Patsy v. Board of Regents of Fla.

457 U.S. 496, 102 S. Ct. 2557, 73 L. Ed. 2d 172, 1982 U.S. LEXIS 133, 50 U.S.L.W. 4731, 29 Fair Empl. Prac. Cas. (BNA) 12, 29 Empl. Prac. Dec. (CCH) 32,821

• Court: Supreme Court of the United States
• Decided: June 21, 1982
• Docket: 80-1874
• Status: Published

Opinions

Justice Marshall

delivered the opinion of the Court.

This case presents the question whether exhaustion of state administrative remedies is a prerequisite to an action under 42 U. S. C. §1983 (1976 ed., Supp. IV). Petitioner Georgia Patsy filed this action, alleging that her employer, Florida International University (FIU), had denied her employment opportunities solely on the basis of her race and sex. By a divided vote, the United States Court of Appeals for the Fifth Circuit found that petitioner was required to exhaust “adequate and appropriate” administrative remedies, and remanded the case to the District Court to consider the adequacy of the administrative procedures. Patsy v. Florida International University, 634 F. 2d 900 (1981) (en banc). We granted certiorari, 454 U. S. 813, and reverse the decision of the Court of Appeals.

I

Petitioner alleges that even though she is well qualified and has received uniformly excellent performance evaluations from her supervisors, she has been rejected for more than 13 positions at FIU.¹ She further claims that FIU has unlawfully filled positions through intentional discrimination on the basis of race and sex. She seeks declaratory and injunctive relief or, in the alternative, damages.²

The United States District Court for the Southern District of Florida granted respondent Board of Regents’ motion to dismiss because petitioner had not exhausted available administrative remedies. On appeal, a panel of the Court of Appeals reversed, and remanded the case for further proceedings. Patsy v. Florida International University, 612 F. 2d 946 (1980). The full court then granted respondent’s petition for rehearing and vacated the panel decision.

The Court of Appeals reviewed numerous opinions of this Court holding that exhaustion of administrative remedies was not required, and concluded that these cases did not preclude the application of a “flexible” exhaustion rule. 634 F. 2d, at 908. After canvassing the policy arguments in favor of an exhaustion requirement, the Court of Appeals decided that a § 1983 plaintiff could be required to exhaust administrative remedies if the following minimum conditions are met: (1) an orderly system of review or appeal is provided by statute or agency rule; (2) the agency can grant relief more or less commensurate with the claim; (3) relief is available within a reasonable period of time; (4) the procedures are fair, are not unduly burdensome, and are not used to harass or discourage those with legitimate claims; and (5) interim relief is available, in appropriate cases, to prevent irreparable injury and to preserve the plaintiff’s rights during the administrative process. Where these minimum standards are met, a court must further consider the particular administrative scheme, the nature of the plaintiff’s interest, and the values served by the exhaustion doctrine in order to determine whether exhaustion should be required. Id., at 912-913. The Court of Appeals remanded the case to the District Court to determine whether exhaustion would be appropriate in this case.

II

The question whether exhaustion of administrative remedies should ever be required in a § 1983 action has prompted vigorous debate and disagreement. See, e. g., Turner, When Prisoners Sue: A Study of Prisoner Section 1983 Cases in the Federal Courts, 92 Harv. L. Rev. 610 (1979); Note, 8 Ind. L. Rev. 565 (1975); Comment, 41 U. Chi. L. Rev. 537 (1974). Our resolution of this issue, however, is made much easier because we are not writing on a clean slate. This Court has addressed this issue, as well as related issues, on several prior occasions.

Respondent suggests that our prior precedents do not control our decision today, arguing that these cases can be distinguished on their facts or that this Court did not “fully” consider the question whether exhaustion should be required. This contention need not detain us long. Beginning with McNeese v. Board of Education, 373 U. S. 668, 671-673 (1963), we have on numerous occasions rejected the argument that a §1983 action should be dismissed where the plaintiff has not exhausted state administrative remedies. See Barry v. Barchi, 443 U. S. 55, 63, n. 10 (1979); Gibson v. Berryhill, 411 U. S. 564, 574 (1973); Carter v. Stanton, 405 U. S. 669, 671 (1972); Wilwording v. Swenson, 404 U. S. 249, 251 (1971); Houghton v. Shafer, 392 U. S. 639, 640 (1968); King v. Smith, 392 U. S. 309, 312, n. 4 (1968); Damico v. California, 389 U. S. 416 (1967). Cf. Steffel v. Thompson, 415 U. S. 452, 472-473 (1974) (“When federal claims are premised on [§1983] — as they are here — we have not required exhaustion of state judicial or administrative remedies, recognizing the paramount role Congress has assigned to the federal courts to protect constitutional rights”). Respondent may be correct in arguing that several of these decisions could have been based on traditional exceptions to the exhaustion doctrine. Nevertheless, this Court has stated categorically that exhaustion is not a prerequisite to an action under § 1983. and we have not deviated from that position in the 19 years since McNeese. Therefore, we do not address the question presented in this case as one of first impression.

► — < ( » — 4

Respondent argues that we should reconsider these decisions and adopt the Court of Appeals’ exhaustion rule, which was based on McKart v. United States, 395 U. S. 185 (1969). This Court has never announced a definitive formula for determining whether prior decisions should be overruled or reconsidered. However, in Monell v. New York City Dept. of Social Services, 436 U. S. 658, 695-701 (1978), we articulated four factors that should be considered. Two of these factors — whether the decisions in question misconstrued the meaning of the statute as revealed in its legislative history and whether overruling these decisions would be inconsistent with more recent expressions of congressional intent — are particularly relevant to our decision today.³ Both concern legislative purpose, which is of paramount importance in the exhaustion context because I Congress is vested with the power to prescribe the basic procedural scheme under which claims may be heard in federal courts. Of course, courts play an important role in determining the limits of an exhaustion requirement and may impose such a requirement even where Congress has not expressly so provided. However, the initial question whether exhaustion is required should be answered by reference to congressional intent; and a court should not defer the exercise of jurisdiction under a federal statute unless it is consistent with that intent.⁴ Therefore, in deciding whether we should reconsider our prior decisions and require exhaustion of state administrative remedies, we look to congressional intent as reflected in the legislative history of the predecessor to § 1983 and in recent congressional activity in this area.

A

In determining whether our prior decisions misconstrued the meaning of § 1983, we begin with a review of the legislative history to § 1 of the Civil Rights Act of 1871,17 Stat. 13, the precursor to § 1983.⁵ Although we recognize that the 1871 Congress did not expressly contemplate the exhaustion question, we believe that the tenor of the debates over § 1 supports our conclusion that exhaustion of administrative remedies in § 1983 actions should not be judicially imposed.

The Civil Rights Act of 1871, along with the Fourteenth Amendment it was enacted to enforce, were crucial ingredients in the basic alteration of our federal system accomplished during the Reconstruction Era. During that time, the Federal Government was clearly established as a guarantor of the basic federal rights of individuals against incursions by state power. As we recognized in Mitchum v. Foster, 407 U. S. 225, 242 (1972) (quoting Ex parte Virginia, 100 U. S. 339, 346 (1880)), “[t]he very purpose of § 1983 was to interpose the federal courts between the States and the people, as guardians of the people’s federal rights — to protect the people from unconstitutional action under color of state law, ‘whether that action be executive, legislative, or judicial.’ ”

At least three recurring themes in the debates over § 1 cast serious doubt on the suggestion that requiring exhaustion of state administrative remedies would be consistent with the intent of the 1871 Congress. First, in passing § 1, Congress assigned to the federal courts a paramount role in protecting constitutional rights. Representative Dawes expressed this view as follows:

“The first remedy proposed by this bill is a resort to the courts of the United States. Is that a proper place in which to find redress for any such wrongs? If there be power to call into courts of the United States an offender against these rights, privileges, and immunities, and hold him to an account there, either civilly or criminally, for their infringement, I submit to the calm and candid judgment of every member of this House that there is no tribunal so fitted, where equal and exact justice would be more likely to be meted out in temper, in moderation, in severity, if need be, but always according to the law and the fact, as that great tribunal of the Constitution.” Cong. Globe, 42d Cong., 1st Sess., 476 (1871) (hereinafter Globe).

See also id., at 332 (remarks of Rep. Hoar); id., at 375 (remarks of Rep. Lowe); id., at 448-449 (remarks of Rep. Butler); id., at 459 (remarks of Rep. Cobum).⁶

The 1871 Congress intended § 1 to “throw open the doors of the United States courts” to individuals who were threatened with, or who had suffered, the deprivation of constitutional rights, id., at 376 (remarks of Rep. Lowe), and to provide these individuals immediate access to the federal courts notwithstanding any provision of state law to the contrary. For example, Senator Edmunds, who introduced the bill in the Senate, stated in his closing remarks that the bill was similar in principle to an earlier act upheld by this Court in Prigg v. Pennsylvania, 16 Pet. 539 (1842):

“[T]he Supreme Court decided . . . that it was the solemn duty of Congress under the Constitution to secure to the individual, in spite of the State, or with its aid, as the case might be, precisely the rights that the Constitution gave him, and that there should be no intermediate authority to arrest or oppose the direct performance of this duty by Congress.” Globe 692 (emphasis added).

Similarly, Representative Elliott viewed the issue as whether “the Government of the United States [has] the right, under the Constitution, to protect a citizen in the exercise of his vested rights as an American citizen by . . . the assertion of immediate jurisdiction through its courts, without the appeal or agency of the State in which the citizen is domi-died.” Id., at 389 (emphasis added). See, e. g., id., at 459 (remarks of Rep. Coburn); id., at 807 (remarks of Rep. Garfield); id., at 609 (remarks of Sen. Pool); Globe App. 141 (remarks of Rep. Shanks).⁷

A second theme in the debates further suggests that the 1871 Congress would not have wanted to impose an exhaustion requirement. A major factor motivating the expansion of federal jurisdiction through §§ 1 and 2 of the bill was the belief of the 1871 Congress that the state authorities had been unable or unwilling to protect the constitutional rights of individuals or to punish those who violated these rights. See, e. g., Globe 321 (remarks of Rep. Stoughton) (“The State authorities and local courts are unable or unwilling to check the evil or punish the criminals”); id., at 374 (remarks of Rep. Lowe) (“the local administrations have been found inadequate or unwilling to apply the proper corrective”); id., at 459 (remarks of Rep. Coburn); id., at 609 (remarks of Sen. Pool); id., at 687 (remarks of Sen. Shurz); id., at 691 (remarks of Sen. Edmunds); Globe App. 185 (remarks of Rep. Platt).⁸ Of primary importance to the exhaustion question was the mistrust that the 1871 Congress held for the factfinding processes of state institutions. See, e. g., Globe 320 (testimony of Hon. Thomas Settle, Justice of the North Carolina Supreme Court, before the House Judiciary Committee) (“The defect lies not so much with the courts as with the juries”); id., at 394 (remarks of Rep. Rainey); Globe App. 311 (remarks of Rep. Maynard). This Congress believed that federal courts would be less susceptible to local prejudice and to the existing defects in the factfinding processes of the state courts. See, e. g., Globe 322 (remarks of Rep. Stoughton); id., at 459 (remarks of Rep. Cobum).⁹ This perceived defect in the States’ factfinding processes is particularly relevant to the question of exhaustion of administrative remedies: exhaustion rules are often applied in deference to the superior factfinding ability of the relevant administrative agency. See, e. g., McKart v. United States, 395 U. S., at 192-196.

A third feature of the debates relevant to the exhaustion question is the fact that many legislators interpreted the bill to provide dual or concurrent forums in the state and federal system, enabling the plaintiff to choose the forum in which to seek relief. Cf. Monroe v. Pape, 365 U. S. 167, 183 (1961) (“The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked”). For example, Senator Thurman noted:

“I object to [§ 1], first, because of the centralizing tendency of transferring all mere private suits, as well as the punishment of offenses, from the State into the Federal courts. I do not say that this section gives to the Federal courts exclusive jurisdiction. I do not suppose that it is so understood. It leaves it, I presume, in the option of the person who imagines himself to be injured to sue in the State court or in the Federal court, an option that he who has been the least injured, but who has some malice to gratify, will be the most likely to avail himself of.” Globe App. 216.

See also Globe 578, 694-695 (remarks of Sen. Edmunds); id., at 384 (remarks of Rep. Hoar); id., at 514 (remarks of Rep. Famworth); Globe App. 85 (remarks of Rep. Bingham) (“Admitting that the States have concurrent power to enforce the Constitution of the United States within their respective limits, must we wait for their action?”).

This legislative history supports the conclusion that our prior decisions, holding that exhaustion of state administrative remedies is not a prerequisite to an action under § 1983, did not misperceive the statutory intent: it seems fair to infer that the 1871 Congress did not intend that an individual be compelled in every case to exhaust state administrative remedies before filing an action under § 1 of the Civil Rights Act. We recognize, however, that drawing such a conclusion from this history alone is somewhat precarious: the 1871 Congress was not presented with the question of exhaustion of administrative remedies, nor was it aware of the potential role of state administrative agencies. Therefore, we do not rely exclusively on this legislative history in deciding the question presented here. Congress addressed the question of exhaustion under § 1983 when it recently enacted 42 U. S. C. §1997e (1976 ed., Supp. IV). The legislative history of § 1997e provides strong evidence of congressional intent on this issue.

B

The Civil Rights of Institutionalized Persons Act, 42 U. S. C. § 1997 et seq. (1976 ed., Supp. IV), was enacted pri-manly to ensure that the United States Attorney General has “legal standing to enforce existing constitutional rights and Federal statutory rights of institutionalized persons.” H. R. Conf. Rep. No. 96-897, p. 9 (1980) (Conf. Rep.). In § 1997e, Congress also created a specific, limited exhaustion requirement for adult prisoners bringing actions pursuant to § 1983. Section 1997e and its legislative history demonstrate that Congress understood that exhaustion is not generally required in § 1983 actions, and that it decided to carve out only a narrow exception to this rule. A judicially imposed exhaustion requirement would be inconsistent with Congress’ decision to adopt § 1997e and would usurp policy judgments that Congress has reserved for itself.

In considering whether an exhaustion requirement should be incorporated into the bill, Congress clearly expressed its belief that a decision to require exhaustion for certain § 1983 actions would work a change in the law. Witnesses testifying before the Subcommittee that drafted the bill discussed the decisions of this Court holding that exhaustion was not required. See, e. g., Hearings on H. R. 2439 and H. R. 5791 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 95th Cong., 1st Sess., 20 (1977) (1977 Hearings); id., at 47, 69, 77, 323; Hearings on H. R. 10 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 96th Cong., 1st Sess., 48 (1979) (1979 Hearings). During these hearings, Representative Kastenmeier, Chairman of this Subcommittee, stated:

“Another thing that I think requires some discussion within the committee, and is a point of argument, ... is whether there ought to be an exhaustion of remedies requirement.

“. . . In fact, I think it has been pointed out that if [we] were to require it, particularly in 1983, that would constitute regression from the current state of the law. It would set the law back, because presently it is clearly held, that is the Supreme Court has held, that in 1983 civil rights suits the litigant need not necessarily fully exhaust State remedies.” 1977 Hearings 57-58.

See also id., at 272 (remarks of Rep. Drinan) (Representative Railsback “grounds his bill on doing something which the Supreme Court has consistently refused to do, namely require exhaustion of remedies”); 1979 Hearings 26 (remarks of Rep. Kastenmeier) (adopting §1997e “was resisted as a possible encroachment on civil liberties; that is to say, in the free, unimpeded resort to 1983”).

The debates over adopting an exhaustion requirement also reflect this understanding. See, e. g., 124 Cong. Rec. 11988 (1978) (remarks of Rep. Volkmer and Rep. Kastenmeier); id., at 15445 (remarks of Rep. Ertel); id., at 23180 (remarks of Rep. Wiggins) (“it is settled law that an exhaustion of administrative remedies is not required as a precondition of maintaining a 1983 action”); 125 Cong. Rec. 12496 (1979) (remarks of Rep. Butler) (“Under existing law there is no requirement that a complainant first ask the State prison system to help him”). With the understanding that exhaustion generally is not required, Congress decided to adopt the limited exhaustion requirement of § 1997e in order to relieve the burden on the federal courts by diverting certain prisoner petitions back through state and local institutions, and also to encourage the States to develop appropriate grievance procedures. See, e. g., Conf. Rep. 9; 124 Cong. Rec. 11976 (1978) (remarks of Rep. Kastenmeier); id., at 11976, 11983 (remarks of Rep. Railsback); id., at 15442 (remarks of Rep. Kastenmeier); id., at 15445 (remarks of Rep. Ertel); id., at 23176 (remarks of Rep. Kastenmeier); id., at 23179-23180 (remarks of Rep. Butler); id., at 23180 (remarks of Rep. Ertel). Implicit in this decision is Congress’ conclusion that the no-exhaustion rule should be left standing with respect to other § 1983 suits.

A judicially imposed exhaustion requirement would also be inconsistent with the extraordinarily detailed exhaustion scheme embodied in § 1997e. Section 1997e carves out a narrow exception to the general no-exhaustion rule to govern certain prisoner claims, and establishes a procedure to ensure that the administrative remedies are adequate and effective. The exhaustion requirement is expressly limited to § 1983 actions brought by an adult convicted of a crime. 42 U. S. C. §1997e(a)(l) (1976 ed., Supp. IV).¹⁰ Section 1997e(b)(l) instructs the Attorney General to “promulgate minimum standards for the development and implementation of a plain, speedy, and effective system” of administrative remedies, and §1997e(b)(2) specifies certain minimum standards that must be included.¹¹ A court may require exhaustion of administrative remedies only if “the Attorney General has certified or the court has determined that such administrative remedies are in substantial compliance with the minimum acceptable standards promulgated under subsection (b).” § 1997e(a)(2). Before exhaustion may be required, the court must further conclude that it “would be appropriate and in the interests of justice.” § 1997e(a)(l).¹² Finally, in those § 1983 actions meeting all the statutory requirements for exhaustion, the district court may not dismiss the case, but may only “continue such case for a period of not to exceed ninety days in order to require exhaustion.” Ibid. This detailed scheme is inconsistent with discretion to impose, on an ad hoc basis, a judicially developed exhaustion rule in other cases.

Congress hoped that § 1997e would improve prison conditions by stimulating the development of successful grievance mechanisms. See, e. g., Conf. Rep. 9; H. R. Rep. No. 96-80, p. 4 (1979)' 1979 Hearings 4 (remarks of Rep. Rails-back); 124 Cong. Rec. 11976 (1978) (remarks of Rep. Rails-back); 125 Cong. Rec. 12492 (1979) (remarks of Rep. Drinan); 126 Cong. Rec. 10780 (1980) (remarks of Rep.. Kastenmeier). To further this purpose, Congress provided for the deferral of the exercise of federal jurisdiction over certain §1983 claims only on the condition that the state prisons develop adequate procedures. This purpose would be frustrated by judicial discretion to impose exhaustion generally: the States would have no incentive to adopt grievance procedures capable of certification, because prisoner § 1983 cases could be diverted to state administrative remedies in any event.

In sum, the exhaustion provisions of the Act make sense, and are not superfluous, only if exhaustion could not be required before its enactment and if Congress intended to carve out a narrow exception to this no-exhaustion rule. The legislative history of § 1997e demonstrates that Congress has taken the approach of carving out specific exceptions to the general rule that federal courts cannot require exhaustion under §1983. It is not our province to alter the balance struck by Congress in establishing the procedural framework for bringing actions under § 1983.

C

Respondent and the Court of Appeals argue that exhaustion of administrative remedies should be required because it would further various policies. They argue that an exhaustion requirement would lessen the perceived burden that § 1983 actions impose on federal courts;¹³ would further the goal of comity and improve federal-state relations by postponing federal-court review until after the state administrative agency had passed on the issue;14 and would enable the agency, which presumably has expertise in the area at issue, to enlighten the federal court’s ultimate decision.

As we noted earlier, policy considerations alone cannot justify judicially imposed exhaustion unless exhaustion is consistent with congressional intent. See supra, at 501-502, and n. 4. Furthermore, as the debates over incorporating the exhaustion requirement in § 1997e demonstrate, the relevant policy considerations do not invariably point in one direction, and there is vehement disagreement over the validity of the assumptions underlying many of them.¹⁵ The very difficulty of these policy considerations, and Congress’ superior institutional competence to pursue this debate, suggest that legislative not judicial solutions are preferable. Cf. Diamond v. Chakrabarty, 447 U. S. 303, 317 (1980); Steelworkers v. Bouligny, Inc., 382 U. S. 145, 150, 153 (1965).

Beyond the policy issues that must be resolved in deciding whether to require exhaustion, there are equally difficult questions concerning the design and scope of an exhaustion requirement. These questions include how to define those categories of § 1983 claims in which exhaustion might be desirable; how to unify and centralize the standards for judging the kinds of administrative procedures that should be exhausted;¹⁶ what tolling requirements and time limitations should be adopted;¹⁷ what is the res judicata and collateral estoppel effect of particular administrative determinations; what consequences should attach to the failure to comply with procedural requirements of administrative proceedings; and whether federal courts could grant necessary interim in-junctive relief and hold the action pending exhaustion, or proceed to judgment without requiring exhaustion even though exhaustion might otherwise be required, where the relevant administrative agency is either powerless or not inclined to grant such interim relief. These and similar questions might be answered swiftly and surely by legislation, but would create costly, remedy-delaying, and court-burdening litigation if answered incrementally by the judiciary in the context of diverse constitutional claims relating to thousands of different state agencies.¹⁸

The very variety of claims, claimants, and state agencies involved in §1983 cases argues for congressional consideration of the myriad of policy considerations, and may explain why Congress, in deciding whether to require exhaustion in certain § 1983 actions brought by adult prisoners, carved out such a narrow, detailed exception to the no-exhaustion rule. After full debate and consideration of the various policy arguments, Congress adopted § 1997e, taking the largest class of §1983 actions and constructing an exhaustion requirement that differs substantially from the McKart-type standard urged by respondent and adopted by the Court of Appeals. See n. 18, supra. It is not for us to say whether Congress will or should create a similar scheme for other categories of § 1983 claims or whether Congress will or should adopt an altogether different exhaustion requirement for nonprisoner § 1983 claims.¹⁹

IV

Based on the legislative histories of both §1983 and § 1997e, we conclude that exhaustion of state administrative remedies should not be required as a prerequisite to bringing an action pursuant to § 1983. We decline to overturn our prior decisions holding that such exhaustion is not required. The decision of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

1 Because this case is here on a motion to dismiss, we accept as true the factual allegations in petitioner’s amended complaint. In her initial complaint, petitioner named FIU as the defendant. Relying on Byron v. University of Florida, 403 F. Supp. 49 (ND Fla. 1975), the District Court granted FIU’s motion to dismiss, holding that the Board of Regents and not the individual university had the capacity to sue and be sued under Florida law. The District Court granted petitioner leave to amend, and she amended her complaint to name the Board of Regents “on behalf of” FIU.

2 Petitioner requested the District Court to “[r]equire Defendants to remedy the discrimination practiced upon Plaintiff by promoting her to the next available position consistent with those previously applied for and for which she is qualified or in the alternative, to require the Defendants to pay to the Plaintiff the sum of $500,000 as actual and exemplary damages.” Record 47. Petitioner also requested that the District Court “order further equitable and injunctive relief as it deems appropriate and necessary to correct the conditions of discrimination complained of herein.” Id., at 48.

3 The other factors discussed in Monell — whether the decisions in question constituted a departure from prior decisions and whether overruling these decisions would frustrate legitimate reliance on their holdings — do not support overruling these decisions. McNeese was not a departure from prior decisions — this Court had not previously addressed the application of the exhaustion rule to § 1983 actions. Overruling these decisions might injure those § 1983 plaintiffs who had forgone or waived their state administrative remedies in reliance on these decisions.

4 Congressional intent is important in determining the application of the exhaustion doctrine to cases in which federal administrative remedies are available, as well as to those in which state remedies are available. Of course, exhaustion is required where Congress provides that certain administrative remedies shall be exclusive. See Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41 (1938). Even where the statutory requirement of exhaustion is not explicit, courts are guided by congressional intent in determining whether application of the doctrine would be consistent with the statutory scheme. In determining whether exhaustion of federal administrative remedies is required, courts generally focus on the role Congress has assigned to the relevant federal agency, and tailor the exhaustion rule to fit the particular administrative scheme created by Congress. See McKart v. United States, 395 U. S. 185, 193-195 (1969). With state administrative remedies, the focus is not so much on the role assigned to the state agency, but the role of the state agency becomes important once a court finds that deferring its exercise of jurisdiction is consistent with statutory intent.

5 Some of the debates relating to § 2, which created certain federal crimes in addition to those defined in § 2 of the 1866 Civil Rights Act, 14 Stat. 27, aimed primarily at the Ku Klux Klan, are also relevant to our discussion of §1.

6 Opponents of the bill also recognized this purpose and complained that the bill would usurp the States’ power, centralize the government, and perhaps ultimately destroy the States. See, e. g., Globe 337, 338 (remarks of Rep. Whitthorne); id., at 352 (remarks of Rep. Beck); id., at 361 (remarks of Rep. Swann); id., at 365 (remarks of Rep. Arthur); id., at 385 (remarks of Rep. Lewis); id., at 429, 431 (remarks of Rep. McHenry); id., at 454 (remarks of Rep. Cox); id., at 510, 511 (remarks of Rep. Eldridge); Cong. Globe, 42d Cong., 1st Sess., App. 46 (1871) (remarks of Rep. Kerr) (hereinafter Globe App.); id., at 216 (remarks of Sen. Thurman); id., at 243 (remarks of Sen. Bayard).

7 Opponents criticized this provision on this very ground. For example, Representative Storm lamented:

“[Section one] does not even give the State courts a chance to try questions, or to show whether they will try the questions that might come before them under the first section of the fourteenth amendment, fairly or not. It takes the whole question away from them in the beginning.” Id., at 86.

See also Globe 416 (remarks of Rep. Biggs) (“for the violation of the rights, privileges, and immunities of the citizen a civil remedy is to be had by proceedings in the Federal courts, State authorization in the premises to the contrary notwithstanding”); id., at 337 (remarks of Rep. Whitthome); id., at 373 (remarks of Rep. Archer); Globe App. 216 (remarks of Sen. Thurman).

8 This view was expressed in the Presidential message urging the passing of corrective legislation. See Globe 244 (“That the power to correct these evils is beyond the control of State authorities I do not doubt”) (message of President Grant). The inability of state authorities to protect constitutional rights was also expressed in the findings of the House Judiciary Committee, which had been directed to investigate the situation. See id., at 320. The resolution introduced by Senator Sherman instructing the Senate Judiciary Committee to report a bill expressed a similar view. See Globe App. 210 (state “courts are rendered utterly powerless by organized perjury to punish crime”).

9 Opponents viewed the bill as a declaration of mistrust for state tribunals. See, e. g., Globe 361 (remarks of Rep. Swann); id., at 397 (remarks of Rep. Rice); id., at 454 (remarks of Rep. Cox); Globe App. 216 (remarks of Sen. Thurman). Representative McHenry found particularly offensive the removal of the factfinding function from the local institutions. See Globe 429.

10 Representative Kastenmeier explains why juveniles were not included in § 1997e:

“I think very candidly we should admit that the first reluctance to resort to this mechanism embodied in [§ 1997e] was resisted as a possible encroachment on civil liberties; that is to say, in the free, unimpeded resort to 1983; because it does deflect 1983 petitions back into — temporarily in any event— back into the State system. Therefore, to the extent that it is even so viewed, notwithstanding the limited form of [§ 1997e], that it should also extend to juveniles was rejected.” 1979 Hearings 26.

11 Section 1997e(b)(2) states:

“The minimum standards shall provide—

“(A) for an advisory role for employees and inmates of any jail, prison, or other correctional institution (at the most decentralized level as is reasonably possible), in the formulation, implementation, and operation of the system;

“(B) specific maximum time limits for written replies to grievances with reasons thereto at each decision level within the system;

“(C) for priority processing of grievances which are of an emergency nature, including matters in which delay would subject the grievant to substantial risk of personal injury or other damages;

“(D) for safeguards to avoid reprisals against any grievant or participant in the resolution of a grievance; and

“(E) for independent review of the disposition of grievances, including alleged reprisals, by a person or other entity not under the direct supervision or direct control of the institution.”

12 The Committee Reports state that Congress did not intend that every § 1983 action brought by an adult prisoner in institutions with appropriate grievance procedures be delayed pending exhaustion:

“It is the intent of the Congress that the court not find such a requirement appropriate in those situations in which the action brought pursuant to [§ 1983] raises issues which cannot, in reasonable probability, be resolved by the grievance resolution system, including cases where imminent danger to life is alleged. Allegations unrelated to conditions of confinement, such as those which center on events outside of the institution, would not appropriately be continued for resolution by the grievance resolution system.” Conf. Rep. 15.

See also H. R. Rep. No. 96-80, p. 25 (1979); S. Rep. No. 96-416, p. 34 (1979).

13 Of course, this burden alone is not sufficient to justify a judicial decision to alter congressionally imposed jurisdiction. See Thermtron Products, Inc. v. Hermansdorfer, 423 U. S. 336, 344 (1976); Steelworkers v. Bouligny, Inc., 382 U. S. 145, 150-151 (1965). In any event, it is by no means clear that judicial discretion to impose an exhaustion requirement in § 1983 actions would lessen the caseload of the federal courts, at least in the short run. See infra, at 513-514, and n. 18.

14 The application of these federalism principles to actions brought pursuant to § 1983 has prompted criticism by several commentators. See, e. g., Koury, Section 1983 and Civil Comity: Two for the Federalism Seesaw, 25 Loyola L. Rev. 659 (1979); Note, 39 N. Y. U. L. Rev. 838 (1964).

15 For example, there is serious disagreement over whether judicial or administrative procedures offer § 1983 plaintiffs the swiftest, least costly, and most reliable remedy. See, e. g., 1977 Hearings 263-264; id., at 232-233; Note, 68 Colum. L. Rev. 1201, 1207 (1968). Similarly, there is debate over whether the specialization of federal courts in constitutional law is more important than the specialization of administrative agencies in their areas of expertise, and over whether the symbolic and institutional function of federal courts in defining, legitimizing, and enforcing constitutional claims outweighs the educational function that state and local agencies can serve. See, e. g., Whitman, Constitutional Torts, 79 Mich. L. Rev. 5, 23 (1980); Note, 68 Colum. L. Rev., supra, at 1208. Finally, it is uncertain whether the present “free market” system, under which litigants are free to pursue administrative remedies if they truly appear to be cheaper, more efficient, and more effective, is more likely to induce the creation of adequate remedies than a McKart-type standard under which plaintiffs have no initial choice. See, e. g., Note, 8 Ind. L. Rev. 565 (1975). Cf. 1977 Hearings 21, 34, 51; Hearings on S. 1393 before the Subcommittee on the Constitution of the Senate Committee on the Judiciary, 95th Cong., 1st Sess., 442 (1977).

16 Section 1997e resolved this problem by directing the Attorney General to promulgate minimum standards and to establish a procedure by which prison administrative remedies could be reviewed and certified. §§ 1997e(b) and (c). If a procedure has not been certified, the court is directed to compare the procedure with the Attorney General’s standards and to continue the case pending exhaustion only if the procedure is in substantial compliance with the standards of the Attorney General. § 1997e(a)(2).

17 Unless the doctrine that statutes of limitations are not tolled pending exhaustion were overruled, see Board of Regents v. Tomanio, 446 U. S. 478 (1980), a judicially imposed exhaustion requirement might result in the effective repeal of § 1983. Congress avoided this problem in § 1997e by directing the court to merely continue the case for a period not to exceed 90 days.

18 The initial bill proposing to include an exhaustion requirement in § 1997e provided:

“Relief shall not be granted by a district court in an action brought pursuant to [§ 1983] by an individual involuntarily confined in any State institution . . . , unless it appears that the individual has exhausted such plain, speedy, and efficient State administrative remedy as is available.” H. R. 5791, 95th Cong., 1st Sess., §4 (1977).

Congress declined to adopt this McKart-type standard after witnesses testified that this procedure would bog down the courts in massive procedural litigation thereby frustrating the purpose of relieving the caseloads of the federal courts, that state procedures are often not effective and take too much time, and that the court would have to judge a myriad of state procedures without much guidance. See, e. g., 1977 Hearings 34-35, 51, 164-165, 169-170, 263-264, 323; 1979 Hearings 48-49.

19 The question was posed from the bench at oral argument whether the Eleventh Amendment might bar this suit on the ground that the Board of Regents is an arm of the State for purposes of the Eleventh Amendment. Tr. of Oral Arg. 20. Cf. Alabama v. Pugh, 438 U. S. 781 (1978). Compare Hopkins v. Clemson Agricultural College, 221 U. S. 636 (1911), with Florida Dept. of Health v. Florida Nursing Home Assn., 450 U. S. 147 (1981). The District Court dismissed this action on the pleadings, and no Eleventh Amendment issue had been raised. The Board of Regents first raised this issue in its brief to the original panel on appeal, but did not argue it in its brief on rehearing en banc. Neither the original panel nor the en banc court addressed this issue. Although the State mentioned a possible Eleventh Amendment defense in its response in opposition to the petition for certiorari, it did not brief the issue or press it at oral argument. Indeed, counsel for respondent urged that we affirm the Court of Appeals solely on its exhaustion holding. Tr. of Oral Arg. 24, 27.

We have noted that “the Eleventh Amendment defense sufficiently partakes of the nature of a jurisdictional bar” that it may be raised by the State for the first time on appeal. Edelman v. Jordan, 415 U. S. 651, 678 (1974). However, because of the importance of state law in analyzing Eleventh Amendment questions and because the State may, under certain circumstances, waive this defense, we have never held that it is jurisdictional in the sense that it must be raised and decided by this Court on its own motion. Cf. Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 279 (1977). Where, as here, the Board of Regents expressly requested that we address the exhaustion question and not pass on its potential Eleventh Amendment immunity, and, as a consequence, the parties have not briefed the issue, we deem it appropriate to address the issue that was raised and decided below and vigorously pressed in this Court. Nothing in this opinion precludes the Board of Regents from raising its Eleventh Amendment claim on remand. The District Court is in the best position to address in the first instance the competing questions of fact and state law necessary to resolve the Eleventh Amendment issue, and at this stage it has the discretion to permit amendments to the pleadings that might cure any potential Eleventh Amendment problems.