Patterson v. McLean Credit Union Brief Amici Curiae of Members of the Senate and House

    No. 87-107

In  Te e

(Court at tlyr Httttrfc States
October Term , 1987

Brenda Patterson,
Petitioner,

McLean Credit U nion ,
________  Respondent.

On Writ of Certiorari to the 
United States Coart of Appeals for the Fourth Circuit

BRIEF OF ̂ M E M B E R S  OF THE 
UNITED STATES SENATE AND 118 MEMBERS OF THE 

UNITED STATES HOUSE OF REPRESENTATIVES 
AS AMICI CURIAE  IN SUPPORT OF PETITIONER f

Of Counsel:
Edward H. Levi

1116 East 59th Street 
Chicago, IL 60637

Laurence H. Tribe 
Griswold Hall 
Room 307
1525 Massachusetts Ave. 
Cambridge, MA 02138

William L. Taylor 
2000 M Street, N.W. 
Suite 400
Washington, D.C. 20036

John H. Pickering 
Timothy B. Dyk «
James E. Coleman, Jr.
John Payton *
Kerry W. Kircher 
Carl Wdllner

W ilmer, Cutler & Pickering 
2445 M Street, N.W. 
Washington, D.C. 20037-1420 
(202 ) 663-6000 

Counsel for Amici Curiae

* Counsel of Record

June 24,1988

t  Individual amic are listed beginning on the inside front cover.



•vfa e s i

l
Lr- *

- J .



MEMBERS OF THE UNITED STATES SENATE

Edward M. Kennedy, Arlen Specter, Robert C. Byrd, Bill 
Bradley, Alan Cranston, Daniel J. Evans, Ernest F. Boilings, 
J. Bennett Johnston, Patrick J. Leahy, Howard M. Metzen- 
banm, Barbara A. Mikulski, George J. Mitchell, Bob Pack- 
wood, Paul Simon, Robert T. Stafford, Lowell P. Weicker, Jr, 
Brock Adams, Max Baucus, Lloyd Bentaen, Christopher Bond, 
David L. Boren, Rudy Boschwitz, Dale Bumpers, Quentin N. 
Burdick, John H. Chafee, Lawton Chiles, William S. Cohen, 
Kent Conrad, Alfonse M. D*Amato, John C. Danforth, Thomas 
Andrew Daschle, Dennis DeConcinl, Alan J. Dixon, Christo­
pher J. Dodd, David Durenberger, Wyche Fowler, Jr, John 
Glenn, Albert Gore, Jr, Bob Graham, Tom Harkin, Mark 
O. Hatfield, John Heinz, Daniel K. Inouye, John F. Kerry, 
Frank R. Lautenberg, Carl Levin, Spark M. Matsunaga, John 
Melcher, Daniel P. Moynihan, Sam Nunn, Claiborne Pell, 
William Proxmire, David Pryor, Harry Reid, Donald W. 
Riegle, Jr, John D. Rockefeller, IV, Terry Sanford, Paul S. 
Sarbanes, Jim Sasser, Timothy E. Wirth

MEMBERS OF THE UNITED STATES 
HOUSE OF REPRESENTATIVES

Don Edwards, Hamilton Fish, Jr, Augustus F. Hawkins, 
James M. Jeffords, Patricia Schroeder, Tony Coelho, Peter 
W. Rodino, Jr, Gary L. Ackerman, Daniel K. Akaka, Glenn 
M. Anderson, Chester G. Atkins, Les AuCoin, Howard L. 
Befman, Don Bonker, Robert A. Borski, Rick Boucher, 
Barbara Boxer, Jack Brooks, George E. Brown, Jr, John 
W. Bryant, Albert G. Bustamante, Benjamine L. Cardin, 
Thomas Richard Carper, William L. Clay, Ronald D. Coleman, 
Cardiss Collins, John Conyers, Jr, George W. Crockett, Jr, 
Ronald V. Dellums, Julian C. Dixon, Thomas J. Downey, 
Mervyn M. Dymally, Mike Espy, Lane A. Evans, Dante B. 
Fascell, Walter E. Fauntroy, Vic Fazio, Edward F. Feighan, 
Floyd H. Flake, James J. Florio, Thomas M. Foglietta, Harold
E. Ford, William D. Ford, Barney Frank, • Martin Frost, 
Robert Garcia, Samuel Gejdenson, Richard A. Gephardt, 
Benjamin A. Gilman, Dan Glickman, Kenneth J. Gray, Wil­
liam H. Gray, III, Charles A. Hayes, George J. Hochbrueckner, 
Steny H. Hoyer, Robert W. Kastenmeier, Joseph P. Kennedy, 
II, Gerald D. Kleczka, Tom Lantos, Richard H. Lehman, 
William Lehman, Mickey Leiand, Sander M. Levin, Mel 
Levine, John Lewis, Mike Lowry, Thomas A. Luken, Matthew
F. McHugh, Thomas J. Manton, Edward J. Markey, Mat­
thew G. Martinez, Robert T. Matsui, Nicholas Mavroules, 
Romano L. Mazzoli, Kweisi Mfume, George Miller, Norman 
Y. Mineta, Jim Moody, Constance A. Morelia, Bruce A. Mor­
rison, Austin J. Murphy, Stephen L. Neal, Solomon P. Ortiz, 
Major R. Owens, Leon E. Panetta, Nancy Pelosi, Carl C. 
Perkins, David E. Price, Charles B. Rangel, Bill Richardson, 
Tommy F. Robinson, Robert A. Roe, Edward R. Roybal, 
Martin Olav Sabo, Gus Savage, Thomas C. Sawyer, James 
H. Scheuer, Claudine Schneider, Charles E. Schumer, Gerry 
Sikorski, Jim Slattery, Louise M. Slaughter, Lawrence J. 
Smith, Harley O. Staggers, Jr., Fortney H. Stark, Louis 
Stokes, Mike Synar, Esteban Edward Torres, Robert G. Tor­
ricelli, Edolphus Towns, Bob Traxler, Morris K. Udall, Bruce 
F. Vento, Doug Walgren, Henry A. Waxman, Alan Wheat, 
Charles Wilson, Robert E. Wise



I

TABLE OF CONTENTS

INTEREST OF AMICI C U R IA E ....................................  1

SUMMARY OF THE ARGUMENT................................ 2

ARGUMENT.............................................................................. 4

I. SECTION 1981, AS INTERPRETED BY THIS
COURT, IS AN INTEGRAL COMPONENT OF 
THIS NATION’S CIVIL RIGHTS LAWS ...........  5

II. STARE DECISIS DICTATES CONTINUED
ADHERENCE TO THE INTERPRETATION 
OF SECTION 1981 ADOPTED BY THIS 
COURT IN RUNYON v. M cCRARY ..................  7

A. The Institutional Relationship Between the
Congress and the Court Makes Application of 
Stare Decisis to a Statutory Interpretation 
Such As Runyon v. McCrary Particularly 
Appropriate............................................................. 10

B. There Are No Special Circumstances in This
Case That Justify Overruling Runyon v. Mc­
Crary ...................................................................  12

1. The Interpretation of Section 1981
Adopted in Runyon v. McCrary Was Not 
Based Upon an Incomplete Analysis.......  12

2. The Interpretation of Section 1981
Adopted in Runyon v. McCrary Has Not 
Been Undercut by Subsequent Legal De­
velopments ....................................................  14

3. The Interpretation of Section 1981
Adopted in Runyon v. McCrary Has Not 
Proved Confusing or Unworkable in Prac­
tice ................................................................. 16

Page

TABLE OF AUTHORITIES.............................................  iii



ii

4. Overruling the Interpretation of Section
1981 Adopted in Runyon v. McCrary 
Would Frustrate Legitimate Reliance In­
terests ............................................................  I f

5. There Has Been No Relevant Change in
Social, Economic or Other Factual Cir­
cumstances Since Runyon v. M cCrary......  19

III. STARE DECISIS APPLIES WITH SPECIAL 
FORCE BECAUSE THE CONGRESS HAS AF­
FIRMATIVELY ENDORSED THIS COURT’S 
INTERPRETATION OF SECTION 1981..........  20

CONCLUSION ..................................................................... 29

TABLE OF CONTENTS—Continued
Page

iii

TABLE OF AUTHORITIES
Cases: P»8«

Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 240 (1975) ................................................  26

Andrews v. Louisville & Nashville Railroad Co.,
406 U.S. 320 (1972)................................................  15

1Arizona v. Rumsey, 467 U.S. 203 (1984)................  12
Bob Jones University v. United States, 461 U.S.

574 (1983) .............................................................. 2,15,19
Boys Markets, Inc. v. Retail Clerks Union, Local

770, 398 U.S. 235 (1970) ..................................10,11, 15
Brown v. Board of Education, 347 U.S. 483 (1954).. 19
Brown v. Dade Christian Schools, Inc., 556 F.2d 

310 (5th Cir. 1977), cert, denied, 434 U.S. 1063
(1978) ........................................................................ 17

Cannon v. University of Chicago, 441 U.S. 677
(1979) .......................................................................  22

City of Memphis v. Greene, 451 U.S. 100 (1981) 15
Commissioner v. Fink, 107 S. Ct. 2729 (1987)........  11
Continental T.V., Inc. v. GTE Sylvania Inc., 433

U.S. 36 (1977) ........................................................  10
Cook v. Hudson, 429 U.S. 165 (1976)......................  15
Copperweld Corp. v. Independence Tube Corp., 467

U.S. 752 (1984).......................................................  12
Douglas v. Seacoast Products, Inc., 431 U.S. 265

(1977) .......................................................................  21
Edelman v. Jordan, 415 U.S. 651 (1974)................... 10
Erie Railroad Co. v. Tompkins, 304 U.S. 64

(1938) ........................................................................ 10
Ex Parte Bollman, 8 U.S. (4 Cranch) 75 (1807).... 8
Flood v. Kuhn, 407 U.S. 258 (1972) ........................ 21
Florida Department of Health v. Florida Nursing

Home Association, 450 U.S. 147 (1981) .............  8, 9
Garcia v. San Antonio Metropolitan Transit Au­

thority, 469 U.S. 528 (1985) ......  16
General Building Contractors Association v. Penn­

sylvania, 458 U.S. 375 (1982)..............................  14,15
Goodman v. Lukens Steel Co., 107 S. Ct. 2617

(1987) .......................................................................  15
Great American Federal Savings & Loan Associa­

tion v. Novotny, 442 U.S. 366 (1979) .................  15



IV

TABLE OF AUTHORITIES—Continued
Page

Grove City College v. Bell, 465 U.S. 555 (1984) .... 6,10 
Gulf, Colorado & Santa Fe Railway Co. v. Moser,

275 U.S. 133 (1927)................................................. 11
Gulf stream. Aerospace Corp. v. Mayacamas Corp.,

108S. Ct. 1133 (1988) ............................................  16
Hall v. Pennsylvania State Police, 570 F.2d 86 (3d

Cir. 1978) ................................................................. 17
Hecht v. Malley, 265 U.S. 144 (1924) ...................... 21
Helvering v. Hallock, 309 U.S. 106 (1940)............. 8
Herman & MacLean v. Huddleston, 459 U.S. 375

(1983) ....................................................................... 22
Hishon v. King & Spalding, 467 U.S. 69 (1984).... 15
Hollander v. Sears, Roebuck & Co., 450 F. Supp.

496 (D. Conn. 1978) ................................-...............  I7
Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).... 10
Johnson v. Railway Express Agency, Inc., 421 U.S.

454 (1975) .................................................................passim
Joint Industry Board v. United States, 391 U.S.

224 (1968) ................................................................  21
Jones v. Alfred II. Mayer Co., 392 U.S. 409

(1968) ...................................................................... passim
Lindahl v. OPM, 470 U.S. 768 (1985)..................... 22, 23
Local 28 of the Sheet Metal Workers v. EEOC, 106

S. Ct 3019 (1986) ..................................................
Manzanares v. Safeway Stores, Inc., 593 F.2d 968

(10th Cir. 1979) ......................................................
McDonald v. Sante Fe Trail Transportation Co.,

427 U.S. 273 (1976) ................................................  15
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cur­

ran, 456 U.S. 353 (1982) ............................-........... 22, 28
Miller v. Hall’s Birmingham Wholesale Florist, 640

F. Supp. 948 (N.D. Ala. 1986)..............................  17
Missouri v. Ross, 299 U.S. 72 (1936) .....................  22
Mitchell v. W. T. Grant Co., 416 U.S. 600 (1974)....  19
Monell v. Department of Social Services, 436 U.S.

658 (1978) .............................................................. passim
Monessen Southwestern Railway Co. v. Morgan, 56

U.S.L.W. 4494 (June 6, 1988).............................. 22
Monroe v. Pape, 365 U.S. 167 (1961)......................  15,17

v

Moragne v. State Marine Lines, Inc., 398 U.S. 375
(1970) .......................................................................  9 ^

Moye v. Chrysler Corp., 465 F. Supp. 1189 (E.D.
Mo.), aff’d, 615 F.2d 1365 (8th Cir. 1979).... . 17

iJLRB v. International Longshoremen’s Associa^
tion, 473 U.S. 61 (1985) ........................................  10

National League of Cities v. Usery, 426 U.S. 833
(1976) ........................................................................ I6

Nieto v. UAW, Local 598, 672 F. Supp. 987 (E.D.
Mich. 1987)...............................................................  I7

Patsy v. Board of Regents, 457 U.S. 496 (1982)..18, 21, 22
Plcssy v. Ferguson, 163 U.S. 537 (1896)................  19
Puerto Rico v. Branstad, 107 S. Ct. 2802 (1987) .... 15
Runyon v. McCrary, 427 U.S. 160 (1976).................passim
Saint Francis College v. Al-Khazraji, 107 S. Ct.

2022 (1987) ..............................................................  15
Screivs v. United States, 325 U.S. 91 (1945) .........  20
Shaare Tefila Congregation v. Cobb, 107 S. Ct. 2019

(1987) ....................................................................... 13
Shapiro v. United States, 335 U.S. 1 (1948) ...........  21
Square D. Co. v. Niagara Frontier Tariff Bureau,

Inc., 476 U.S. 409 (1986) .....................................  10,22
Sullivan v. Little Hunting Park, Inc., 396 U.S. 229

(1969) ........................................................................ 13
Sw ift & Co. v. Wickham, 382 U.S. I l l  (1965).......  16
Taylor v. Louisiana, 419 U.S. 522 (1975) .................  19
Tillman v. Wheaton-Haven Recreation Association,

Inc., 410 U.S. 431 (1973)......................................  13
United States v. Classic, 313 U.S. 299 (1941)........  20
United States v. Embassy Restaurant, Inc., 359

U.S. 29 (1959).........................................................  21
Vasquez v. Hillery, 474 U.S. 254 (1986)................... 9,12
Williams v. Florida, 399 U.S. 78 (1970) ...................  8
Wright v. Salisbury Club, Ltd., 632 F.2d 309 (4th 

Cir. 1980).................................................................. I7

TABLE OF AUTHORITIES—Continued
Page



statutes: Page
Civil Rights Act of 1964, Title VII, 42 U.S.C

§§ 2000e et seq. (1982).......................................4, 5, 23
Civil Rights Attorney’s Fees Awards Act of 1976,

Pub. L. No. 94-559, 90 Stat. 2641 (1976) ............ 4, 26
Civil Rights Restoration Act of 1987, Pub. L. No.

100-259, 102 Stat. 28 (1988)................................. 6, 7
Equal Employment Opportunity Act of 1972, Pub.

L. No. 92-261, 86 Stat. 103 (1972)........................  23
Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1982).. 23
42 U.S.C. § 1981 (1982) .................................... passim
42 U.S.C. § 1982 (1982) ...............................................passim
42 U.S.C. § 1983 (1982)...............................................  17
42 U.S.C. § 1988 (1982) ..............................................  26

Legislative Materials:
117 Cong. Rec. 31973 (1971)..................................... 25
117 Cong. Rec. 31978 (1971)....................................  25
117 Cong. Rec. 31979 (1971)....................................  25
117 Cong. Rec. 32100 (1971).....................................  25
117 Cong. Rec. 32111 (1971)..................................... 25
118 Cong. Rec. 3173 (1972) ......................................  23
118 Cong. Rec. 3370 (1972)....................................... 23
118 Cong. Rec. 3371 (1972)....................................... 23, 24
118 Cong. Rec. 3372 (1972) ......................................  24
118 Cong. Rec. 3373 (1972) ...................................... 24
121 Cong. Rec. 26806 (1975)..................................... 28
130 Cong. Rec. 3661 (1984)......................................  6
130 Cong. Rec. S4585 (daily ed. Apr. 12, 1984) ....  6
131 Cong. Rec. 901 (1985)......................................... 6
131 Cong. Rec. 2149 (1985)...................................  6
131 Cong. Rec. 2151 (1985) .......................................  6
133 Cong. Rec. S2249 (daily ed. Feb. 19,1987) .......  7
134 Cong. Rec. S266 (daily ed. Jan. 28, 1988)..... 7
134 Cong. Rec. II597 (daily ed. Mar. 2, 1988)..... 7
134 Cong. Rec. 111071 (daily ed. Mar. 22, 1988)....  7
134 Cong. Rec. S2744 (daily ed. Mar. 22, 1988) .... 6
134 Cong. Rec. S2751 (daily ed. Mar. 22. 1988).......  7
134 Cong. Rec. S2765 (daily ed. Mar. 22, 1988).... 7
II.R. Conf. Rep. No. 899, 92d Cong., 2d Sess.

(1972) ............................................................................ 25
II.R. Rep. No. 238, 92d Cong., 1st Sess. (1971) .....  25, 27

vi vii

II.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976)  26, 27
H.R. Rep. No. 963, 99th Cong., 2d Sess. (1986)  7
S. Rep. No. 1011, 94th Cong., 2d Sess. (1976)...... 28

Rep. No. 64, 100th Cong., 2d Sess. (1988) .........  6, 7

Other Authorities:
Brief for the Secretary of Commerce, Fullilove v.

Klutznick, 448 U.S. 448 (1980) (No. 78-1007).. 16
Brief for the United States, Goldsboro Christian 

Schools, Inc. v. United States, reported as Bob 
Jones University v. United States, 461 U.S. 574
(1983) (No. 81-1)...................................................  15

Brief for the United States as Amicus Curiae, 
McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976) (No. 75-260)......................... 16

Brief for the United States as Amicus Curiae, 
Runyon v. McCrary, 427 U.S. 160 (1976) (No.
75-62) ........................................................................  14,16

Brief for the United States as Amicus- Curiae 
Supporting Petitioner, Patterson v. McLean
Credit Union (No. 87-107) ..................................  15

B. Cardozo, The Nature of the Judicial Process
(1921) ........................................................................  8

K. Llewellyn, The Bramble Bush (1951) ................. 8
Message to the Senate on Civil Rights Legislation,

24 Weekly Comp. Pres. Doc. 353 (Mar. 16,
1988) ..........................................................................  7

Monaghan, Stare Decisis and Constitutional Ad­
judication, 88 Colum. L. Rev. 723 (1988)..........  9

R. Wasserstrom, The Judicial Decision: Toward a
Theory of Legal Justification (1961).................... 8

TABLE OF AUTHORITIES—Continued
Page



In The

(Emnl uf tl|? ^tatw
October T erm, 1987

No. 87-107

Brenda Patterson,
Petitioner,

v.
McLean Credit U nion ,

Respondent.

On Writ of Certiorari to the 
United States Court of Appeals for the Fourth Circuit

BRIEF OF jfi<f MEMBERS OF THE 
UNITED STATES SENATE AND 118 MEMBERS OF THE 

UNITED STATES HOUSE OF REPRESENTATIVES 
AS AMICI CURIAE IN SUPPORT OF PETITIONER

INTEREST OF AMICI CU RIAE1

//A m ic i curiae are a bipartisan congressional group of 
j&Cf members of the United States Senate and 118 members 
of the United States House of Representatives.0 Amici 
have a dual interest in this Court’s reconsideration of the 
interpretation of Section 1981, 42 U.S.C. § 1981, adopted 
in Runyon v. McCrary, 427 U.S. 160 (1976). First, 
amici have an institutional interest in the stability of 
statutory precedents. That concern is particularly com­
pelling here because this Court is calling into question 1 2

1 Both petitioner and respondent have consented to the filing of 
this brief. Letters of consent are on file with the Clerk of the 
Court.

2 Individual amici are listed beginning on the inside front cover.



2

the validity of its interpretation of Section 1981, long 
after the Congress has accepted that interpretation and 
acted affirmatively to build upon it.

Second, amici have a significant interest here because 
of their role in enacting legislation to eradicate the evils 
of racial discrimination. Such discrimination, as this 
Court has recognized, is contrary to “fundamental public 
policy,” * and its elimination has become, particularly 
over the past three decades, a paramount national goal. 
Section 1981, as interpreted by this Court, furthers that 
policy. It covers a range of conduct tha t other statutes 
do not reach, such as the racial discrimination in private 
school admissions at issue in Runyon.

The interests of amici would be adversely affected by 
the overruling of Runyon. The legislative effort neces­
sary to restore this Court’s original interpretation would 
likely be fractious and divisive, since corrective legisla­
tion would, in all likelihood, compel the Congress to ad­
dress numerous peripheral questions concerning the scope 
and application of Section 1981.

For these institutional reasons, amici urge this Court 
not to overturn Runyon's interpretation of Section 1981 
as prohibiting intentional racial discrimination in the 
making and enforcing of private contracts. Amici take 
no position on whether Section 1981 should apply to the 
particular facts of this case.

SUMMARY OF THE ARGUMENT

This Court’s interpretation of Section 1981 in Runyon 
v. McCrary as prohibiting private discrimination in the 
making and enforcing of contracts should not be over­
turned. Section 1981, as interpreted in Runyon, is an 
essential component of the statutory framework barring 
discrimination by private parties. It affords a broad- 
based remedy for intentional racial discrimination that

• Bob Jones Univ. v. United States, 461 U.S. 574, 594 (1983).

3

complements other more specific statutes. Overturning 
Runyon and forcing the Congress to revisit this area 
would not only impose significant, unnecessary burdens 
on the legislative process, but could threaten the repose 
that the Nation has obtained on the issue of racial dis­
crimination. Adherence to stare decisis is essential if the 
unique interplay between the Congress and the Court 
that has existed in the development of civil rights law is 
to be maintained.

The Congress’ primary role in lawmaking under the 
Constitution dictates that any change in the meaning 
of a statute be effected legislatively rather than ju- 
dically. In exercising its constitutional power to leg­
islate, the Congress must be able to rely on the sta­
bility of the Court’s interpretations of its statutes. For 
this reason, stare decisis, as this Court has repeatedly 
recognized, operates with its greatest strength where a 
statutory interpretation, such as Runyon, is concerned.

There are no special circumstances present here that 
would justify departing from stare decisis and this cus­
tomary institutional relationship between the Congress 
and the Court. First, Runyon was not based on an in­
complete analysis. Rather, it was the culmination of a 
series of decisions in which the Court thoroughly analyzed 
the legislative history of Section 1981 and considered the 
arguments for and against the applicability of Section 
1981 to private conduct. Second, Runyon was not a sport 
in the law, nor have subsequent legal developments un­
dercut its vitality. Instead, Runyon has been accepted as 
well-settled law by this Court, by the Executive, and by 
the Congress. Third, Runyon’s interpretation of Section 
1981 is a straightforward rule which has been readily^ 
applied by the lower courts and has not proven confusing 
or unworkable. Fourth, individuals have legitimately re­
lied upon Section 1981’s prohibition of private contract- 
related discrimination since Runyon-, and that reliance 
would be frustrated were Runyon to be overturned. 
Fifth, and finally, no relevant factual circumstances,



4

whether social, economic or otherwise, have changed since 
Runyon was decided.

The case against overturning Runyon is particularly 
strong because the Congress has affirmatively endorsed 
this Court’s construction of Section 1981 as reaching 
private discrimination. The Court has found congres­
sional approval of a judicial construction of a statute in 
cases where the Congress has (1) rejected efforts to pass 
legislation that would have overruled or limited the reach 
of the judicial interpretation, or (2) failed to change the 
judicial interpretation in the course of enacting or 
amending related legislation which reflects the Congress’ 
awareness of that interpretation. Both these circum­
stances are present here.

At two key junctures, the Congress has made its intent 
plain. In 1972, when considering amendments to Title 
VII of the Civil Rights Act of 1964, the Congress ad­
dressed and rejected proposals to eliminate recourse to 
Section 1981 in the area of employment discrimination. 
In 1976, the Congress enacted the Civil Rights Attorney’s 
Fees Awards Act, which extended to prevailing parties 
the right to recover attorney’s fees in actions brought 
under Section 1981. The Congress recognized, in consid­
ering this legislation, that Section 1981 provides reme­
dies for discrimination by private parties. These actions, 
explicitly predicated on Section 1981 continuing to have 
the meaning given to it by this Court, give rise to a 
virtually conclusive presumption that the Congress has 
approved Runyon.

ARGUMENT

In Runyon v. McCrary, 427 U.S. 160 (1976), this 
Court held that Section 1981 prohibits racial discrimina­
tion in the making and enforcement of private contracts. 
The Court has now requested the parties to brief 
‘‘[wjhether or not th [a t] interpretation . . . should be 
reconsidered.” Amici urge the Court not to overrule 
Runyon.

5

I. SECTION 1981, AS INTERPRETED BY THIS 
COURT, IS AN INTEGRAL COMPONENT OF THIS 
NATION’S CIVIL RIGHTS LAWS.

Runyon is one of the essential civil rights precedents 
established by this Court over the past twenty years. In 
1968, the Court foreshadowed Runyon by holding in 
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), that 
Section 1982, 42 U.S.C. § 1982, a related statute, pro­
hibits racial discrimination in private property transac­
tions. Then, in 1975, the Court concluded in Johnson v. 
Railway Express Agency, Inc., 421 U.S. 454 (1975), 
that Section 1981 reaches private discrimination in em­
ployment. Runyon simply built upon these foundations.

As interpreted in Runyon, Section 1981 is an integral 
component of the statutory framework that the Congress 
has developed to bar private racial discrimination. Other 
more detailed statutes afford comprehensive remedies for 
acts of discrimination by specified private parties, e.g., 
employers of a certain size, restaurants, and hotels. These 
statutes often have easier standards of proof and are 
often enforceable by the Executive Branch.4 * Section 1981 
affords victims of discrimination a complementary, broad- 
based remedy for many forms of contract-related inten­
tional racial discrimination, including discrimination by 
parties not covered by other statutes. I t is not an exag­
geration to say that overturning Runyon, and adopting 
the view that Section 1981 addresses only state statutes 
and other state actions that disable minorities from mak­
ing or enforcing contracts, would effectively render Sec­
tion 1981 a nullity. Under that reading, Section 1981 
would bar only conduct that is already prohibited by the 
Fourteenth Amendment by its own force.

Amici’s concern for the viability of Runyon's interpre­
tation of Section 1981 is not lessened by the fact that the 
Congress may legislatively alter a statutory interpreta­

4 See, e.g., Civil Rights Act of 1964, Title VII, 42 U.S.C. §§ 2000e
et seq.



6

tion of the Court. Any congressional effort to change a 
decision of this Court could prove divisive and time con­
suming, could well be delayed by disagreement over col­
lateral issues, and could confront grave difficulties in ad­
dressing the nuances that have arisen from case-by-case 
elaboration of the statute. But with regard to one of the 
core civil rights statutes, the costs are far greater. To 
require the Congress to revisit this issue could jeopardize 
the closure and repose that we have obtained as a Nation 
on the issue of racial discrimination. If the Court over­
turns Runyon, intentional racial discrimination that is 
now illegal could exist for years without remedy, while 
the Congress debates the scope and details of new legis­
lation.

The experience with this Court’s decision in Grove 
City College v. Bell, 465 U.S. 555 (1984), is illustra­
tive. The Court concluded in 1984 that the Congress 
had intended that statutory provisions prohibiting dis­
crimination in certain federally-funded programs be 
narrowly construed. Despite overwhelming agreement 
that Grove City should be overturned, it took the Con­
gress a "long and troubled” ® four years—in significant 
part because of disagreements over collateral issues—to 
enact legislation to accomplish that result.® In the mean- 8

8 134 Cong. Rec. S2744 (daily ed. Mar. 22, 1988) (statement of 
Sen. Chafee).

«See Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 
102 Stat. 28 (1988). One bill to overturn this Court’s decision in 
Grove City was introduced the same day the decision was handed 
down. 130 Cong. Rec. 3G61-62 (1984). Another bill, introduced 
two months later. 130 Cong. Rec. S4585 (daily ed. Apr. 12, 1984), 
actually passed in the House of Representatives, but failed in the 
Senate due to an end-of-session filibuster. 131 Cong. Rec. 2149
(1985) (statement of Sen. Kennedy); S. Rep. No. 64, 100th Cong., 
2d Sess. 3 (1988). In the next session of the Congress, legislation 
to overturn Grove City was introduced in both the House and Sen­
ate. 131 Cong. Rec. 901 (1985) (House); 131 Cong. Rec. 2151 
(1985) (Senate). The Senate bill was never reported out of the

7
time, institutions receiving federal funds were free to 
discriminate on racial or other grounds as long as they 
did not discriminate in particular federally-funded pro­
grams.7

Amici wish to make clear that what is at stake here 
is, not legislative convenience, but the vital interaction 
that has developed between the Congress and the Court 
in protecting the Nation against the evils of racial dis­
crimination. The doctrine of stare decisis is essential to 
that interaction.

II STARE DECISIS DICTATES CONTINUED ADHER­
ENCE TO THE INTERPRETATION OF SECTION 
1981 ADOPTED BY THIS COURT IN RUNYON v. 
McCRARY.

The orderly functioning of our government requires 
that the Congress be able.to rely on the stability of stat-

Committee on Labor and Human Resources. S. Rep. No. 64, 100th 
Cong., 2d Sess. 3 (1988). In the House, the bill was favorably 
reported by both the Judiciary and the Education and Labor Com­
mittees, H.R. Rep. No. 963, 99th Cong., 2d Sess. Parts 1 and 2
(1986), but was never brought to the full House.

The Civil Rights Restoration Act of 1987 was introduced on 
February 19, 1987, with 51 senators cosponsoring the bill. 133 
Cong. Rec. S2249 (daily ed. Feb. 19, 1987). But it was not until 
almost a year later that it passed in the Senate, 134 Cong. Rec. 
S266 (daily ed. Jan. 28, 1988), and several weeks more before it 
passed in the House. 134 Cong. Rec. H597-98 (daily ed. Mar. 2, 
1988). The President vetoed the bill, principally because of con­
cerns that it might impinge upon the affairs of religious institu­
tions and small businesses. Message to the Senate on Civil Rights 
Legislation, 24 Weekly Comp. Pres. Doc. 353 (Mar. 16, 1988). 
The Congress overrode the veto and thus, more than four years 
after Grove City was decided, overturned that decision. 134 Cong. 
Rec. S2765 (daily ed. Mar. 22, 1988) (Senate override); 134 Cong. 
Rec. H1071-72 (daily ed. Mar. 22, 1988) (House override).

7 See 134 Cong. Rec. S2751 (daily ed. Mar. 22, 1988) (statement 
of Sen. Domenici) (*‘[F]or the past 4 years, while legislation has 
been drafted and redrafted and hearings have been held, dis­
crimination against individuals on the basis of race, sex, age, and 
physical handicap has occurred because of the Supreme Court’s 
decision.”).



8

utory interpretations. Once the Congress has enacted a 
law, and this Court has interpreted it, the Congress re­
lies on the Court to refine that precedent and apply it to 
specific cases. But the Congress must be able to assume 
that a construction of a statute, rendered by this Court 
after full and fa ir consideration, is fixed so that the 
Congress can build upon it if it chooses. Without the ex­
ceptional vigor of stare decisis in the statutory arena, 
this partnership between the Congress and the Court 
would break down. If that happened, the Congress would 
bear a continuing and onerous burden of having to signal 
its agreement with each of the Court’s statutory inter­
pretations, or face unexpected reversal of those interpre­
tations.

The doctrine of stare decisis is a venerable principle 
of judicial decisionmaking which has been recognized by 
this Court since the earliest days of the Republic.8 It has 
retained its importance because of the fundamental values 
it protects and promotes. First, it furthers “the stability 
and predictability required for the ordering of human 
affairs over the course of time.” 9 Second, it promotes 
judicial efficiency by ensuring that today’s judges need 
not rehear every past decision, but can instead “lay 
[their] own course of bricks on the secure foundation of 
the courses laid by others who [have] gone before 
[them].” 10 Finally, in the broadest and grandest sense,

* See, e.g., Ex parte Bollman, 8 U.S. (4 Cranch) 75, 100 (1807).
• Williams v. Florida, 399 U.S. 78, 127 (1970) (Harlan, J„ con­

curring in part and dissenting in part). See also Helvering v. Hal- 
loek, 309 U.S. 100, 119 (1940) (“[S](are decisis embodies an im­
portant social policy. It represents an element of continuity in 
law, and is rooted in the psychologic need to satisfy reasonable 
expectations.”).

10 B. Cardozo, The Nature of the Judicial Process 149 (1921). 
See also Florida Dep't of Health v. Florida Nursing Home Ass’n, 
450 U.S. 147, 154 (1981) (Stevens, J., concurring); R. Wasser- 
Rtrom, The Judicial Decision: Toward a Theory of Legal Justifica­
tion 72-73 (1961); K. Llewellyn, The Bramble Bush 64-65 (1961).

9

it legitimates our system of the rule of law, and the role 
of the Supreme Court in that system.11 Justice Harlan 
summed up these considerations for a unanimous Court 
18 years ago:

Very weighty considerations underlie the principle 
« that courts should not lightly overrule past decisions. 

Among these are the desirability that the law furnish 
a clear guide for the conduct of individuals, to enable 
them to plan their affairs with assurance against 
untoward surprise; the importance of furthering fair 
and expeditious adjudication by eliminating the need 
to relitigate every relevant proposition in every case; 
and the necessity of maintaining public faith in the 
judiciary as a source of impersonal and reasoned 
judgm ents.11 12

• Thus, in reconsidering any established rule, this Court 
must give great weight to these considerations. In this 
case their proper application is clear. Runyon should not 
be overruled.

11 See, e.g., Vasques v. Hillery, 474 U.S. 254, 265-66 (1986) 
(Stare decisis "permits society to presume that bedrock principles 
are founded in the law rather than in the proclivities of individ­
uals, and thereby contributes to the integrity of our constitutional 
system of government, both in appearance and in fact.”) ; Florida 
Dep’t of Health v. Florida Nursing Home Ass’n, 450 U.S. at 154 
(Stevens, J., concurring) ("Citizens must have confidence that 
the rules on which they rely in ordering their affairs . . .  are 
rules of law and not merely the opinions of a small group of men 
who temporarily occupy high office.”) ; Monaghan, Stare Decisis 
and Constitutional Adjudication, 88 Colum. L. Rev. 723, 749, 752 
(1988) ("[S]tare decisis operates to promote system-wide stability 
and continuity by ensuring the survival of governmental norms 
that have achieved unsurpassed importance in American society. 
. . .  A general judicial adherence to constitutional precedent sup­
ports a consensus about the rule of law, specifically the belief that 
all organs of government, including the Court, are bound by the 
law.”). "'W)

12 Moragne v. State Marine Lines, Inc., 398 U.S. 376, 403 (1970).



10

A. The Institutional Relationship Between the Con­
gress and the Court Makes Application of Stare  
Decisis to a Statutory Interpretation Such As 
Runyon v. McCrary Particularly Appropriate.

Runyon is a statutory rather than a constitutional 
holding. This Court has repeatedly distinguished between 
constitutional and statutory cases for purposes of stare 
decisis, and has pronounced itself particularly loath to 
ignore the doctrine of stare decisis where an earlier stat­
utory interpretation is a t issue, given that “stare decisis 
has more force in statutory analysis than in constitu­
tional adjudication . . . .” 13 The Court has adhered to 
that axiom in practice.

One reason for this distinction is that “in the area of 
statutory construction . . . Congress is free to change 
this Court’s interpretation of its legislation.” 14 * * Another

14 Monell v. Department of Social Serv., 436 U.S. 658, 695 
(1978). See also id. at 708 (Powell, J., concurring); id. at 
714 (Rehnquist, J., dissenting) ("[C]onsiderations of stare decisis 
are at their strongest when this Court confronts its previous 
constructions of legislation.”) ; Square D Co. v. Niagara Fron­
tier Tariff Bureau, Inc., 476 U.S. 409, 424 (1986) (A “strong 
presumption of continued validity . . . adheres in the judicial in­
terpretation of a statute.”) ; NLRB v. International Longshore­
men's Ass'n, 473 U.S. 61, 84 (1985) (”[W]e should follow the nor­
mal presumption of stare decisis in cases of statutory interpreta­
tion.”) ; Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 
60 (1977) (White, J., concurring) (“[CJonsiderations of stare 
decisis are to be given particularly strong weight in the area of 
statutory construction.”) ; Illinois Brick Co. v. Illinois, 431 U.S. 
720, 736 (1977) (“[Cjonsiderations of stare decisis weigh heavily 
in the area of statutory construction. . . .”) ; Runyon v. McCrary, 
427 U.S. at 175; Edelman v. Jordan, 415 U.S. 651, 671 n.14 (1974) ; 
Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 
257-58 (1970) (Black, J., dissenting) ; Eric R.R. v. Tompkins, 304 
U.S. 64, 77 (1938) (“If only a question of statutory construction 
were involved, we should not be prepared to abandon a doctrine 
so widely applied throughout nearly a century.”).

14 Illinois Brick Co. v. Illinois, 431 U.S. at 736. Of course, as
the Grove City experience illustrates, there are significant costs
involved in legislatively overruling a decision of this Court. See
supra Part I.

11

reason that "this Court is surely not free to abandon 
settled statutory interpretation at any time a new thought 
seems appealing,” 13 is found in “the deference that this 
Court owes to the prim ary responsibility of the legisla­
ture in the making of laws.” '* The Congress is vested 
by,A rticle I of the Constitution with “all legislative 
powers.” The Court properly interprets statutes enacted 
by the Congress because interpretation is required to de­
cide cases brought before it. However, once rendered, a 
statutory interpretation becomes “an integral part of the 
statute.” 17 While the Congress is free to overturn a sta t­
utory precedent for any reason it sees fit, the judicial 
branch is not similarly free to reverse precedents when­
ever judges have second thoughts. In Justice Black’s 
words:

Altering the important provisions of a statute is a 
legislative function. . . . Having given our view on 
the meaning of a statute, [the Court's! task is con­
cluded, absent extraordinary circumstances. When 
the Court changes its mind years later, simply be­
cause the judges have changed, in my judgment, it 
takes upon itself the function of the legislature.18 * 11

™ Monell v. Department of Social Serv., 436 U.S. at 718 (Rehn­
quist, J., dissenting).

Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 
at 257 (Black, J., dissenting).

11 Gulf, Colorado & Santa Fe Ry., 275 U.S. 133, 136 (1927).
19 Boys Markets, Inc. v. Retail Clerks Union, Local 770, 398 U.S. 

at 258 (Black, J., dissenting). While the majority in Boys Markets 
overturned a statutory interpretation, it did not disagree with 
the principle articulated by Justice Black, but differed only on the 
application of that principle to the facts of the case. See also Com­
missioner v. Fink, 107 S. Ct. 2729, 2737 (1987) (Stevens, J., 
dissenting) (“The relationship between the courts or agencies, on 
the one hand, and Congress, on the other, is a dynamic one. In 
the process of legislating it is inevitable that Congress will leave 
open spaces in the law that the courts are implicitly authorized 
to fill. The judicial process of construing statutes must therefore 
include an exercise of lawmaking power that has been delegated 
to the courts by Congress. But after the gap has been filled, 
regardless of whether it is filled exactly as Congress might have



12
B. There Are No Special Circumstances in This Case 

That Justify Overruling Runyon v. McCrary.
Although the Court does, from time to time, overrule 

earlier decisions, the mere fact that the Court might have 
reached a different result had it decided the earlier case 
has never been thought a sufficient justification for doing 
so. Instead, “ [a]ny departure from the doctrine of stare 
decisis demands special justification.” 19 And where a 
prior statutory precedent is a t issue, “ [o]nly the most 
compelling circumstances can justify this C ourts aban­
donment of such firmly established . . . precedents.” 20 
In this case, the factors which the Court heretofore has 
considered relevant in determining whether such "com­
pelling circumstances” exist do not support overruling 
Runyan.

1. The Interpretation of Section 1981 Adopted in 
Runyon v. McCrary Wns Not Based Upon an 
Incomplete Analysis.

In determining whether to overrule a prior decision, 
the Court has sometimes taken into account whether the 
decision fully considered competing arguments.21 Here, 
consideration of this factor clearly counsels in favor 
of leaving Runyon undisturbed.

intended or hoped, the purpose of the delegation has been achieved 
and the [responsibility for making any future change should rest 
on the shoulders of Congress.”).

*• Arizona v. Rumsey, 467 U.S. 203, 212 (1984).
20 Monell v. Department of Social Serv., 436 U.S. at 715 (Rehn- 

quist, J., dissenting). See also Vasquez v. Hillery, 474 U.S. at 
266 (“[T]hc careful observer will discern that any detours from 
the straight path of stare decisis in our past have occurred for 
articulable reasons. . . . [Elvery successful proponent of over­
ruling precedent has borne the heavy burden of persuading the 
Court that changes in society or in the law dictate that the values 
served by stare decisis yield in favor of a greater objective. ).

21 See, e g., Copperweld Corp. v. Independence Tube Corp., 467 
U.S. 752, 766 (1984) (overruling previous decisions interpreting 
Section 1 of the Sherman Act to reach "intra-enterprise” con­
spiracies: “IWJhile this Court has previously seemed to acquiesce
in the intra-enterprise conspiracy doctrine, it has never explored
or analyzed in detail the justifications for such a rule. . . .”).

13

Runyon's interpretation of Section 1981 as prohibiting 
private contract-related racial discrimination in educa­
tion was not an aberration. It evolved from the Court’s 
earlier decisions in Jones v. Alfred H. Mayer Co., 392 
U.S. 409 (1968), Tillman v. Wheaton-Haven Recreation 
Association, Inc., 410 U.S. 431 (1973), and Johnson v. 
Railway Express Agency, Inc., 421 U.S. 454 (1975). In 
both Runyon and these prior decisions, the Court fully 
and carefully considered the competing arguments.

Jones held that Section 1982 reaches private racial 
discrimination in property transactions. The Court an­
alyzed in detail the Reconstruction-era legislative history, 
which relates to both Sections 1981 and 1982, to deter­
mine whether the statute was intended to reach private, 
as well as governmental, conduct. 392 U.S. at 422-37. 
The Court concluded that the Congress “plainly meant 
to secure” the right to purchase or lease property “against 
interference from any source whatever, whether govern­
mental or private.” Id. at 424.22 In Tillman, the Court 
recognized that Section 1981 reached the conduct of a 
private association that operated a neighborhood swim­
ming pool. In making that determination, the Court 
again recognized the interrelated legislative histories of 
Sections 1981 and 1982. The Court concluded that there 
was “no reason to construe these sections differently” 
under the facts before it. 410 U.S. a t 440. Two years 
after Tillman, the Court unanimously stated in Johnson 
that “it is well settled among the Federal Courts of Ap­
peals—and we now join them—that § 1981 affords a 
federal remedy against discrimination in private employ­
ment on the basis of race.” 421 U.S. a t 459-60.23

22 This Court has subsequently affirmed Jones on numerous oc­
casions. See, e.g., Shaare Tefila Congregation v. Cobb, 107 S. Ct. 
2019, 2021 (1987) ; Tillman v. Wheaton-Haven Recreation Ass’n, 
Inc., 410 U.S. at 435; Sullivan v. Little Hunting Park, Inc., 396 
U.S. 229, 235-38 (1969).

23 The Runyon Court described this statement as "the square 
holding” and the “unequivocal! ] ” holding of Johnson. 427 U.S. at 
170 n.8, 172. And the United States characterized the statement



14

In 1976, the Runyon Court, citing Jones, Tillman, and 
Johnson, concluded that “ [i] t is now well established 
that . . . [Section] 1981 prohibits racial discrimination 
in the making and enforcement of private contracts. 427 
U.S. at 168. Nevertheless, the Court again carefully re­
viewed the legislative history of Section 1981. Id. at 
168-71, 174-75. The Court considered and rejected, as 
“wholly inconsistent” with its earlier precedents, the argu­
ment that Section 1981 reached only state-sponsored dis­
crimination. Id. a t 173. The Court also rejected the 
argument that Section 1981 prohibits only legal rules that 
disable minorities from making and enforcing contracts. 
See id. at 194 (White, J., dissenting).

Indeed, the Court has so fully and completely considered 
the Iteconstruction-era legislative history of Section 1981 
that, following its decision in Runyon, the Court has 
merely incorporated the prior analyses by reference, 
rather than “repeat the narrative again.” 24 * *

Accordingly, Runyon cannot be said to be based upon 
an incomplete analysis or less than full consideration of 
competing arguments.

2.. The Interpretation of Section 1981 Adopted in 
Runyon v. McCrary Has Not Ileen Undercut by 
Subsequent Legal Developments.

Another factor the Court has sometimes considered 
in determining whether to overrule an earlier decision is 
whether the reasoning of the earlier decision has been 
undercut by subsequent legal developments. In such cases, 
the Court is often making explicit what has been implicit

as the "ratio decidendi” of Johnson. Brief for the United States 
as Amicus Curiae at 14, Runyon v. McCrary, 427 U.S. 160 (1976)
(No. 75-62). Johnson was a Section 1981 action against a private 
defendant. The actual issue before the Court concerned the ap­
plicable statute of limitations. The Court would not have reached 
that issue if Section 1981 did not provide a cause of action for
acts of racial discrimination by private parties.

14 General Rldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375,
384 (1982).

15
for some time. The overruling simply culminates a long 
process of erosion.28 Similarly, the Court has sometimes 
revisited a decision found to be wholly inconsistent with 
prior decisions or inconsistent with a parallel line of 
authority.28

Ruilyon's reasoning and holding have not been undercut 
by subsequent legal developments. No decision rendered 
by this Court has questioned the continuing vitality of the 
interpretation of Section 1981 adopted there. On the con­
trary, this Court has repeatedly and without exception 
treated Runyon as well-settled law.27 The Executive 
Branch has also consistently supported the interpreta­
tion of Section 1981 adopted in Runyon,™ and no de-

26 See, e.g., Andrews v. Louisville & Nashville R.R., 406 U.S. 
320, 322 (1972) ("Later cases from this Court have repudiated 
the reasoning advanced in support of the result reached in [the 
earlier decision).”) ; Boys Markets, Inc. v. Retail Clerks Union, 
Local 770, 398 U.S. at 238 ("[S)ubsequent events have undermined 
[thel continuing validity [of the earlier decision).”). See also 
Puerto Rico v. Branstad, 107 S. Ct. 2802, 2809 (1987) (“[The ear­
lier decision) is the product of another time. The conception of 
the relation between the States and the Federal Government there 
announced is fundamentally incompatible with more than a century 
of constitutional development.”).

20 See, e.g., Monell v. Department of Social Serv., 436 U.S. at 
695 (justifying overruling Monroe v. Pape, 365 U.S. 167 (1961), 
in part on ground that Monroe “was a departure from prior 
practice” and inconsistent with a subsequent line of cases "holding 
school boards liable in § 1983 actions. . . . ”).

21 See, e.g., Goodman v. Lukens Steel Co., 107 S. Ct. 2617, 2620
(1987) ; Saint Francis College v. Al-Khazraji, 107 S. Ct. 2022, 
2026 (1987) ; Hishon v. King & Spalding, 467 U.S. 69, 78 (1984) ; 
Bob Jones Univ. v. United States, 461 U.S. at 596; General Bldg. 
Contractors Ass'n v. Pennsylvania, 458 U.S. at 384; City of Mem­
phis v. Greene, 451 U.S. 100, 125 n.38 (1981); Great Am. Fed. 
Sav. & Loan Ass’n v. Novotny, 442 U.S. 366, 377 (1979); Cook 
v. Hudson, 429 U.S. 165 (1976) ; McDonald v. Santa Fe Trail 
Trans. Co., 427 U.S. 273, 285 (1976).

™ See, e.g., Brief for the United States as Amicus Curiae Sup­
porting Petitioner at 10, Patterson v. McLean Credit Union (No. 
87-107); Brief for the United States at 38, Goldsboro Christian



16

velopments in the Congress have eroded the reasoning of 
Runyon. Indeed, as discussed in P art III, the Congress 
has convincingly demonstrated that it fully agrees with 
Runyon’s interpretation of Section 1981.

Nor is Runyon a sport in the law. I t is neither out of 
step with prior decisions, as discussed above, nor incon­
sistent with any parallel line of authority in this Court.

3. The Interpretation of Section 1981 Adopted in 
Runyon v. McCrary Has Not Proved Confusing 
or Unworkable in Practice.

A third factor the Court has considered is whether 
the earlier case has caused confusion or created practical 
difficulties for the lower courts in applying the law.28 29 * 
Clearly Runyon has not.

Runyon straightforwardly held that Section 1981 
reaches private parties who intentionally discriminate on

Schools, Inc. v. United States, reported as Bob Jones Univ. v. 
United States, 461 U.S. 674 (1983) (No. 81-1); Brief for the 
Secretary of Commerce at 20 n.6, Fullilove v. Klutznick, 448 U.S. 
448 (1980) (No. 87-1007); Brief for the United States as Amicus 
Curiae at 7, McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273 
(1976) (No. 75-260); Brief for the United States as Amicus 
Curiae at 13, Runyon v. McCrary, 427 U.S. 160 (1976) (No. 75-62).

29 See, e.g., Swift & Co. v. Wickham, 382 U.S. I l l ,  124 (1965) 
(overruling earlier statutory decision that “is in practice unwork­
able . . . lower courts have . . . sought to avoid dealing with its 
application or have interpreted it with uncertainty’’). See also 
Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546-47
(1985) (overruling Natioiwl League of Cities v. Usery, 426 U.S. 
833 (1976), in part because "a rule of state immunity from fed­
eral regulation that turns on a judicial appraisal of whether a 
particular governmental function is ‘integral’ or ’traditional’ ” had 
proved “unworkable in practice"); Gulfstream Aerospace Coi~p. 
v. Mayacamas Corp., 108 S. Ct. 1133, 1140-41 (1988) (“A half 
century’s experience has persuaded us . . . that the rule is . . .
unworkable and arbitrary in practice. . . . [T]he gulf between 
the historical procedures underlying the rule and the modern proce­
dures of federal courts renders the rule hopelessly unworkable in 
operation.”).

17
the basis of race in the making and enforcement of con­
tracts. Since there has never been any question that 
Section 1981 also reaches state-sponsored racial discrim­
ination, Runyon simply made clear that Section 1981 
applies across the board without regard to the identity 
or ppsition of the actor. Lower courts, following Runyon, 
have not found this general principle to be confusing or 
unworkable.20 Of course, this Court’s guidance may be 
necessary in fine-tuning that principle and applying it to 
specific cases such as this one. But that ongoing process 
is not a reason to overrule a general principle already 
established.

4. Overruling the Interpretation of Section 1981 
Adopted in Runyon v. McCrary Would Frustrate 
Legitimate Reliance Interests.

Another factor this Court has considered is whether 
“ ‘individuals may have arranged their affairs in reliance 
on the expected stability of the decision.’ ” 31 Where there 
has been no legitimate reliance on the decision, the Court 
may feel less bound by stare decisis.

In Monell v. Department d\f Social Services, 436 U.S. 
658, 700 (1978), for example, the Court noted that its 
earlier decision holding municipalities immune from suit 
under Section 1983, 42 U.S.C. § 1983, could not be legiti­
mately relied upon by municipalities because violations

80 See, e.g., Wright v. Salisbury Club, Ltd., 632 F.2d 309, 312 
(4th Cir. 1980) ; Manzanares v. Safeway Stores, Inc., 593 F.2d 968 
(10th Cir. 1979); Hall v. Pennsylvania State Police, 570 F.2d 86, 
92 (3d Cir. 1978) ; Brown v. Dade Christian Schools, Inc., 556 
F.2d 310, 312 (5th Cir. 1977), cert, denied, 434 U.S. 1063 (1978); 
Nieto v. UAW, Local 59S, 672 F. Supp. 987, 988-89 (E.D. Mich. 
19871 ; Miller v. Hall's Birmingham Wholesale Florist, 640 F. Supp. 
948 (N.D. Ala. 1986); Moye v. Chrysler Corp., 465 F. Supp. 1189, 
1190 (E.D. Mo.), aff'd, 615 F.2d 1365 (8th Cir. 1979); Hollander 
v. Sears, Roebuck & Co., 450 F. Supp. 496, 499-500 (D. Conn. 
1978).

al Monell v. Department of Social Serv., 436 U.S. at 700 (quoting 
Monroe v. Pape, 365 U.S. at 221-22 (Frankfurter, J., dissenting)).



18
of constitutional rights are “completely wrong” and pub­
lic bodies cannot arrange their affairs “on an assump­
tion that they can violate constitutional rights indefi­
nitely . In contrast, Runyan  is a decision which 
protects against violations of the statute and provides 
relief for them, rather than shielding violators, and reli­
ance on it is unquestionably legitimate.

Clearly, individuals “have arranged their affairs in 
reliance on the expected stability of” R unyons  ruling 
that Section 1981 prohibits private racial discrimination 
in the making and enforcing of contracts. For example, 
parents have made arrangements to place their children 
in private schools with the legitimate expectation that 
Section 1981 ensures that those schools are not now segre­
gated, and will not be segregated in the future. The Con­
gress has also legitimately relied on Runyon by enacting 
legislation predicated on Section 1981 continuing to have 
the meaning given to it in Runyon. See in fra  P art III.

If Runyon  is overruled, this reliance—by individuals 
as well as by the Congress—would be frustrated at great 
social and emotional cost. The very purpose of Section 
1981, like all other civil rights laws, is to change be­
havior and, therefore, expectations. The progress wrought 
by these laws is considerable and undeniable. The sta­
bility of decisions in this area is vital to the success of 
the Nation’s effort to eliminate racial discrimination. 
Those individuals whose rights are protected by anti- 
discrimination statutes should be able to rely on settled 
precedent in arranging their affairs, and those whose 
conduct is governed by such laws should not be led to 
expect that they can escape their legal obligations by 
reversals in statutory interpretations.32

“ .See Tatsy v. Hoard of Regents, 457 U.S. 496, 501 n.3 (1982)
(refusing to overrule prior cases that had refused to read ex­
haustion of administrative remedies requirements into Section
1983, in part because "[olverruling these decisions might injure
those § 1983 plaintiffs who had foregone or waived their state 
administrative remedies in reliance on those decisions”).

19

5. There Has Been No Relevant Change in Social, 
Economic or Other Factual Circumstances Since 
Runyon v. McCrary.

Finally, in the constitutional context, the Court has 
sometimes overruled an earlier decision on the ground 
th^t some underlying factual circumstance—social, eco­
nomic, or otherwise-—has changed.33 In Justice Stewart’s 
words, “ [a] substantial departure from precedent can . . . 
be justified . . .  in the light of an altered historic environ­
ment.” 34 So fa r as am ici are aware, this factor has 
rarely, if ever, been applied in the stafutory context and, 
in any event, does not apply to Runyon.

No relevant social or economic circumstance has 
changed since 1976. If there was a “factual circum­
stance” that influenced the Court’s interpretation of Sec­
tion 1981 in Runyon, it was the recognition that “ [t] he 
policy of the Nation . . .  in recent years has moved con­
stantly in the direction of eliminating racial segregation 
in all sectors of society.” 427 U.S. a t 191 (Stevens, J., 
concurring). That policy has not changed. Today the 
nation remains committed to “the fundamental policy of 
eliminating racial discrimination.” 35

# *  *<
In sum, the factors this Court considers in determin­

ing whether to apply stare decisis overwhelmingly coun­
sel that Runyon  not be overruled. As the Court stated

83 See, e.g., Taylor v. Louisiana, 419 U.S. 522, 537 (1975) (over­
ruling decision that had upheld the systematic exclusion of women 
from jury service because ”[ i]f  it was ever the case that women 
were unqualified to sit on juries or were so situated that none of 
them should be required to perform jury service, that time has 
long since passed") ; Brown v. Board of Education, 347 U.S. 483, 
494-95 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 
(1896), in part because the insidious psychological effects of seg­
regation on school children “is amply supported by modern 
authority”).

«< Mitchell v. W.T. Grant Co., 416 U.S. 600, 634-35 (1974) 
(Stewart, J., dissenting).

M Bob Jones Univ. v. United States, 461 U.S. at 595.



20

more than 40 years ago in refusing to overrule the 
interpretation of another Reconstruction-era civil rights 
statute adopted in United States v. Classic, 313 U.S. 299 
(1941):

The construction given § 20 [18 U.S.C. § 242] in the 
Classic case formulated a rule of law which has be­
come the basis of federal enforcement in this im­
portant field. The rule adopted in that case was 
formulated after mature consideration. I t should be 
good for more than one day only. We do not have a 
situation here comparable to Mahnich v. Southern 
S.S. Co., 321 U.S. 96, where we overruled a decision 
demonstrated to be a sport in the law and incon­
sistent with what preceded and what followed. The 
Classic case was not the product of hasty action or 
inadvertence. It was not out of line with the cases 
which preceded. I t was designed to fashion the gov­
erning rule of law in this important field. We are 
not dealing with constitutional interpretations which 
throughout the history of the Court have wisely re­
mained flexible and subject to frequent re-examina­
tion. The meaning which the Classic case gave to the 
phrase “under color of any law” involved only a con­
struction of the statute. Hence if it states a rule 
undesirable in its consequences, Congress can change 
it. We add only to the instability and uncertainty of 
the law if we revise the meaning of § 20 to meet the 
exigencies of each case coming before us.

Screws v. United States, 325 U.S. 91, 112-13 (1945).
The reasoning in Screws applies fully here. It is made 

more compelling by the fact, as amici show below, that 
this Court’s interpretation of Section 1981 has been af­
firmatively approved by the Congress.

Ill STARE DECISIS APPLIES WITH SPECIAL FORCE 
BECAUSE THE CONGRESS HAS AFFIRMA­
TIVELY ENDORSED THIS COURT’S INTERPRE­
TATION OF SECTION 1981.

This Court has recognized that the doctrine of stare 
decisis has particular force where the Congress has taken 
subsequent legislative action consistent with the Court’s

21

interpretation of a statute.M Thus, where the Congress 
has reenacted a statute, this Court’s prior construction of 
the statute is presumed to have been adopted by the Con­
gress.37 Likewise, the Court has found congressional ap­
proval of a judicial interpretation of a statute in the 
Congress’ rejection of legislation that would have over­
ruled or limited the reach of the judicial interpretation,*8 * S.

et See, e.g., Patsy v. Board of Regents, 457 U.S. at 501 ("whether 
overruling [prior] decisions would be inconsistent with more re­
cent expressions of congressional intent" is "particularly relevant” 
in deciding “whether prior decisions should be overruled or recon­
sidered”) ; Monell v. Department of Social Serv., 436 U.S. at 696-99.

®7 See, e.g., Douglas v. Seacoast Products, Inc., 431 U.S. 265, 279 
(1977) (where the Congress has reenacted a statute “in substan­
tially the same form,” the Court “can safely assume that Congress 
was aware of the [interpretation given the statute by the Court 
nnd] . . . that Congress has ratified th[at] statutory interpreta­
tion. . . .”); Shapiro v. United States, 335 U.S. 1, 16 (1948) 
("[T]here is a presumption that Congress, in reenacting the [stat­
ute] . . . was aware of the settled judicial construction of the 
statut[e]. In adopting the language used in the earlier act, Con­
gress 'must be considered to have adopted also the construction 
given by this Court to such language, and made it a part of the 
enactment.’ ”) (quoting Hecht v. Malley, 265 U.S. 144, 153
(1924)).

M See. e.g., Local 28 of the Sheet Metal Workers v. EEOC, 106
S. Ct. 3019, 3047 (1986) ( “Congress was aware that both the 
Executive and Judicial Branches had used [race-conscious af­
firmative action] as a remedy under [Title VII], and rejected 
amendments that would have barred such remedies. . . . [This] 
confirms Congress’ resolve to accept prevailing judicial interpreta­
tions regarding the scope of Title VII . . . .”) (opinion of Bren­
nan, J.) ; Flood v. Kuhn, 407 U.S. 258, 283-84 (1972) ("[Legisla­
tion [that would have overturned judicial interpretation of statute] 
has been introduced repeatedly in Congress but none has ever been 
enacted. . . . We continue to be loath . . .  to overturn those cases 
judicially when Congress, by its positive inaction, has allowed 
those decisions to stand for so long and, far beyond mere infer­
ence and implication, has clearly evinced a desire not to disapprove 
them legislatively.”) ; Joint Indus. Bd. v. United States, 391 U.S. 
224, 228 (1968) (refusing to override interpretation of Bankruptcy 
Act adopted in United States v. Embassy Restaurant, Inc., 359 U.S. 
29 (1959), because section of Act interpreted "was left unchanged 
despite the fact that in every Congress since Embassy Restaurant



22

as well as in the Congress’ failure to change the judicial 
interpretation in the course of enacting or amending re­
lated legislation which reflects the Congress awareness 
of the interpretation.”

Here, the Congress has both declined to enact legisla­
tion that would have effectively repealed Section 1981 as 
it relates to employment discrimination, and left Kun- 
ycm untouched in the course of enacting related legis-

bills have been introduced to overrule or modify the result reached 
in that case”) .

*»See. e.g.. Monessen S.W. Ry. v. Morgan, 56 U S ^  W_ 4« 4  
4496 (June 6. 1988) (where the Congress amended the Federal 
Employers' Liability Act several times, but never attempted to 
amend it to provide for prejudgment interest, “ Congress at least 
acquiesces in. and apparently affirms' ” the i^ ic .a l m t e je t e  .on 
that prejudgment interest is not available under the Act) {quot- 
“  S ’ . C»i» 0,  Orica,o.441 VS. 677 703 <197 K  
l) Co v Niagara Frontier Tariff Bureau, Inc., 476 U.S. at 419 
("Particularly because the legislative history reveals clear congres­
sional awareness of [an earlier interpretation of the statute by 
the Court] . . .  the fact that Congress specifically addressed this 
area and left [the earlier decision] undisturbed lends powerfu 
support to [its] continued viability”) ; Patsy v.Board of Regents, 
457 U.S. at 508-09 (Court declined to overturn its earlier decisions 
holding that exhaustion of administrative remedies was not man­
dated under Section 1983, in large part because tlm Congress, 
in a subsequent enactment of a related statute, had clearly ex­
pressed its belief” that "the no-exhaustion rule should be left 
standing ”) ; Lindahl v. OPM, 470 U.S. 768, 782 (1985); Herman <fe 
MacLean v. Huddleston. 459 U.S. 375, 385-86 (1983) (The Con­
gress’ decision to leave intact one section of securities laws in the 
course of revising other sections of securities laws «u8gests that 
Congress ratified” judicial interpretation given to that section. >, 
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 
353 381-82 (1982) (”[T]he fact that a comprehensive reexamina­
tion and significant amendment of the [Commodity Exchange Act] 
left intact the statutory provisions under which the federal courts 
had implied a cause of action is itself evidence that Congress 
affirmatively intended to preserve that remedy.”) ; Missouri y. Ross, 
299 U S 72 75 (1936) (The Congress’ permitting a provision ot 
Bankruptcy Act interpreted by Court to "stand for many years . . . 
although amending . . .  the Bankruptcy Act in other particulars . . . 
is persuasive evidence of the adoption by that body of the judicial 
construction.’’).

23
lation which clearly reflects the Congress’ awareness of 
that interpretation. As this Court stated in Lindahl v.
OPM, 470 U.S. 768, 782 (1985), the Congress’ enact­
ment of related legislation “without explicitly repealing 
the established [case] doctrine itself gives rise to a pre­
sumption that Congress intended to embody [the judicial 
interpretation in the statute the courts had construed].
That presumption becomes virtually conclusive where, as 
here, the Congress’ actions were predicated on Section 
1981 continuing to have the meaning attributed to it by 
this Court.

Following this Court’s decision in Jones v. Alfred H. 
Mayer & Co., the Congress passed the Equal Employment 
Opportunity Act of 1972.40 In the course of enacting that ^  
legislation, both the House and Senate considered pro­
posals to make Title VII and the Equal Pay Act of 1963,
29 U.S.C. § 206(d), the exclusive federal remedies for 
private discrimination in employment. These proposals, 
which were ultimately rejected, would have repealed Sec­
tion 1981 insofar as it prohibits private racial discrim­
ination in employment.

The amendment proposed in the Senate41 generated sub­
stantial objections from those who believed that Section 
1981 served as a “valuable protection” for those who 
might “fall . . .  in the interstices of the Civil Rights Act 
of 1964.” 42 Senator Harrison Williams, the floor man­
ager and one of the original sponsors of the pending bill, 
objected that “ [ i] t is not our purpose to repeal existing 
civil rights laws,” and noted that to do so “would severely 
weaken our overall effort to combat the presence of em­
ployment discrimination.” 43 Specifically recognizing the 
scope of Section 1981, Senator Williams stated:

40 pub. L. No. 92-261, 86 Stat. 103 (1972). This Act amended 
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.

41 H8 Cong. Rec. 3173 (1972) (Hruska amendment).
«  Id. at 3370 (statement of Sen. Javits).
4* Id. at 3371 (statement of Sen. Williams).



24

The law against employment discrimination did not 
begin with title VII and the EEOC, nor is it 
intended to end with it. The right of individuals 
to bring suits in Federal courts to redress individual 
acts of discrimination, including employment discrim­
ination, was first provided by the Civil Rights Acts 
of 1866 and 1871, 42 U.S.C. sections 1981, 1983. It 
was recently stated by the Supreme Court in the 
case of Jones v. Mayer, that these acts provide funda­
mental constitutional guarantees. In any case, the 
courts have specifically held that title VII and the 
Civil Rights Acts of 1866 and 1871 are not mutually 
exclusive, and must be read together to provide alter­
native means to redress individual grievances.

Mr. President, the amendment of the Senator from 
Nebraska [Sen. Hruska] will repeal the first major 
piece of civil rights legislation in this Nation’s his­
tory. We cannot do that. . . .  I believe that to make 
title VII the exclusive remedy for employment dis­
crimination would be inconsistent with our entire 
legislative history of the Civil Rights Act. It would 
jeopardize the degree and scope of remedies available 
to the workers of our country.44 

Responding affirmatively to Senator Williams’ plea that 
the Congress not “strip from th[e] individual his rights 
that have been established, going back to the first Civil 
Rights Law of 1866,” 45 the Senate rejected the repeal­
ing amendment.48

The House Education and Labor Committee similarly 
rejected an exclusive remedies provision, explaining that

the Committee wishes to emphasize that the indi­
vidual’s right to file a civil action in his own behalf, 
pursuant to the Civil Rights Act of 1870 and 1871, 
42 U.S.C. §§ 1981 and 1983, is in no way affected. 
. . .  [It is] this Committee’s belief that the remedies 
available to the individual under Title VII are co­
extensive with the individual’s right to sue under the

** Id. at 3371-72. 
"  Id. at 3372.
** Id. at 3373.

25

provisions of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981, and that the two procedures augment each 
other and are not mutually exclusive.* ** 47

The Committee minority also recognized that “charges 
of discriminatory employment conditions may still be 
broilght under prior existing federal statutes such as . . . 
the Civil Rights Act of 1866 . . . .  [O lur attempt to 
amend the Committee bill to make title VII an exclusive 
remedy (except for p'attern or practice suits) was re­
jected.” 48

A substitute bill containing an exclusive remedies pro­
vision was proposed in the House during the floor de­
bates.49 * 51 The sponsor of the substitute explained that 
“there would no longer be recourse to the old 1866 civil 
rights act.” 80 Although vigorously opposed,81 the substi­
tute bill was adopted by a slim majority in the House.82 
In conference with the Senate, however, the House re­
ceded and a compromise version of the bill which con­
tained no exclusive remedy provision became law.83 The 
Congress thus unequivocably manifested its intent to pre­
serve the scope of Section 1981 by rejecting efforts to 
eliminate the statute’s application to private employment 
discrimination.

This legislative history played a significant role in 
persuading this Court in Runyon to adhere to its earlier 
interpretation of Section 1981:

47 H.R. Rep. No. 238, 92d Con*., 1st Sess. 18-19 (1971).
4S Id. at 66.
40 117 Cong. Rec. 31979-80 (1971) (Erlenborn substitute).
B0 Id. at 31973 (statement of Rep. Erlenborn).
51 Members objected that the substitute bill would "repeal [] 

the Civil Rights Act of 1866 where it touches upon this field,” 
id. at 31978 (statement of Rep. Eckhardt), and would “nullify 
the Civil Rights Act of 1866 . . .  as far as employment discrimina­
tion is concerned.” Id. at 32100 (statement of Rep. Hawkins).

w/rf. at 32111-12.
M H.R. Conf. Rep. No. 899, 92d Cong., 2d Sess. 17 (1972).



26

I t is noteworthy that Congress in enacting the Equal 
Employment Opportunity Act of 1972 . . . specifically 
considered and rejected an amendment that would 
have repealed the Civil Rights Act of 1866, as in­
terpreted by this Court in Jones, insofar as it affords 
private-sector employees a right of action based on 
racial discrimination in employment. . . .

427 U.S. a t 174.
In October 1976, after the Tillman, Johnson and Run­

yon decisions, the Congress again signaled its approval 
of this Court’s interpretation of Section 1981 in enacting 
the Civil Rights Attorney’s Fees Awards Act of 1976.M 
That Act permits the recovery of attorney’s fees in ac­
tions against private parties under Section 1981.“  The 
House Judiciary Committee summarized the reach of 
Sections 1981 and 1982 as follows:

Section 1981 is frequently used to challenge employ­
ment discrimination based on race or color. John­
son v. Railway Express Agency, Inc., 421 U.S. 454 
(1975). Under that section the Supreme Court re­
cently held that whites as well as blacks could bring 
suit alleging racially discriminatory employment 
practices. McDonald v. Santa Fe Trail Transporta­
tion Co.,------U .S .------- , 96 S. Ct. 2574 (1976). Sec­
tion 1981 has also been cited to attack exclusionary 
admissions policies at recreational facilities. Tillman 
v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 
431 (1973). Section 1982 is regularly used to at­
tack discrimination in property transactions, such as

61 Pub. L. No. 94-559, 99 Stat. 2641 (1976) (codified at 42 U.S.C. 
§ 1988).

“ The Congress enacted the Civil Rights Attorney’s Fees Awards 
Act in response to Alyeska Pipeline Service Co. v. Wilderness So­
ciety, 421 U.S. 240 (1975). This Court had concluded in Alyeska 
that the federal courts do not have power to award attorney’s fees to 
a prevailing pnrty in actions brought under Section 1981 (among 
other statutes), save in certain limited circumstances, absent ex­
press authorization from the Congress. The Act was passed Bfter 
the Congress learned of Alyeska’s "devastating impact . . .  on 
litigation in the civil rights area.” H.R. Rep. No. 1558, 94th Cong., 
2d Seas. 3 (1976).

27

the purchase of a home. Jones v. Alfred H. Mayer 
Co., 392 U.S. 409 (1968).“

The Committee expressly recognized that Sections 1981 
and 1982 and other private discrimination remedies cre­
ated by the Congress can reach the same private conduct:

With respect to the relationship between Section 
1981 and Title VII of the Civil Rights Act of 1964, 
the House Committee on Education and Labor has 
noted that “the remedies available to the individual 
under Title VII are co-extensive with the individual’s 
right to sue under the provisions of the Civil Rights 
Act of 1866, 42 U.S.C. § 1981, that the two proce­
dures augment each other and are not mutually ex­
clusive.” . . . That view was adopted by the Supreme 
Court in Johnson v. Railway Express Agency . . . .”

The Committee also made clear that, “ [a] s with Section 
1981 and Title VII, Section 1982 and Title VIII of the 
Civil Rights Act of 1968 [the F a ir Housing Act] are 
complementary remedies, with similarities and differ­
ences in coverage and enforcement mechanism.” 58

The Senate Judiciary Committee considered the Civil 
Rights Attorney’s Fees Awards Act especially necessary 
because the complementary modern-day remedies for pri­
vate discrimination provide for attorney’s fees. The 
Committee did not want litigants challenging the same 
discriminatory practices under the Reconstruction-era 
statutes to be deprived of such fees. As the Committee 
explained:

For instance, fees are now authorized in an employ­
ment discrimination action under Title VII of the 
1964 Civil Rights Act, but not in the same suit 
brought under 42 U.S.C. § 1981, which protects sim­
ilar rights but involves fewer technical prerequisites

“  H.R. Rep. No. 1558, 94th Cong., 2d Sess. 4 (1976).
87 Id. at 4 n.8 (quoting H.R. Rep. No. 238, 92d Cong., 1st Sess. 19 

(1971)).
88 Id. at 4 n.9.



to the filing of an action. Fees are allowed in a 
housing discrimination suit brought under Title VIII 
of the Civil Rights Act of 1968, but not in the same 
suit brought under 42 U.S.C. § 1982, a Reconstruc­
tion Act protecting the same rights.6"

By extending the right to recover attorney’s fees to suits 
brought under Sections 1981 and 1982, the Congress en­
sured that litigants would be financially able to challenge 
private discrimination under both the Reconstruction-era 
and modern civil rights statutes.

As this legislative history demonstrates, the Congress’ 
approval of, and its intent to build upon, this Court s in­
terpretation of Section 1981 as reaching discrimination 
by private parties are unmistakable. The Congress has 
been fully cognizant of how Section 1981 has been con­
strued by this Court. It has rebuffed legislative efforts 
to reverse that construction; it has approved and relied 
on the construction given the statute by this Court; and 
it has strengthened Section 1981 as a remedy by making 
attorney’s fees available to prevailing parties, thereby 
encouraging Section 1981’s more effective use. Congres­
sional intent could hardly have been more clear if the 
Congress had reenacted Section 1981 following Runyon. 
However, “ (i]n the legal context in which Congress acted, 
this was unnecessary.” 80

28

»a S. Rep. No. 1011, 0-1 th Cong., 2d Seas. 4 (1976). See also 
121 Cong. Rec. 26806 (1975) (statement of Sen. Tunney) (Title 
VII and Section 1981 “protect[] similar rights”).

•o Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 
U.S. at 387.

29

CONCLUSION

For the foregoing reasons, this Court should decline to 
overrule the interpretation of 42 U.S.C. § 1981 adopted 
in Runyon v. McCrary, 427 U.S. 160 (1976).

Of Counsel:
Edward H. Levi 

1116 East 59th Street 
Chicago, IL 60637

Laurence H. Tribe 
Griswold Hall 
Room 307
1525 Massachusetts Ave. 
Cambridge, MA 02138

William L. Taylor 
2000 M Street, N.W. 
Suite 400
Washington, D.C. 20036

Respectfully submitted,

John H. Pickering 
Timothy B. Dyk 
James E. Coleman, Jr.
John Payton *
Kerry W. Kircher 
Carl Willner

Wilmer, Cutler & Pickering 
2445 M Street, N.W. 
Washington, D.C. 20037-1420 
(202) 663-6000 

Counsel for Amici Curiae

* Counsel of Record

June 24,1988