Board of Education of the City of Bessemer v. Brown Brief in Opposition to Certiorari

    IN THE

Supreme Court of tl)e (Hmtets States
OCTOBER TERM. 1979

N o . 7 9 -1 1 7 6

C ITY  OF M E M P H IS , et a l .

vs.

Petitioners,

N.T. GREENE,ef al.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

B R IE F  F O R  R E S P O N D E N T S  O W E N S , C R O S S  
and B U R S E

COUNTER-STATEM ENT OF QUESTIONS 
PRESENTED

1. Does 42 U.S.C. § 1982 apply to the decision of a 
municipality to close a through street to public traffic at the 
point along that street which separates an all-white sub­
division — which is alleged to be benefited by the closure — 
from a predominantly black area allegedly disadvantaged by 
the action?

2. Did the Court of Appeals err in holding that, in light of 
the totality of the circumstances established below, the

I



n

closing of West Drive imposed upon black residents of 
Memphis a badge of slavery of the very sort which Congress 
intended to proscribe under 42 U.S.C. § 1982?

3. Is proof of racially discriminatory purpose an essential 
element of a claim under 42 U.S.C. § 1982?

4. Did the Court of Appeals err in its alternative holding 
that the closing of West Drive was undertaken with the intent 
of discriminating against blacks and therefore violated 42 
U.S.C. § 1983 and the Fourteenth Amendment?



i n

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES................................................y
CONSTITUTIONAL AND STATUTORY PRO­

VISIONS INVOLVED...................................................... i
STATEMENT OF THE CASE............................................. l

A . Factual Background and Administrative Pro­
ceedings ..............................................................................................

B. Judicial P ro c eed in g s ...................................................................5

SUMMARY OF ARGUMENT.............................................8
ARGUMENT —

I. T H E  E V ID E N C E  P R E S E N T E D  TO  T H E  
D IS T R IC T  C O U R T  W A S  S U F F IC IE N T  
TO E ST A B L IS H  A  V IO L A T IO N  O F 42  
U .S .C . § 1 9 8 2 ...............................................................................10

A, 42 U.S.C. § 1982 Encompasses the City’s
A ction Blocking A ccess to W est D r iv e .....................12

B. The Court o f A ppeals Correctly Con­
sidered All the Surrounding Facts and 
Circum stances in Reaching the Con­
clusion that the Closing o f W est Drive 
Violated § 1 9 8 2 ...................................................................15

n .  P R O O F  O F R A C IA L L Y  D IS C R IM IN A ­
T O R Y  P U R P O S E  O R  IN T E N T  IS N O T  
R E Q U IR E D  TO  E ST A B L ISH  A  V IO L A ­
T IO N  O F 42 U .S .C . § 1 9 8 2 ............................................... 20

A . The Requirements for Demonstrating a 
Constitutional V iolation Under the Four­
teenth Am endm ent D o  N ot Govern Suits
Under 42 U .S .C . § 1 9 8 2 ................................................ 22

B. The Plain Language o f § 1982 Includes N o  
Requirement for a Showing o f Racial
In ten t........................................................................................24



IV

C. The Legislative History of the Civil Rights 
Act of 1866 Supports a Broad Reading, 
Unrestricted by an Intent Requirement, of
the Civil Provisions of the Statute__ ' ...............25
(1) Direct evidence that Congress did not 

intend to limit the civil provisions of the
statute by an intent requirement....................26

(2) Indirect evidence that Congress did not 
intend to limit the civil provisions of the
statute by an intent requirement..................... 33

D. This Court’s Decision Under § 1982 Have
Not Required a Showing of Purpose................... 34

m . t h e  j u d g m e n t  b e l o w  m a y  a l s o
BE AFFIRMED UNDER 42 U.S.C. § 1983 
BECAUSE PLAINTIFFS’ EVIDENCE 
JUSTIFIED A FINDING OF INTENT­
IONAL DISCRIMINATION........................ 39

CONCLUSION................................................. ’ ” 44
APPENDICES



V

1

fc

t a b l e  o f  a u t h o r i t i e s

Cases:

Anderson v. Ellington,
300 F. Supp. 789 (M.D. Tenn. 1969).........

Bailey v. Alabama,
219 U.S. 219 ( I 9 l l ) ......................

Bell v. Maryland,
378 U.S. 226 (1964)..................

Buchanan v. Warley,
245 U.S. 60 (1917)..................

City o f  Mobile v. Bolden,
64 L. Ed. 2d 47 (1980)................

City o f  Rome v. United States,
64 L. Ed. 2d 119 (1980)....................

Civil Rights Cases,
109 U.S. 3 (1883)................

Clark v. Universal Builders, Inc.,

IOT0F(1974)4.<7th C‘r ) ’ a r t  de™ d' 419 U'S'
Clyatt v. United States,

197 U.S. 207 (1905).............
Columbus Bd. ofEduc. v. Penick, 

443 U.S. 449 (1979).............’
Dayton Bd. ofEduc. v. Brinkman 

443 U.S. 526 (1979).............’
District o f Columbia v. Carter

409 U.S. 418 (1973).......
Fox v. HUD,

468 F. Supp. 907 (E.D. Pa. 1979) 
Griffin v. Breckenridge,

403 U.S. 88 (1971)............

.............35

...........14

...........37

............. 1

22, 23, 41

...........23

. .  passim

..............35

. 37 

. 35 

, 41 

41 

36 

23 

35



VI

Griggs v. Duke Power Co.,
401 U.S. 424 (1971).............................................  23 25

Holy Trinity Church v. United States
143 U .S . 457 (1892).................. ’ .....................  26

Hurd v. Hodge,
334 U.S. 24 (1948)...................................................12> 3g

In re Turner, Fed. Cas. No. 14,247
(Cir. Ct. D. Md. 1867)..................................  32

Jennings v. Patterson,
488 F .2d 436 (5th Cir. 1974).............................  14

Johnson v. Railway Express Agency
421 U .S . 454 (1975)............... ............................ 36

Jones v. Alfred H. Mayer Co
392 U.S. 409 (1 9 6 8 ,. . . : : ...................................... ...

Ke"™df “f f ° ™ s A s s ’n. Inc. v. 
4 - 6 F '2d 108 (2d Cir. 1970). cert, denied.
401 U .S . 1010 (1971).......................................... 3g

McDonald v. Santa Fe Trail Transp Co
427 U .S . 273 (1976)......................... ................15> 24> 25

MejropoUtan Housing Dev. Corp. v. Village o f Arlington ’

1025^(^978)^^ il{h Cir’ 1977^ Cen' dened> 434 u - 

Monroe v. Pape,
365 U .S . 167 (1 9 6 1 ) .....................................

Olzman v. Lake Hills Swim Club, Inc.,
495 F .2d  1333 (2d Cir. 1 9 7 4 ).........

Palmer v. Thompson,
403 U .S . 217 ( 1 9 7 1 ) .....................................

Pollock v. Williams,
322 U .S . 4 ( 1 9 4 4 ) ................................

Pope v. Atlantic Coast Line R. Co 
345 U .S . 379 ( 1 9 5 3 ) ...................

S.
. . . . 2 3  

. . . . 3 6  

. . . . 1 3  

12,  15 

. . . 3 5  

. . . 2 6



VII

Reitman v. Mulkey,
387 U.S. 369 (1967)................................................. .. lg

Resident Advisory Bd. v. Rizzo,
^  (3d Cir. 1977), cert, denied sub nom. 

whitman Area Improvement Council v. Resident 
Advisory Bd., 435 U.S. 908 (1978)..........................23 38

Rhode Island Chapter, Associated Gen’l Contractors v 
Kreps,

450 F. Supp. 338 (D .R .I. 1978)....................................  37
Runyon v. McCrary,

427 U.S. 160 (1976).................................... 32, 33, 36, 38
Smith v. Anchor Building Corp.,

536 F.2d 231 (8th Cir. 1976)....................................  3g
Stewart v. Kahn,

78 U.S. (11 Wall.) 493 ( 1 8 7 1 ) ..............................................  26
Sullivan v. Little Hunting Park, Inc

396 U.S. 229 (1969)................ ................................ 13 3g
Taylor v, Georgia,

315 U.S. 25 (1942)..................................................... 35
Terry v. Elmwood Cemetery,

307 F. Supp. 369 (N .D . Ala. 1969)......................... 13j 14
Tillman v. Wheaton-Haven Recreation A ss ’n Inc

410 U.S. 431 (1973).................................... ,'i. 24, 36,37
United States v. City o f Black Jack,

508 F.2d 11/9 (8th Cir. 1974), cert, denied, 422 
U.S. 1042 (1975)......................................................  3g

United States v. Freeman,
44  U.S. (3 H ow .) 556  ( 1 8 4 5 ) .................................................  26

United States v. L&H Land Corp., Inc.,
407 F. Supp. 576 (D . Fla. 1976) ............................. 23

United States v. Reece,
457 F. Supp. 43 (D. Mont. 1978)................................. 23

United Steelworkers o f America v. Weber
443 U.S. 193 (1979)......................... ’...............  26



v m

Village o f Arlington Heights v. Metropolitan Housing 
Dev. Corp.,

429 U.S. 252 (1977).................................................  20, 41
Walker v. Pointer,

304 F. Supp. 56 (N.D. Tex. 1969)...................................13
Washington v. Davis,

426 U.S. 229 (1976)...............................10,20, 22, 23,36
Watson v. City o f Memphis,

303 F.2d 863 (6th Cir. 1962), rev’d  373 U.S. 526 
(1963)................................................................................ ..

Constitution, Statutes and Rules
U.S. CONST., AMENDMENT XIII . 
U.S. CONST., AMENDMENT XIV .
18 U.S.C. §242 ...................................
42 U.S.C. §1981.................................
42 U.S.C. §1982 .................................
42 U.S.C. §1983 .................................
42 U.S.C. §1985(3).............................
42 U.S.C. § 2000e-2(a)........................
42 U.S.C. §3604..................................
Civil Rights Act of 1866, 14 Stat. 27 .. 
Civil Rights Act of 1964, 78 Stat. 241 . 
Voting Rights Act of 1965, 79 Stat. 437 
Civil Rights Act of 1968, 82 Stat. 81 . . .
F.R. CIV. P. 12(b)(6)...........................
Legislative Materials

passim
10,15,36,39,40
.................. 30
....................5

. passim  
10,19,2a
....... 35
....... 38
. . . . 38

. .  passim

.........34
.. 23,38 
23,24.38 
..........5

CONG. GLOBE, 39th Cong., 1st Sess. (1866)...........passim
REPORT OF THE JOINT COMMITTEE ON

RECONSTRUCTION, 39th Cong., 1st Sess. (1866) .. 28
REPORT OF GENERAL CARL SCHURZ, 1 S. EXEC. 

DOC. NO. 2, 39th Cong., 1st Sess. (1865) .
1 S. EXEC. DOC. NO. 6, 39th Cong., 2d Sess.

(1866) 27,28,3b



IX

Other Authorities

H' I A ^ f , V NDAMENTALS 0 F  l a n d  u s eLA W ( l yo2 ) ....................
13

13
Developments m the Law  — Section 1981, 15 HARV 

CIV. RIGHTS-CTV LIB. L. REV. 29 (198)
W . F L E M IN G , D O C U M E N T S  R E L A T IN G  TO

R E C O N S T R U C T IO N  (1904) . . .  . . 27
C. FAIRMAN, HISTORY OF THE SUPREME COURT 

LM TED STATES: RECONSTRUCT!™ 
AND REUNION, 1864-68, PART ONE (1971)......... 27

R. Kohl, The Civil Rights Act o f 1866, Its Hour Come 
Round A T  Last, 55 VA. L. REV. 272 (1969)

Lailf p ^ 6 Sources ° f  L<™. in H A R V A R D

E’ ™ R^ THE P0LITICAL HISTORY OF 
t h ?  STATES 0F  AMERICA DURING
THE PERIOD OF RECONSTRUCTION (1871) 21, 29

Note Racially Disproportionate Impact o f Facially 
neutral Practices — What Approach Under 42 U S C 
Sections 1981 and 1982?, 1977 DUKE L.J. 1267 25

27

26



CONSTITUTIONAL AND STATUTORY 
PROVISIONS INVOLVED

In addition to those provisions set out at Pet. Br. 2-3, this 
case also involves the Fourteenth Amendment to the 
Constitution of the United States and 42 U.S.C. § 1983, the 
texts of which are set out in Appendix A to this brief, infra.

STATEMENT OF THE CASE

A. Factual Background and Administrative Proceed­
ings. Hein Park, a residential subdivision located in central 
Memphis, has been an exclusive area for whites since well 
before World War II. It is bordered on the west by the 
“handsomely landscaped” campus of Southwestern Col­
lege; on the south by North Parkway, which forms the 
boundary of Memphis’ major municipal park;1 on the east by 
Trezevant Street, a major north-south thoroughfare: and on 
the north by Jackson Avenue, which is a major east-west 
artery (A. 167).2 This lawsuit concerns West Drive, a 
“scenically beautiful” street which runs through Hein Park 
from Jackson Avenue to North Parkway (Tr. 63). West 
Drive is the natural southern extension of Springdale Street, 
which is an important north-south route serving the pre­
dominantly black community to the north of Jackson 
Avenue. Prior to the street closing which is the subject of this 
case, the bulk of the vehicular and pedestrian traffic using

lSee Citizens to Preserve Overton Park. Inc. v. Volpe. 401 U.S. 402, 
406 (1971).

2“A .------ ” refers to the Appendix in this case: the trial transcript is
cited herein as “T r .____ ” and trial exhibits are referred to as “Exh.



West Drive was accounted for by blacks. This traffic 
apparently originated north of Jackson Avenue since, at the 
time of trial, West Drive property owners — like all Hein 
Park residents — were white (A. 174).

In 1970, an effort was made by residents of Hein Park to 
close four streets leading into the subdivision, thus blocking 
almost all public access to the area. The City of Memphis 
refused to do this, but noted that a major portion of the 
thorough traffic using subdivision streets could be eliminated 
by closing off West Drive at Jackson.3 On July 9, 1973, 
picking up on this suggestion, the Hein Park Civic Associa­
tion petitioned the Memphis and Shelby County Planning 
Commission to close West Drive at its intersection with 
Jackson ‘’to curtail the use of subdivision streets for through 
traffic. . . . (Exh. 13.) On August 24, 1973, apparently in 
response to objections by certain city departments, the 
application was modified to ‘‘alleviate objections to the 
closure due to excessive length of a Dead End street and 
inaccessibility to interior portions of the Hein Park Sub­
division by Police, Fire & Sanitation vehicles” (Exh. 7).4 
Nevertheless, on October 4, 1973, this request was also 
rejected due to ‘unfavorable departmental recommenda­
tions” concerning the closure (Exh. 21).

T he Hein Park street closing request was rejected in 1970 after 
objections by the police, fire, and sanitation departments. In addition, 
city officials noted that “there is a question as to City maintaining streets 
which are not fully open to the public” and “there also could be a 
question as to the City s authority to close these street entrances after the 
public has formerly enjoyed their use.” The letter of rejection stated that 
these questions had not been referred to legal counsel since the proposal 
was otherwise unacceptable. (Exh. 14.)

"Robert M. Wilkinson, Deputy Director of Planning, had noted in a 
memorandum dated August 10,1970 that “closure of West Drive would 
create a block’ over 3200 feet long between Trezevant and University. 
This would be a very bad situation” (Exh. 14).



3

After the Civic Association sought reconsideration, the 
Planning Commission met with Hein Park residents5 and on 
November 2 wrote to the city attorney that it had decided to 
recommend closure if two conditions were met (Exh. 4).6 
On January 29, 1974, the Memphis City Council voted in a 
public meeting to approve the street closing (Exh. 26, at 37- 
38).7 It was the only time in the history of the city that a street 
previously used as a public thoroughfare was closed.

During its deliberations about West Drive, the council 
was informed specifically that the requested closing would 
mainly affect blacks and appeared — to most blacks and to at 
least some whites — to be an effort to maintain separation of 
historically segregated neighborhoods along racial lines. For 
example, the City Council members received a petition 
submitted by the predominantly black Shankman Hills Civic 
Club which stated that “this closing symbolizes in un- 
mistakeabie terms a white neighborhood shutting its door on

Tiy letter dated October 24,1973, the Planning Commission notified 
the President of the Civic Association that a public hearing would be 
scheduled for November 13, 1973 (Exh. 43). But the Commission 
decided to approve the closing before that date. The Director of Planning 
subsequently told the City Council that (without specifying any date) 
notices were sent to people on West Drive and a “lengthy public hearing 
at our Planning Commission” was held (Exh. 26, pp. 2-3). In fact, there 
was no “public” hearing (Tr. 27, 178-79).

*“(1) Applicant either pay relocation costs for existing Memphis 
Light, Gas & Water facilities or provide easements for existing and 
future utilities. (2) Fire Department will require a minimum of 24 feet of 
clearance with no obstructions other than the rolled curbing as submitted 
on the normal type of rolled speed breaker.”

T he approval of the Council was reaffirmed on February 5 , 1974 
when a motion to reconsider was defeated (Exh. 27). A resolution to 
reopen West Drive was discussed on three occasions that spring (Exhs. 
28-30). No action was taken. The matter was before the City Council for 
the last time on January 31,1978 for correction of an error in the original 
resolution (Exh. 41).



its adjacent Black and integrated communities.” Black 
witnesses, including the original plaintiff, N.T. Greene, 
expressed similar sentiments (Exh. 26, pp. 35-36; Exh. 30, 
at 6, 7-8). A councilman made reference to the “behind the 
scenes reasonings” for the street dosing (Exh. 41, p. 17). 
And a white resident told the council of his Hein Park 
neighbors’ reaction when he opposed the street closing: 
surprise at his support for the “niggers” (Exh. 30, at 1).* 5 * * 8 As 
described during the council hearings, the closing was to be 
accomplished by deeding a strip of land, 25 feet in depth and 
extending across West Drive at its intersection with Jackson 
Avenue, to the northernmost property owners on West 
Drive; and by erecting a physical barrier giving the ap­
peal ance of a continuous curb along Jackson Avenue. 
Plantings extending part of the way from the shoulders 
toward the center of West Drive would provide further 
screening. A 24-foot gap punctuated by speed breakers 
would enable emergency vehicles to cross the strip (Exh 26 
pp. 16-17).9

T he relevant portion of the testimony at the council meeting of March
5, 1974 (when the reopening of West Drive was considered) from this
witness is as follows (Exh. 30, p. 1 ):

But if you want me to, I will spell it out for you. Mr. Chairman, the 
answer is sitting right here. The well-to-do white people living in 
Hein Park do not want black people or the few of us who refuse to 
ran away living north of Jackson to drive on — to drive on — what 
they think is their street. I phoned a man — I phoned a man with 
whom I have been friendly for more than 65 years. His wife 
answered and would not let me speak to him. So as the rights and 
wrongs were discussed, she said to me “Leo and I were surprised to 
see you sitting with that group of niggers.” That, Mr. Chairman, is 
the issue here.

This witness died before the case came to trial after the Court of Appeals ’ 
remand. See Tr. 49.

A banner of somewhat different design is now in place. It consists of 
two parallel rolled curbs across the mouth of West Drive with several 
rows of plantings in between. The effect is not unlike railroad tracks filled 
in with dirt and rows of plants.



5

B. Judicial Proceedings. In 1974, this suit challenging 
the decision to close off West Drive was filed. Motions to 
dismiss the original and amended complaints were granted 
by the district court on October 4,1974. Although -chat court 
did not specify the precise reason for its action, the Court of 
Appeals later observed that the dismissal must have been for 
failure to state a claim upon which relief can be granted 
under F.R. CIV. P. 12(b)(6) (A. 38, n.l;  compare A. 30-
 ̂1 j.

The Court of Appeals reversed. Applying the principle 
that dismissals on the pleadings are not favored, the court 
ruled that the complaints, read together and

. . . construed favorably to the pleader . . . reasonably 
aver tnat the closing confers certain benefits, to wit, the 
privacy and quiet of an exclusive dead-end street, on 
white residents of West Drive that the City has refused 
to confer on similarly situated black neighborhoods. So 
construed, those blacks allegedly denied such dead-end 
streets because of their race “hold” their “real 
property,” on a less equal basis, than similarly situated 
whites who “hold” their “ real property” subject to
having the city confer the dead-end street benefit in their 
property.

(A. 40.)10

‘T he Court of Appeals also held that the plaintiffs had alleged the 
elements of a § 1983 claim against the Mayor and City Council 
Chairman even though they had not specifically sought to rely on that 
statute . The court then inserted the dictum that has spawned "so much 
confusion in this case regarding the elements of a cause of action under 
the 1866 and 1871 Civil Rights Acts (A. 42-43):

To establish a Section 1982 or 1983 claim on remand, Greene 
must prove his allegations that city officials conferred the closed 
street on West Drive residents because of their color; he must 
prove racial motivation, intent or purpose, in the absence of such 
egregious differential treatment as to in itself violate equal pro­
tection or, alternatively, to command an inference of racial 
motivation.



6

« r c r :  t nr ene as « -  by
;977 and granted on Apn ° "  ^  29’
* a t  the defendants had violated th» •' Jntervenors alleged 
that the closing of West Drive ^  nghtS ander § 1982 in 
upon white residents of West Drive " ° Uld COni'er
not available to blacks livinv - a  Hel" Park benefits 
streets, for example “increased J° lmn8 Md surroundin8 
safety and better e n r iro ^ te n S  Vaiues’ solitude.
U VI of complaint) qM y “  generaJ” <*■ JO
on May 24, 1977 (A 55)  ̂filed
residents ofHein Park, with the s f d * e affluent white
City officials, had sought to nr and acquiescence of
the subdivision and protect i f  from ̂  all' whlte nature of 
restdents into the area (A 55) , , T V b-v black 
Drive was “a direct » d  e ssennt 7  a,leged that W« t 
School, a public school and the ^  a0,access t0 Snowden 
Park, a public park t  entran«  •» Overton
black youth and other blacks ” ( A ^ M  i by 

At the trial on February 13.14  \  ‘

unrebutted testimony tta t the w L t B r i ' '“ ' I ' $presented 
have adverse financial and social '  D closlng wou,d 
“ T u „ i ty  «o the n : T o ? l Z T
Predicted that the action wom.h , Avenue- A realtor 
values for white owners in HehTp "? ’nC.reased proPar,y 
Pressing property values in hi a /  *  ? IUk fUrther de'  
Jackson Avenue A s « f o l o l ? , v ^ b o r h o o d s  above 
historic patterns of

M e ^ a n d w a rn e d o f th e p o te m ia lm c re a « T m r‘10n■ ai Increases in aggressive

W y situ a te d b S ite n sIS m e tc 5 Certifica',on »" behalf of “silnj.
traffic’’ (A. 49). On October3^977^ ' “ “ SOfWest Drive to a ^ „ a ^ cewi, as,ipulaJ ^ t ^ :o ^



7

behavior and vandalism which could result. Several plain­
tiffs related their desire to make use of the thoroughfare in 
their daily activities and their reactions to the proposal. In 
addition, the entire administrative record of proceedings 
before the Council and the Planning Commission was 
entered into the record. City officials defended the decision 
as a “nonracial” effort to accommodate the desires of 
residents; they also pointed to instances in the past when 
platted but unopened streets or alleys had been transferred to 
black businesses or churches upon request.

The district court refused to interfere with the street 
closing. Although he recognized that its effects would be felt 
overwhelmingly by blacks living north of Jackson Avenue, 
the district judge regarded himself limited by a very narrow 
reading of the Court of Appeals’ prior dictum in the case {see 
note 10 supra). Plaintiffs had not prevailed, in this view, 
because they had not demonstrated racial motivation on the 
part of city officials, nor shown a significant departure from 
normal procedures for the benefit of the white Hein Park 
residents. (Since the West Drive action was the only closing 
of a street in prior public use in the city’s history, the court 
felt that there was nothing to which to compare it, even 
though he rejected the city’s argument that black neighbor­
hoods received similar benefits when unopened streets or 
alleys were transferred.) This determination was reversed by 
the court below, which concluded from its review of the 
record that a violation of 42 U.S.C. § 1982 had been es­
tablished.

The Court of Appeals clarified that it had not intended, in 
its first opinion, to set limits on the kind of evidence needed to 
establish a violation of § 1982. Although a refusal by the 
City to grant a similar application to blacks would have been 
one way to demonstrate a violation of the statute, the



8

plaintiffs were not foreclosed from establishing a violation 
by ether evidence. The court concluded that the closing of 
West Drive under the unique circumstances disclosed by the 
record constituted a badge of slavery related to the plaintiffs' 
right to hold property on an equal basis as white citizens, 
thereby coming within the parameters of § 1982. The court 
also found the evidence sufficient to establish racial animus 
under the standards articulated by this Court in Village o f  
Arlington Heights v. Metropolitan Housing Dev. Corp., 
429 U.S. 252 (1977).

SUMMARY OF ARGUMENT

I.

The closing of West Drive under the circumstances of this 
case violated 42 U.S.C. § 1982. That statute declares in 
broad terms that all citizens shall have ' ‘the same right. . .  as 
is enjoyed by white citizens . . . to . . . hold . . . real and 
personal property," and this Court has given it an expansive 
interpretation, as befits its broad remedial purpose to 
eradicate the badges and incidents of slavery. In applying the 
law, courts must consider the totality of the circumstances to 
determine whether a challenged action falls within the 
statutory proscription.

When the City’s action in closing West Drive is con­
sidered in historical context, taking into consideration its 
immediate objective and ultimate effect, it is clear that the 
statute has been violated. Closing West Drive created a 
tangible as well as a psychological barrier between the white 
and black communities. Its effect was to benefit white 
residents of Hein Park but to depress property values in the



9

area north of Jackson Avenue. It served as a warning to 
blacks to stay out of the subdivision. Under these circum­
stances, the closing of the street adversely affected the ability 
of blacks to hold property on an equal basis with white 
citizens.

The petitioners are wrong in suggesting that constitutional 
standards of proof are applicable in the present context. It is 
well settled that Congress may, under the enabling pro­
visions of the post-Civil War amendments to the Con­
stitution, establish more stringent standards than would be 
required by the amendments themselves.

There is no evidence that the 1866 Congress desired to 
limit the application of §1982 solely tointentional dis­
crimination. The language of the statute carries no such 
implication. Legislative history shews that Congress was 
concerned about facially neutral statutes — such as the 
vagrancy laws enacted as part of the Black Codes — that had 
a discriminatory impact on blacks.

The only Congressional discussion of intent focused on 
the penal provisions of §2 of the 1866 Act. Proponents of 
the bill maintained that a requirement of proof of intent could 
be inferred from the fact that § 2 was a criminal provision. 
They made no reference to the bill’s civil liability provisions 
and no similar implication can be drawn concerning § 1982, 
the civil redress section of the Act. And, none of this Court’s 
prior cases involving § 1982 has interpreted the statute to 
require a showing of racial motivation.



10

III.

The Court of Appeals specifically reserved the question 
s ™  r p tent ™ist ever be Proved to establish a violation of 
" I 9® .  BuUt f  dld address the issue whether plaintiffs had

an s TqI  ̂ Urdj n ° f Pi ° 0f Under their alternative theory based 
on £ 1983 and the Fourteenth Amendment. The evidence
taken as a whole, meets the standard of intentional dis­
crimination set forth in Washington  v. D avis and Arlington

ARGUMENT

I.

THE EVIDENCE PRESENTED TO THF
ESTARM9HCl Lv m WAS SUFFICIENT TO
§ 1982BLISH A VIOLATION o f  42 U.S.C

Although petitioners have attempted to characterize the 
action of the City of Memphis in closing off West Drive as 
notlung more than the legitimate exercise of its plenary 
authority over land use, in fact far more is involved in this 
case -  as both the trial court and the Court of Appeals 
recognized. The majority below emphasized the relevant 
points of difference between the West Drive decision and 
routine zoning activities:

' '  ■ TD  im m un ity  to be benefited by the closing was 
and had h.stoncally been all white. Conversely The 
territory to be burdened by the closing was5̂ pre­
dominantly black. The barrier was to be erected



11

precisely at the point of separation of these neighbor­
hoods and would undoubtedly have the effect of limiting 
contact between them. The proposed closing was not 
enacted in response to any uniform city planning effort, 
directed generally to the preservation of the residential 
neighborhoods throughout the city; instead it appears to 
have been a unique step to protect one neighborhood 
from outside influences which the residents considered 
to be “undesirable.” Finally, there was some evidence, 
credited by the district court, of an economic depreci­
ation in the property values in the predominantly black 
residential area with a corresponding increase in the 
property values in Hein Park. The result, under the 
unique circumstances here, can only be seen as one 
more of the many humiliations which society has 
historically visited upon blacks. Where that racial 
humiliation not only rises to the level of a badge of 
slavery but also affects the right of blacks to hold 
property in the same manner as other citizens, then 
Section 1982 has been violated and the federal courts 
must provide a suitable remedy.

610 F.2d at 404.12
The Court of Appeals’ analysis was entirely correct. As 

we show below, in appropriate circumstances (such as those 
involved here) a street closing may violate 42 U.S.C. § 1982 
by restricting the “property rights” of residents of black

12Similarly, the district court recognized that the street closing would 
have what it termed a “disproportionate impact on certain black 
citizens"’ (A. 161):

As heretofore indicated, by placing the narrow barrier at the 
intersection of West Drive and Jackson, the southbound over­
whelmingly black traffic will no longer be allowed to continue a 
logical and direct route across Jackson. At the same time the white 
residents of West Drive will have considerably less traffic. The 
residents of West Drive also will have less inconvenience because 
most of their movement will logically take them southbound on 
departure and northbound on return.



12

neighborhoods. Further, the Court of Appeals appropriately 
assayed the city’s action in light of historical conditions to 
determine its full significance.

42 U.S.C. § 1982 Encompasses the City’s
Action Blocking Access to West Drive.

Petitioners contend that this case is governed by Palmer v 
Thompson, 403 U.S. 217 (1971) because the city’s “action 
now before the Court can no more be said to be a ‘badge or 
incident’ of slavery than could the closing of the pools in 
Palmer (Pet. Br. at 13). But as the court below recognized, 
the gravamen of this action is the asserted violation of 42 
U.S.C. § 1982, not a direct claim under the Thirteenth 
Amendment — the situation in Palmer. 13 610 F 2d at 402 
n.8.

Section 1982 is a remedial measure enacted pursuant 
to Congress’ enforcement authority granted in §2 of the 
Thirteenth Amendment; and, as this Court has emphasized, 
it is to be “ accord[ed] a sweep as broad as its language ” 
Jones v- AlfredH. Mayer Co., 392 U.S. 409.437(1968). In 
a variety of factual settings, this Court and the lower federal 
courts have, accordingly, taken an expansive view of the 
rights protected by § 1982.14

13In Palmer, Mr. Justice Black, for the Court, rejected an 
argument that a city’s closing of public swimming pools had imposed a 

badge of slavery” on its black citizens in violation of the Thirteenth 
Amendment. He stated that, absent applicable Congressional legisla­
tion this Court lacked the “lawmaking power” to determine what 
conduct amounted to a “badge of slavery.” 403 U.S. at 227

ffnHurd v. Hodge, 334 U.S. 24(1948), this Court rejected the claim 
that the statute prohibited only those actions affecting blacks which 
’ wholly disabled them because of their race.” It held enforcement of 
racially restrictive covenants invalid under the statute even though

(continued)



13

(foolnote continue<J from preceding page)
blacks were not denied the general right to purchase or lease other 
property in the jurisdiction. Jones, supra, rescued the enactment from a 
century of desuetude by confirming its application to transactions 
between private parties, pursuant to the Thirteenth Amendment’s broad 
commission to Congress to fashion legislation suitable for abolishing all 
the remaining incidents of slavery. See Civil Rights Cases, 109 U.S. 3, 
35 (1S83) (Harlan, J., dissenting).

In Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969), this 
Court interpreted the term “property” in § 1982 to include a member­
ship share in r ecreational facilities which could be assigned to a tenant. 
In Tillman v. Wheaton-Haven Recreation A ss’n, Inc., 410 U.S. 431 
(1973), the statute W2S held to protect a black person’s right to exercise 
an option to purchase a swim club membership to fill a vacancy created 
by the resignation of the individual from whom he had purchased his 
house, even though membership rights themselves could not be 
transferred between sellers and buyers.

The lower federal courts have continued to interpret § 1982 broadly, 
to expand the “elusive” concept of “property”, Terry v. Elmwood 
Cemetery, 307 F. Supp. 369, 373 (N.D. Ala. 969). (Holding that a 
purchaser’s interest in a burial lot is a property right, the Terry court 
quoted one definition from H. Cohen, FUNDAM ENTALS OF LAND  
USE LAW ix (1962): “ [A] ‘property right’ of any nature may be defined 
as “that type of relationship which is entitled to protection from a 
decision maker.’ ” 307 F. Supp. at 374.) In Olzman v. Lake Hills Swim 
Club. Inc., 495 F.2d 1333 <2d Cir. 1974), the court addressed an issue 
left unresolved in Tillman, and ruled that a black person invited by a 
swim club member to use the facilities of a swim club as the member’s 
guest has enforceable “property” rights against discrimination under 
§ 1982. As the court analyzed the issue,

It is reasonable to characterize the freedom of blacks to go and 
come as guests of a swim club member as sufficiently pertaining to 
a condition of property tc be a right capable of being held under 
§1982.

495 F.2d at 1339. See also, Walkerv. Pointer, 304 F. Supp. 56, 61-62 
(N.D. Tex. 1969) (white tenants may not be evicted for entertaining 
black guests, under § 1982).

I

;



14

one exception were hi a r t  • , wno Wlt“
of the street Tb* • , fr°m usmg the western ponion

to the journey to town.” 488 F.2d at 4 to  r  o  ,

white citizens”  / “ ' 7uZPr0Perty °” * *  ^  basis as 

“ Stant case’ as in ,hose described above the
Memphis c T S  ^  “  *fite#d  by 11,6 dedsio" <*tta

w M ™ td  b U‘°  mterP° Se 3 barrier ! * * » «  the wmte and black communities. There was unrebutted tesri

b0Lh ,Jtedis,rict court - d  t  c o mAppeals, that closing West Drive would increase property 
va ues on that street and depress values north of Jackson 
Avenue (see Tr. 45, 118-19). Moreover, by “ he

m o 'o T w ™ 6 n ‘°  Wh° m 11,6 d ty  dansferred the 25 t o  smp of West Drive the power to selectively bar black
j^destnans from entering West Drive, the plaintiffs’ right

378 U T l l T ? £  Fl^ SUre” iS aff6Cted’Bel1 v• Maryland,
H d  t o l v  b 3 n' 10 (I964) (GoldberS. J.. concm ing .And finally, by creating a white enclave, the city oave the

hite residents of West Drive a perceived benefit that has no
comparable duplicate for black citizens residing in the area

r i  ba-  BeCa“Se ol fcsidenria]1 segrega-
’ . er serves as a constant reminder that blacks are 

not welcome on West Drive and in Hein Park.15

D n v tw t ? « S L Pw^ G ° ,F ?  3 1404' the d0si^ °fW e s,
nouh o f West Dnve to stay on, ofZ  Hein P t o X r i s t "  ’ “



15

s J e f d l n  S S ° Z r rly Cr ,Uded “ isolate
Une, and w h l h ^ ^ l t ^ 5 ^
thai is denied to the black crm th ^  commumf 
blacks ,o hold p r o ^  o n T r ' f  KVi° iateS * e *■ »  0 
therefore constitutes an incident of slav  ^  Whites anc
Congressional power to nmhfh !  1,13115 within *e
Amendment. P “ “  Under § 2 ° f  the Thirteenth

B S  * ? sT rro L Ad "g  F a c ^ n d  C  C° nsidered

Sharp dividing lin e^ ’t ^ n  S|de" sions ,here is n0
are or not vouchsafed to m P ?. r̂t̂ "related interests which

§1982,. In s o t e 1 i : ~ yesC' T r t dr 2U  S C  
violate the statute even thoi, u ■ ’ • trtet c ôsmS may 
Fourteenth Amendment’s eofY* mghtnot transgress the
the opportunity to attend a s w im ^ T ^ ^  dause’ JUSt as 
coverage of the law tho.mh ,c ub may fall within the

§ 1 o f 5 e Z p T  4eSC0Pe0f

~  C h a n g ed  led™

in this C o S o i S ,  W Pd S „ r y SU"dl!rdS of Pmofdeveloped 
construing a tntnedia, s t a w ^ S ” “  S " * * * *  “ = -ap p esitt in 
authority under the Thirteenth Am* a d exerrcise 01 Congressional
demonstrate that the iudement hf in dment' In Argument III, we
Amendment principles 1S COrTeCt even under Fourteenth



16

!“  W« o n c a J e f f e c t e d

s i . !'  “*  *  'Vsst Coun o f

Although the the
described in the Ci^”” f dlate obJeedve” 0f  the el 
^  « *  of s'UM ^ f ° n'S:W a f t * a ^ g ^ o

w t r s ^ a a a s S
residential areas 0f  ’t h f ’ ^  27’p> 2; E*h. 41 p L )  *

? S , £ Z 7 * " “! e T " ^ , l i v « - ' S
■ • . « . »  , £ !  ™  “ » t a - m . , i t

‘s - ^ s r ^ a r - '- s s

* e  California C W enth Amendment ch*n
§I982  nsotutfon, but , «  approach »  a Provision of

equaiiy applicable to



17

black citizens. As the district court found, “the southbounc 
overwhelming black traffic will no longer be allowed tc 
continue a logical and direct route across Jackson . . . .  The 
residents of West Drive also will have less inconvenience 
because most of their movement will logically take them 
southbound on departure and northbound on return”
, ' 44' - , e tnal Jud§e also recognized that the street 

closing along Jackson Avenue conveyed a vivid message to 
the black community to the north: “Obviously, the black 
people north of there who[j/c] are being told to stay out of the 
subdivision (Tr. 317).19 Furthermore, by deeding the strip 
of land at the mouth of West Drive to the abutting 
landowners, the city would be giving them an absolute right 
to bar pedestrian, as well as vehicular, traffic 

Unrebutted testimony presented by the plaintiffs also 
established that, as a consequence of the closing, property 
values on West Drive would increase while those north of 
Jackson Avenue would depreciate.20 Finally, the proof

‘^During the trial the district court described the West Drive closine 
as unprecedented” and then said (A. 123-24): ®

^  J  isJ om§ to ^and or fall except it is another indication 
that somebody decided they were going to accomplish n S i v  
accomplish what they hadn’t been able to do in three years- the 

C1^  They tried to keep all of the oeople nTnh of 
Jackson from comirg through there and that didn’t work So now
ideTth^T 1 d° n 1 “ T  Wh° 11 was’ has come UP w>th this clever idea that if we can get the two people on the comer to — I would be

w e c S I e t ^ e ^ b 0 *  f '*8t0 pay the eight hundred dollars. If we can get those two people to agree and lend us their names we 
can stop these people to the north. ’

2T he district court did not find this evidence lacking in credibility:
In the instant case, this federal court is of the opinion that it should 
efram from applying its judgment on the merits even though the

c t o s T w e°sfn d '* rlessenin? * e Problems forthe whfrecitizens of West Drive in spite ot the adverse impact upon the black

die'attendant 5 * a^ avation o f^  M t v  - t h

r r onr d“
ployees” (a "?63) [emphasis^suppliedl.1131100 Depanment em'



indicated that the likely consequence of closing the street

ofschocd r tCHaSed ' T '  h° StiIity’ vandaiism’ harassment 
c°“  c^ ' f en’ m d by police. These results, of
course, could be accomplished only with the assistance and 
participation of city authorities. v.
supra, 387 U.S. at 378-79. ^

Finally, the • ‘historical context” of the West Drive closine 
suppom a finding of discrimination. As previously ind"

ouwf; eT  h! d " eVer before ciosed a street u“ d by the
public m order to deal with traffic congestion. Although city
officiate had themselves raised questions about the legality
ot such action when it was first proposed in 1970 see note 3

P ), no effort was made to resolve the issues before the
decision to block West Drive was made. The city’s normL
Practice was for the Planning Commission to ob ta^T nd
consider comments on such matters as proposed street

sm ncTth^0”  a" .S0VemmKltaJ departments. In this in- 
ance, the commission gave conditional approval to the

losure without any reply from the city’s Public Works 
Department (Exh. 26, at 2) . -  I, also acted without con­
ducting the public hearing which it had itself scheduled for 
Novem er 1 3 ,1 9 7 3 .-No official traffic impact study was 
undertaken in connection with the matter, and the city did

-‘During the City Council hearing on Januarv 29 1974 nhr

department that apparently raised some objection (Exh 26 dd 3 fi) 
One councilwoman expressed surprise that the P1» S .  r  ’ 6)-

-See note 5, supra, and accompanying text.

18



19

’« '* * •  usi w Z t D  CUmm »*>™» for Ae  „ fc
A ether, * .  PP. 3 3 ^ . ^ * ?  ° f

210 doubt about then- ■ dCtS and circ^mstanr ’ 6 ^  
closure.«  IS« ™ n at0I7 nature Qf ^  leave

- ^ ^ e n ,  be)ow ^  b est Dnve

r a p a a ? ^ 0"" »f  A p p e a l  sum ™ 6 d

X ; * * « ~ - * „ o b „  sa '̂ant considerations bears

was “ «f hadFSS3s E S r^ ^ ta%
of the residential / ! ort’ dlrected general! P resP°nse to anv 
appears to have been f ° ° rboods th r o u g h o u t  ̂  preservaPon 

outside influence qUe steP to j ^ c t  nn C’ty; mstead it 
undesirable. ” FinafiP th bch the residents r ?  n5lghborh°od 

district court, of an e c n ^ 61”® Was s°me ev id en tnsidered to be 
. e Predominatly blade mJC dePreciation in the ’ cred:ted by the 
increase in the p rop er^  ? sidendaJ area wl epropertyvaiues7n 
^ q u e  circumstances hê 1163 m Hein Pat-k The* co.rresP°nding
toany humjJa[J "Ĉ here, can onlv beTee'n CSuJt’ B e r t h e
blacks. Where thof hich society has h"? as one more of th! 
badge of slavery bu t F ^  humiJjation not 7 “ncaJiy visited upon

noted above ^
' ‘“ ■PS Wes, D n v e '^ r ' 'hf  Proced“«  followed"" ‘‘h'" ' of the

* * * stsss -«- 42SS.S:
entJre legal analysis7CoOnrSt,tUtI0naJ standards Thn pr° Vlng a § 1982 or
f  ate a constitutional vi the efficiency 0f  rh ^  djStrict c°crt’s
mt 59'63)' f0,J°wed by t h f ° n Under the ^urteerth f°  dem° R'

»  r  r r

M y “ "adtadona, c ^  coesbued 5 , 9M  “' > ’« * • »  to
* 82 independently of



20

II.

OF 42 U.S C §1982 A VI°LATION

Show ing ( W h ic h t a s  cred ited  C o m '̂ “ 7 1 7

S ^ a x t a S“ r L“ ;h :qz  r fofa specmc
was specifica“ y TeZty  “ coY ^ a " ”  ™ S t a “  
continue to maintain as we did in n Appeals; and we
p etitio n  for a  w rit o f  certiorari that , o p p o s ,t ,o n  10 thethis case.*  cera° ™ . that it is not properly raised in

A r f in ^ „ H r iX r j etro i 4H ! U 'S n2 2 9 <‘™>;  Village of

light of the categorical statement L t  Ame"dmentwas in

S S S e ' ^ i s S f S u r i  ^d°Cle I " ? T  a"d TOK »ithon.

p r in X f e S c S d T d t  a” a^ F° “™ ™ h  Amendment
racta. m orivaU o„7inc^;st r H o ”w "°',!UPPOrt a ^  »fPomted o„t, * .  <*

2 f ^ S ? S ,^ S r ¥ S S ,S j ,h,,fa f  paobil,ty “ =ra"t « iio f hy 
y n  £  requiremems of Sectional 98oCan(i0°  h‘®h a threshold 
Thirteenth Amendment. 98~ ^ d' under|y>nS it, the

{continued!



21

*ifsT ctioraL 7ftehc S e d r eW’ We show *
the statutory interpretation QUe315e itl° " ersdonotcontrol 
either the language of § 1982T i e "  T  “ S mattert
deepens, nor underlying public J ? * hiStory• P ™  
qu,re a showing of purposeful dT —  Cons,derat,°ns re­
establish a violation o f Z  staLte on in order t0

8°- Compare colloquy at A. 124-25- 
The Court: . . .

Counof Ap^XTvsthe'awIs T n d l ^  ‘° ft “ in 'vi,h w»at theyou are mailing, u j  ho * £ w *  ' agree with one o f the po,„K'
n y time it has ever happened w he^31” u golng to comPare the 

blacks or whites. PPe°ed whether they [323j doing it fo?
Mr. Speros: Weil Yrv,,. u

part o f i T e y i n S n  a l!S ? n e 'ir tb o Ch ^ 0mpare Cosing o f a
all white neighborhood isseeW no0^ 00^ t0 3 situation where an

Tor this reason the Sivtt. <—
court's finding that r a c i d t S ™ ^  felt that “*  district
were considered dispositive ?  3d "ot Proved -  if the « ?„

^ c tn te n s  when they had applied for s t a t T f ^  black

show that thePC?u‘rt o“fPA p ^ i? ^ fe w ^ f0^ " 8 SeC,ion of the brief we 
establish racial intent was coirect. ‘ °f 6 ade< ûacy of the proof to



A- a c o -  

“ |l9 8 2 Do Not Govern Suits S 3 T S

^ ' 2 : 426CUUsn  % ? % £  “ of

Of Appeals did not hold telow becaus= «he Court
to make out ^ Z ^ m T ^ T r
argument is that w Z , i J L  f  n  * ‘°  this 

Citv o f Mobilev & w /  ' a r a ’ holds,  and
supra) 2 T L ;  T  • SUpm■ Sug«ests t o  -tote 24
constitutional Eolation m dT th  ^  Pr° Ven ‘°  eS,abiish a 
Amendments, ^
statutory cause of action d mv° lves a

A m e n d m e n T eq u ^ r o S S c la u se0 ^  ^ 7  ° f  1116 Fourteenth 
compel a similar interpretation of the T h irteen  'y/ Uggest’ does not 
Fourteenth Amendment subjects a iT l^ i h Amendn* ot- The 
classifications to potential judicial sc m tin v S iT h  • ^  administrati ve 
is limned in its scope to the “badges ana t  Thlrteenth Amendment
reason a d e K n r t J L  „  '  £ T * n«  o f slavery-. For ^  

a showing of discriminatory intent to dOCS not re^uire
the status or incidents of servitude couU lht^ f  * *  perpetuates 
ouestions about, and perhaps in va lid ^  J  6 Said t0 “raise serious 
public service, r e g u l a t o r y * ran«e oftax> welfare,

burdensome to the poor and to the averaieN5̂ 65 * “  may be more
white.” Washington v. Davis 7upra han t0 ™ re affluent 
omitted). See Developments in the Tn ’ c 3t [footnote
CIV. RIGHTS-CIV. U B L « v  ^  ^  1 9 8 1 ’ 15 HARV.
Thirteenth Amendment does require a ’, 183' 84 (I980h But even if the 
resolve the instant case For we^eDeat^?^08/ that Would n°t 
pursuant to § 1982, a statute passed n P 3intlfh cIaim here is brought 
granted Congress by §2 of



23

It is now well settled that, in carrying out its legislative 
authority under the Reconstruction Amendments, Congress 
may establish more stringent standards than the language of 
the Amendments themselves would require. For example, 
on the same day that the plurality in City o f  Mobile v. 
Bolden, supra, suggested the inappropriateness of an

effects test under the Fifteenth Amendment, this Court 
upheld the same standard in § 5 of the Voting Rights Act of 
1965, which was enacted pursuant to §2 of the Fifteenth 
Amendment. City o f  Rowe v. United States, 64 L. Ed. 2d 
119 (1980). Compare, e.g., Washington v. Davis, supra, 
with, e.g., Griggs v. Duke Power Co., 401 U.S. 424 (1971)'. 
Nothing in the language of the Thirteenth Amendment 
suggests that Congress’ authority to define the “badges and 
incidents of slavery” through remedial legislation is any 
more limited than its remedial powers under the Fourteenth 
and Fifteenth Amendments.

Indeed, Congressional authority under the Thirteenth 
Amendment to make discriminatory actions illegal without 
the necessity of showing intent has been recognized and 
sustained by the lower federal courts, in cases involving 
application of the Fair Housing Act of 1968. 42 U.S.C 
§ § 3601 et seq. (Title VIII of the Civil Rights Act of 1968. 
82 Stat. 81).27 The dispositive question in this case, 
therefore, is whether a “discriminatory intent” requirement 
can be gleaned from the language and history of the statute in 
question, 42 U.S.C. § 1982.

y  Housing Dev. Corp. v. Village of Arlington Heights.
558 F.2d 1283 (7th Cir. 1977), cert, denied, 434 U.S. 1025 (1978V 
Resident Advisory Bd. v. Rizzo, 564 F.2d 126 (3d Cir. 1977), cert, 
denied sub nom. Whitman Area Improvement Council v Resident 
Advisor Bd.. 435 U.S. 908 (1978); Fox v. HUD. 468 F. Supp 907 
(E-D - Pa;  1979); United States v. Reece. 457 F. Supp. 43 (D. Mont. 
1978); United States v. L&H Land Corp.. Inc., 407 F. Supp. 576 (D.



24

B‘ R^n.^ain La"gua8e of §1982 Includes No 
q irement for a Showing of Racial Intent.

a n S e fre m e ^ L t c* £ f e t i n g
in the enactment offS 1982 ^ eobjectlveof Congress
Rights Act of 2  S COntameC ln § 1 of ̂  Civil
statute ” 28 It was to eiL ^  ^  langua§e of theAi was to ensure to all c itiz en s  „ . .
every state and territory in the t o , ,  ^  nght’ m
purchase, lease sell hoM States . . .  to inherit,

property. . .  as is enjoyed by white citizens631 ^Nwhin n31 
this broad phrasing suggests that S ' '  NothjnS ln 
shown to bring its

Alfred H. M ayer Co., supra, 392 U S atdnn *-* r-n

la fc tT * m a ^  ^ i o u s Z

w h i t e , w o S S d ^ ^ C ^  d rSOnS' “ d

^n ggs  v. Duke Power Co., supra, 40! U.S. at 429-30

CourtemphasizecUha^§T ^^isnot S '  C°'’ S U p m ' this 
Housing title of the C iv l p r o c to r  of the Fair
• • • is markedly different fhanthat Sth  *96® 'Jhe coverage of § 1982, 
U.S. at 417 n .21 w S  r , ° fthe Cml Act of 1968. ” 392
same goals, § 1982 is broad anT eene^ f ^ ’h StatUtss share some of the 
and directed * g£neraJ’ whereas Titie VIII is specific



25

condition of having lesser rights and opportunities to enjoy 
real and personal property than those “enjoyed by white 
citizens” which demonstrates a violation of the statute.

In Jones, supra, this Court held that the statute was “cast 
in sweeping terms” , 392 U.S. at 422, and that it should be 
given a “sweep as broad as its language” , id. at 437. It has 
rejected attempts to alter the plain meaning of the broad 
language through “ ingenious analytical” arguments, id., or 
through a stilted and “mechanical reading” of its language, 
McDonald v. Santa Fe Trail Transp. Co., supra, A ll  U.S. 
at 287. These precedents compel rejection of the petitioners’ 
argument in this case.

C. The Legislative History of the Civil Rights Act 
of 1866 Supports a Broad Reading, Unre­
stricted by an Intent Requirement, of the Civil 
Provisions of the Statute.

It would be unrealistic to examine the legislative history of 
the Civil Rights Act of 1866 for discussion of disparate- 
impact analysis similar to this Court’s opinion in Griggs v. 
Duke Power Co., supra.30 There are strong indications in the 
legislative history of the 1866 Act, however, that a broad 
reading of the statute is more in harmony with the intent of 
Congress than a restriction of its reach to acts of purposeful 
discrimination.31

30Note, Racially Disproportionate Impact of Facially Neutral Prac- 
tices — What Approach Under 42 U.S.C. Sections 1981 and 1982?, 
1977 DUKE L.J. 1267, 1280; Developments in the Law — Section 
1981, supra, 15 HARV. CIV. RIGHTS-CIV. LIB. L. REV. at 48-49, 
68-69,177. See City of Mobile v. Bolden, supra, 64 L. Ed. 2d at 98 n.27 
(Marshall, J., dissenting).

3ISuch indicauons are of particular importance in construing statutes 
of this period, because a contemporaneous doctrine of statutory con-

(continunJ)



26

(I) Direct evidence that Congress did not intend to 
limit the civil provisions of the statute by an intent 
requirement

The strongest indication that Congress did not wish to
"  reach of ^  I8“  Act by incorporating an intent 

standard arose in the course of debate on the effect of the 
statute on the ' Black Codes” adopted by Southern legis-

c° " , -n u eJ l'ro'n preceding race)

•Thj ScC0Urt reCOgnized **  d°«rine of ‘-the equity of 
/ , o ir i , ^mted States v. Freeman, 44 U.S. (3 How ) 556 565 
(1845), but cautioned that there should not be -‘an equitable constnic 

on of statutes beyona the just application of adjudicated cases ” In

^ C e r e t d  £ 3  (111 ^  493’ 504 d ^ l ) ,  tSs S S  held 
tinned constructions should be avoided, and con-

* 2 *  ™ay.bue with,in the meaning of a statute and not within its 

of the Law m ^er constitutes the law^” ̂  mean*n®‘ mention

n M 0 \°  H° ’̂  T^?ity Church v' United States- 143 U.S 457 4^9 
193 201Ka97“ iUn't̂ d,Steeiworkers of America v. Weber. 443 U.S

undemaoly accepted in the late 1860’s, ard the Thirtv Ninth r™

h S to  f“ dA c7,ar ,: ~th ’ i ^ Ct t0 contrary — t0 have framed the Act under
the assumption that its interpretation would not be limited to the specific 

.nations then facing the nation, bn. was capable of grow* ,o m S t  
situations. See Note, supra.1977 DUKE L.J. at 1284-88 Ifthereisno 
adequate direct evidence as to an intent requirement therefo e 
inquiry must shift to the identification of rhe er° re’ me
Confess. If tha, pu^ose ^ . ^ t  ^ u l dzt°nhe— -—~



B

i'atures after the end of the war.”  The Congress desired to 
enact into positive law, in the statute, the military orders 
lsapproving those codes. Many provisions of the Black 

Codes were not dtscriminatory on their face; some went so 
ar as to guarantee blacks the right to own property «  The 

evils Congress sought to redress in relation to these codes 
were of two lands: the explicit raciiU discrimination to s l e  
provisions of the codes,”  and also the racially disparate

~ ° f Certai" harsh but facia11̂  "eutral p r o S n sch as the vagrancy and apprenticeship laws. These latter 
p r o t o n s  applied to blacks and whites alike,”  but banned

32Within three months after the adoption of the Thirteenth Amend-
A c f l r  DT mber’-i865 (and during *** Period when the Civil Rights 
Act was under consideration by the Congress), every Confederate sute
rfc6 TTTeXaS enacted a Black Code. See 6 C. FAIRMAN HISTORY 
OF THE SUPREME COURT OF THE UNITED S T A T F t

threatened to nullify the Thirteenth Amendment.

u ’f - 5f°V  ; A f  of 1866, Its Hour Come Round at

“It appears that only Mississippi and certain localities within

n  f ST0RY 0F  R E C o k sT R U C T JO ^ S(1906) (Parish of St. Landry, Louisiana): W FLEMING n n n r
t o , r e c o n s t r u c t i o n  31 „ 9 W , ,0pe:

D e c lm b f r ^ '  ^  N 0 ' 6' 5UPr“ ”'33' at 17° -71 (Alabama. Act of uecember 15, 1865 concerning vagrants or vagrancv) 180-81
Georgia. Act of March 17, 1866 in relation to apprentices) 181 83

.Louisiana. Act regulating labor contracts for agricultural pursuits, not
(continued)

27



28

blacks to a much greater extent than whites because of the 
private actions of whites in refusing to sell land to blacks or to 
employ blacks at a fair wage.36

The provisions of the Virginia vagrancy law are an 
excellent case in point. On its face, the statute applied to both 
blacks and whites, and defined as vagrants the members of 
either race who were beggars, or who had no visible means of 
support, or who, “not having wherewith to maintain them­
selves and their families, . . . live idly and without employ­
ment, and refuse to work for the usual and common wages 
given to other laborers, in the like work, in the place there 
they then are.” Vagrants of both races were subject to arrest 
and to a warrant ordering them “to be employed in labor for 
any term not exceeding three months . . . for the best wages 
that can be procured . . .  to be applied . . .  for the use of the 
vagrant or his family.” 37 Nine days after its enactment, 
Major General A.H. Terry, the Commander of the Depart­
ment of Virginia, issued an order prohibiting the enforcement 
of this vagrancy law because, regardless of the intent of the 
legislature, private actions would make its actual operation

(footnote continued from preceding page)
then signed by the Governor), 184-85 (Louisiana, Act of December 20, 
1865 for the punishment of vagrancy), 186 (Louisiana Act of December 
21, 1865 in relation to apprentices and indentured servants), 218-19 
(South Carolina. § § 95-99 ofthe Act of December 21,1865, relating to 
vagrancy), 229-30 (Virginia. Act of January 15, 1866 providing for the 
punishment of vagrants). As will be seen hereafter, the provisions of the 
Black Codes w'ere discussed frequently in the debates on the 1866 Act.

36Part II. REPORT OF THE JOINT COMMITTEE ON RE­
CONSTRUCTION. 39th Cong., 1st Sess. 55,83,235-36 (1866); Part 
II, id. at 9. 22, 36, 71: Part IV, id. at 56, 69. 82, 117; REPORT OF 
GENERAL CARL SCHURZ, 1 S. EXEC. DOC. NO. 2 .39th Cong., 
1st Sess. 22, 24-25, 82 (1865). R. Kohl, supra n.33 at 279-83.

3The complete provisions of the Virginia Act of January 15, 1866, 
entitled ’‘An Act Providing for the Punishment of Vagrams”, are set out 
in Appendix B to this Brief, infra.



29

more onerous for blacks than for whites.38E. McPHER- 
SON, THE POLITICAL HISTORY OF THE UNITED 
STATES OF AMERICA DURING THE PERIOD OF 
RECONSTRUCTION 42 (1871). The President refused 
to disapprove this Order. Id.

This was not an isolated occurrence. In South Carolina, 
Major General D.E. Sickles ordered on January 17, 1866 
that the only vagrancy laws that could be enforced’in the 
state were those ‘‘applicable to free white persons”, and 
ordered further that even these laws, made racially neutral 
by his order, "shall not be considered applicable to persons 
who are without employment, if they shall prove that they 
have been unable to obtain employment, after diligent efforts 
to do so.” Order of January 17, 1866, XIII, quoted in E. 
McPHERSON, supra, at 37. Orders quashing state laws 
were also issued by General Swayne in Alabama and by 
General Thomas in Mississippi.

In the debates on the 1866 Act, these Orders were 
frequently discussed and approved. Several members of 
Congress stated their view that the provisions of these 
Orders would be continued by the provisions of the Act, and 
would thus both survive the end of military government in the 
South and be made applicable nationally.39

The pertinent portion of General Terry’s Order is set out in 
Appendix C to this Brief, infra.

39Senator Wilson described the facially neutral Virginia vagrancy law 
as having been used to make slaves of men whom we have made free ” 
He thanked General Terry for his Order, and described the state laws set 
aside by military order as “nearly as iniquitous as the old slave codes that 
darkened the legislation of other days.” He thought passage of the civil 
nghts biH was required in order to bar such state laws forever. CONG

r r n ? r t i  r u T 8" lst SeSS‘ 603 (1366> [hereafter, CONG. 
GLOBEJ. In the debate on initial passage, Senator Trumbull, the

anager of the bill, stated that one of its purposes was to destroy all the 
discriminations of the Black Codes. CONG. GLOBE 474. In the debate

(continued)



30

If Congress or the military had wanted to restrict their 
actions to purposeful discrimination, they could have 
stopped with outlawing the private combinations of em­
ployers that manipulated the vagrancy laws to bear more 
heavily on blacks than on whites. Both Congress and the 
military understood that they were going further, however, to 
prohibit the enforcement of these facially neutral laws. 

Further indication of the intent of Congress is provided by
* e40debate on § 2 of ^  Civil Rights Act of 1866, 14 Stat. 
2740 — the penal enforcement provision. The only dis-

(footnote continued from  preceding page)

onpassage cf the bill over the President’s veto, Senator Trumbull quoted 
GeneraJ Terry s statement that the Virginia vagrancy law would have the 
ettect ot -[reducing] the freedmen to a condition of servitude worse than 
that from which they have been emancipated”, and cited the orders 
issued by Generals Terry and Sickles as demonstrating the existence of 
the evils -  denied by the President -  that the bill was intended to 
redress. CONG. GLOBE 1759, 1760.

The House debate was equally clear. Representative Cook cited the 
vagrancy laws and the orders of Generals Thomas. Swavne, Sickles and 
1 erry, and continued:

. . .  The question is, shall we leave these men in this condition? It is 
idle to say we are not leaving them to a system of slavery. If it had
n°u- LL.n t0r tiie acts °̂ the military commanders, had not the laws 
which have already been enacted by the Legislatures cf the rebel 
States been set aside, the negroes would all have been slaves now 
under the operation of their vagrant acts or other laws.

I believe that this bill is a proper remedy for these eviis.
CONG. GLOBE 1124. Representative Thayer cited the Black Codes, 
amd the military orders prohibiting their enforcement in Mississippi' 
Alabama. South Carolina, and Virginia, as demonstrating that the 
I mneenth .Amendment would be “of no force or effect whatever” if the 
bill were not enacted. CONG. GLOBE 1153. Reoresentative Windom 
endorsed General Terry’s order setting aside the Virginia vagrancy law, 
and said that the bill would accomplish the same end. CONG. GLOBE
1 lc8. Representative Broomall took the same position. CONG 
GLOBE 1263.

° êc-  ̂ of the Civil Rights Act of 1866 has evolved into 18 U.S C 
§242. Jones, supra, 392 U.S. at 424 n.32.



31

CUSSIOR of-‘intent” by the Congress during consideration of 
the Act was in reference to §2. It was occasioned by the 
claim of opponents of the bill that § 2 would authorize the 
arrest of a state judge for following in good faith the 
provisions of a state constitution or of state laws which were 
subsequently found to be inconsistent with the bill.41 The 
proponents of the legislation responded by stating that the 
requirement of unlawful intent could be inferred from the fact 
that § 2 was a penal provision, and that there was therefore 
no need to add an intent requirement to this section of the 
statute.42 If any other provision of the statute had been 
considered by its proponents to require intent, they would 
surely have pointed it out rather than rely on an argument by

lE.g„ CONG. GLOBE 475 (remarks of Senator Cowan).
[I]t requires a union of act and intention to commit a crime,” 

CONG. GLOBE 475 (remarks of Senator Trumbull); “I suppose the 
esence of all crimes consists in the intention, the purpose. In the trial of 
criminal cases, we inquire into the animus with which the act was done 
by the accused. . . , ” CONG. GLOBE 502 (discussion of culpability for 
treason) (remarks of Senator Howard); “Sir, what is a crime? It is a 
violation of some public law, to constitute which there must be an act and 
a vicious will in doing the act. . .  and a judge who acted innocently, and 
not viciously or oppressively, would never be convicted under this act.” 
CONG. GLOBE 1758 (remarks of Senator Trumbull). Representative 
Wilson stated in the House that “there are two legal modes of meeting 
any and every willful deprivation of these rights: one by action for 
damages at common law in the courts, which, however, will not lie 
against judicial officers; and the other by making it a penal offense as the 
second section of this bill does... .’’CONG. GLOBE 1836. Nothing in 
his remarks indicates that he intended to limit civil remedies under the 
statute to cases of willful violations, or that he ever addressed the precise 
reach of the civil provisions of the bill, as distinct from the criminal 
provisions. No other Representative or Senator discussed a limitation of 
the civil provisions in a manner corresponding to the limitation of the 
criminal provisions.



32

implication.43 Rather than supporting the petitioners’ 
argument, set forth at p. 25 of their brief, that “even the 
proponents of the Act of 1866 did not conceive that the bill 
would remedy unintentionally discriminatory laws . . . the 
debate on this point expressly refutes it. The reference to 
Senator Trumbull’s remarks, mistakenly cited by the pe­
titioners to page 477 of the Congressional Globe, is taken 
out of context.44

‘This Court has previously held that the scope of § 2 is substantially 
narrower than that of § 1, Jones v. Alfred H. Mayer C o supra, 392 U.S.

425 n.33, and that the latter was intended to provide a civil remedv see 
Runyon v. McCrary, 427 U.S. 160 (1976). This function of § 1 was 
equally clear at the time of its passage, for Section 3 of the Act, 14 Stat. 
27, contemplated that civil suits would be brought in state courts to 
enforce the rights granted by the Act — no grant of general Federal- 
question jurisdiction having yet been made to U.S. District and Circuit 
Courts and provided jurisdiction in the U.S. Circuit Court where such 
rights could not be enforced in state or local courts. The earliest 
application of this right of civil enforcement was in In re Turner, Fed. 
Cas. No. 14,247 (Cir. Ct. D. Md. 1867). There, Chief Justice Chase, 
sitting as Circuit Justice, ordered the discharge, on a writ of habeas 
corpus, of a black child who had been indentured as an apprentice under 
the terms of a Maryland law which did not provide the same terms of 
indenture for black apprentices as a different law provided for whites.

In the debate. Senator Hendricks objected that the bill would create a 
civil remedy for damages. CONG. GLOBE 601, and Senator Cowan 
objected that § 1 would enable the U.S. courts to expand their 
jurisdiction, CONG. Gl OBE 1 /82-83. No one disagreed with these 
propositions. See also the remarks of Representative Wilson, supra note 
42.

44It is true that, during the debates, Senator Trumbull sought to 
downplay the effect that passage of the bill would have on the northern 
states, tor example declaring that the bill “will have no operation in any 
State where the laws are equal, where all persons have the same civil 
rights without regard to color or race.” CONG. GLOBE 476. In fact, 
after President Johnson vetoed the bill, Trumbull stated, in the context of 
§ 2, that the bill would have no application in any state where a “colored 
person . . .  has adequate remedies in the state courts” for an “offense”

(continued)



33

(2) Indirect evidence that Congress did not intend to 
limit the civil provisions of the statute by an intent 
requirement

There is strong evidence that the framers of the 1866 Act 
wanted the rights they declared to be capable of growth, so as 
to continue to accomplish their purposes under the demands 
of different situations. Senator Trumbull openly admitted 
that he did not know the exact dividing line between slavery 
and the liberty protected by the Thirteenth Amendment, but 
that he wanted to give the greatest possible practical effect to 
the policy declared in the Thirteenth Amendment. CONG. 
GLOBE 474. He went on to state that “ it is perhaps difficult 
to draw the precise line, to say where freedom ceases and 
slavery begins,” but that the Black Codes passed that 
dividing line wherever it was. CONG. GLOBE 475. Time 
and again, the bill’s proponents stressed that their aim was 
“practical” , geared to a particular result.45

(footnote continued from preceding page)
against him — while seeking votes to override the veto. CONG. GLOBE 
1758. These and similar remarks have never been literally construed by 
this Court. In Jones v. Alfred H. Mayer Co., supra, the Court rejected 
the suggesuon of Justice Harlan's dissent that they constituted the 
“plainest possible statement” that the bill was not intended to cover 
purely private action. See 392 U.S. at 459-60 (Harlan, J., dissenting). 
The Court also correctly observed that Senator Trumbull could not have 
meant that the Act would apply only to the states “whose laws did not 
themselves discriminate against Negroes”, since it expressly provided 
that it would be effective “in every state and territory in the United 
States.” 392 U.S. at 426 n.35. Finally, if the availability of adequate 
remedies in state courts were the standard, then one would suppose that 
both § § 1981 and 1982 would be dead letters today. Yet this Court has 
reaffirmed their full vitality in Jones v. Alfred H. Mayer Co., supra, and 
Runyon v. McCrary, supra n.43.

45Senator Trumbull stated that the bill would secure “freedom in fact”. 
CONG. GLOBE 476. Representative Thayer stated that the bill was to

(continued)



To restrict the scope of §1982 to purposeful acts of 
discrimination would be inconsistent with the broad practi­
cal purposes of Congress in enacting the 1866 Act. An intent 
requirement can readily be harmonized with the goal of 
ensuring the neutrality' of government processes, towards 
which the Fourteenth Amendment’s equal protection clause 
was later directed. However, the Civil Rights Act of 1866 
was directed towards achieving the practical result of 
equality, not towards ensuring a neutral process. The 
purpose of the Act would be thwarted, and the equity of the 
statute violated, if it were construed in the manner suggested 
by petitioners.

D. This Court’s Decisions Under § 1982 Have 1
Not Required a Showing of Purpose.

This Court’s previous interpretations of § 1982 have 
always proceeded from an initial recognition that the

(footnote continued from preceding patte)
give the Thirteenth Amendment “practical effect and force”. CONG.
GLOBE 1151. He continued {id. at 1152):

The bill under consideration is intended only to carry into 
practical effect the amendment of the Constitution. Its object is to 
declare not only that slavery shall be abolished upon the pages of 
your Constitution, but that it shall be abolished in fact and in deed; 
not only that that feature of slavery shall be abolished which 
permitted the purchase and sale of men, of women and ot little 
children as slaves, but that all features of slavery which are 
oppressive in their character, which extinguish the rights of free 
citizens, and which unlawfully control their liberty, shall be 
abolished and destroyed forever.

To put any other construction upon this great amendment of the 
Constitution is to deprive it of its vital force, or its effective value. It 
is to cheat the world by sounding phrases; and while you pretend to 
give liberty to those who were in bondage, to leave them in reality in 
a condition of modified slavery, subject to the old injustice and the 
old tyranny which characterized their former unhappy condition.

34



35

Thirteenth Amendment was enacted specifically to extripate 
the badges and incidents of slavery. The Court has given a 
broad construction to the statute because "this amendment 
denounces a status or condition, irrespective of the manner 
or authority by which it is created,” Clyatt v. United States, 
97 U.S. 207, 216 (1905). Thus, Bailey v. Alabama, 219 
U .S .219(1911), struck down a statute, neutral on its face, 
which imposed criminal penalties on persons who accepted 
money from an employer and then failed to fulfill the 
employment contract. The opinion explained:

Without imputing any actual motive to oppress, we 
must consider the natural operation of the statute here in 
question. Henderson v. New York [Henderson v. 
Wickham], 92 U.S. p. 268, and it is apparent that it 
furnishes a convenient instrument for the coercion 
which the Constitution and the act of Congress for­
bid; . . . .

219 U.S. at 244-45. See also, Pollock v. Williams, 322 
U.S. 4, 25 (1944); Taylor v. Georgia, 315 U.S. 25, 29 
(1942); Anderson v. Ellington, 300 F. Supp. 789 (M.D. 
Term. 1969) (three-judge court).

The Court has both construed § 1982 consistently with its 
Thirteenth Amendment origins and also sustained Con­
gress power “ 'rationally to determine what are the badges 
and the incidents of slavery, and [its] authority to translate 
that determination into effective legislation.’ ” Jones v. 
Alfred H  Mayer Co., supra, 392 U.S. at 440, quoted in 
Griffin v. Breckenridge, 403 U.S. 88,105 (1971 ).46 And, as * 102

^Griffin is instructive on the issue in this case. There, the Court 
upheld the constitutionality of § 1985(3) under the Thirteenth Amend­
ment. and its applicability to private parties. A claim under § 1985(3) 
requires "some racial, or perhaps otherwise class-based, invidiously 
discriminatory animus behind the conspirators’ action," 403 U.S. at
102, but this follows trom the statutory language itself:

(continued)



i

36

we have suggested above (H.A.), the Court has not felt 
compelled to bring Fourteenth Amendment concerns m o  
cases involving Thirteenth Amendment statutes In 
D istrict o f  Colum bia  v. Carter, 409 U.S. 418 (1973), for 
example, the Court observed that “[different problems o 
statutory meaning are presented by two enactments deriving 
from different constitutional sources,” id. zX 423, ana 
declared that §1982 was an ‘“ absolute’ bar to • • • 
discrimination, private as well as public.. . .  • a •
none of its rulings has this Court required a showing of racial

■footnote continued from preceding page)
If two or more persons in any State or Territory conspire to go m 
l ^ s e  on the highway or on the premises of another,/or the 
purpose of depriving, either directly or mdirectly, any person o 
claTs of persons of the equal protecUon of the laws, . . . .

(Emohasis supplied.) Section 1982 contains no equivalent language. 
Clearly where Congress intends that invidiously discriminatory mo v - 
Uon should be an element of a claim, nothing m the Thirteenth
Amendment forbids it.

4m  is true that § 1982 was re-enacted as part of the Civil Rights Act of 
1870 u n to  Ae Four^enth Amendment Emit is now well settled t o t  
Congressdid not intend to repeal § 1 ofthe ' “ 6 Actwhenttenatod § 16 
of the 1870 Act pursuant to the Fourteentn Amendment. R . •
McCrarv supra, 427 U.S. at 168 n.8, 170-72. This reaffirmation that 
81982 has its roots in the Thirteenth Amendment proved1 cnUca1 in

■ — Arr
Johnson v. Railway Express Co., .nnTT S at439-40■ cf

at424-30. By t o  sS
reasoning, the ruling in Washington «. Da*.s.
motivation is an essential element of proof under t o  Fourteenth
Amendment does not dictate the same result undr 31982.

••Quoting from Monroe v. Pape. 365 U.S. 167, 205-06 (1961) 
(Frankfurter, J.. concurring and dissenting).



37

mouye under §1982, and the lower federal courts have 
tallowed the same approach.49

Petitioners rely upon two instances in which this Court’s 
opinion in Jones v. Alfred H. Mayer Co., supra, used the 
words racially motivated”.50 See Pet. Br. at 25. Since the 
Court in both instances was merely characterizing argu­
ments and concessions made in the briefs of the parties in 
that action, this language cannot even be regarded as rising to 
the level of dictum. Even if taken at face value, the phrases 
are simply descriptive of the case at hand -  where racial 
animus was not in dispute.51 In Jones, the focus was on

9E.g., Clarkv. Universal Builders, Inc., 501 F.2d 3~>4 (1th Cir 1 rort
T eA 4,‘9tU'S' 107° f 1974» §  '^ f o ib id s  h o u s i d l v l p e n S

?  hlgher Pnces for similar housin8 111 black areas of the city than in 
hite areas where segregated housing patterns result from racial

Krens'Tsn Chapter' Associated Gen3 Contractors v
t m i  l  r m PP- ti^63 (D R I ‘ 1978) (‘‘ ■ • § 1982- the twin of 
U s  i  ^ heaton'Haven Recreation Ass'n. Inc., 410
intenri 93 S."C t 1090’ has been held t0 forbid more than
intentional discrimination. It looks behind a legal and formal equality to
guarantee at black persons are in fact receiving equal treatment”).

3<Tne first statement was in the context of rejecting the respondents’ 
argument that a literal reading of the statute would have far-reaching 
lmpucaUons that Congress could not have intended. The Court said.-̂

e '̂en.tbe respondents seem to concede that, if §198'>
thTn i E S  r SayS ~ t0 USC1116 WOrds of ̂  respondents’ brief 

11 .must encompass every racially motivated refusal to sell

S eV sS d ^  StatCment’ StreSSing ^  aroument set forth in petitions’

Hence the structure of the 1866 Act. as well as its language points 
to the conclusion urged by the petitioners in this case _  thS Si 
was meant to prohibit all racially motivated deprivations of the 
rights enumerated in the statute, . . . .  392 U.S. at 426

n,v!SlT!lar expressions in other opinions in cases involving the 1866 
civil rghts statutes are likewise dicta because motivation was not at issue 
m any of them; all involved blatantly discriminatory practices E g  
Buchanan v. Warley, 245 U.S. 60, 79, 81 91917); Civil Rights Cafe’.

(continued)



38

racially inspired refusals to sell or rent by private — as 
opposed to public — entities, and the Court plamly was not 
making any judgments concerning the substantive scope of 
the statute byond its inclusion of private discrimination. 
Finally, assuming that these phrases were truly dicta, i.e., a 
ruling (unnecessary to the decision in Jones) that purposeful 
discrimination is an essential element of § 1982, than that 
dicta should not be followed. This would not be the first time 
that the Court has rejected dictum regarding §1982; in 
Jones itself, the Court declined to be bound by statements in 
Hurd v. Hodge, supra n.14, that §1982 applies only to 
“governmental action . 392 U.S. at 419-20,

'T he phrases upon which petitiones rely are not much 
different from the words “because of race” , which appear m 
both Title VII of the Civil Rights Act of 196432 and in Title 
VIII of the Civil Rights Act of 1968 (the Fair Housing 
Act).53 In Griggs v. Duke Power Co., supra, this Court made 
no mention of the phrase in concluding that, according to the 
plain statutory language, discriminatory impact was suf­
ficient to constitute a violation of Title VII unless justified by 
business necessity; and the lower federal courts have 
uniformly concluded that a violation of the F air Housing Act 
can be established by a shov/ing of discriminatory effect, 
without proof of invidious motivation.

(footnote continued from preceding page) , V l r C r a r v
SuLa, 109 U.S. at 36 (Harlan, J„ dissenung); R u n y o n  v, McCrary, 
supra, 427 U.S. at 170- 171; Sullivan v. Little Hunting Park, Inc.,supra,
396 U.S. at 235.

;:Sec. 703(a), 42 U.S.C. §2000e-2(a).
:3Sec. 804, 42 U.S.C. §3604.
-'‘Metropolitan Housing Dev. Corp. v. ViHage °f ^ n ^ to n  Heights 

supra n 27' Smith v. Anchor Bldg. Corp. 536 F.2d 2j 1 (8th Cir. 1976) 
United States v. City of Black Jac, 508 F.2d 1179,1 183 (8th Or. 19 74), 
cert denied 422U.S. 1042 ( 1975); Kennedy Park Homes Ass n Inc.v. 
City of L a c k a w a n n a .  436 F.2d 108, 114(2dCir. 1970) (dictum), cert, 
denied. 401 U.S. 1010 (1971); Resident Advisory Bd. v. Rizzo, supra 
n.27. 564 F.2d at 146-48.



39

Section 1982, of course, contains no such language and 
flatly states that all persons shall be protected in the rights 
enumerated in the statute to the same extent as white 
citizens. We do not dispute that § 1982 encompasses “every 
racially motivated refusal to sell or rent” , or that it was 

meant to prohibit all racially motivated deprivations” of 
the statutorily protected rights, as this Court said in Jones. 
We contend that it reaches other activities which adversely 
affect blacks, as well. Nothing in this Court’s prior cases 
prevent such a ruling.

III.

THE JUDGMENT BELOW MAY ALSO BE 
AFFIRMED UNDER 42 U.S.C. § 1983 BE­
CAUSE PLAINTIFFS’ EVIDENCE JUSTI­
FIED A FINDING OF INTENTIONAL 
DISCRIMINATION.

We do not concede that a finding of intentional discrimi­
nation is necessary to make out a violation of 42 U.S.C, 
§ 1982. However, the judgment of the Court of Appeals in 
this matter may also be affirmed under 42 U.S.C. § 1983 
and the Fourteenth Amendment, which require such a 
finding. The evidence in this case was more than adequate to 
justify such a finding. As we have previously pointed out, the 
district judge’s contrary conclusion rested upon his mis­
reading of the prior Court of Appeals opinion. See note 25 
supra. Although the Court of Appeals’ opinion follows a 
circuitous route, we believe that, taken as a whole, it 
indicates the Sixth Circuit majority’s view that the district 
court erred in assessing plaintiffs’ § 1983 claim.

After summarizing the pertinent portions of the trial 
judge s opinion, the Court of Appeals described the two 
errors in the district court’s reasoning-o



40

Sid [2] that he placed too high a threshold upon the 
requirements of Section 1982 and, unaerlymg it, the 
Thirteenth Amendment. (A. 180.)

Hie bracketed insertions, we suggest, clarify the intended 
neaihn^ofthe Court of Appeals’ majority. They are 
interpretation of the passage which is consistent with 
remainder of the opinion. For the Court of Appeals went 
to address itself principally to the § 1982 issue.

In short we conclude that, upon his own findings and 
unonthe proof credited by him. the pattern of dis­
crimination here was indedd “stark” and was in a very 
J T se n se  a badge of slavery violative of plaintiffs 
rights under the Thirteenth Amendment and subject to 
relief under 42 U.S.C. § 1982.

"Because of our holding that the plaintiffs are entitled
Q .Ion  1982 we do not reach the question whether relief could be

action lying under Section 1983 ----- (A. 180.)
The phrasing of footnote 8 in the majority opinion below is 

U c a n t :  the Court of Appeals was pre- 
termitting onlV«he issue of a direct Thirteenth Amendment 
suit brought pursuant to the authorization contained 
§ 1983. The majority did not fail to “reach « 
whether relief could be predicated directly ^
teenthl Amendment with the cause of action lying under 
Section 1983.” Following an extended *
§ 1982 violation, the majority stated tn footnote 13 of its
opinion. A. 186:

We expressly leave open here the ^esdon “  'what 
extent intent is ever an element of the plain 
under Section 1982. . . .



41

The only possible justification for not deciding this issue, 
given the attention paid to the question of “ intent ” in both the 
district court and Court of Appeals’ opinions, is that the 
Sixth Circuit viewed the record as adequate to demonstrate 
intent, at least under § 1983. While a reversal on this ground 
might have been a clearer way of proceeding than the 
alternative §1982 ground articulated by the Court of 
Appeals, the judgment below is proper on either basis.

The evidence discussed above at pp. - was clearly 
sufficient, under the standards of Village o f  Arlington 
Heights v. Metropolitan Housing Dev. Corp., supra. This is 
not a case, for example, where the only evidence relevant to 
the intent issue concerned foreseeability of impact. See 
Columbus Bd. o f  Educ. v. Penick, 443 U.S. 449, 464-65 
(1979); Dayton Bd. o f Educ. v. Brinkman, 443 U.S. 526, 
536 n.9 (1979). Rather, the “totality of the circumstances” 
deemed relevant in Arlington Heights supports the finding of 
discriminatory intent made by the Court of Appeals. See 
City o f  Mobile v. bolden, supra, 64 L. Ed. 2d at 81-82 
(White, J., dissenting).

Indeed, the examples of evidence considered probative of 
discriminatory intent in Arlington Heights, see 429 U.S. at 
267-68, were all present in this case:

The impact of the official action — whether it “bears 
more heavily on one race than another,” [citation 
omitted] may provide an important starting point. 
Sometimes a clear pattern, unexplainable on grounds 
other than race, emerges from the effect of the state 
action even when the governing legislation appears 
neutral on its face. [Citations omitted.] The evidentiary 
inquiry is then relatively easy. But such cases are rare. 
Absent a pattern as stark as that in Gomillion or Yick 
Wo, impact alone is not determinative, and the Court 
must look to other evidence.



The historical background of the decision is one 
evidentiary source, particularly if it reveals a series of 
official actions taken for invidious purposes. [Citations 
omitted.] The specific sequence of events leading up to 
the challenged decision also may shed some light on the 
decisionmaker’s purposes. [Citations omitted] . . . 
Departures from the normal procedural sequence also 
might afford evidence that improper purposes are 
playing a role. Substantive departures too may be 
relevant, particularly if the factors usually considered 
important by the decisionmaker strongly favor a de­
cision contrary to the one reached.

First, discriminatory effect was found by both the district 
court and the Sixth Circuit, and is not seriously contested. 
One may differ with the Court of Appeals’ view of the degree 
to which the West Drive closing was a stark pattern, 
nevertheless, it is indisputable that the city chose to erect a 
barrier at the point of contact between black and white 
communities, rather than at some other intersection along 
the street in a manner which would reduce through traffic but 
not carry the symbolic message of an obstruction along 
Jackson Avenue. Second, the historical context is one which 
is highly suggestive of discriminatory intent, as the district 
judge recognized {see note 20 supra). It commenced with the 
historic antipathy to the presence of blacks in either the Hein 
Park subdivision or the Overton Park recreational facilities. 
See Watson v. City o f Memphis, 303 F.2d 863, 865 (6th 
Cir. 1962), rev’d 373 U.S. 526 (1963). Plaintiff Greene 
testified, without contradiction, that historically black 
persons had been beaten "because of being in that neighbor­
hood after dark.” Tr. 37. It culminated in a series of efforts 
by the white residents of the subdivision "to stop these 
[black] people to the north” (A. 124). Third, the specific 
sequence of events leading up to the street closure gave 
adequate notice to city officials that the plan was insulting



43

nd degrading to black citizens who would
raversingWestDrive.Onew.tness testified that the>d
vant the black people in there, no way. That s the wa it is
Exh 26 pp 35-36). A white resident told the Council pom
3lankthat“ ft]hat, Mr. Chairman, [the “niggers” ] is the issue 
here” (Exh 30, at 1). Fourth, the procedure was marked by 
both procedural and substantive departures from normal 
processes.6Fo^ example, the Planning C o m m o n  acted 
hastily in advance of the public meeting it had itself 
scheduled on the matter arid without hearing from a major 
" a r t m e n ,  Although the policy of the « *  

was to avoid the creation of long streets without inter 
sections, and although questions about the legality 
proposed street closures
concerns were swept aside in early 1974 wnen me 
nassed on the West Drive matter.
P Taken together, as the Sixth Circuit recognized, these 
factors left little doubt that the distnct judge would have 
found intent if he had not felt it necessary, under the prior 
m " o f i e  Court of Appeals, to have a comparison 
refusal to close a street upon request in a black neighbor 
hood. See note 25 supra. Ratherthan senddie, back 
the trial judge for reconsideration, the Court of Appea 
elected to decide the alternative § 1982 question. Because 
its view of the record as supporting an “ intent finding w 
correct, however, the judgment below should be affirmed.

“Alternatively, the matter should be remanded to the trial c o m  for 
reconsideration ofthe "intent” issue free from the restraints of die Court 
of Appeals' first remand opinion.



44

C O N C LU SIO N

For the foregoing reasons, the judgment of the Court of 
Appeals for the Sixth Circuit should be affirmed.

Respectfully submitted,

WILLIAM L. ROBINSON 
BEATRICE ROSENBERG 
RICHARD S. KOHN 
NORMAN J. CHACHKIN 

Lawyers’ Committee for 
Civil Rights Under Law 
Suite 520
733 15th Street, N.W.

A.C. WHARTON, JR. 
Memphis Area Legal 
Services 
Suite 316
46 North Third Street 
Memphis, Tennessee 
38103

Washington, D.C. 20005
Attorneys for Respondents Owens, Cross and Burse

l



la

appendices

Appendix A

as S l o w ~  Amendmem “ the S t a t i o n  provides

UnltedStatls i» the
citizens of the U n ite^ S u te s^ H  lhereof’are
they reside. No State shall mat  °* therState wherein 
which shall abridge the n r i S p  ° T enforce an7  law  
citizens of the United Static- el es„or tmmunities of 
any person of life lih^i-tv ,no*rs^ ' S t a t e  deprive 
process of law ° r without due
juridiction the equal protection rffh e^ w s"  US

amongdie wve^af S^tes3̂ 65 J ha*' *  aPPonioned
number, c o S t f c f ^  “  respective 
State, e l c l u d i n S  J s n m S ^ u  ^ rS° f “  each

s a t
the proportion

tahs°uchn^ . r 0f male ^  “ e le ^ o 1? a t  

senmdv“ „ 7 o tPeesrsSOonr Si a” be a SenatOT or Repre-
President, or hold anvoffi p ,° Pr? ent and v ^e  
United States, or trndef any Smte . f t  “ndertha 
viousiy taken an oath, as a member Sf



officer of the ’ judicial officer of any
legislature, or as an e* ^ i t i Jofthe United States, 
State, to support the. Cons^ on or rebellion against 
shall have engaged in m su^ ef^  the enemies thereof.
the same, or given aid or co t h i r d s  of each House,
But Congress may by a vote of two-thirds oi eacn n o

payment of pensions ^  ^  fee ques_

llkSe«fon 5. The Congress shall havepowertoerforce 
bv appropriate legislation, the provtstons of this article.

42 U.S.C. § 1983 provides as follows:

Every person who, tinder o°usa“e!of J y  State or 
orffin^ce, regu auon cu ^  subjected, any citi-
le 'n  S e  u S  states or other person within * e  

Jurisdiction thereof t o ^ S T d r e ( M t o  
privileges, an action

f u t t f p x x - *>*
redress.



lb

The complete provisions of the Virginia Act of January 15, 
866, “An Act Providing for the Punishment of Vagrants ,

1 Be it enacted by the general assembly, That the 
overseers of die poor, or other officers having charge of 
the poor, or the special county police, or the police of 
anv corporation, or any one or more of such persons, 
shall be. and are hereby, empowered and required, on 
discovering any vagrant or vagrants ^ tb n  t^ ir r '

1 spective counties or corporations, to make informatio 
thereof to any justice of the peace of tneir county or 
corporation, and to require a warrant for apprehendi g 
such vagrant or vagrants, to be brought before him o 
some other justice; and if upon due examination it shall 
appear that the person or persons are within the time 
description of a vagrant, as hereinafter mentioned, such 
justice shall, by warrant, order such vagrant or vagrants 
to be emploved in labor for any term not exceeding th 
months, and by any constable of such county or 
corporation to be hired out for the best wages that can be 
procured; to be applied, except as hereafter provided 
for the use of the vagrant or his family, as ordered by the 
justice. And if any such vagrant or vagrants shall, during 
such time of service, without sufficient cause run away 
from the person so employing him or them, he or they 
shall be apprehended on the warrant of a justice, and 
returned to the custody of such hirer who shall have, 
free of anv further hire, the services of such vagrant for 
one month in addition to the original term of hiring, and 
said employer shall then have the power if authonzed 
by the justice, to work said vagrant confined with b 
and chain; or should said hirer decline again to receive 
said vagrant, then said vagrant shall be taken by the 
officer, uDon the order of the justice, to the poor or wor 
house, if there be any such in said county or corpoia-

A ppendix  B



2b

overby ... iast-rnentioned period,

^ ? -= S iS * £ 5B
s s s s g s l i r t
hereby e m p o ^ d ,A u th o r iz e d  by the justice to work

^ S 3 Hss=sssrrs^-g -jssssaa
^^^enbef(^ajustice.whoshall^procee(itodis^eof

S^SfJS^3S5Ksi s s » ^ s s f-^ m :2 The following described persons shall be la e o
the“penalties imposed by law upon vagrants.

Frisi All persons who shall unlawfully return in oan
county or corporation whence they have been legally 
removed.



3o

Second. All person [sic] not having wherewith to 
maintain themselves and their families, who live id y 
and without employment, and refuse to work for die 
usual and common wages given to other ^borers, in the 
like work, in the place where they then are.

Third. All persons who shall refuse to perform the 
work allotted to them by the overseers of the poor, as 
aforesaid.

Fourth. All persons going about from door to door, or 
placing themselves in streets, highways, or other roads 
to beg alms; and all other persons wandering abroad and 
begging, unless disabled or incapable of labor.

Fifth. All persons who shall come from any place 
without this commonwealth to any place within it, and 
shall be found loitering and residing therein, and shall 
follow no trade, labor, occupation or business, and have 
no visible means of subsistence, and give no reasonable 
account of themselves or their business m such place.

3. All costs and expenses incurred shall be paid out of 
the hire of such vagrant, if sufficient; and if not sufficient, 
the deficiency shall be paid by the county or corporation.

4. This act shall be in force from its passage.
Passed January 15, 1866

1 S. EXEC. DOC. NO. 6. 39th Cong., 2nd Sess., 229-30 
(1866).



lc

A ppendix  C

rerry’s order reads in pertinent part:
In many counties of this State meetings of employers 

have been held, and unjust and wrongful combinations 
have been entered into for the purpose of depressing the 
wages of the freedmen below the real value of their 
labor far below the prices formerly paid to masters for 
labor’performed by their slaves. By reason of these 
combinations wages utterly inadequate to the support ol 
themselves and families have, in many places, become 
the usual and common wages of the freedmen. l e 
effect of the statute in question will be, therefore, to 
compel the freedmen, under penalty of punishment as 
criminals, to accept and labor for the wages established 
bv these combinations of employers. It places them 
wholly in the power of their employers, and it is easy to 
foresee that, even where no such combination now 
exists, the temptation to form them offered by 
statute will be too strong to be resisted, and that such 
inadequate wages will become the common and usual 
wa-es throughout the State. The ultimate effect of the 
statute will be to reduce the freedmen to a condition of 
servitude worse than that from which they have been 
emancipated -  A condition which will be slavery in all
but its name.

It is therefore ordered that no magistrate, civil officer 
or other person shall in any way or manner apply or 
attempt to apply the provisions of said statute to any 
r-ninrpri nerson in this department.
Bv command of Major General A.H. Terry, 

"Ed. W. Smith. Assistant Adjutant General.