal).

2) The interaction not only threatens the development of novel constitutional theories but also the enforcement of existing constitutional rights. The Second Circuit has held for at least ten years (since Gant v. Wallingford) that schools officials might be liable in this kind of context. But the fact that the applicability of one element has not been squarely decided puts the plaintiffs at risk of immediate dismissal per Pearson.

3) There is no guarantee that the problems I outlined would actually come about (if the DiStisos' case were litigated in post-Pearson/Iqbal world). But this exacerbates the problem. The increased discretion courts have (to use their "common sense" to decide if there was discrimination; to decide how to approach the qualified immunity analysis) makes it that much harder to predict how different courts will rule given identical facts. Such unpredictability undermines the rule of law.

4) When deciding a motion to dismiss on the grounds of qualified immunity, a court had to first decide if the allegations, assumed to be true, make out the violation of a constitutional right (Saucier step one). But as several civil procedure professors pointed out in the Iqbal amicus brief, "what is now described as the first step is, in fact, only a reflection of the plaintiff ’s standard obligation to show her entitlement to relief under Rule 8(a)(2). As a matter of trans-substantive procedural law, a failure to make such a showing in any case would trigger a Rule 12(b)(6) motion to dismiss for failure to state a claim. No different rule applies to constitutional claims . . . ." But by raising the bar for a "regular" Rule 12(b)(6) motion, Iqbal has, perhaps inadvertently, altered the standard for Saucier step one. Now, when faced with a 12(b)(6) motion based on qualified immunity, a court will have to import Iqbal's plausibility standard -- or, if it does not, it will have to explain why plausibility applies in some contexts but not others.

This post has run a bit long, so I'll cut short here. In my next post, I'll elaborate on a point I mentioned in passing above -- the role of lower courts' discretion. Then I'll respond to some of the comments I've received thus far.


  1. Is it necessary that "Pearson could, correctly, hold that (because no court has held whether a hostile educational environment is a necessary element of the claim) the right in question is not "clearly established?" PErhaps racial discrimination claims could be read to be entirely different than sex discrimination claims. Why is it the case that the 'interaction' necessarily means that the court would have to accept such a restrictive view?

  2. Goutam, great post. Has this problem been recognized in any cases? I would interested to see the practical implications.

  3. @ 4:43--

    I think the point is precisely that--Goutam's pointing out that, because the law would be unsettled, a district court would have the latitude to jump to the pre-Pearson/Saucier "step 2" qualified immunity question and dispose of the case on that basis.

  4. Goutam,

    Do you have any sense as to how frequently district courts are taking the Pearson Court's invitation to jump to the qualified immunity question?

    I'm inclined to think it doesn't happen quite as frequently as one would think. My recollection is that, in some circuits, defendants bear the burden on qualified immunity as an affirmative defense. (And even if they didn't, they'd have to raise it anyway--they almost certainly would as a matter of course, but that's still a notable point, I think.) If my memory is correct on the burden of proof point, it may be preferable to deal with the case by addressing the (previously threshold) constitutional question first (or exclusively as the case may be). Just food for thought.


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