435 U.S.

247
98 S.Ct. 1042
55 L.Ed.2d 252

John D. CAREY et al., Petitioners,

v.
Jarius PIPHUS, etc., et al.
No. 76-1149.
Argued Dec. 6, 1977.
Decided March 21, 1978.

Syllabus
In actions by public school students under 42 U.S.C. 1983 against school
officials, wherein the students were found to have been suspended from
school without procedural due process, the students, absent proof of actual
injury, are entitled to recover only nominal damages. Pp. 253-267.
(a) The basic purpose of a 1983 damages award is to compensate
persons for injuries caused by the deprivation of constitutional rights. Pp.
254-257.
(b) To further the purpose of 1983, the rules governing compensation
for injuries caused by the deprivation of constitutional rights should be
tailored to the interests protected by the particular right in question, just as
the common-law rules of damages were defined by the interests protected
in the various branches of tort law. Pp. 257-259.
(c) Mental and emotional distress caused by the denial of procedural due
process cannot be presumed to occur, as in the case of presumed damages
in the common law of defamation per se, but, although such distress is
compensable, neither the likelihood of such injury nor the difficulty of
proving it is so great as to justify awarding compensatory damages
without proof that such injury actually was caused. Pp. 259-264.
(d) The issues of what elements and prerequisites for recovery of damages
are appropriate to compensate for injuries caused by the deprivation of
constitutional rights must be considered with reference to the nature of the
interests protected by the particular right in question. Therefore, cases

dealing with awards of damages for injuries caused by the deprivation of

constitutional rig ts other than the right to procedural due process, are not
controlling in this case. Pp. 264-265.
(e) Because the right to procedural due process is "absolute" in the sense
that it does not depend upon the merits of a claimant's substantive
assertions, and because of the importance to organized society that
procedural due process be observed, the denial of procedural due process
should be actionable for nominal damages without proof of actual injury,
and therefore if it is determined that the suspensions of the students in this
case were justified, they nevertheless will be entitled to recover nominal
damages. Pp. 266-267.
545 F.2d 30, reversed and remanded.
Earl B. Hoffenberg, Chicago, Ill., for petitioners.
John S. Elson, Chicago, Ill., for respondents.
Mr. Justice POWELL delivered the opinion of the Court.

In this case, brought under 42 U.S.C. 1983, we consider the elements and
prerequisites for recovery of damages by students who were suspended from
public elementary and secondary schools without procedural due process. The
Court of Appeals for the Seventh Circuit held that the students are entitled to
recover substantial nonpunitive damages even if their suspensions were
justified, and even if they do not prove that any other actual injury was caused
by the denial of procedural due process. We disagree, and hold that in the
absence of proof of actual injury, the students are entitled to recover only
nominal damages.

* Respondent Jarius Piphus was a freshman at Chicago Vocational High School

during the 1973-1974 school year. On January 23, 1974, during school hours,
the school principal saw Piphus and another student standing outdoors on
school property passing back and forth what the principal described as an
irregularly shaped cigarette. The principal approached the students unnoticed
and smelled what he believed was the strong odor of burning marihuana. He
also saw Piphus try to pass a packet of cigarette papers to the other student.
When the students became aware of the principal's presence, they threw the
cigarette into a nearby hedge.

The principal took the students to the school's disciplinary office and directed

the assistant principal to impose the "usual" 20-day suspension for violation of
the school rule against the use of drugs.1 The students protested that they had
not been smoking marihuana, but to no avail. Piphus was allowed to remain at
school, although not in class, for the remainder of the school day while the
assistant principal tried, without success, to reach his mother.
4

A suspension notice was sent to Piphus' mother, and a few days later two
meetings were arranged among Piphus, his mother, his sister, school officials,
and representatives from a legal aid clinic. The purpose of the meetings was not
to determine whether Piphus had been smoking arihuana, but rather to explain
the reasons for the suspension. Following an unfruitful exchange of views,
Piphus and his mother, as guardian ad litem, filed suit against petitioners in
Federal District Court under 42 U.S.C. 1983 and its jurisdictional counterpart,
28 U.S.C. 1343, charging that Piphus had been suspended without due
process of law in violation of the Fourteenth Amendment. The complaint
sought declaratory and injunctive relief, together with actual and punitive
damages in the amount of $3,000.2 Piphus was readmitted to school under a
temporary restraining order after eight days of his suspension.

Respondent Silas Brisco was in the sixth grade at Clara Barton Elementary
School in Chicago during the 1973-1974 school year. On September 11, 1973,
Brisco came to school wearing one small earring. The previous school year the
school principal had issued a rule against the wearing of earrings by male
students because he believed that this practice denoted membership in certain
street gangs and increased the likelihood that gang members would terrorize
other students. Brisco was reminded of this rule, but he refused to remove the
earring, asserting that it was a symbol of black pride, not of gang membership.

The assistant principal talked to Brisco's mother, advising her that her son
would be suspended for 20 days if he did not remove the earring. Brisco's
mother supported her son's position, and a 20-day suspension was imposed.
Brisco and his mother, as guardian ad litem, filed suit in Federal District Court
under 42 U.S.C. 1983 and 28 U.S.C. 1343, charging that Brisco had been
suspended without due process of law in violation of the Fourteenth
Amendment.3 The complaint sought declaratory and injunctive relief, together
with actual and punitive damages in the amount of $5,000.4 Brisco was
readmitted to school during the pendency of proceedings for a preliminary
injunction after 17 days of his suspension.

Piphus' and Brisco's cases were consolidated for trial and submitted on
stipulated records. The District Court held that both students had been
suspended without procedural due process.5 It also held that petitioners were

not entitled to qualified immunity from damages under the second branch of
Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975),
because they "should have known that a lengthy suspension without any
adjudicative hearing of any type" would violate procedural due process. App. to
Pet. for Cert. A14.6 Despite these holdings, the District Court declined to award
damages because:
8

"Plaintiffs put no evidence in the record to qualify their damages, and the
record is completely devoid of any evidence which could even form the basis
of a speculative inference measuring the extent of their injuries. Plaintiffs'
claims for damages therefore fail for complete lack of proof." Ibid.

The court also stated that the students were entitled to declaratory relief and to
deletion of the suspensions from their school records, but for reasons that are
not apparent the court failed to enter an order to that effect. Instead, it simply
dismissed the complaints. No finding was made as to whether respondents
would have been suspended if they had received procedural due process.

10

On respondents' appeal, the Court of Appeals reversed and remanded. 545 F.2d
30 (1976). It first held that the District Court erred in not granting declaratory
and injunctive relief. It also held that the District Court should have considered
evidence submitted by respondents after judgment that tended to prove the
pecuniary value of each day of school that they missed while suspended. The
court said, however, that respondents would not be entitled to recover damages
representing the value of missed school time if petitioners showed on remand
"that there was just cause for the suspension[s] and that therefore [respondents]
would have been suspended even if a proper hearing had been held." Id., at 32.

11

Finally, the Court of Appeals held that even if the District Court found on
remand that respondents' suspensions were justified, they would be entitled to
recover substantial "nonpunitive" damages simply because they had been
denied procedural due process. Id., at 31. Relying on its earlier decision in
Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d 569 (CA7 1975),
cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d 208 (1976), the court
stated that such damages should be awarded "even if, as in the case at bar, there
is no proof of individualized injury to the plaintiff, such as mental distress . . .
." 545 F.2d, at 31. We granted certiorari to consider whether, in an action under
1983 for the deprivation of procedural due process, a plaintiff must prove that
he actually was injured by the deprivation before he may recover substantial
"nonpunitive" damages. 430 U.S. 964, 97 S.Ct. 1642, 52 L.Ed.2d 355 (1977).

II

12

Title 42 U.S.C. 1983, Rev.Stat. 1979, derived from 1 of the Civil Rights
Act of 1871, 17 Stat. 13, provides:

13

"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, rivileges, 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."

14

The legislative history of 1983, elsewhere detailed, e. g., Monroe v. Pape,

365 U.S. 167, 172-183, 81 S.Ct. 473, 476-481, 5 L.Ed.2d 492 (1961); id., at
225-234, 81 S.Ct. 504-509 (Frankfurter, J., dissenting in part); Mitchum v.
Foster, 407 U.S. 225, 238-242, 92 S.Ct. 2151, 2159-2161, 32 L.Ed.2d 705
(1972), demonstrates that it was intended to "[create] a species of tort liability"
in favor of persons who are deprived of "rights, privileges, or immunities
secured" to them by the Constitution. Imbler v. Pachtman, 424 U.S. 409, 417,
96 S.Ct. 984, 996, 47 L.Ed.2d 128 (1976).

15

Petitioners contend that the elements and prerequisites for recovery of damages
under this "species of tort liability" should parallel those for recovery of
damages under the common law of torts. In particular, they urge that the
purpose of an award of damages under 1983 should be to compensate persons
for injuries that are caused by the deprivation of constitutional rights; and,
further, that plaintiffs should be required to prove not only that their rights were
violated, but also that injury was caused by the violation, in order to recover
substantial damages. Unless respondents prove that they actually were injured
by the deprivation of procedural due process, petitioners argue, they are entitled
at most to nominal damages.

16

Respondents seem to make two different arguments in support of the holding

below. First, they contend that substantial damages should be awarded under
1983 for the deprivation of a constitutional right whether or not any injury was
caused by the deprivation. This, they say, is appropriate both because
constitutional rights are valuable in and of themselves, and because of the need
to deter violations of constitutional rights. Respondents believe that this view
reflects accurately that of the Congress that enacted 1983. Second,
respondents argue that even if the purpose of a 1983 damages award is, as
petitioners contend, primarily to compensate persons for injuries that are
caused by the deprivation of constitutional rights, every deprivation of
procedural due process may be presumed to cause some injury. This
presumption, they say, should relieve them from the necessity of proving that

injury actually was caused.

A.
17

Insofar as petitioners contend that the basic purpose of a 1983 damages award
should be to compensate persons for injuries caused by the deprivation of
constitutional rights, they have the better of the argument. Rights, constitutional
and otherwise, do not exist in a vacuum. Their purpose is to protect persons
from injuries to particular interests, and their contours are shaped by the
interests they protect.

18

Our legal system's concept of damages reflects this view of legal rights. "The
cardinal principle of damages in AngloAmerican law is that of compensation
for the injury caused to plaintiff by defendant's breach of duty." 2 F. Harper &
F. James, Law of Torts 25.1, p. 1299 (1956) (emphasis in original).7 The
Court implicitly has recognized the applicability of this principle to actions
under 1983 by stating that damages are available under that section for
actions "found . . . to have been violative of . . . CONSTITUTIONAL RIGHTS
AND TO HAVE CAUSED COMPENSABLE INJURY . . . ." wood v. Strickland,
420 U.S., at 319, 95 S.Ct., at 999 (emphasis supplied); see Codd v. Velger, 429
U.S. 624, 630-631, 97 S.Ct. 882, 885-886, 51 L.Ed.2d 92 (1977) (Brennan, J.,
dissenting); Adickes v. S. H. Kress & Co., 398 U.S. 144, 232, 90 S.Ct. 1598,
1641, 26 L.Ed.2d 142 (1970) (Brennan, J., concurring and dissenting); see also
Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 397, 91 S.Ct.
1999, 2005, 29 L.Ed.2d 619 (1971) (action for damages directly under Fourth
Amendment); id., at 408-409, 91 S.Ct., at 2010-2011 (Harlan, J., concurring in
judgment). The lower federal courts appear generally to agree that damages
awards under 1983 should be determined by the compensation principle. 8

19

The Members of the Congress that enacted 1983 did not address directly the
question of damages, but the principle that damages are designed to compensate
persons for injuries caused by the deprivation of rights hardly could have been
foreign to the many lawyers in Congress in 1871.9 Two other sections of the
Civil Rights Act of 1871 appear to incorporate this principle, and no reason
suggests itself for reading 1983 differently.10 To the extent that Congress
intended that awards under 1983 should deter the deprivation of constitutional
rights, there is no evidence that it meant to establish a deterrent more
formidable than that inherent in the award of compensatory damages. See
Imbler v. Pachtman, 424 U.S., at 442, 96 S.Ct., at 1000-1001 (White, J.,
concurring in judgment).11

20

It is less difficult to conclude that damages awards under 1983 should be

governed by the principle of compensation than it is to apply this principle to
concrete cases.12 But over the centuries the common law of torts has developed
a set of rules to implement the principle that a person should be compensated
fairly for injuries caused by the violation of his legal rights. These rules,
defining the elements of damages and the prerequisites for their recovery,
provide the appropriate starting point for the inquiry under 1983 as well.13

21

It is not clear, however, that common-law tort rules of damages will provide a
complete solution to the damages issue in every 1983 case. In some cases, the
interests protected by a particular branch of the common law of torts may
parallel closely the interests protected by a particular constitutional right. In
such cases, it may be appropriate to apply the tort rules of damages directly to
the 1983 action. See Adickes v. S. H. Kress & Co., 398 U.S., at 231-232, 90
S.Ct., at 1641, 26 L.Ed.2d 142 (Brennan, J., concurring and dissenting). In
other cases, the interests protected by a particular constitutional right may not
also be protected by an analogous branch of the common law torts. See Monroe
v. Pape, 365 U.S., at 196, 81 S.Ct., at 488, and n. 5 (Harlan, J., concurring); id.,
at 250-251, 81 S.Ct., at 518 (Frankfurter, J., dissenting in part); Adickes v. S. H.
Kress & Co., supra, at 232, 81 S.Ct., at 508 (Brennan, J., concurring and
dissenting); Bivens v. Six Unknown Fed. Narcotic Agents, 403 .S., at 394, 91
S.Ct., at 2003; id., at 408-409, 91 S.Ct., at 2010, 2011 (Harlan, J., concurring in
judgment). In those cases, the task will be the more difficult one of adapting
common-law rules of damages to provide fair compensation for injuries caused
by the deprivation of a constitutional right.

22

Although this task of adaptation will be one of some delicacy as this case
demonstratesit must be undertaken. The purpose of 1983 would be defeated
if injuries caused by the deprivation of constitutional rights went
uncompensated simply because the common law does not recognize an
analogous cause of action. Cf. Jones v. Hildebrant, 432 U.S. 183, 190-191, 97
S.Ct. 2283, 2288, 53 L.Ed.2d 209 (1977) (White, J., dissenting); Sullivan v.
Little Hunting Park, 396 U.S. 229, 240, 90 S.Ct. 400, 406, 24 L.Ed.2d 386
(1969). In order to further the purpose of 1983, the rules governing
compensation for injuries caused by the deprivation of constitutional rights
should be tailored to the interests protected by the particular right in question
just as the common-law rules of damages themselves were defined by the
interests protected in the various branches of tort law. We agree with Mr.
Justice Harlan that "the experience of judges in dealing with private [tort]
claims supports the conclusion that courts of law are capable of making the
types of judgment concerning causation and magnitude of injury necessary to
accord meaningful compensation for invasion of [constitutional] rights." Bivens

v. Six Unknown Fed. Narcotics Agents, supra, 403 U.S., at 409, 91 S.Ct., at
2011 (Harlan, J., concurring in judgment). With these principles in mind, we
now turn to the problem of compensation in the case at hand.
C
23

The Due Process Clause of the Fourteenth Amendment provides:

24

"[N]or shall any State deprive any person of life, liberty, or property, without
due process of law . . . ."

25

This Clause "raises no impenetrable barrier to the taking of a person's

possessions," or liberty, or life. Fuentes v. Shevin, 407 U.S. 67, 81, 92 S.Ct.
1983, 1994, 32 L.Ed.2d 556 (1972). Procedural due process rules are meant to
protect persons not from the deprivation, but from the mistaken or unjustified
deprivation of life, liberty, or property. Thus, in deciding what process
constitutionally is due in various contexts, the Court repeatedly has emphasized
that "procedural due process rules are shaped by the risk of error inherent in the
truth-finding process . . . ." Mathews v. Eldridge, 424 U.S. 319, 344, 96 S.Ct.
893, 907, 47 L.Ed.2d 18 (1976).14 Such rules "minimize substantively unfair or
mistaken deprivations of" life, liberty, or property by enabling persons to
contest the basis upon which a State proposes to deprive them of protected
interests. Fuentes v. Shevin, supra, 407 U.S., at 81, 92 S.Ct., at 1994.

26

In this case, the Court of Appeals held that if petitioners can prove on remand
that "[respondents] would have been suspended even if a proper hearing had
been held," 545 F.2d, at 32, then respondents will not be entitled to recover
damages to compensate them for injuries caused by the suspensions. The court
thought that in such a case, the failure to accord procedural due process could
not properly e viewed as the cause of the suspensions. Ibid.; cf. Mt. Healthy
City Board of Ed. v. Doyle, 429 U.S. 274, 285-287, 97 S.Ct. 568, 575-576, 50
L.Ed.2d 471 (1977); Arlington Heights v. Metropolitan Housing Dev. Corp.,
429 U.S. 252, 270-271, n. 21, 97 S.Ct. 555, 565-566, n. 21, 50 L.Ed.2d 450
(1977). The court suggested that in such circumstances, an award of damages
for injuries caused by the suspensions would constitute a windfall, rather than
compensation, to respondents. 545 F.2d, at 32, citing Hostrop v. Board of
Junior College Dist. No. 515, 523 F.2d, at 579; cf. Mt. Healthy City Board of
Ed. v. Doyle, supra, 429 U.S., at 285-286, 97 S.Ct., at 575. We do not
understand the parties to disagree with this conclusion. Nor do we. 15

27

The parties do disagree as to the further holding of the Court of Appeals that

respondents are entitled to recover substantialalthough unspecified

damages to compensate them for "the injury which is 'inherent in the nature of
the wrong,' " 545 F.2d, at 31, even if their suspensions were justified and even
if they fail to prove that the denial of procedural due process actually caused
them some real, if intangible, injury. Respondents, elaborating on this theme,
submit that the holding is correct because injury fairly may be "presumed" to
flow from every denial of procedural due process. Their argument is that in
addition to protecting against unjustified deprivations, the Due Process Clause
also guarantees the "feeling of just treatment" by the government. Anti-Fascist
Committee v. McGrath, 341 U.S. 123, 162, 71 S.Ct. 624, 643, 95 L.Ed. 817
(1951) (Frankfurter, J., concurring). They contend that the deprivation of
protected interests without procedural due process, even where the premise for
the deprivation is not erroneous, inevitably arouses strong feelings of mental
and emotional distress in the individual who is denied this "feeling of just
treatment." They analogize their case to that of defamation per se, in which "the
plaintiff is relieved from the necessity of producing any proof whatsoever that
he has been injured" in order to recover substantial compensatory damages. C.
McCormick, Law of Damages 116, p. 423 (1935).16
28

Petitioners do not deny that a purpose of procedural due process is to convey to

the individual a feeling that the government has dealt with him fairly, as well as
to minimize the risk of mistaken deprivations of protected interests. They go so
far as to concede that, in a proper case, persons in respondents' position might
well recover damages for mental and emotional distress caused by the denial of
procedural due process. Petitioners' argument is the more limited one that such
injury cannot be presumed to occur, and that plaintiffs at least should be put to
their proof on the issue, as plaintiffs are in most tort actions.

29

We agree with petitioners in this respect. As we have observed in another

context, the doctrine of presumed damages in the common law of defamation
per se "is an oddity of tort law, for it allows recovery of purportedly
compensatory damages without evidence of actual loss." Gertz v. Robert
Welch, Inc., 418 U.S. 323, 349, 94 S.Ct. 2997, 3011-3012, 41 L.Ed.2d 789
(1974). The doctrine has been defended on the grounds that those forms of
defamation that are actionable per se are virtually certain to cause serious injury
to reputation, and that this kind of injury is extremely difficult to prove. See id.,
at 373, 376, 94 S.Ct., at 3023, 3025 (White, J., dissenting).17 Moreover,
statements that are defamatory per se by their very nature are likely to cause
mental and emotional distress, as well as injury to reputation, so there arguably
is little reason to require proof of this kind of injury either.18 But these
considerations do not support respondents' contention that damages should be
presumed to flow from every deprivation of procedural due process.

30

First, it is not reasonable to assume that every departure from procedural due
process, no matter what the circumstances or how minor, inherently is as likely
to cause distress as the publication of defamation per se is to cause injury to
reputation and distress. Where the deprivation of a protected interest is
substantively justified but procedures are deficient in some respect, there may
well be those who suffer no distress over the procedural irregularities. Indeed,
in contrast to the immediately distressing effect of defamation per se, a person
may not even know that procedures were deficient until he enlists the aid of
counsel to challenge a perceived substantive deprivation.

31

Moreover, where a deprivation is justified but procedures are deficient,

whatever distress a person feels may be attributable to the justified deprivation
rather than to deficiencies in procedure. But as the Court of Appeals held, the
injury caused by a justified deprivation, including distress, is not properly
compensable under 1983.19 This ambiguity in causation, which is absent in
the case of defamation per se, provides additional need for requiring the
plaintiff to convince the trier of fact that he actually suffered distress because of
the denial of procedural due process itself.

32

Finally, we foresee no particular difficulty in producing evidence that mental

and emotional distress actually was caused by the denial of procedural due
process itself. Distress is a personal injury familiar to the law, customarily
proved by showing the nature and circumstances of the wrong and its effect on
the plaintiff.20 In sum, then, although mental and emotional distress caused by
the denial of procedural due process itself is compensable under 1983, we
hold that neither the likelihood of such injury nor the difficulty of proving it is
so great as to justify awarding compensatory damages without proof that such
injury actually was caused.

D
33

The Court of Appeals believed, and respondents urge, that cases dealing with
awards of damages for racial discrimination, the denial of voting rights and the
denial of Fourth Amendment rights, support a presumption of damages where
procedural due process is denied.21 Many of the cases relied upon do not help
respondents because they held or implied that some actual, if intangible, injury
must be proved before compensatory damages may be recovered. Others
simply did not address the issue.22 More importantly, the elements and
prerequisites for recovery of damages appropriate to compensate injuries
caused by the deprivation of one constitutional right are not necessarily
appropriate to compensate injuries caused by the deprivation of another. As we
have said, supra, at 258-259, these issues must be considered with reference to

the nature of the interests protected by the particular constitutional right in

question. For this reason, and without intimating an opinion as to their merits,
we do not deem the cases relied upon to be controlling.
III
34

Even if respondents' suspensions were justified, and even if they did not suffer
any other actual injury, the fact remains that they were deprived of their right to
procedural due process. "It is enough to invoke the procedural safeguards of the
Fourteenth Amendment that a significant property interest is at stake, whatever
the ultimate outcome of a hearing . . . ." Fuentes v. Shevin, 407 U.S., at 87, 92
S.Ct., at 1997; see Codd v. Velger, 429 U.S., at 632, 97 S.Ct., at 886 (Stevens,
J., dissenting); Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct.
625, 629, 59 L.Ed. 1027 (1915).

35

Common-law courts traditionally have vindicated deprivations of certain

"absolute" rights that are not shown to have caused actual injury through the
award of a nominal sum of money.23 By making the deprivation of such rights
actionable for nominal damages without proof of actual injury, the law
recognizes the importance to organized society that those rights be scrupulously
observed; but at the same time, it remains true to the principle that substantial
damages should be awarded only to compensate actual injury or, in the case of
exemplary or punitive damages, to deter or punish malicious deprivations of
rights.

36

Because the right to procedural due process is "absolute" in the sense that it
does not depend upon the merits of a claimant's substantive assertions, and
because of the importance to organized society that procedural due process be
observed, see Boddie v. Connecticut, 401 U.S. 371, 375, 91 S.Ct. 780, 784, 28
L.Ed.2d 113 (1971); Anti-Fascist Committee v. McGrath, 341 U.S., at 171-172,
71 S.Ct., at 648-649 (Frankfurter, J., concurring), we believe that the denial of
procedural due process should be actionable for nominal damages without
proof of actual injury.24 We therefore hold that if, upon remand, the District
Court determines that respondents' suspensions were justified, respondents
nevertheless will be entitled to recover nominal damages not to exceed one
dollar from petitioners.25

37

The judgment of the Court of Appeals is reversed, and the case is remanded for
further proceedings consistent with this opinion.

38

It is so ordered.

39

Mr. Justice MARSHALL concurs in the result.

40

Mr. Justice BLACKMUN took no part in the consideration or decision of this

case.

At the time of the suspensions, the Board of Education's general rule governing
suspensions provided:
"For gross disobedience or misconduct a pupil may be suspended temporarily
by the principal for a period not exceeding one school month for each offense.
Each such suspension shall be reported immediately to the District
Superintendent and also to the parent or guardian of the pupil, with a full
statement of the reasons for such suspension. The District Superintendent shall
have authority to review the action of the principal and to return the suspended
pupil." Rule 6-9 of the Rules of the Board of Education of the City of Chicago
(1973), quoted in District Court opinion, App. to Pet. for Cert. A9.
The District Court held that the terms "gross disobedience" and "misconduct"
in this general rule are not unconstitutionally vague because they were
narrowed by the school principals' issuance of the particular rules allegedly
violated here. Id., at A9-A10. Rule 6-9 was amended following this Court's
decision in Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975).
See App. to Pet. for Cert. A10-A11, n. 3.

The complaint named as defendants, individually and in their official capacities,

the principal of the school; the General Superintendent of Schools of the city of
Chicago; and the members of the Board of Education of the city of Chicago.

Also named as plaintiff in Brisco's suit was People United to Save Humanity
(PUSH), a religious corporation organized under the laws of Illinois, the
membership of which includes parents of children in the Chicago public
schools. The District Court held that PUSH had standing to maintain this suit, a
ruling not challenged on appeal.
In addition to the procedural due process claim, Brisco's complaint alleged that
enforcement of the "no-earring" rule violated his right to freedom of expression
under the First and Fourteenth Amendments. Neither court below passed on this
claim, nor do we.

The complaint named as defendants, individually and in their official capacities,

the principal of the school; the General Superintendent of Schools of the city of
Chicago; the members of the Board of Education of the city of Chicago; and

the Illinois Superintendent of Public Instruction. The District Court granted the
latter party's motion to dismiss.
5

The District Court read Goss v. Lopez, supra, as requiring "more formal
procedures" for suspensions of more than 10 days than for suspensions of less
than 10 days, and it set forth a deta led list of procedural requirements. See
App. to Pet. for Cert. A11-A12. Petitioners have not challenged either the
holding that respondents were denied procedural due process, or the listing of
rights that must be granted.

Although respondents' suspensions occurred before Goss v. Lopez was decided,

the District Court thought that petitioners should have been placed on notice
that the suspensions violated procedural due process by Linwood v. Board of
Ed. of City of Peoria, 463 F.2d 763 (CA7), cert. denied, 409 U.S. 1027, 93
S.Ct. 475, 34 L.Ed.2d 320 (1972). Petitioners have not challenged this holding.
The District Court expressly held that petitioners did not lose their immunity
under the first branch of Wood v. Strickland, i. e., that they did not act "with the
malicious intention to cause a deprivation of constitutional rights or other injury
to the student," 420 U.S., at 322, 95 S.Ct., at 1001:
"Here the record is barren of evidence suggesting that any of the defendants
acted maliciously in enforcing disciplinary policies against the plaintiffs.
Undoubtedly defendants believed that they were protecting the integrity of the
educational process." App. to Pet. for Cert. A13.

See also D. Dobbs, Law of Remedies 3.1, pp. 135-138 (1973); C.

McCormick, Law of Damages 1 (1935); W. Prosser, Law of Torts 2, p. 7
(4th ed. 1971).

See, e. g., United States ex rel. Tyrrell v. Speaker, 535 F.2d 823, 829-830, and
n. 13 (CA3 1976); United States ex rel. Larkins v. Oswald, 510 F.2d 583, 590
(CA2 1975); Magnett v. Pelletier, 488 F.2d 33, 35 (CA1 1973); Stolberg v.
Members of the Bd. of Trustees for the State Colleges of Conn., 474 F.2d 485,
488-489 (CA2 1973); Donovan v. Reinbold, 433 F.2d 738, 743 (CA9 1970).

See 1 F. Hilliard, Law of Torts, ch. 3, 5 (3d ed. 1866); T. Sedgwick, Measure
of Damages 25-35 (5th ed. 1869). Thus, one proponent of 1 of the Civil
Rights Act of 1871 asked during debate: "[W]hat legislation could be more
appropriate than to give a person injured by another under color of . . . State
laws a remedy by civil action?" Cong. Globe, 42d Cong., 1st Sess., 482 (1871)
(remarks of Rep. Wilson). And one opponent of 1 complained: "The
deprivation may be of the slightest conceivable character, the damages in the
estimation of any sensible man may not be five dollars or even five cents; they

may be what lawyers call merely nominal damages; and yet by this section
jurisdiction of that civil action is given to the Federal courts instead of its being
prosecuted as now in the courts of the States." Id., at App. 216 (remarks of Sen.
Thurman). See also Nahmod, Section 1983 and the "Background" of Tort
Liability, 50 Ind. L.J. 5, 10 (1974).
10

Section 2 of the Act, 17 Stat. 13-14, now codified at 42 U.S.C. 1985(3), made
it unlawful to conspire, inter alia, "for the purpose of depriving any person or
any class of persons of the equal protection of the laws, or of equal privileges or
immunities under the laws . . . ." It further provided (emphasis supplied):
"[I]f any one or more persons engaged in any such conspiracy shall do, or cause
to be done, any act in furtherance of the object of such conspiracy, whereby any
person shall be injured in his person or property, or deprived of having and
exercising any right or privilege of a citizen of the United States, the person so
injured or deprived of such rights and privileges may have and maintain an
action for the recovery of damages occasioned by such injury or deprivation of
rights and privileges against any one or more of the persons engaged in such
conspiracy . . . ."
Section 6 of the Act, 17 Stat. 15, now codified at 42 U.S.C. 1986, provided
(emphasis supplied):
"[A]ny person or persons, having knowledge that any of the wrongs conspired
to be done and mentioned in the second section of this act are about to be
committed, and having power to prevent or aid in preventing the same, shall
neglect or refuse to do so, and such wrongful act shall be committed, such
person or persons shall be liable to the person injured, or his legal
representatives, f r all damages caused by any such wrongful act . . . ."

11

This is not to say that exemplary or punitive damages might not be awarded in a
proper case under 1983 with the specific purpose of deterring or punishing
violations of constitutional rights. See, e. g. Silver v. Cormier, 529 F.2d 161,
163-164 (CA10 1976); Stengel v. Belcher, 522 F.2d 438, 444 n. 4 (CA6 1975),
cert. dismissed, 429 U.S. 118, 96 S.Ct. 1505, 47 L.Ed.2d 760 (1976); Spence v.
Staras, 507 F.2d 554, 558 (CA7 1974); Caperci v. Huntoon, 397 F.2d 799, 801
(CA1), cert. denied, 393 U.S. 940, 89 S.Ct. 299, 21 L.Ed.2d 276 (1968);
Mansell v. Saunders, 372 F.2d 573, 576 (CA5 1967); Basista v. Weir, 340 F.2d
74, 84-88 (CA3 1965). Although we imply no approval or disapproval of any of
these cases, we note that there is no basis for such an award in this case. The
District Court specifically found that petitioners did not act with malicious
intention to deprive respondents of their rights or to do them other injury, see n.
6, supra and the Court of Appeals approved only the award of "non-punitive"

damages, 545 F.2d 30, 31 (1976).

We also note that the potential liability of 1983 defendants for attorney's fees,
see Civil Rights Attorney's Fees Awards Act of 1976, Pub.L. 94-559, 90 Stat.
2641, amending 42 U.S.C. 1988, provides additionaland by no means
inconsequential assurance that agents of the State will not deliberately ignore
due process rights. See also 18 U.S.C. 242, the criminal counterpart of
1983.
12

For discussions of the problems of fashioning damages awards under 1983,

see generally McCormack, Federalism and Section 1983: Limitations on
Judicial Enforcement of Constitutional Protections, Part 1, 60 Va.L.Rev. 1, 5566 (1974); Nahmod, supra n. 9, at 25-27 n. 89; Yudof, Liability for
Constitutional Torts and the Risk-Averse Public School Official, 49
S.Cal.L.Rev. 1322, 1366-1383 (1976); Comment, Civil Actions for Damages
under the Federal Civil Rights Statutes, 45 Texas L.Rev. 1015, 1023-1035
(1967).

13

The Court has looked to the common law of torts in similar fashion in
constructing immunities under 1983. See Imbler v. Pachtman, 424 U.S. 409,
417-419, 96 S.Ct. 984, 988-989, 47 L.Ed.2d 128 (1976), and cases there
discussed. Title 42 U.S.C. 1988 authorizes courts to look to the common law
of the States where this is "necessary to furnish suitable remedies" under
1983.

14

See, e. g., Dixon v. Love, 431 U.S. 105, 112-114, 97 S.Ct. 1723, 1727-1728, 52
L.Ed.2d 172 (1977); Ingraham v. Wright, 430 U.S. 651, 675, 677-678, 682, 97
S.Ct. 1401, 1414, 1415-1416, 1418, 51 L.Ed.2d 711 (1977); Arnett v. Kennedy,
416 U.S. 134, 170, 94 S.Ct. 1633, 1652, 40 L.Ed.2d 15 (1974) (Powell, J.,
concurring in part and in result in part); id., at 201, 94 S.Ct., at 1667 (White, J.,
concurring and dissenting); id., at 214-215, 94 S.Ct., at 1673-1674 (Marshall,
J., dissenting); Mitchell v. W. T. Grant Co., 416 U.S. 600, 609-610, 618, 94
S.Ct. 1895, 1900-1901, 1905, 40 L.Ed.2d 406 (1974); Goldberg v. Kelley, 397
U.S. 254, 266, 90 S.Ct. 1011, 1019, 25 L.Ed.2d 287 (1970).

15

A few courts appear to have taken a contrary view in cases where public
employees holding property interests in their jobs were discharged with cause
but without procedural due process. E. g., Thomas v. Ward, 529 F.2d 916, 920
(CA4 1975); Zimmerer v. Spencer, 485 F.2d 176, 178-179 (CA5 1973); Horton
v. Orange County Bd. of Ed., 464 F.2d 536, 537-538 (CA4 1972). See also Burt
v. Board of Trustees of Edgefield County School Dist., 521 F.2d 1201, 12071208 (CA4 1975) (opinion of Winter, J.).

16

Respondents also contend that injury should be presumed because, even if they

were guilty of the conduct charged, they were deprived of the chance to present
facts or arguments in mitigation to the initial decisionmaker. Cf. Gagnon v.
Scarpelli, 411 U.S. 778, 784-785, 93 S.Ct. 1756, 1760-1761, 36 L.Ed.2d 656
(1973); Morrissey v. Brewer, 408 U.S. 471, 479-480, 488, 92 S.Ct. 2593, 25992600, 2603, 33 L.Ed.2d 484 (1972). They claim that "[i]t can never be known .
. . what, if anything, the exercise of such an opportunity to plead one's cause on
judgmental or discretionary grounds would have availed." Brief for
Respondents 28. But, as previously indicated, the Court of Appeals held that
respondents cannot recover damages for injuries caused by their suspensions if
the District Court determines that "[respondents] would have been suspended
even if a proper hearing had been held." 545 F.2d, at 32. This holding, which
respondents do not challenge, necessarily assumes that the District Court can
determine what the outcome would have been if respondents had received their
hearing. We presume that this determination will include consideration of the
likelihood that any mitigating circumstances to which respondents can point
would have swayed the initial decisionmakers.
17

"By the very nature of harm resulting from defamatory publications, it is

frequently not susceptible of objective proof. Libel and slander work their evil
in ways that are invidious and subtle." 1 F. Harper & F. James, Law of Torts
5.30, p. 468 (1956); see also Restatement of Torts 621, comment a, p. 314
(1938).

18

The essence of libel per se is the publication in writing of false statements that
tend to injure a person's reputation. The essence of slander per se is the
publication by spoken words of false statements imputing to a person a criminal
offense; a loathsome disease; matter affecting adversely a person's fitness for
trade, business, or profession; or serious sexual misconduct. 1 F. Harper & F.
James, Law of Torts 5.9-5.13 (1956); Restatement (Second) of Torts 558,
559, 569-574 (1977); W. Prosser, Law of Torts 112 (4th ed. 1971).

19

In this case, for example, respondents deni d the allegations against them. They
may well have been distressed that their denials were not believed. They might
have been equally distressed if they had been disbelieved only after a full-dress
hearing, but in that instance they would have no cause of action against
petitioners.

20

We use the term "distress" to include mental suffering or emotional anguish.

Although essentially subjective, genuine injury in this respect may be
evidenced by one's conduct and observed by others. Juries must be guided by
appropriate instructions, and an award of damages must be supported by
competent evidence concerning the injury. See Gertz v. Robert Welch, Inc., 418
U.S. 323, 350, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789 (1974).

21

See cases cited in Hostrop v. Board of Junior College Dist. No. 515, 523 F.2d
569, 579 (CA7 1975), cert. denied, 425 U.S. 963, 96 S.Ct. 1748, 48 L.Ed.2d
208 (1976).

22

In Jeanty v. McKey & Poague, Inc., 496 F.2d 1119 (CA7 1974), and Seaton v.
Sky Realty Co., 491 F.2d 634 (CA7 1974), cited in Hostrop, supra, 523 F.2d, at
579, the court held that damages may be awarded for humiliation and distress
caused by discriminatory refusals to lease housing to plaintiffs. The court's
comment in Seaton that "[h]umiliation can be inferred from the circumstances
as well as established by the testimony," 491 F.2d, at 636, suggests that the
court considered the question of actual injury to be one of fact. See generally
Annot., Recovery of Damages for Emotional Distress Resulting from Racial,
Ethnic, or Religious Abuse or Discrimination, 40 A.L.R.3d 1290 (1971).
In Basista v. Weir, 340 F.2d 74 (CA3 1965); Sexton v. Gibbs, 327 F.Supp. 134
(ND Tex.1970), aff'd, 446 F.2d 904 (CA5 1971), cert. denied,
404 U.S. 1062, 92 S.Ct. 733, 30 L.Ed.2d 751 (1972); and Rhoads v. Horvat,
270 F.Supp. 307 (Colo.1967), cited in Hostrop, supra, 523 F.2d, at 579, the
courts indicated that damages may be awarded for humiliation and distress
caused by unlawful arrests, searches, and seizures. In Basista v. Weir, the court
held that nominal damages could be awarded for an illegal arrest even if
compensatory damages were waived; and that such nominal damages would, in
an appropriate case, support an award of punitive damag s. 340 F.2d, at 87-88.
Because it was unclear whether the plaintiff had waived his claim for
compensatory damages, that issue was left open upon remand. Id., at 88. In
Sexton v. Gibbs, where the court found "that Plaintiff suffered humiliation,
embarrassment and discomfort," substantial compensatory damages were
awarded. 327 F.Supp., at 143. In Rhoads v. Horvat, the court allowed a jury
award of $5,000 in compensatory damages for an illegal arrest to stand, stating
that it did "not doubt that the plaintiff was outraged by the arrest." 270 F.Supp.,
at 311.
Wayne v. Venable, 260 F. 64 (CA8 1919), cited in Hostrop, supra, 523 F.2d, at
579, and Ashby v. White, 1 Bro.P.C. 62, 1 Eng.Rep. 417 (H.L.1703), rev'g 2
Ld.Raym. 938, 92 Eng.Rep. 126 (K.B.1703), do appear to support the award of
substantial damages simply upon a showing that a plaintiff was wrongfully
deprived of the right to vote. Citing Ashby v. White, this Court has held that
actions for damages may be maintained for wrongful deprivations of the right
to vote, but it has not considered the prerequisites for recovery. Nixon v.
Herndon, 273 U.S. 536, 540, 47 S.Ct. 446, 71 L.Ed. 759 (1927); see also Smith
v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1944); Coleman v.
Miller, 307 U.S. 433, 469, 59 S.Ct. 972, 989, 83 L.Ed. 1385 (1939) (opinion of

Frankfurter, J.); Nixon v. Condon, 286 U.S. 73, 52 S.Ct. 24, 76 L.Ed. 516
(1932); Myers v. Anderson, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 1349 (1915);
Giles v. Harris, 189 U.S. 475, 23 S.Ct. 639, 47 L.Ed. 909 (1903); Swafford v.
Templeton, 185 U.S. 487, 22 S.Ct. 783, 46 L.Ed. 1005 (1902); Wiley v. Sinkler,
179 U.S. 58, 21 S.Ct. 17, 45 L.Ed. 84 (1900). The common-law rule of
damages for wrongful deprivations of voting rights embodied in Ashby v. White
would, of course, be quite relevant to the analogous question under 1983.
23

See D. Dobbs, Law of Remedies 3.8, pp. 191-193 (1973); C. McCormick,

Law of Damages 20-22 (1935); Restatement of Torts 907 (1939).

24

A number of lower federal courts have approved the award of nominal damages
under 1983 where deprivations of constitutional rights are not shown to have
caused actual injury. E. g., Thompson v. Burke, 556 F.2d 231, 240 (CA3 1977);
United States ex rel. Tyrrell v. Speaker, 535 F.2d, at 829-830; Magnett v.
Pelletier, 488 F.2d 33, 35 (CA1 1973); Basista v. Weir, 340 F.2d, at 87; Bell v.
Gayle, 384 F.Supp. 1022, 1026-1027 (ND Tex.1974); United States ex rel.
Myers v. Sielaff, 381 F.Supp. 840, 844 (ED Pa.1974); Berry v. Macon County
Bd. of Ed., 380 F.Supp. 1244, 1248 (MD Ala.1971).

25

Respondents contend that the Court of Appeals' holding could be affirmed on

the ground that the District Court held them to too high a standard of proof of
the amount of damages appropriate to compensate intangible injuries that are
proved to have been suffered. Brief for Respondents 49-52. It is true that
plaintiffs ordinarily are not required to prove with exactitude the amount of
damages that should be awarded to compensate intangible injury. See Gertz v.
Robert Welch, Inc., 418 U.S., at 350, 94 S.Ct., at 3012. But, as the Court of
Appeals said, "in the case at bar, there is no proof of individualized injury to
[respondents], such as mental distress . . . ." 545 F.2d, at 31. With the case in
this posture, there is no occasion to consider the quantum of proof required to
support a particular damages award where actual injury is proved.