Shannon King, et al. v. Lana Foster

42 U.S.C. § 1981 protects the right “to make and enforce contracts” from “impairment by nongovernmental discrimination and impairment under color of State law.” In Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 476- 78 (2006), this Court recognized that contractual privity is the “sine qua non of a § 1981 claim,” meaning that only parties with rights under a contract may bring such claims. However, the Court did not decide whether the contractual-privity principles underlying section 1981 also require the defendants to be contracting parties. This open question has divided the circuits. Independently, the circuits are at odds over how to analyze the clearly established prong of the qualified-immunity test. Although all courts recognize that the wrongfulness of an official’s conduct must be clearly established, the circuits are divided over whether an official’s personal liability must be clearly established at the time too. The questions presented are:

1. Whether a plaintiff may bring a claim under 42 U.S.C. § 1981 premised on the “impairment” of the right “to make and enforce contracts” against a non-contracting defendant.

2. Whether, to overcome qualified immunity, a plaintiff must show that the official’s personal liability was clearly established at the time of the alleged misconduct.