Patterson v. McLean Credit Union Reply Brief for Petitioner on Reargument

    E L L I S

No. 87-107

In The
Supreme Court of ttje Umtefc States

October Te r m , 1988

BRENDA PATTERSON,

vs.

McLEAN CREDIT UNION,

Petitioner,

Respondent.

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

REPLY BRIEF FOR PETITIONER ON REARGUMENT

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON* 
RONALD L. ELLIS 
ERIC SCHNAPPER 

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

PENDA D. HAIR 
Suite 301
1275 K Street, N.W.
Washington, D.C. 20005 
(202) 682-1300

HAROLD L. KENNEDY, III 
HARVEY L. KENNEDY  

Kennedy, Kennedy, Kennedy 
and Kennedy 

701 First Union Building 
Winston-Salem, N.C. 27101 
(919) 724-9207

Attorneys for Petitioner 
*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



TABLE OF CONTENTS

Page

INTRODUCTION AND SUMMARY ........  1
I. RESPONDENT'S PROPOSED INTER­

PRETATION OF SECTION 1981 
IS NEITHER WORKABLE NOR 
CONSISTENT WITH THE LEGIS­
LATIVE HISTORY OF THE 1866 
CIVIL RIGHTS ACT ...........  3
A. Respondent's Interpre­

tation of Section 1981 
Is Not Workable........  8

B. The Actual Terms of the 
Black Codes Undermine 
Respondent's Interpre­
tation of Section 1981.. 14

II. THE 1870 VOTING RIGHTS ACT
CONFIRMS THAT CONGRESS UNDER­
STOOD SECTIONS 16 AND 18 OF 
THAT ACT, LIKE SECTION 1 OF 
THE 1866 ACT, TO APPLY TO 
PRIVATE CONDUCT ............  22

III. THE 1874 REVISED STATUTES
DID NOT REDUCE THE SUBSTAN­
TIVE PROTECTIONS OF THE 1866 
CIVIL RIGHTS ACT ...........  29



IV. THE DOCTRINES OF CONGRES­
SIONAL RATIFICATION AND 
STARE DECISIS COMPEL REAFFIR­
MATION OF THE DECISIONS IN 
RUNYON AND JONES ...........  3 3
A. Respondent Would Nullify

Stare Decisis .........  33
B. Congress Approved Jones

and Runvon ............  3 8
C. Congress and Not the 

Court Is Competent to 
Address the Interaction 
of Title VII and § 1981. 39

CONCLUSION .... ..................  45

ii



TABLE OF AUTHORITIES
Cases: Page
Bazemore v. Friday, 478 U.S. 385

(1986) ........................ 12
The Civil Rights Cases, 109 U.S.

3 (1883)   7
District of Columbia v.

Thompson Co., 346 U.S. 100 
(1953)   32

Jones v. Mayer Co., 392 U.S.
409 (1968)   passim

McDonald v. Santa Fe Trail 
Transp. Co., 427 U.S. 273 
(1976)   39

Monroe v. Pape, 365 U.S. 167
(1961)   37

Ruckelshaus v. Monsanto Co.,
467 U.S. 986 (1984)   31

Runyon v. McCrary, 427 U.S.
160 (1976)   passim

United States v. Guest,
383 U.S. 745 (1966)   7

United States v. Kozminski,
101 L. Ed. 2d 788 (1988) .......  5, 32

Yick Wo v. Hopkins,
118 U.S. 356 (1886)

iii

26



Thirteenth Amendment,
United States Constitution .... 5

Fourteenth Amendment,
United States Constitution .... 4,6,7

Fifteenth Amendment,
United States Constitution .... 24

42 U.S.C. § 1981 ...............  passim
42 U.S.C. § 1982 ...............  passim
Civil Rights Act of 1866 .......  passim
Voting Rights Act of 1870 ......  passim
Civil Rights Act of 1875 .......  6
Civil Rights Attorney's Fees

Awards Act of 1976 ...........  38, 39
Revised Statutes of 1874 .......  2, 29

30, 31
16 Stat. 140 .................... 9
17 Stat. 13 ..................... 9
18 Stat. 713 .................... 32
Florida Constitution 1865 ......  17
Texas Constitution 1866 ........  17, 19
Arkansas Laws 1866-67 ..........  17, 19
Florida Laws 1864-65 ...........  17, 18

Statutes and Constitutional Page
Provisions:

iv



Statutes and Constitutional
Provisions;

Page

Georgia Laws 1866 .............. 17, 19
Mississippi Laws 1865 .......... 18, 19
South Carolina Laws 1874-65 .... 17, 18 

19, 21
Tennessee Laws 1865-66 ......... 19
Texas Laws 1866 ................
Legislative Authorities:

17, 19

H.R. Rep. No. 1558, 94th Cong.,
2d Sess. (1976) .............. 39

Cong. Globe, 39th Cong.,
1st Sess....................... 4, 6

Cong. Globe, 41st Cong.,
2d Sess........................ 24 , 28 

29
Cong. Globe, 42nd Cong.

2d Sess........................ 6, 7
Cong. Globe, 43rd Cong.

1st Sess....................... 6
118 Cong. Rec. (1972) .......... 43
Staff of the House Comm, on 

Educ. & Labor, 99th Cong.,
2d Sess., Investigation of 
Civil Rights Enforcement By 
the Equal Employment 
Opportunity Commission (Comm. 
Print 1986) .................. 44

v



Brief for the United States as 
Amicus Curiae, Jones v.
Maver Co. .....................

Other Authorities: Page

Office of Program Compliance,
EEOC, Annual Report F.Y.
1986........................... 44

Govt. Accounting Office, EEOC 
Birmingham Office Closed 
Discrimination Charges Without 
Full Investigation (July 1987). 44

Abbott's National Digest (1884) . 32
T. Eisenberg & S. Schwab, The 

Importance of Section 1981,
73 Cornell L. Rev. 596 (1988) . 42, 43

W. Eskridge, Jr., Overruling 
Statutory Precedents, 76 Geo.
L. J. 1361 (1988)   34

W. Fleming, Documentary History 
of Reconstruction
(1906)   18

McClain, The Chinese Struggle for 
Civil Rights in Nineteenth 
Century America: The First
Phase, 1850-1870, 72 Cal. L.
Rev. 529 (1984)   25

A. Saxton, The Indispensable
Enemy (1971)   27

J. tenBroek, Equal Justice
Under Law (1951)   29

vi



The Supreme Court 1986 Term,
The Statistics, 101 Harv. L.
Rev. 362 (1987)   36

West Virginia University, Laws
Relating to Freedmen (1904) ... 18

C. Wollenberg, ed., Ethnic 
Conflict in California
(1970)   27

Other Authorities: Page

vii



INTRODUCTION AND SUMMARY
Respondent has failed to propose a 

coherent and workable definition of the 
scope of §§ 1981 and 1982. Instead,
respondent ignores fundamental problems 
with arguments for overruling J ones— v_i. 
Waver Co.■ 392 U.S. 490 (1968), and Runyon 
v. McCrary. 427 U.S. 160 (1976). First,
respondent fails to deal with Justice 
Harlan's conclusion in his J ones dissent 
that the 1866 Civil Rights Act was 
i n t e n d e d  to e x t e n d  to private 
discrimination that is "customary" or in 
accord with "public sentiment." This 
conclusion is compelled by the language of 
the Act and by legislative history 
indicating that it was intended to cover 
such private discrimination as employers 
who refused to pay black workers. 
However, Justice Harlan's intermediate 
position on coverage of private 
discrimination would lead the courts into



2
a quagmire of legal and factual questions 
concerning the meaning of custom and its 
proof in individual cases.

Second, respondent's arguments 
concerning the legislative history of the 
1870 Voting Rights Act and the 1874 
Revised Statutes are premised on the 
notion that §§ 1981 and 1982 are different 
in scope. Respondent thus asks the Court 
to rule that Jones was correctly decided, 
but to hold that § 1981, unlike § 1982, 
does not reach private discrimination. 
This unlikely incongruity between the 
scope of §§ 1981 and 1982 would produce 
strange results and extensive litigation 
over whether specific transactions can be
characterized as "property," rather than
"contract."

As we show below, the actions of
Congress in 1866, 1870 and 1874 do not
support this interpretation of the scope



3
of § 1981. To the contrary, the
legislative history strongly supports the 
conclusion that both §§ 1981 and 1982
p r o h i b i t  p u r e l y  private racial 
discrimination, as well as state- 
sponsored discrimination. Furthermore, 
the unworkability of respondent's 
position, as well as traditional concepts 
of congressional ratification and stare 
decisis, mandate reaffirmation of Jones 
and Runvon.
I. RESPONDENT'S PROPOSED INTERPRETATION 

OF SECTION 1981 IS NEITHER WORKABLE 
NOR CONSISTENT WITH THE LEGISLATIVE 
HISTORY OF THE 1866 CIVIL RIGHTS ACT
In our opening brief we showed that

in 1866 the central problem faced by
freedmen was that, although legally able
to make contracts, they were prevented by
various forms of private discrimination
and abuse from making, and enforcing,
employment contracts on equitable terms.
The income and working conditions of the



4
freedmen, as Congress was well aware, were 
in many instances almost as bad as they 
had been under slavery.1 Respondent does 
not seriously dispute our description of 
the plight of blacks in the south after 
the end of the Civil War, but argues that 
Congress made a deliberate decision not to 
protect the freedmen from much of the 
mistreatment to which they were then 
subj ect.

Although contemporary Fourteenth

1 Respondent asserts that there 
is only a single "fleeting reference to 
the Grant Report." Resp. Rearg. Br. 88. 
In fact, the Grant Report was read in full 
on the floor of the Senate, Cong. Globe, 
39th Cong., 1st Sess. 78, cited in the 
debates in both Houses, id. at 79, 97, 
109-11, 1834, 1839, and reprinted in large 
quantities by order of Congress, id. at 
59-60, 67, 129, 136, 160, 265, 422. The 
Howard Report was also printed by Congress 
for public distribution. Id. at 138. The 
hearings of the Joint Committee played a 
pivotal role in the debates on whether to 
override President Johnson's veto. Id. at 
1799, 1808, 1827, 1833-35. The Schurz 
Report played a critical role in the 
evolution of Congressional reconstruction 
policy. See Appendix A.



5
Amendment jurisprudence distinguishes 
between private and governmental conduct, 
that was not a distinction of importance 
to either the supporters or the opponents 
of the 1866 Civil Rights Act. The 
Thirteenth Amendment, approved by Congress 
less than a year earlier, and the
constitutional basis for § 1, "extends
beyond state action." United States v. 
Kozminski. 101 L.Ed.2d 788, 804 (1988).
Having already taken, by constitutional 
amendment, the far more drastic step of 
stripping the former slave owners of their 
property rights in the slaves, it is 
unlikely Congress would have balked at the 
relatively modest additional step of 
forbidding those slave owners to treat 
freedmen in a discriminatory manner. 
Even the critics of the 1866 Act
expressed no opposition as such to 
legislation regulating private conduct;



6
on the contrary, they repeatedly insisted 
that they would support such legislation 
if only the range of abuses it prohibited 
were narrower.2

An implied distinction between 
private and public conduct cannot be 
inferred from the fact that § 1 of the
1866 Act was later reenacted under the 
authority of the Fourteenth Amendment.
As it demonstrated in adopting the 1875 
public accommodations law,3 Congress in

2 Cong. Globe 39th Cong., 1st
Sess. 595-97 (Sen. Davis), 601 (Sen. 
Guthrie), 1156-57 (Rep. Thornton), 1805
(Sen. Doolittle).

Amici s u g g e s t  that the 
enactment of this measure shows that 
Congress believed that discrimination in 
public accommodations was legal prior to 
1875. The debates on the 1875
legislation, however, reveal that many 
s u p p o r t e r s  b e l i e v e d  that such 
discrimination was already illegal, and 
favored the 1875 Act either to remove any 
doubts about that issue, or to provide an 
additional remedy, particularly the 
provision for $500 liguidated damages in 
§ 2, 18 Stat. 336. See Cong. Globe, 42nd

(continued...)



7
the Reconstruction era believed that it 
had authority under the Fourteenth 
Amendment to regulate private conduct, a 
view that was ultimately accepted by this 
Court. Compare United States v . Guest, 
383 U.S. 745 (1966), with The Civil Rights 
Cases. 109 U.S. 3 (1883).

Respondent suggests that the highest 
p r i o r i t y  of R e c o n s t r u c t i o n  era 
Republicans was not protecting the 
freedmen, but safeguarding the states 
against the federal government, bringing 
about the prompt readmission of the 
former rebel states, and assuring that 
employer-employee and other contractual 
relations were not interfered with by 
statute. Resp. Rearg. Br. 48-51. The 
political philosophy which respondent 3

3 (...continued)
Cong., 2d Sess. 3192 (1872)(Sen. Sherman); 
43rd Cong., 1st Sess. 341 (1873) (Rep.
Butler); id. at 410 (1874)(Rep. Elliott).



8
describes, however, is not that of the 
congressional Republicans, but of 
President Andrew Johnson, and it is the 
philosophy which prompted Johnson to veto 
the 1866 Civil Rights Act.

A. RESPONDENT'S INTERPRETATION OF 
SECTION 1981 IS NOT WORKABLE

The t h r e s h o l d  problem with 
respondent's analysis is that it does not 
yield a clear and workable construction 
of § 1981. Justice Harlan, in his
dissenting opinion in Jones, did not 
assert that § 1 of the 1866 Civil Rights
Act applies only to state sponsored 
discrimination, but repeatedly insisted 
that § 1 extends as well to actions taken 
by n o n - o f f i c i a  1 s in line with 
discriminatory customs.4 Justice Harlan

4 Justice Harlan's recognition of 
this application of § 1 was compelled by
the terms of § 2, which imposed criminal 
penalties for violations of § 1 which
occurred "under color of any law,(continued...)



9
urged, for example, that a refusal to pay 
black workers would be a "custom" within 
the meaning of § 1, as would an agreement 
among employers not to hire a former slave 
without the permission of former master.4 5 
Discrimination in public accommodations, 
Harlan suggested, would also be prohibited 
by the law if it were a customary

4 (...continued)
statute, ordinance, regulation or 
custom." 14 Stat. 27 (emphasis added).
Jones v. Maver Co. . 392 U.S. 409, 454-55
(1968) (dissenting opinion). In § 2,
unlike provisions of other civil rights 
legislation of this era, the word 
"custom" was not modified by the phrase 
"of any State." Compare 16 Stat. 140; 17 
Stat 13.

392 U.S. at 462 ("there was a 
strong 'custom' of refusing to pay slaves 
for work done"), 470-71 ("the references 
to white men's refusals to pay freedmen 
and their agreements not to hire freedmen 
without their 'masters' consent are by no 
means contrary to a 'state action' view of 
the civil rights bill, since the bill 
expressly forbade action pursuant to 
'custom' and both of these practices 
reflected 'customs' from the time of 
slavery").



10
practice.6 Indeed, on Justice Harlan's 
view any discriminatory practice 
reflecting a "prevailing public sentiment" 
would be unlawful.7 Although Justice 
Harlan characterized his interpretation of 
the 1866 Act as involving a requirement of 
"state action," he carefully put those 
two words in quotation marks throughout 
his opinion, recognizing that he was 
using the phrase in an unusual and 
specialized manner.8 Respondent

6 392 U.S. at 464 (Senator Davis' 
assertion that § 1 covered discrimination 
in accommodations in ships, hotels, 
railroad cars and churches was correct, 
and thus elicited no reply, because he 
d e s c r i b e d  t h e s e  p r a c t i c e s  as 
"'discriminations ... made by ... custom' 
. . . and . . . tied these effects of the 
bill to its 'customs' provision").

7 392 U.S. at 463; see also id. at 
462 n.28 (private abuses proscribed by the 
bill "to the extent that the described 
discrimination was the product of 
custom").

392 U.S. at 457, 458, 459, 462,
Similarly, Justice Harlan

(continued...)4 7 3 .



11
apparently embraces Justice Harlan's 
intermediate view of § l.8 9

While § 1, as Justice Harlan
acknowledged, reaches beyond state action 
in the constitutional sense, Justice 
Harlan's attempt to draw a line short of 
what he described as "purely private" 
conduct is unworkable. Justice Harlan's 
opinion offers three quite distinct 
definitions of a § 1 custom: practices
that existed "from the time of slavery," 
392 U.S. at 471, practices "pursuant to 'a 
prevailing public sentiment,'" 392 U.S. at 
463, and practices "which were legitimated 
by a state or community sanction 
sufficiently powerful to deserve the name 
custom." 392 U.S. at 457. Justice Harlan

8 (...continued)consistently described conduct outside the 
scope of § 1, not simply as private, but 
as "purely private." Id. at 461, 463,
465, 473.

9 Resp. Rearg. Br. 86, 67, 81, 111.



12
saw no need to explicate what such 
definitions might mean in operation, 
noting only that the plaintiff in Jones 
had made no allegation of any such custom. 
392 U.S. at 476 n.65. But in practice the 
implementation of Justice Harlan's 
proposed construction would be plagued by 
intractable disputes. Virtually any case 
brought under § 1981 or § 1982 would raise 
legal and factual issues regarding how 
widespread the alleged type of 
discrimination was within the defendant 
entity, or the local community, and how 
closely it resembled abuses in the ante­
bellum south.10

However difficult these issues would

10 For example, given numerous 
recent findings of race-based employment 
discrimination in North Carolina, e.q. . 
Bazemore v. Friday. 478 U.S. 385 (1986),
petitioner in the instant case would have 
a s t r o n g  a r g u m e n t  t h a t  such 
discrimination is customary in that State.



13
be today, there can be no doubt that, 
even on Justice Harlan's view, the 
allegations of the instant complaint 
would have stated a cause of action had 
the complaint been filed in 1867 rather 
than in 1984. The abuses alleged in 
petitioner's complaint were widespread a 
century ago, and resembled the abuses 
inflicted on slaves prior to the Civil 
War. McLean Credit Union, had it existed 
in 1867, could not have treated petitioner 
in the discriminatory manner she now 
alleges to have occurred. It seems
unlikely that Congress intended that an 
employer might at a later date be 
permitted to engage in such abuses solely 
because some other employers in North 
Carolina have ceased to do so, or because 
the discriminatory practices once 
supported by "prevailing public 
sentiment" in that State might have



14
become less socially acceptable.

B. THE ACTUAL TERMS OF THE BLACK 
CODES UNDERMINE RESPONDENT'S 
INTERPRETATION OF SECTION 1981

The linchpin of respondent's 
construction of § 1 of the 1866 Civil
Rights Act is its contention that the 
exclusive purpose of that provision was 
to nullify discriminatory provisions of 
the post-civil War Black Codes. In fact, 
however, there were no post-Civil War 
laws in the south which deprived freedmen 
of the legal capacity to contract. A 
review of the actual provisions of the 
Black Codes not only undermines 
respondent's interpretation of § 1, but
explains the seemingly contradictory 
tenor of congressional statements.

Some problems, such as testimony by 
black witnesses in cases in which all 
parties were white, were indeed the 
subject of widespread discriminatory



15
legislation, and in those instances 
Congress may have been primarily 
concerned with nullifying such laws.11 In 
other areas, particularly the right to 
make contracts and to own property, the 
Black Codes generally guaranteed blacks 
the same legal capacity as whites; here 
the concerns of Congress necessarily lay 
elsewhere, with the systematic private 
abuses described in our earlier brief. 
The seemingly inconsistent legislative 
explanations of the purpose of § 1 stem, 
at least in part, from the fact that

11 See Appe n d i x  B. Amicus 
Washington Legal Foundations urges that 
Congress intended to solve the widespread 
private mistreatment of blacks by 
nullifying state laws which prohibited 
testimony by the black victims of such 
abuses, asserting that "crimes of 
violence against ... freedmen went 
unpunished since blacks could not testify 
in a court of law." Brief Amicus Curiae 
of Washington Legal Foundation, at 16. 
In fact, however, there were by 1866 no 
such statutory prohibitions in any of the 
southern states.



16
different provisions of § 1 addressed
distinct types of problems.

It is particularly clear that the
provisions of § 1 with regard to owning
and leasing property cannot be explained
as a measure enacted to overcome
discriminatory legislation. In the
government's brief in Jones. the
Solicitor General correctly observed that
none of the Black Codes prohibited the
ownership of real property by blacks:

[Hjowever discriminatory they were, 
it does not appear that any of the 
Black Codes denied the capacity of 
the Negro to acquire and hold 
property, real or personal. On the 
contrary, one standard history, 
summarizing these laws, observes 
that they "conferred upon the 
freedmen fairly extensive privileges 
[and] gave them the essential rights 
of citizens to contract, sue and be 
sued, own and inherit property...." 
Morrison and Commager, The Growth of 
the American Republic (1950).... 
[T]he real problem for the Congress 
in 1866 was not to nullify local 
statutes which wholly disabled the 
Negro with respect to property, or 
even to clarify his status on this



17
1 2score. -L‘i

Five of the Black Codes contained express 
guarantees of the right of blacks to own, 
hold or inherit property; the Georgia 
statute provided, for example, that 
"persons of color shall have the right 
... to purchase, lease, sell, hold and 
convey, real, and personal property."12 13 
Among the state laws adopted in this era 
only a statute enacted by Mississippi in 
November of 1865, and not emulated by any 
other State, placed restrictions on the 
ability of blacks to lease property.14

12 Brief for the United States as
Amicus Curiae 30-31, Jones v. Mayer_Co.,
392 U.S. 490 (1968) (emphasis in
original).

12 Georgia Laws 1866, p. 239. See 
also Arkansas Laws 1866-67, p. 99; 
Florida Const'n. 1865, art. xvi; Florida 
Laws 1864-65, p. 145; South Carolina Laws 
1864-65, p. 271; Texas Const'n. 1866, art. 
27; Texas Laws 1866, p. 27.

14 Mississippi Laws 1865, p. 82 et 
seg. Legal prohibitions against the(continued...)



18
Restrictions on the ownership of personal 
property by freedmen were equally 
uncommon. Six states adopted express 
guarantees of the right of blacks to own 
such property.14 15

As the United States also observed 
in its brief in Jones. none of the Black 
Codes contained prohibitions forbidding 
blacks to make or enforce contracts. On 
the contrary, the general purpose of

14(...continued)
actual ownership of land by freedmen were 
apparently limited to identically worded 
ordinances adopted by two Louisiana 
parishes in July, 1865. W. Fleming, 
Documentary History of Reconstruction 279 
(1906); West Virginia University, Laws 
Relating to Freedmen 31 (1904).

15 In addition to the authorities 
cited in note 13, supra. see Mississippi 
Laws 1865, p. 82. The only exceptions 
were in South Carolina, which forbade 
blacks from owning either distilleries or 
certain types of firearms, and two other 
states which required blacks, but not 
whites, to obtain a license in order to 
possess a lethal weapon. Florida Laws 
1864-65, p. 25; Mississippi Laws 1865, p. 
82 et seq.; South Carolina Laws 1864-65.



19
southern laws of this era was to 
encourage blacks to sign contracts, 
especially labor contracts. A South 
Carolina statute adopted in December 1865 
provided in part

The statutes and regulations 
c o n c e r n i n g  slaves are now 
inapplicable to persons of color;
... such persons shall have the 
right ... to make contracts, to
enjoy the fruits of their labor; to 
sue and be sued....^®

Four other states followed South Carolina 
in enacting express guarantees of the

*1 -jright to make and enforce contracts.-L 
Although a freedman generally might not
be able to testify in a civil suit
between two whites, he was expressly
guaranteed the right to testify in any 
contract case in which he was a party.

16 South Carolina Laws 1864-65, p.
271.

17 Arkansas Laws 1866-67, p. 99; 
Georgia Laws 1865-66, p. 239; Tennessee 
Laws 1865-66, p. 65; Texas Const'n. 1866, 
art. 27; Texas Laws 1866, p. 27.

18 See Appendix B.



20
Although there were a few racially 

explicit post-Civil War southern laws 
which affected the contracts of freedmen, 
it is unlikely that these were the sole 
problem at which the contract provision 
of § 1 was directed. First, it is clear 
that the property provisions of § 1 apply 
to purely private conduct, as recognized 
by the dissenting opinion in Runyon. It 
is unlikely that Congress would have 
intended, in 1866, 1870 or 1874, to limit 
the contract provision in § 1 to state 
action. Placing in the contract provision 
a state action requirement absent from the 
property provisions would lead to strange 
and often unworkable distinctions between 
contracts for the sale or lease of 
property and other forms of contract. 
Private contracts with tenant farmers 
would be covered by § 1, but private 
contracts with farm laborers would not.



21
Private school admissions would be 
subject to § 1 if students stayed in
leased dormitory rooms, but not if they 
went home at night. It would be illegal 
for a white blacksmith to refuse on 
racial grounds to sell a horseshoe to a 
former slave, but the blacksmith could 
refuse to nail the shoe to the hoof of 
the freedmen's horse.

Second, among the eleven former 
confederate states, only South Carolina 
adopted legislation limiting the ability 
of blacks to engage in a trade19 or 
regulating the conditions of black 
employment.20 It would be surprising 
indeed if Congress, although aware of the 
dreadful conditions under which millions 
of freedmen worked all across the south,

19 South Carolina Laws 1864-65,
274, 299.

20 Id. at 295-97.



22
had decided to address that problem only 
in South Carolina, and to leave untouched 
identical working conditions in the ten 
other former rebel states.
II. THE 1870 VOTING RIGHTS ACT CONFIRMS 

THAT CONGRESS UNDERSTOOD SECTIONS 16 
and 18 OF THAT ACT, LIKE SECTION 1 OF 
THE 18 66 ACT, TO APPLY TO PRIVATE 
CONDUCT___________________________ _
Although we believe the scope of §

16 of the 1870 Voting Rights Act is not
dispositive here, a close reading of the
language and legislative history makes
clear that Congress understood § 16 to
cover private acts of discrimination. A
review of the 1870 Act as a whole reveals
that the Forty-first Congress carefully
considered which provisions would and
would not deal with state laws or
activities, and that when Congress had in
mind state action it said so expressly.
Of the twenty-three sections in that Act,
seven expressly refer to state action.



23
Sections 2 and 3, for example, concern
actions "under the authority of the
constitution or laws of any State, or the
laws of any Territory," and § 22 deals
with certain acts "required ... by any law
of the United States, or of any State or
Territory thereof."21 Section 16 of the
Act, from which § 1981 derives in part,
actually contained two sentences, the
second of which was expressly limited to
discriminatory state action:

All persons within the jurisdiction 
of the United States shall have the 
same right in every State and 
Territory in the United States to 
make and enforce contracts.... No 
tax or charge shall be imposed or 
enforced by any State upon any 
person immigrating thereto from a 
foreign country which is not equally 
imposed and enforced upon every 
person immigrating to such State from

21 16 Stat. 140, 146. See also 16 
Stat. 140-44, § 1 ("any constitution, law, 
custom, usage or regulation of any State 
or Territory"), §§ 16, 17 (referring both 
to acts "under color of custom," and to 
acts "under law, statute, ordinance, [or] 
regulation").



24
any other foreign country; and any 
law of any State in conflict with 
this provision is hereby declared 
null and void.22 *

The overall structure of the 187 0 Act 
reveals a carefully crafted congressional 
scheme in which some provisions apply 
only to state action, some apply only to 
state or federal action, and some apply 
without limitation to all persons, public 
and private.2 3 The absence of any 
express state action requirement in the
first sentence of § 16 reflects a
considered decision to give to that
provision a broader reach then the seven
provisions which do contain such

22 16 Stat. 144 (emphasis added).
22 Supporters of the 1870 Act 

insisted that under § 2 of the Fifteenth 
Amendment Congress could prohibit private 
as well as government actions interfering 
with the right of blacks to vote. Cong. 
Globe, 41st Cong., 2d Sess. 3671
(1870)(Sen. Morton).



25
restrictions.24

Respondent correctly notes that the 
particular impetus behind the adoption of 
§ 16 was concern with mistreatment of
Chinese immigrants, particularly in 
California. The tax provision of § 16 was 
a direct reaction to California statutes 
imposing special taxes on Chinese 
immigrants.25 On the other hand, the 
language in § 16 extending portions of the 
1866 Act to aliens, particularly the 
application to them of "the same right ... 
to make contracts ... as is enjoyed by 
white citizens," was not a reaction to any 
discriminatory state action. When the

24 In addition, § 17 of the 1870
Act, like § 2 of the 1866 Act, imposes
criminal sanctions both on government 
officials and on private parties acting 
pursuant to custom.

25 See McClain, The Chinese
Struggle for civil Rights in_Nineteenth
Century America: The First_Phase.,— 1850-
1870. 72 Cal. L. Rev. 529 (1984).



26
1870 Act was adopted no California law 
limited the right of the Chinese to make 
contracts, and we have been unable to 
unearth any suggestion that state or 
local officials did so.26 Private 
discrimination against Chinese workers, 
on the other hand, was rampant. Many 
private employers refused to hire Chinese 
immigrants. The ability of the Chinese 
to find work was further curtailed by 
organized boycotts of Chinese-made goods, 
and of employers who hired Chinese 
employees. These boycotts were so
successful that west coast manufacturers 
placed on boxes of their goods labels 
assuring customers that the contents are

26 The plaintiff in Yick— Wo— v_!_ 
Hookins. 118 U.S. 356 (1886), although
operating his laundry since 1862, had 
encountered no problems with local 
authorities until 1885. 118 U.S. at 358.



27
made by WHITE MEN."27 "Successful labor 
agitation . . . resulted in the firing of 
Chinese workers in nearly every urban 
industry in which they had thrived....28

Read against this background, Senator 
Stewart's explanation of § 16 clearly
encompasses private as well as 
governmental abuses:

We are inviting to our shores, 
or allowing them to come Asiatics. 
We have got a treaty allowing them 
to come.... We have pledged the 
honor of the nation that they may 
come and shall be protected. For 
twenty years every obligation of 
humanity, of justice, and of common 
decency toward those people has been 
violated by a certain class of men—  
bad men I know; but they are 
violated in California and on the 
Pacific coast. While they are here 
I say it is our duty to protect 
them. I have incorporated that

27 A. Saxton, The Indispensable
Enemy 74 (1971) (emphasis in original
label) .

28 C. Wollenberg, ed., Ethnic
Conflict in California, 96 (1970) . We
set forth in Appendix C historical 
materials dealing with the treatment of 
Chinese immigrants in this era.



28
provision in this bill ... so that 
we shall have the whole subject 
before us in one discussion. It is 
as solemn a duty as can be devolved 
upon this Congress to see that those 
people are protected, ... to see 
that they have the equal protection 
of the laws, notwithstanding that 
they are aliens. They, or any other 
aliens, who may come here are 
entitled to that protection. If the 
State courts do not give them the 
equal protection of the law, if 
public sentiment is so inhuman as to 
rob them of their ordinary civil 
rights, I say I would be less than a 
man if I did not insist, and I do 
here insist that that provision 
shall go on this bill....

Cong. Globe, 41st Cong. 2d Sess. 3658
(1870). Senator Stewart clearly
c o n t e m p l a t e d  protecting Chinese
immigrants, not only from state officials,
but from the whole class of "bad men" who
had so long been mistreating them, to deal
not merely with abuses occurring under
color of law, but with "the whole
subj ect."29

29 Although § 16 was referred^ to as 
a measure to assure "equal protection of(continued...)



29
III. THE 1874 REVISED STATUTES DID NOT 

REDUCE THE SUBSTANTIVE PROTECTIONS 
OF THE 1866 CIVIL RIGHTS ACT_________
Respondent's argument with regard to

the 1874 Revised Statutes differs from
that originally advanced by the
dissenting opinion in Runyon. The Runyon
dissent insisted that the actual intent
of Congress in enacting the codification
that includes § 1977 (42 U.S.C. § 1981)
was "beside the point," 427 U.S. at 207-
OS, because the meaning of that provision
was controlled by "the Revisers'
unambiguous note before" "Congress when § 29

29 (...continued)
the law," Senator Stewart repeatedly used 
this phrase to refer to the protection 
afforded by § 16 itself, not simply as a 
reference to the failure of state laws to 
treat blacks, whites, and asians in a 
non-discriminatory manner. Cong. Globe, 
41st Cong., 2d Sess. 3658, 3807, 3808. 
"Equal protection" was also widely 
understood in the nineteenth century to 
refer to the duty of states to protect 
their residents from abuses by other 
private citizens. J. tenBroek, Equal 
Justice Under Law (1951).



30
1977 was passed" in 1874. 427 U.S. at
205. Respondent now correctly
acknowledges that the "note" referred to 
was not written until 1875. Resp. Rearg. 
Br. 39. Respondent insists, however, that 
the legislative history of the 1874 
Revised Statutes demonstrates that 
Congress specifically intended to repeal 
the protections against discrimination in 
contracts afforded by § 1 of the 1866 Act 
(re-enacted as § 18 of the 1870 Voting
Rights Act) , and to codify in § 1977 only 
§ 16 of the Voting Rights Act.

Respondent's contention faces three 
insurmountable obstacles. First, the
Court has repeatedly insisted that 
Congress will not be deemed to have 
repealed prior legislation by mere 
implication; an intent to repeal will be 
found only where Congress has expressed 
it in a clear affirmative manner. E.q.,



31
Ruckleshaus v. Monsanto Co.. 467 U.S.
986, 1017 (1984). Second, as we noted at
length in our previous brief, Congress 
was repeatedly and expressly reassured 
that the 1874 Revised Statutes in 
general, and the civil rights provisions 
in particular, were not altering the 
substantive law as it existed prior to 
1874. Pet. Rearg. Br. 10-13. Third, 
although the wording of § 1977 is the same 
as that of § 16 of the 1870 Act, the
language of § 1977 regarding the right to 
contract is also identical to this 
provision of § 1 of the 1866 Act.
Congress, having codified in 1874 a 
guarantee of the right to contract 
identical to the guarantee in § 1 of the
1866 Act, and the sponsors of the 
legislation having insisted that the 
codification entailed no substantive 
changes in the law, the 1874 Revised



32
Statutes, like the codification at issue 
in United States v. Kozminski. "most 
assuredly was not intended to work a 
radical change in the law." 101 L.Ed.2d 
788, 807 (1988); cf. District of Columbia
v. Thompson Co.. 346 U.S. 100, 110-18
(1953).30

30 The side notes described by 
respondent as "the Secretary of State's 
addition of marginal notations," Resp. 
Rearg. Br. 37, were not written by the 
Secretary, but by a private publisher, 
see 18 Stat. 113, and are thus no more 
authoritative than a West Publications 
headnote. The passage in Abbott's
National Digest on which respondent 
relies was not printed until 1884, a 
decade after the passage of the Revised 
Code. Abbott's own draft of the revision 
was rejected by Congress precisely because 
Abbott and the other commissioners had 
attempted to make substantive changes in 
the law. Pet. Rearg. Br. 8-9. Durant's 
heading for § 1977, "Equal Rights Under
The Law," is at best ambiguous, for it 
could of course refer to the fact that the 
section was a federal law guaranteeing 
equal rights.



33
IV. THE DOCTRINES OF CONGRESSIONAL 

RATIFICATION AND STARE DECISIS COMPEL 
REAFFIRMATION OF THE DECISIONS IN 
RUNYON AND JONES_____________________
A. RESPONDENT WOULD NULLIFY STARE 

DECISIS
We demonstrated in our previous 

brief that reaffirmation of Runvon and 
Jones is required by the established 
principles of stare decisis: these
decisions have benefited, not harmed, the 
law and society, have not proved 
unworkable,31 have not been effectively 
overruled by later decisions, and cannot 
be dismissed as clearly or egregiously 
ill-reasoned or researched. Respondent 
does not dispute these specific 
contentions about the nature and impact of

31 It is the overruling of Runvon 
or Jones that would produce unworkable and 
illogical results, as discussed in Points 
I and II above.



34
Jones and Runyon.32 Respondent offers, 
instead, a quasi-constitutional argument 
against the doctrine of statutory stare 
decisis itself.

In respondent's view, when a prior 
statutory decision is challenged, the 
only question that the Court should 
consider is whether or not it now agrees 
with that earlier opinion. The Court
must on this view overrule any "erroneous 
decision," because a failure to do so 
"would be tantamount to legislation by 
the judicial branch, in violation of 
separation of powers." Resp. Rearg. Br. 
95. Under respondent's rule, every

3 2 Respondent points out that the 
Court has overruled precedents in the 
past. However, as shown in Appendix C to 
our opening brief and confirmed by recent 
scholarly analysis, see W. Eskridge, Jr., 
Overruling Statutory Precedents, 76 Geo. 
L. J. 1361, 1369, 1388, 1409 (1988), these 
decisions were based on special 
justifications, not simply a conclusion 
that the precedent was wrongly decided.



35
mistaken construction of a federal law 
w o u l d  be an i nv as io n of the 
constitutional prerogatives of Congress; 
the sole responsibility of the Court 
would be to consider de novo whether its 
prior decisions were correct. A new 
interpretation of the law would have to 
be issued whenever a majority of the 
Court believed that it had detected an 
error.

Limiting stare decisis in the way 
suggested by respondent would, of course, 
completely nullify the doctrine of stare 
decisis in the statutory context; after 
all, no one has suggested that the Court 
should overrule correctly decided 
statutory precedents. Contrary to
respondent's novel separation of powers 
theory, the Court has long held that the 
doctrine of stare decisis has strongest 
force in the area of statutory



36
construction.

The rule advocated by respondent 
necessarily would require an extensive, 
periodic "reconsideration" process, 
imposing massive costs on the Court and 
litigants. If the Court were
systematically to revisit close questions 
of statutory construction —  a task which 
in respondent's view is essential to 
assure fidelity to the separation of 
powers -- it would be able to produce 
little else.33

The circumstances of this case 
illustrate the magnitude of the change in 
stare decisis law suggested by 
respondent. Although noting decisions 
suggesting that stare decisis might not

33 Most questions resolved by the 
Court are close, as shown by the large 
number of dissenting opinions. In the 
1986 Term, almost 75% of the cases 
decided with full opinions included a 
dissent. Supreme Court 1986 Term, The 
Statistics, 101 Harv. L. Rev. 362, 364 (1987).



37
save a prior decision whose erroneous 
nature was particularly "blatant" or 
"beyond doubt," Resp. Rearg. Br. 101-02, 
respondent does not suggest that Jones. 
Runyon and their progeny meet that 
standard. To the contrary, Justice 
Harlan's dissenting opinion in Jones 
stopped short of asserting that the 
majority was wrong, stating only that "a 
contrary conclusion may equally well be 
drawn." 392 U.S. at 454 (Harlan, J. , 
joined by White, J., dissenting).34 If, 
on balance, Justice Harlan felt that J ones 
was mistaken, he regarded the matter as 
presenting the sort of close case to 
which stare decisis should be applied. 
See Monroe v. Pape, 365 U.S. 167, 192

34 Justice Harlan also concluded 
that the Court's construction "at least is 
open to serious doubt," 392 U.S. at 450, 
and that "there is an inherent ambiguity 
in the term 'right' as used in § 1982,"
id. at 452-53.



38
(1961) (Harlan, J., concurring and 
dissenting) (stare decisis applicable 
unless error in prior decision "appears 
beyond doubt").

B. CONGRESS APPROVED JONES AND 
RUNYON

Respondent argues that the extensive 
legislative history indicating Congress' 
explicit approval of Jones and its progeny 
is irrelevant and that no conclusion can 
be drawn from Congress' failure to 
overturn these cases. However, this is 
not a case of unexplained Congressional 
f a i l u r e  to o v e r t u r n  a C ou rt  
interpretation. Without repeating the 
extensive legislative history, two points 
are worth noting. First, Congress in 1972 
was not silent; rather the proponents of 
Title VII explained in detail why the § 
1981 remedy should be retained and the 
subsequent vote can only be interpreted as 
agreement with those explanations.



39
Second, this is not a case of 
Congressional inaction. In passing the 
Civil Rights Attorney's Fees Act of 1976, 
Congress in effect amended § 1981 itself. 
The Fees Act lists §§ 1981 and 1982 by
name.35 The result is the same as if the 
fees provision had been placed directly 
into §§ 1981 and 1982. This type of
explicit Congressional action. taken after 
the Jones. Runyon and McDonald36 had been 
decided and with knowledge of those 
decisions, is entitled to great weight.

C. CONGRESS AND NOT THE COURT IS
COMPETENT TO ADDRESS THE 
INTERACTION OF TITLE VII AND 
§ 1981

Respondent and several amici urge 
that Congress erred when it decided not 
to make Title VII the exclusive remedy

35 See 42 U.S.C. § 1988 (1982).
36McDonald v. Santa Re Trail Transp. 

Co. . 427 U.S. 273 (1 9 7 6) (cited with
approval in H.R. Rep. No. 1558, 94th 
Cong., 2d Sess. 4 (1976)).



40
for e m p l o y m e n t  d i s c r i m i n a t i o n .  
Respondent asserts that opposition to the 
1971 Hruska amendment was based on a 
"gross misapprehension," Resp. Rearg. 
Br. 122 n. 99, and amicus Washington 
Legal Foundation complains that the 
amendment was defeated because of an 
"erroneous statement"37 on the floor of 
the Senate. Amicus EEAC characterizes 
the debates in 1972 as "fairly 
perfunctory."38

The EEAC also makes a number of 
specific factual assertions about the 
manner in which § 1981 and Title VII have 
interrelated over the last twenty years, 
including allegations that § 1981 has
generally "drive[n] the use of Title VII

37 Brief Amicus Curiae of 
Washington Legal Foundation at 27.

38 Brief Amicus Curiae of Equal 
Employment Advisory Council at 18; see 
also id. at 16 (no "reasoned policy 
decision").



41
'out of currency'" and that complainants 
"often" use the greater remedies available 
under § 1981 "to extract from defendants 
settlements that bear little relationship 
to the degree of damages suffered." EEAC 
Br. at 7, 11.39

These arguments have nothing to do 
with Runyon. which involved private school 
a d m i s s i o n s  and not e m p l o y m e n t  
discrimination. And, as we noted in our

39 The EEAC makes further 
inconsistent factual assertions: that
complainants do not file Title VII claims 
or charges at all, relying instead solely 
on § 1981, EEAC Br. 7, 22; that
complainants do file Title VII charges, 
but then file premature § 1981 claims in
federal court, thus impeding EEOC's 
investigatory and conciliation function, 
id. at 19-23; that complainants have 
"common[ly]" filed Title VII charges and 
deliberately postponed filing a § 1981
claim until the EEOC has finished its 
work, thus unfairly obtaining the 
information unearthed by the EEOC 
investigation, id. at 12-13; and that § 
1981 is of no importance to complainants 
because Title VII by itself "insur[es] 
that the private claimant will receive 
the most complete relief possible," id. 
at 24.



42
earlier brief, there are a large number of 
cases such as Runvon. which, because of 
their subject matter, could not have been 
brought under other federal laws. Pet. 
Rearg. Br. 109-112. Title VII itself 
applies only to employers with 15 or more 
employees, thus excluding some 10 million 
workers and 86 percent of all employers.40

Apparently the arguments concerning 
Title VII are directed toward obtaining 
the partial repeal of § 1981 that 
Congress refused to enact in 1972. Such 
arguments are properly addressed to 
Congress, not this Court. Moreover, the 
hypothetical problems asserted by the EEAC 
were explicitly raised and addressed by 
Congress when it amended Title VII in 
1972. For example, Congress knew that an 
employee could "completely bypass both the

40 T. Eisenberg & S. Schwab, The 
Importance of Section 1981, 73 Cornell L. 
Rev. 596, 602 (1988).



43
EEOC and the NLRB and file a complaint in 
Federal court" under § 1981. 118 Cong. 
Rec. 3173 (1972).

In addition, the EEAC offers no 
authority for its assertions regarding 
what actually has occurred over the years 
since Jones. A significant body of 
evidence indicates that these assertions 
are incorrect. One recent study disclosed 
that virtually all § 1981 employment 
complaints also alleged a cause of action 
under Title VII, indicating that most 
plaintiffs are not using § 1981 to bypass 
Title VII.41 The existence of serious 
problems with the effectiveness of the 
EEOC investigation and conciliation

41 Eisenberg & Schwab, 73 Cornell 
L. Rev. at 603. This study also showed 
that § 1981 plaintiffs are successful 
about as often as Title VII plaintiffs and 
that the rate of monetary settlements are 
lower than in Title VII cases, id.* at 
600, thus casting doubt on the assertion 
that plaintiffs have been able to extract 
unfair or unreasonable settlements.



44
process also undermines the argument that 
Congress intended to force § 1981
plaintiffs into this overburdened 
system.42

42 A recent report indicates that 
the EEOC found reasonable cause to 
believe that discrimination occurred in 
only 3% of the charges it processed in 
1986. Office of Program Operations,
EEOC, Annual Report F.Y. 1986. While 
receiving 68,822 charges in FY 1986, the 
EEOC filed only 526 cases in federal 
court, of which 99 were subpoena 
enforcement. Id. at 16, 17. A 1987
Government Accounting Office investigation 
of the Birmingham office of the EEOC 
showed that 29% of the charges received 
inadequate investigation and that none of 
these charges was decided in favor of the 
charging party. EEOC Birmingham Office 
Closed Discrimination Charges Without Full 
Investigation. GAO Report, July, 1987. 
See also Staff of the House Comm, on 
Educ. & Labor, 99th Cong., 2d Sess., 
Investigation of Civil Rights Enforcement 
By the Equal Employment Opportunity 
Commission (Comm. Print 1986), at VII 
("greater emphasis on the rapid closure 
of cases at the expense of quality 
investigations").



45
CONCLUSION

For the reasons stated, the Court 
should reaffirm the holding in Runyon. 

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
CHARLES STEPHEN RALSTON* 
RONALD L. ELLIS 
ERIC SCHNAPPER 
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

PENDA D. HAIR 
Suite 301
1275 K. Street, N.W. 
Washington, D.C. 20005 
(202) 682-1300

HAROLD L. KENNEDY, III 
HARVEY L. KENNEDY

Kennedy, Kennedy, Kennedy 
and Kennedy

701 First Union Building 
Winston-Salem, N.C. 27101 
(919) 724-9207

Attorneys for Petitioner 
*Counsel of Record



APPENDICES



Appendix A

J. James, The Framing of the 
Fourteenth Amendment (1956) 
__________ (Pp. 52-53 )_______

"By the time that Congress 
adjourned for the Christmas holidays, 
people were reading [the Schurz Report] 
in their newspapers. This long analysis 
and supporting documents had been sent to 
Congress along with the short Grant 
report in response to Sumner's resolution 
formally asking for it. Radicals had no 
intention of running the risk that such 
an important propaganda document might be 
buried in executive files.

"As was expected, the document 
created much excitement.... [T]he
Chicago Tribune's characterization of 
the Schurz report as the 'ablest, most



2a
thorough and exhaustive study yet made' 
is representative of the Radical position 
. . . . [T]he document was published in 
full in many newspapers, thus reaching 
and influencing many voters the country 
over. Copies were printed and circulated 
by authority of Congress and added to the 
mass effect of the Schurz document. 
According to its author, the President 
came to consider sending him South his 
greatest mistake up to late January."



3a

Appendix B

Black Code Provisions Regarding
_____Testimony By Freedmen_____

Ten of the former confederate states 
adopted laws expressly permitting blacks 
to testify in any case in which a black 
had an interest. Alabama Laws 1866, p. 
98 (black can testify if black a party or 
crime victim); Arkansas Laws 1866-67, p. 
98 (no limitations on testimony by 
blacks); Florida Const'n. 1865, art. xvi, 
sec. 2; Florida Laws 1865-66, pp. 35-36, 
145 (black can testify if black a party 
or crime victim); Georgia Laws 1865-66, 
pp. 239-40 (black can testify if black a 
party or crime victim); Mississippi Laws 
1865, p. 82 et seq. (black can testify in 
open court if black a party or crime 
victim); North Carolina Laws 1865, p. 102 
(black can testify if black a party or



4a
crime victim; not in other cases except 
with consent of the parties); South 
Carolina Laws 1864-65, p. 286 (black can 
testify in any civil or criminal cases 
"which affects the person or property" of 
a black); Tennessee Laws 1865-66, p. 24 
(no limitations on testimony by blacks); 
Texas Const'n, 1866, Art. viii, sec. 2, 
Tex. Laws 1866, p. 27 (blacks shall not 
be prohibited from testifying, on account 
of race, in any civil or criminal case 
"involving the right of, injury to, or 
crime against" a black); Laws of Virginia 
1865-66, p. 89 (black can testify in any 
case in which a black is a party or a 
crime victim, or allegedly committed a 
crime in conjunction with a white).



5a
Appendix C

Sources Regarding Treatment 
Of Chinese in the West

P. Chiu, Chinese Labor in 
California, 1850-1880, An Economic Study, 
12-19 (Chinese workers expelled from 
mining camps at behest of white miners), 
63 (different pay scales for Chinese and 
white laborers) , 87 (systematic replace­
ment of Chinese agricultural workers with 
whites) , 91-92 (labor opposition to
employment of Chinese in woolen mills, 
leading to "[m]ajor reductions" in 
Chinese employment in the industry), 92
(different pay scales for Chinese and 
w h i t e  w o rk er s) , 95 (clothing 
manufacturers opposed to hiring Chinese 
out of fear they would use their skills, 
once learned, to start their own 
businesses) , 106 (shoe manufacturers
opposed for a similar reason to hiring



6a
Chinese), 115 (different pay scales for 
whites and Chinese in shoe industry), 126 
(labor union successful campaign to 
remove Chinese workers from the cigar 
manufacturing industry), 129-38 (economic 
views of unions and others opposed to the 
employment of Chinese workers)(1967).

I. Cross, A History of the Labor 
Movement in California 78-80 (boycotts 
of employers hiring Chinese; 1859 
resolution of California People's 
Protective Union pledged "That every 
member of the People's Protective Union 
will hereafter wherever he finds Chinese 
employed, refuse to patronize such 
employers; and further that the People's 
Protective Union recommends every friend 
of White labor throughout the State to 
pursue a similar course")(1935).

S. Lyman, Chinese Americans 59-61 
of Chinese from mining(expulsion



7a
camps) (1974) .

A. Rolle, California: A History 288 
(mines refused to hire Chinese) (4th ed. 
1963) .

A. Saxton, The Indispensible Enemy, 
Labor and the Anti-Chinese Movement in 
California 3 (expulsion of Chinese from 
mining camps), 57 (same), 72-79 (general
history of "anti-coolie clubs" in 
California; successful primary boycotts 
of Chinese made goods, secondary boycotts 
of merchants selling such goods; 
consequent introduction of product labels 
stating goods were "made by WHITE 
MEN") (1971) .

C. Wollenberg, ed., Ethnic Conflict 
in California History 72-74 (Chinese 
workers excluded from mining camps), 94-
95 (attacks on Chinese workers in 
California and Nevada), 96 ("Even though
much of California's anti-Chinese



8a
l e g i s l a t i o n  w a s  d e c l a r e d  
unconstitutional, its intent was realized 
by successful labor agitation which 
resulted in the firing of Chinese workers 
in nearly every urban industry in which 
they had thrived . ..") (1970).

Daily Alta (San Francisco), February 
13, 1867 (white rioters attacked 
officials of a contractor because it 
hired Chinese workers).

Daily Alta, February 14, 1867 (riot 
of previous day condemned as violation 
"the spirit of [the] treaty" with China).

Daily Alta, February 20, 1867 (plans 
for a general strike in San Francisco 
"for ... the driving out of employment of 
all the Chinese in the city").

Daily Alta, February 21, 1867 
(meeting of laborers and others resolved 
"That we will not patronize any merchant, 
manufacturer, contractor, capitalist,



9a
lawyer, doctor, brewer, or any person who 
in anywise employ Chinese labor.").

Daily Alta, February 22, 1867, p.l,
col. 1 (the "anti-Chinese labor movement" 
criticized for refusing to patronize the 
Chinese "washerman, ... house servant,
... gardener, ... vine dresser, ... cigar 
maker ... and dirt shoveller [sic]").

Daily Alta, March 10, 1867 (At 
meeting of District Anti-Coolie 
Association "[a] pledge was read to the 
effect that those present would not buy 
any goods manufactured by Chinamen").

Sacramento Daily Union, September 
18, 1869, p.l, col.6 (describing opposi­
tion among working men in Nevada to 
employment of Chinese).