Patterson v. McLean Credit Union Brief for Amici American Jewish Congress et al.

    BRENDA PA TTER SO N ,

vs.

McLEAN CRED IT UNION,

Petitioner,

Respondent.

On W rit of Certiorari to the United States Court of Appeals 
For the Fourth Circuit

ON REARGUMENT

BRIEF FOR AMICI
American Jewish Congress, Leadership Conference on Civil Rights, 
American Civil Liberties Union, American Federation of Labor— 
Congress of Industrial Organizations (AFL-CIO), American Jewish 
Committee, Anti-Defamation League of B’nai B’rith, Disability Rights 
Education and Defense Fund, League of Women Voters of the U-S-, 
Mexican American Legal Defense and Educational Fund, National 
Association for the Advancement of Colored People (NAACP), 
National Organization for Women Legal Defense and Education 
Fund, People for the American Way and Other Organizations.

(additional names follow)

M abc D. S teen  
American Jew ish Congress 

15 E as t 84th S treet 
New York, New York 10028 

(212) 879-4500

M abvin E. F eankel. 
Counsel of Record 

K eam eb , L ev in , N essen , 
K am in  & F eankel  
919 T hird Avenne 

40th F loor
New York, New York 10022 

(212) 715-9430

v .



Affiliated Leadership League of and 
for the Blind of America 

The Alliance for Justice 
Alpha Kappa Alpha Society, Inc.
The Anierican-Arab Anti-Discrimination 

Committee
The American Association for Affirmative Action 
American Association of University Women 
The American Council of the Blind 
The American Ethical Union of the 

Ethical Culture Societies 
The American Federation of Government 

Employees, AFL-CIO 
American Federation of State, County, &

Municipal Employees
The American Federation of Teachers (AFL-CIO) 
The American Nurses Association 
Americans for Democratic Action, Inc.
Americans for Indian Opportunities 
The American Veterans Committee, Inc.
Asian American Legal Defense and 

Education Fund
The Association for Retarded Citizens of the U.S. 
ASPIRA
Black Women’s Agenda, Inc.
B ’nai B ’rith Women, Inc.
Business and Professional People 

in the Public Interest 
Catholics for a Free Choice 
The Center for Community Change 
The Center for Law and Social Policy 
The Children’s Defense Fund 
The Church of the Brethren—World 

Ministries Commission 
Citizen Action
The Coalition of Labor Union Women 
Common Cause
The Communications Workers of America



The Community Relations Conference of 
Southern California 

Congress of National Black Churches 
The Department of Church in Society,

Christian Church
The Federation of Organizations for 

Professional Women 
The General Board of Church and

Society of the United Methodist Church 
The Human Rights Campaign Fund 
The Indian Law Resource Center 
The International Union of Electronic,

Electrical, Salaried, Machine and 
Furniture Workers, AFL-CIO 

The International Union, United Automobile
Aerospace and Agriculture Implement Worke 
of America

The Japanese American Citizens League 
The Jewish Labor Committee 
The League of Rural Voters Education Project 
The League of United Latin-American Citizens 
The Mental Health Law Project 
The Mexican American Women’s 

National Association 
The Migrant Legal Action Program, Inc. 
Minnesota Lawyers International Human 

Rights Committee
The Minority Business Enterprise Legal 

Defense and Education Fund, Inc.
The National Abortion Rights Action League 
The National Alliance of Postal and 

Federal Employees 
The National Association for Equal 

Opportunity in Higher Education 
The National Association of Human 

Rights Workers
The National Association of Social Workers 
The National Bar Association, Inc.

The National Black Caucus of State Legislators 
'T h e  National Black Leadership Roundtable 

The National Catholic Conference for 
Interracial Justice

The National Caucus and Center On Biack Aged 
The National Community Action Agency 

Executive D irectors’ Assn.
The National Congress for Puerto Rican Rights 
The National Council of Churches of 

* Christ in the U.S.A.
The National Council of Jewish Women 
The National Council of La Raza 
The National Council on the Aging 
The National Council of Senior Citizens, Inc.
The National Education Association 
The National Federation of Business

and Professional Women’s Clubs, Inc.
The National Federation of Temple Sisterhoods 
The National Gay and Lesbian Task Force 
The National Jewish Community Relations 

Advisory Council
The National Legal Aid and Defenders Association
The National Low Income Housing Coalition
National Neighbors
The National Organization for Women
The National Puerto Rican Forum
The National Urban League, Inc.
The National Women’s Lnw Center 
The National Women’s Political Caucus 
Opportunities Industrialization 

Centers of America, Inc.
The Organization of Chinese Americans, Inc.
The Organization of Pan Asian 

American Women
The Phi Beta Sigma Fraternity , Inc.
Planned Parenthood Federation of America 
The Progressive National Baptist Convention 
Project Equality, Inc.



The Puerto Kican Legal Defense und 
Education Fund, Inc.

The A. Philip Randolph Institute 
The Southern Christian Leadership Conference 
The Southern Poverty Law Center 
The Synagogue Council of America 
The Union of American Hebrew Congregations 
The United Church of Christ, Office 

for Church and Society 
Tile United States Student Association 
The Villers Foundation 
The Washington Ethical Action Office 
Women Employed 
The Women’s Equity Action League 
The Women’s Legal Defense Fund 
The Workmen’s Circle 
The YWCA of the U.S.A.

Question Presented

Whether or not the interpretation of 42 U.S.C. 
§1981 adopted by this Court in Runyon v. McCrary, 427 
U.S. 160 (1976) should be reconsidered.



11

Table of Contents

Question Presented........................................................................1

Table of Contents .........................................................................11

Table of Authorities .................................................................. ,v
. . . . .   viiiInterest of the A m ici................................................

Summary of the Argument ........................................................
..........4

Argument ................................................................
I THIS COURTS DECISION IN RUNYON CONSTI­

TUTES AN INTEGRAL PART OF NATIONAL LE­
GAL PROTECTIONS AGAINST RACIAL DIS­
CRIMINATION ...................................................................

II STARE DECISIS APPLIES WITH COMPELLING
FORCE TO SUSTAIN THIS COURTS PRIOR 
CONSTRUCTION OF THE CIVIL RIGHTS ACT 
OF 1866.................................................................................
A. The Decisions in Jones and Runyon, Correct and

Important When Made, Would Stand on the 
Ground of Stare Decisis Even if they Were More 
Doubtful ........................................................................

B. Congress Has Approved and Built on this Court s
Decision in Runyon ......................................................

C. Runyon and Jones Have Become Integral Parts
of the Decisional L aw ..................................................

i. Runyon and Jones in the Decisions
of this Court ..........................................................

ii. Runyon and Jones in the Lower Courts
and the Reliance of those Suffering Dis- 
crimination ............................................................

in

III. THE CONSTRUCTION IN RUNYON HAS BEEN
STRENGTHENED AND APPROVED BY THE 
TESTS OF TIME, SOCIAL APPROVAL AND 
RELIAN CE.........................................................................  18

A. The Inquiry in a Stare Decisis Case is Broader and 
* More Policy-Driven Than in a De Novo Case

of Statutory Interpretation ...........................................18

B. The Runyon Rule Captures the National Consensus
Against Racial Discrimination..................................... 18

IV. NONE OF THE REASONS THAT MAY JUSTIFY A
DEPARTURE FROM PRECEDENT IS PRESENT 
H E R E .....................................................................................20

A. No Changed Economic or Social Circumstances 
Warrant Departure from the Rule of
Stare Decisis ................................................................  22

B. The Runyon Decision Places No Unusual Burdens
on the Judicial System .................................................. 22

C. The Runyon Rule Has Not Proven Unworkable ------24

Conclusion.................................................................................... 26

Appendix A ................................................................................ l ‘A



IV

Table of Authorities

Cases
Alyeska Pipeline Service C a .421 U.S. 240 (1975) ..........2, 12,13

Batson v. Kentucky, 106 S.Ct. 1712 (1986)...............................^4
Bob Jones University v. U.S.. 461 U.S. 574 (1983) . 3, 5. 6, 16, 21

Boys Markets Inc. v. Retail Clerks Union Local 770,
398 U.S. 235 (1970) ............................................................... "

Brady v. Bristol Meyers, Inc. 459 F.2d 621 (1972) ^
(8th Cir. 1972) .............................................................................
Brown v. Bd. o f Educ., 347 U.S. 483 (1954)...............................4
Brown v. Gaston County Dyeing Machine Co.,

457 F.2d 1377 (4th Cir. 1972)................................................
Burnett v. Coronado Oil & Gas Co.,285 U.S. 393 (1931) . . .  9, 10

City o f Mobile v. Bolden, 446 U.S. 55 (1980)...........................10

Dwy v. Conn., 89 Conn. 79 (1915)............................................21
Edelman v. Jordan, 415 U.S 651 (1971)..................................  10
Enelow v. N.Y. Life Ins. Co.,293 U.S. 379 (1935)................... ^
Ettelson v. Metropolitan Life Ins.317 U.S. 188 (1942)...........  25

Fullilove v. Klutznick, 488 U.S. 448 (1980)............................... 16
General Building Contractors Ass'n v. Pennsylvania,

458 U.S. 375 (1982) ...............................................................
General Electric Co. v. Gilbert, 429 U.S. 125 (1976)..............  10
Goodman v. Lukens Steel Co., 107 S.Ct. 2617 (1987)............. 15

Grove City College v. Bell. 465 U.S. 555 (1984).................... 10

Gulf, Colorado & Santa Fe Railroad Co. v. Moser,
275 U.S. 133 (1927)...............................................................

Gulfstream Aerospace Corp. v. Mayacamas Corp.,
108 S.Ct. 1133 (1988)......................................................  iy’ a

Helvenng v. Griffith. 318 U.S 318 (1944) .......................4. 16. 18

v

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977).................  9, 18

Johnson v. Railway Express Agency,
421 U.S. 454 (1975) .............................................. 3, 12, 15, 17

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)........ Passim

Jones v*. United States, 366 U.S. 213 ........................................ 21
Kentucky v. Dennison, 24 How. 66 (1861) ...............................  23

Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974)............ 15

McDonald v. Santa Fe Trails Transportation Co.,
427 U.S. 273 (1976) ............................................................... 15

Macklen v. Spector Freight System,
478 F.2d 976 (D.C. Cir. 1973) ..............................................  15

MacPherson v. Buick Motor Co., 217 N.Y. 382 (1916)............ 22

Monell v. Department o f Social Services o f City o f New York,
436 U.S. 658 (1978) ...........................................................  9,23

Monroe v. Pape, 365 U.S. 167 (1961) ........................................ 8
NLRB v. Int’l Longshoreman Ass’n., 473 U.S. 61 (1985)----  10

Norwood v. Harrison, 413 U.S. 455 (1973)............................... 21

Palmore v. Sidoti, 466 U.S. 429 (1984)..................................... 5

Patsy v. Florida Board o f Regents,
457 U.S. 496 (1982) ................................................  1,9,13,14

Plessy v. Ferguson, 163 U.S. 537 (1896)..................................... 22

Puerto Rico v. Bransted, 107 S.Ct. 2802 (1987).......................  23
Runyon v. McCrary, 427 U.S. 160 (1976) .......................  Passim
St. Francis College v. Al-Khazraji, 107 S.Ct. 2022 (1987) . . . .  15

Shaare T ’fillah Congregation v. Cobb, 107 S.Ct. 2019 (1987) . 16

Sinclair Refinery Co. v. Atkinson, 307 U.S. 195 (1962)............ 23

Square D. Co. v. Niagara Frontier Tariff Bureau,
106 S.Ct. 1922 (1986).............................................................  10

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969)...............  14

Swain v. Alabama, 380 U.S. 202 (1964) ................................... 24



v i

Swann v. Charlotte-Mecklenberg Bd. o f Educ.,
402 U.S. 1 (1971) .................................................

Tillman v. Wheaton-Haven Recreation Association,
410 U.S. 431 (1973) ............................................. 3, 12, 14, 15

U.S. v. Elgin J.L.E. Ry. Co., 298 U.S. 492 (1936)...................  10
U.S. v. Southeastern Underwriters Ass'n, 322 U.S. 533 (1944) 18

Vasquez v. Hillery, 106 S.Ct. 617 (1986)...............  16, 18, 20, 21
Waters v. Wise. Steel Workers, 427 F.2d 476 (7th Cir. 1970) .. 15

Ex Parte Young, 209 U.S. 123 (1908)........................................  23
Young v. I.T.T., 438 F.2d 757 (3rd. Cir. 1971).........................15

Statutes
Handicapped Children's Protection Act o f 1986, Pub. L. 99-372, 

100 Slat. 7%, 20 U.S.C. §1415(eX4XB)-(G).........................10
Voting Rights Act Amendments o f 1982, Pub. L. 97-205, 96 Stat. 

131 42 U.S.C. §1973 ...............  1°
42 U.S.C. §1981 ...............................................................  Passim
42 U.S.C. §1982 .......................................................  7, 14, 16, 25
42 U.S.C. §1983 ............................................................................ 9
Civil Rights Attorney's Fees Act o f 1976, Pub. L. 94-559, 90 Stat. 

2641, 42 U.S.C. §1988 ...........................................................  10
Civd Rights Restoration Act o f 1988, Pub. L. 100-259, 102 Stat. 

28, 42 U.S.C. §2000d............................................................... 10
Pregnancy Discrimination Act of 1978, Pub. L. 95-555, 92 Stat. 

2076, 42 U.S.C. §2000(k)..........................................................10
42 U.S.C. §3601 et. seq..................................................................15

Court Rules
U.S. Sup. Ct. R. 17

Legislative Materials
Age Discrimination Claim Assistance Act, P.L. 100-283, 

102 Stat. 7 8 .....................................................................

19

17

VII

Conference Report on H.R. 1746, The Equal Employment Oppor­
tunity Act o f 1972, H.R. Rep. No. 92-899, 92nd Cong., 2d Sess.
(1972) ..........................................................................................  12

H. Rep. N. 92-238, 92nd Cong., 2d Sess., reprinted in 1972 
U.S. Code Cong. & Admin. News 2137...............................11

H. Rep. No. 94-1558, 92nd Cong. 1st Sess., (1976) ...............  13

S.Rep. 92-415, 92nd Cong., 1st Sess., (1971)...........................11

S. Rep. 94-1011, 94 Cong. 2d Sess., reprinted in 1976 U.S 
Code, Cong. & Admin. News 5908 ..........................................  13

Staff Report on the Investigation o f Civil Rights Enforcement 
by the E.E.O.C., House Committee on Educ. and Labor, 99th 
Cong. 2d. Sess. (1986)...............................................................  17

117 Cong. Rec. 32, 111-12 (1971)............................  12

118 Cong. Rec. 3172-73 (1972) (remarks of Sen. Hruska). . .  11
122 Cong. Rec. 33313 (1976) (remarks of Senator Tunney) .. 13

118 Cong. Rec. 3371-72 (1972) (remarks of Senator 
Williams)...................................................................................11

118 Cong. Rec. 3961 (1972) (remarks of Senator Jav its)___19

Other Authorities

B. Cardozo, The Nature o f the Judicial Process
(1921)...................................................................  17, 18, 20, 21

W. Douglas, Stare Decisis, 49 Col. L. Rev. 735 (1949)............ 17

Gibbons, Book Review, 62 N.Y.U.L. Rev. 1379 (1987)........... 7

R. Jackson, Decisional Law and Stare Decisis, 30 A.B.AJ.
334 (1944).................................................................................... 18

R.J. Kaczorowski, The Politics o f Judicial Interpretation The 
Federal Courts, Department o f Justice and Civil Rights, 
1866-1876 (1985)........................................................................  7

H. Schulman, C. Stech, L. Bobo, Racial Attitudes in 
America (1985) .....................................................................  19, 21

1987 Statistical Abstract of the U.S........................................... 16



VIII

Interest of the Amici

The amici are over 110 national organizations representing 
millions of Americans, men and women from all walks of life, 
and numerous races, ethnic groups and creeds. They represent a 
cross-section of American life. Not surprisingly, these groups 
often disagree with each other on many of the fundamental issues 
facing American society.

That they have all come together in support of the principles 
of equality articulated by this Court in Runyon reflects the de­
gree to which there is fundamental agreement that racial dis­
crimination has no place in American life, public or private, and 
that no socially desirable end would be served by a repudiation of 
Runyon.

The specific interests of the individual amici are found in the 
Appendix.

The brief is filed with the consent of the parties.

Summary of Argument
1

Runyon v. McCrary, 427 U.S. 160 (1976), is part of a web of 
judicial decisions and legislation that played a crucial role in con­
demning and reducing racial discrimination and helped forge a 
national consensus against it. Building upon Brown v. Bd. of 
Educ., 347 U. S. 483 (1954), those decisions and enactments marie 
a turning point in the Nation’s position on racism, charting a 
course toward its elimination.

Runyon has become an integral part of the law; it cannot be 
excised without doing major harm to the entire fabric of rules that 
regulate discriminatory behavior and establish the national con­
sensus. This vital development adds decisively to the normal 
weight of stare decisis in this case.

Notwithstanding the well settled policy against discrimina­
tion, the unfortunate fact is that discrimination still exists. If the 
Court were to overrul? Runyon, it would be sending a signal that 
racial discrimination is again legally and moral'v permissible. 
Principles of stare decisis and fidelity to the Court’s special role in 
purging the Nation of racial discrimination counsel against such 
an action.

Although amici believe that, as recent scholarship demon­
strates, Runyon correctly interpreted the legislative history of 
§1981, this brief argues that stare decisis would be in any event suf­
ficient ground for reaffirmance. Runyon raised the question of 
statutory interpretation directly; the presentations were thor­
ough; the social context in which the case was decided—specifi­
cally the activities of schools, many of them set up to avoid 
mandatory busing for integration purposes—made clear that the 
decision would be sweeping in its social impact.

Where a challenged rule is as well considered and well settled 
as that of Runyon—itself not a startling departure from prior de­
cisions, but a logical development from Jones v. Alfred H. Mayer 
Co., 392 U.S. 409 (1968), and its progeny—the challenger bears 
the heavy burden of persuading the Court, beyond doubt, that “it 
has misread the relevant statute and its history, ” Patsy v. Florida 
Board o f Regents, 457 U.S. 496, 517 (1982) (White, J. concurring). 
That showing is not made here.



2

Even if the Court does not view the legislative history as dis­
positive, where the questioned precedent has become a basic 
building block in the law and the legislative branch has relied and 
built upon it, as is the case here, stare decisis ought to control.

Stare decisis always carries special weight in matters of statu­
tory construction, for Congress is free to change the Court’s inter­
pretations of a statute. Its failure to do so imports approval of the 
judicial construction. That is particularly true in the civil rights. 
Geld, because civil rights decisions are uniquely visible, given the 
deGnitional role they play in society. The Court’s interpretations 
of civil rights statutes have been revisited frequently by Congress, 
and frequently reversed when found to have placed too narrow a 
construction on those statutes.

Congress has not overturned Runyon, but instead has know­
ingly accepted and ratiGed it, incorporating it into subsequent 
legislation. Thus, the evidence of Congressional ratiflcation is 
substantial. Even before Runyon had been decided, but in the 
aftermath of Jones, the Congress refused to make Title VII of the 
1964 Civil Rights Act the exclusive remedy for employment dis­
crimination. The proponents of doing so were seeking to repudi­
ate lower court decisions which, in light of Jones, had read §1981 
as creating a parallel, but independent, remedy. Their successful 
opponents determined that Congress ought not to abolish a 
100-year-old remedy for racial discrimination, and that it was in 
any event appropriate to allow victims of racial discrimination a 
choice of remedies.

Several years later, Congress again treated Runyon as part of 
the body of civil rights law when it incorporated it into legislation 
enacted in response to Alyeska Pipeline Service Co. v. Wilderness 
Society, 421 U. S. 240 (1975), allowing courts to award attorneys 
fees in cases brought, inter alia, under §1981.

3

Congress is not alone in treating Runyon’s interpretation of 
§1981 as a settled aspect of the law of civil rights. This Court has 
done so as well. The Runyon holding was foreshadowed in Jones 
v. Alfred H. Mayer Co., 392 U. S. 409 (1968) and made explicit in 
Tillman v. Wheaton-Haven Recreation Association, 410 U. S. 431 
(1973), and Johnson v. Railway Express Agency, 421 U. S. 454 
(1975).* Since Runyon, the Court has repeatedly applied §1981 to 
private conduct. But the Court has not limited its use of Runyon 
to direct applications to discriminatory conduct. It was cited in 
Bob Jones University v. U. 5., 461 U. S. 574,593 (1983), as evidence 
of a “fundamental national policy against racial discrimination in 
private education.”

Yet another indication that Runyon is inextricably inter­
woven into the fabric of the law is the extent to which it is cited by 
the lower courts. The clear development of the law has led par­
ties, in reliance on Runyon, to forego Title VII remedies in favor of 
§1981. Overruling now would dash their legitimate expectations 
in a way that would be intolerable,” as Judge Cardozo put it.

Stare decisis reflects a judgment that the very fact of change in 
a rule of law has a social impact that must be justifled by the in­
cremental beneflts of the new rule over the old. Where, as in this 
case, it is the existing rule that serves the higher social objectives, 
there is no reason to discard the old rule.

There are, of course, occasions for departing from stare 
decisis. The existing rule may come to be unacceptably at odds 
with the body of law to which it relates. It may come to disserve 
rather that to serve agreed goals of the law. But no one contends, 
or could contend, that any such occasion for overruling is present 
with respect to Runyon.

The critical end served by Runyon is the full social and eco­
nomic equality of racial minorities. That goal is as urgent now as 
it was in 1976, and indeed in 1866. This the most powerful kind of 
occasion for applying stare decisis.



ARGUMENT

I.
THIS COURTS DECISION IN RUNYON CONSTITUTES 

AN INTEGRAL PART OF NATIONAL LEGAL PROTEC­
TIONS AGAINST RACIAL DISCRIMINATION

When this Court requested the parties to brief and argue 
whether or not its interpretation should be reconsidered, it neces­
sarily invoked consideration not merely of a narrow issue, but of 
the impact that a change of legal position would have on society. 
See, Helvering v. Griffith, 318 U.S. 371, 400 (1942).

The decision of this Court in Runyon v. McCrary, 427 U.S. 
160 (1976) as well as its decision in the prior case oiJones v. Alfred 
H. Mayer, 392 U.S. 409 (1968), giving life to the 1866 Civil Rights 
Act, must be viewed in context. They were not isolated occur­
rences but rather part of what has become a comprehensive struc­
ture of law including new statutes and regulations designed to 
guard against discrimination in both the public and private 
spheres, adopted in the period following this Court s decision in 
Brown v. Board o f Education, 347 U.S. 483 (1954).

For much of this century, this Court has struggled to make 
real the promise of the Declaration of Independence that all 
men are created equal—a promise that was broken as early as the 
Constitution’s compromises on slavery. The most dramatic turn­
ing point in that struggle was the Court’s decision in Brown v. 
Board o f Education, 347 U.S. 483 (1954), marking the end of the 
reign of separate-but-equal, and a return to the promise of the 
Reconstruction-era Amendments.

To be sure, this national policy of eradicating racial discrimi­
nation has eliminated many of the most odious forms of invidious 
discrimination. Blacks, and Mexican Americans too, can along 
with Whites now be born in the same hospitals, eat at the same 
lunch counters, relieve their thirst at the same drinking fountains, 
ride together on public transportation, and be buried in the same 
cemeteries.

From the 1960’s on, a national consensus emerged that racial 
discrimination is intolerable. Court decisions have been rein­

4 5

forced by legislative action at the national and state levels. For 
“the past quarter of a century, every pronouncement of this Court 
and myriad Acts of Congress and Executive Orders attest a firm 
national policy to prohibit racial segregation and discrimina­
tion,” Bob Jones University v. U.S., 461 U.S. 574, 593 (1983).

That legislative and judicial activity worked a major trans­
formation for the better in attitudes towards racial equality. But 
as evidenced by a substantial body of case law under the various 
anti-discrimination statutes, studies of public opinion and the 
continuing disparity between blacks and whites in educational 
and economic status, there remains a substantial gap between ac­
ceptance of principles of non-discrimination in theory and their 
implementation in practice. Although the frequency of officially 
countenanced discrimination which existed a third of a century 
ago has diminished substantially, racial discrimination remains a 
present day reality. Much existing racial discrimination is re­
flected in the cases on this Court’s docket during the 1980’s. 
These cases include judicial findings of racial discrimination in 
private employment as well as in public employment, racial dis­
crimination in recalcitrant efforts to stem school desegregation, 
racial discrimination even in parental custody determinations, 
and racially discriminatory denials of the right to vote. “It would 
ignore reality to suggest that racial and ethnic prejudice do not 
exist or that all manifestations of those prejudices have been 
eliminated.” Patmore v. Sidoti, 466 U.S. 429, 433 (1984).

Those continued “manifestations” are cautionary signs. 
They warn against any suggestion by the Court that certain forms 
of racial discrimination are no longer unacceptable. A suggestion 
of this sort from this Court would do great harm to the national 
consensus that racial discrimination is morally repugnant.

We have approached in light of this Court’s leadership in the 
struggle for racial equality the question now posed by the Court: 
“Whether or not the interpretation of 42 U.S.C. §1981 . . .  in
Runyon . . .  should be reconsidered__ ” Guided by that light, we
believe it to be clear that the question calls for a negative answer. 
This submission is supported by a series of intermediate conclu­
sions.



6

(1) There are no changed factors since the thoroughly consid­
ered Runyon decision that could warrant overruling.

(2) The acceptance by Congress of both/ones v. Alfred H. Mayer 
Co., supra, and Runyon v. McCrary, supra, together with the 
extensive jurisprudence predicated upon those decisions by 
this Court and the lower federal courts, adds significant mo­
mentum and weight to the claims of stare decisis.

(3) The usual weight of stare decisis is enhanced in this case by a 
matured judicial and social consensus on the principles of 
racial equality to which the Court’s jurisprudence for almost 
a half-century has been both a major impetus and a continu­
ing response.

(4) No changes in the social conditions addressed by 42 U.S.C 
§1981 or any other pertinent legal circumstances diminish 
the force of stare decisis in this case.

In discussing these interrelated subjects, this brief proceeds 
upon the premise that Runyon v. McCrary was not a startling or 
unexpected departure from prior decisions, but instead grew out 
of Jones v. Alfred H. Mayer Co. and its progeny. While the cases 
are arguably distinguishable from each other, Runyon v. McCrary, 
supra M l U.S. at 213 (White, J., dissenting), it does not follow, 
even on that view, that the Court may now focus on Runyon alone.

The connectedness of Jones and Runyon in the decisional 
process, and the fact that in the intervening years the two cases 
have been understood by the Congress, the courts, and the public 
at large as giving rise to a common web of rules barring private 
racial discrimination, and as enunciating a “fundamental na­
tional public policy against racial discrimination,” Bob Jones Uni­
versity v. U.S.. supra, 461 U.S. at 593-94, suggest that the Court, in 
pursuing the inquiry on which it has embarked, will find it essen­
tial to consider Runyon against the larger background of Jones 
and related cases.

7

STARE DECISIS APPLIES WITH COMPELLING FORCE 
TO SUSTAIN THIS COURT’S PRIOR CONSTRUCTION OF 
THE CIVIL RIGHTS ACT OF 1866

A The Decisions in Jones and Runyon, Correct and Important 
« When Made, Would Stand on the Ground of Stare Decisis 

Even if they Were Doubtful.
Many of the amici here filed briefs in Runyon and Jones urg­

ing that the Court construe §1981 and §1982 to apply to private 
conduct. AJ1 of the amici continue to believe that Runyon cor­
rectly construed that statute and its legislative history.

We submit that the decisions were and are sound for our 
time in every essential respect. Supporting, without repeating, the 
arguments on the merits of those cases by petitioner herein, we 
note that historical as well as legal scholarship continues to sup­
port this Court’s conclusion that the Civil Rights Act of 1866 was 
understood by contemporaries to reach private racial discrimina­
tion, so that in the years following passage

judges rejected attempts of defense attorneys to read into the 
Civil Rights Act an interpretation that limited its application 
to cases in which rights were infringed by some form of ra­
cially discriminatory state action. Federal jurisdiction was 
applied whether or not state discrimination was involved

RJ. Kaczorowski, The Politics o f Judicial Interpretation: The Fed­
eral Courts, Department o f Justice and Civil Rights, 1866-1876 
(1985) at 8-9.1

To be sure that conclusion has been questioned. Beyond the 
dissents in both Jones and Runyon, J ustices have criticized the de­
cisions retrospectively, but then gone on to accept them as vital 
constructions of basic statutes withdrawn from judicial reconsid­
eration by force of stare decisis. See Runyon, 427 U.S. at 186 
(Powell, J., concurring); id. at 189-90 (Stevens, J., concurring).* 2 
This ultimate conclusion—that time and circumstances have
’ See also brief amici curiae of C. Vann Woodward, et. al.; Gibbons, 

Book Review, 62 N.Y.U.L.Rev. 1379 (1987).
2 As noted below, see Point II, c, even the dissenters in Jones and 

Rupyon have joined, even authored, opinions applying those 
decisions to new circumstances involving private acts of racial 
discrimination.

II.



8

made stare decisis the dispositive principle on this occasion has 
our primary and vigorous support in this brief.

The claims for stare decisis are made now for decisions that 
followed thorough presentations. The Court's responses to hose 
presentations were thorough. The outcomes were, to say the to st, 
logical and enlightened interpretations, now woven into the fabric 
of our statutory law.

The determination in Runyon that §1981 bars private racially 
motivated refusals to contract was certainly not a casual mc.den- 
tal or subsidiary holding. The first contention made by petitioner 
Runyon was that:

42 U S C-A §1981 Has No Application To Private Conduct.
Congress Never Intended To Infringe on Private Acts. The
Contract Clause of §1981 Does Not Prohibit Private Dis­
crimination.

Brief of Petitioner Runyon at 2. Each of the parties and most of 
the anucus briefs, including that of the United States, devoted 
substantial attention to the legislative history of the Civil Rig 
Act of 1866.

The setting in which those submissions were made could 
only have heightened the importance of the disputed history. e 
Runyon cases were filed shortly after the Court had up e g
as a remedy for school segregation, Swann v. Charlo[te. Meck *n  
hem Bd. of Educ., 402 U.S. 1 (1971). In many parts of the country, 
segregated private academies threatened to undermine success- 
fufimegration of the public schools. TJus. Runyonstirred  ques­
tions of the widest public interest. The Court’s holding that §1981 
did reach private conduct and could be applied to private schools 
was forseeably sweeping in its impact. And undoing Runyon 
would have a likewise forseeably sweeping impact, in the first in 
stance by sanctioning discrimination by private schools.

In cases such as this, where a well settled rule of law is chal­
lenged on the ground that the Court originally misapprehended 
the meaning of the statute, a challenger bears a particularly heavy 
burden of proof. Members of this Court have suggested various 
formulas to determine when the Court may overrule one of its 
statutory precedents. Justice Harlan, concurring in Monroe v_ 
Pape, 365 U.S. 167,192(1961), wrote that before overruling would

9

merit consideration it must “appear beyond doubt from the legis­
lative history...  that [the Court] misapprehended the meaning of 
the controlling provision.”3

Recently restated by Mr. Justice White, the sound principle 
is that to warrant overruling “in a statutory case, a particularly 
strong jhowing is required that [the Court has] misread the rele­
vant statute and its history.” Patsy v. Florida Board of Regents, 457 
U.S. 496, 517 (1982) (concurring opinion). Under neither formu­
lation is overruling of Runyon justified.

Even if the Court does not regard petitioner’s showing on the 
legislative history as sufficient to dispel all doubt about the mean­
ing of §1981, reexamination of Runyon is nevertheless not appro­
priate. As Justice Harlan observed in Monroe, matters of 
disputed legislative history, such as those canvassed in the several 
opinions in Runyon, are clear occasions for recalling and applying 
Justice Brandeis’ wise observation that “in most matters it is 
more important that the applicable rule of law be settled than it 
be settled right.” Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 
406 (1932) (dissenting).

That is compellingly sound for a case like this one, where the 
questioned precedent has become a basic building block in the 
law and the legislative branch, primarily responsible for the rule, 
and authorized to change it, has instead relied and built upon this 
Court’s interpretation.

B. Congress Has Approved and Built on this Court’s Decision 
in Runyon

“[Considerations of stare decisis weigh heavily in the area of 
statutory construction, where Congress is free to change this
» Both the majority and the dissenters in Monel! v. Department of Social 

Services of New York City, 436 U.S. 658,700 (1978), appeared to accept 
Justice Harlan’s test as appropriate, although the majority was less 
certain as to its correctness than was Justice Rehnquist in dissent. See, 
436 U.S. at 700 n. 65, 715 (Rehnquist, J., dissenting). A portion of 
Monroe's reading of 42 U.S.C. §1983 (whether a municipality was a 
person for purposes of that statute) was overruled in Monell, supra. 
Justice Harlan’s remarks, however, were not directed to this issue, 
but the “under color of state law” issue raised in Monroe. At Point IV, 
B, infra, we explain why the Monell result is consistent with stare 
decisis, but overturning Runyon is not.



10

Court’s interpretation of its legislation." Illinois Brick Co. v Illi­
nois, 431 U.S. 720, 736 (1977), citing Edelman v. Jordan, 415 U.S. 
651,671 (1974); Burnet v. Coronado Oil & Gas Co., supra, 285 U.S. 
at 406-08 (Brandeis, J., dissenting).4 * The failure of Congress to 
change the law in response to the Court’s decision must be taken 
as an indication "that the interpretation of the Act then accepted 
has legislative approval," U.S. v. Elgin, Joliet & Eastern Railway 
Co., 298 U.S. 492, 500 (1936).

If the Jones and Runyon decisions were i n some obscure area 
of the United States Code, it might be unrealistic to treat the Con­
gress’ theoretical power to overrule as an affirmative acceptance 
of the Court’s interpretation. Civil rights decisions like these, 
however, are uniquely visible, for they go to the heart of the socie­
ty’s conception of itself and of the relation of its members to the 
whole and to each other. In the decade since Runyon was decided, 
Congress has repeatedly intervened to overturn decisions of this 
Court construing civil rights statutes narrowly.* The contrast with 
the acceptance of Runyon is striking and significant.

There is no need in this regard to rely on speculation or pre­
sumption, or to construe the silence of Congress, for Congress has 
on more than one occasion knowingly accepted and ratified this 
Court’s construction of the 1866 Act in Runyon and Jones as 
reaching private discrimination. In such circumstances, stare 
decisis has special force, Square D. Co. v. Niagara Frontier Tariff

4 Accord NLRB v. International Longshoremens Assn, 473 U.S 6 t
(1985); Gulf, Colorado and Santa Fe R. v. Moser, 275 U.S. 133 (IV//).

* See Pregnancy Discrimination Act of 1978, Pub.L. 95-555, 92 Stat. 
2076 codified at 42 U.S.C. 2000e(k), overturning General Electnc Co 
v Gilbert, 429 U.S. 125 (1976); Voting Rights Act Amendments of 
1982. Pub.L. 97-205,96 Stat. 131, codified at 42 U.S.C. §1973, over­
turning City of Mobile v. Bolden, 446 U.S. 55 (1980); Civil Rights Res­
toration Act of 1988, Pub.L. 100-259, 102 Stat. f c o d i f .e d a t  42 
u S.C. §2000d, overturning Grove City College v. Bell, 465 U.S. 555 
(1984V Handicapped Children’s Protection Act of 1986, Pub.L. 
99-372 100 Slat. 796, codified at 20 U.S.C. § 1415(e)(4)(B)-(G), over­
turning Smith v. Robinson, 468 U.S. 992 (1984); c/ Civil Rights Attor­
ney’s Fees Award Act of 1976, Pub.L. 94-559, 90 Stat. 2641, codified 
at 42 U.S.C. §1988, overturning Alyeska Pipeline Service Co. v. Wilder 
ness Society, 421 U.S. 240 (1975).

Bureau, Inc., 106 S.Ct.1922,1928-29 (1986); Patsy v. Florida Board 
of Regents, supra.

The first major decision came between the decisions in Jones 
and Runyon, when Congress considered amendments to 
strengthen Title VII of the 1964 Civil Rights Act. In the course of 
its deliberations, an amendment was offered to make Title VII the 
exclusive remedy for employment discrimination. Eliminating the 
“redundant" remedy under the 1866 Civil Rights Act, the pro­
posal would have left §1981 otherwise intact. See H.R. Rep. No. 
238, 92nd Cong., 2nd Sess., reprinted in 1972 U.S. Code Cong. & 
Admin. News 2137,2175 (minority views); 118 Cong. Rec. 3172-73 
(1972) (remarks of Sen. Hruska).

The proposal was rejected both in the Senate Committee and 
on the floor. The floor manager of the bill, Senator Williams, ex­
plained the objection to the proposal when it came to the floor for 
consideration:

It was recently stated by the Supreme Court in the case of 
Jones v. Mayer, that these acts [including the Civil Rights Act 
of 1866] provide fundamental constitutional guarantees. In 
any case, the courts have specifically held that Title VII and 
the Civil Rights Acts of 1866 and 1871 are not mutually ex­
clusive, and must be read together to provide alternative 
means to redress individual grievances.

11

The peculiarly damaging nature of employment discrimina­
tion is such that the individual, who is frequently forced to 
face a large and powerful employer, should be accorded 
every protection that the law has in its purview, and that the 
person should not be forced to seek his remedy in only one 
place.

118 Cong. Rec. 3371,3372 (1972).6 The amendment failed, at first 
in a tie vote, and, one week later, on a motion to reconsider, by a 
vote of 50-37.118 Cong. Rec. 3965 (1972). In opposing the motion

* Accord S. Rep. No. 92-415, 92nd Cong., 1st Sess., at 24 (1971) (addi­
tional enforcement powers to EEOC not in derogation of existing civil 
rights statutes).



12

to reconsider, which opponents urged be treated as a decision on 
the merits. 118 Cong. Rec. 3961 (remarks of Senator Javits), Sena­
tor Williams argued against making Title VII the e x c u je re m -  
edy for employment discrimination on the ground that it a 
inconceivable that Congress would abolish an e"St>ngrernedyfo 
illegal discrimination: “For 100 years, there has been built a body 
of faw dealing with the rights of individuals that would be wiped
out.”

The House of Representatives, which, in response to lower 
court decisions granting a cause of action under §1981 for private 
discrimination, had earlier adopted the exclusivity provision by a 
narrow margin. 117 Cong. Rec. 32. 111-12 (1971), ultimately ac­
cepted the Senate’s view that it was inappropriate to repeal the 
1866 Civil Rights Act. Conference Report on K R . 1746The lEqud  
Employment Opportunity A ct o f  1972, H.R. Rep. No. 92-899. 92d 
Congress, 2d Sess. (1972).

Both sides, without the benefit of Runyon, assumed that 
§1981 applied to private conduct-indeed, that it had always so 
provided-and no one questioned that it ought to be so applied 
outside the employment field.

A further indication that contemporary Congresses have as­
similated the Jones-Runyon reading of the 1866 CivilI Rights_Act 
as the grounding for subsequent lawmaking i s l h e R 'ghtS 1 
tomeys’ Fees Awards Act of 1976, codified as 42 U.S.C. §1988. 
That Act was the legislative response to Alves™ Pipeline Service 
Co v Wilderness Society, 421 U.S. 240 (1975), which had reaf­
firmed the traditional American rule against the award_of attor­
neys’ fees absent statutory authorization. The Alyeska Court 
criticized a series of lower court decisions granting attorneys fees 
under various statutory provisions, including the 1866, 1871, a 
1875 Civil Rights Acts. 421 U.S. at 270 n.46.

Not surprisingly, when the Congress overturned ^ U ' t  
listed, inter alia, §1981 as a statute under wh,c^ eeĥ ° U' ^  
awarded. It described the class of §1981 cases in which fees could 
be awarded as those challenging private employment discrimin 
tion and discriminatory refusals to admit blacks to Pr,vate^ r̂  
tional facilities. The relevant committees cited Johnson v^Railway 
Express Agency, Inc., 421 U.S. 454 (1975). and Tillman v. Wheaton-

13

Haven Recreation Association, 410 U.S. 431 (1973), in support of 
these conclusions, see, H.R. Rep. No. 1558, at pp. 3-4 n.U; S. Rep. 
No. 1011, at pp. 3-4, 94th Cong., 2nd Sess., reprinted in 1976 U.S. 
Code, Cong. & Admin. News 5908, 5910-12. The Senate Commit­
tee explained:

(T̂ he Alyeska] decision and dictum created anomalous gaps 
in our civil rights laws whereby awards of fees are, according 
to Alyeska, suddenly unavailable in the most fundamental 
civil rights cases. For instance, fees are now authorized in an 
employment discrimination suit under Title VII of the 1964 
Civil Rights Act, but not in the same suit brought under 42 
U.S.C. §1981, which protects similar rights but involves 
fewer technical prerequisites to the filing of an action. Fees 
are allowed in a housing discrimination suit brought under 
Title VII of the Civil Rights Act of 1968, but not in the same 
suit brought under 42 U.S.C. §1982, a Reconstruction Act 
protecting the same rights.”

The decision to overturn Alyeska in regard to §1981 was 
predicated upon the importance Congress attached to the avail­
ability of that statute as a vehicle for eliminating private racial 
discrimination. As stated by one of the Act’s sponsors:

*[w]hen Congress calls upon citizens__ to go to court to vin­
dicate its policies and benefit the entire Nation, Congress must 
also ensure that they have the means to go to court." (empha­
sis added)

122 Cong. Rec. 33313 (1976) (remarks of Senator Tunney). Over­
turning Runyon would frustrate this Congressional policy.

This is a case, then, like Patsy v. Florida Board of Regents, 
supra, where answers to two key questions counsel against over­
ruling—“whether the decisions in question misconstrued the 
meaning of the statute as revealed in its legislative history and 
whether overruling these decisions would be inconsistent with
more recent expressions of congressional intent___” 457 U.S. at
501.

Even where the conclusion favoring stare decisis on the “his­
tory alone is somewhat precarious” (id. at 507), which is not the 
case here, it draws commanding strength when it accords with



14

“tecem congressional activity in 1>M 
? Z  -» Z ,  the
S non°bC, ° E ; “ a t L  w’ouid "usurp P * ,  .udgmenis that 
Congress has reserved tor itself. at 508.

It bears emphasis, with the utmost defetence, that Congress 

has gone along-legislating a u d S w ^ l a w o f  cMIrights 
Runyon as notable P ^ ^  ' ^ C a u  branch counsels

c . ftrrryor. .»d  > " «  H .«  »««»■"• ™
Decisional Law

1 Runyon and Jones in the Decisions of this Court

C° - s m °  081 b ^ c ip H v a tfa c ts  of racial discrimination.
counterpart of §1981, ba P foreshadowing the ruling m
T " re " 1 “  Z m n  28;id. a t442n.78. Subsequently, in two

“T m e  Court wittout extended discussion, applied the Jones cases, the Court, wunu Rjohts Act reachedholding—that the Reconstruction-era Civil Rights a

private activity—to §1981.
In Tillman v. Wheaton-Haven Recreation the
'  ,  -n l„  light of the historical interrelattonship be-

Court held! 1 I S n0 Ieason ,0 construe these sec-
“ C  5 •• w  at 439-40. Tltat holding was necessaty to 
tions differently . . . .  ta- ai «jy visitors to a private

voke §1982.

T l S ^ T I ^ H - i n g P w M *
S t t S iS S S S S S S & W .

15

Two years later, in Johnson v. Railway Express Agency, Inc., 
421 U.S. 454 (1975), the Court considered the relationship of Title 
VII to §1981 as applied to discrimination in private employment. 
The Court noted its specific approval of a long line of appellate 
holdings (based primarily on the decision in Jones)8that "§1981 
affords p  federal remedy against discrimination in private em­
ployment on the basis of race.” Id. at 459-60. By analogy to Jones' 
holding that 1982 was independent of Title VIII, 42 U.S.C. §3601 
et seq, it held that §1981 gave a remedy independent of Title VII, 
42 U.S.C. §2000e et seq.

Against this legal background, Runyon can hardly be said to 
have been a departure from earlier holdings or an aberration. In­
deed, as the majority and concurring opinions made clear, the 
decision in that case followed from Jones, supra, Tillman v. 
Wheaton-Home Recreation Ass'n, supra, and Johnson v. Railway 
Express Agency, Inc., supra. It is difficult to see how the Court 
could determine that one decision should be overruled without 
implicating and jeopardizing the entire line of cases.

The application of §1981 to private conduct did not begin 
with Runyon, nor did it end there. On the contrary, since 1976, the 
Court has continued to apply that rule to private discrimination, 
starting with McDonald v. Santa Fe Trail Transportation Co., 427 
U.S. 273 (1976), hard on the heels of Runyon. General Building 
Contractors Ass’n v. Pennsylvania, 458 U.S. 375, 390 n.17 (1982), 
again applied §1981 to private discrimination, specifically reaf­
firming Runyon in the process.

In both Goodman v. Lukens Steel Co., 107 S.Ct. 2617 (1987), 
and St. Francis College v. Al-Khazraji, 107 S.Ct. 2022 (1987), the 
Court, in opinions by Justice White, again applied §1981 to pri­
vate employment discrimination. Underscoring the close “his­
torical interrelationship between §1981 and §1982,” Tillman v. 
Wheaton Recreation Ass’n, Inc., supra, 410 U.S. at 439-40, the 
holding in St. Frances College, that §1981 embodied a broader
8 See, e.g., Waters v. IFisc. Steel Workers, 427 F.2d 476 (7th Cir.), cert.de- 

nied, 400 U.S. 911 (1970); Long v. Ford Motor Co., 496 F.2d 500 (6th 
Cir. 1974); Macklin v. SpectorFreight Systems, Inc., 478 F.2d 979 (D.C. 
Cir. 1973); Brady v. Bristol-Meyers, Inc., 459 F.2d 621 (8th Cir. 1972); 
Brown v. Gaston County Dyeing Machine Co., 457 F.2d 1377 (4th Cir.), 
cert, denied, 409 U.S. 982 (1972); Youngv. I. FT., 438 F.2d 757 (3rd Cir. 
1971).



16

concept of race than current anthropological theories, was then 
held controlling in a companion case brought under §1982, 
Shaare Tefila Congregation v. Cobb, 107 S.Ct. 2019 (1987).

The impact of Runyon has spread far beyond the confines of 
litigation about whether §1981 has been violated. In Fullilove v. 
Klutznick, 448 U.S. 448 (1980), Justice Powell, whose vote was cru­
cial to the result, explicitly referred to §1981, as construed in 
Runyon, as supporting authority for the Congressuwal dectsiOT 
to mandate race conscious set-asides. 448 U.S. at 500; id. at 506. 
For him, the existence of widespread illegal discrimination in 
both the public and private* sectors, was a sine qua non of uphold­
ing the set-aside. As to private contracting, §1981, with the . 
Runyon gloss, created the requisite illegality.

Runyon has been understood as standing for far more than a 
narrowly legal proposition. In Bob Jones University v.U.S., supra, 
461 U S. at 593-94, Runyon was cited as evidence of a “fundamen­
tal national public policy” against racial discrimination in private 
education. Overruling Runyon would make such discrimination 
legal, and would thus announce law at odds with “fundamental 
national policy."

2  Runyon and Jones in the Lower Courts and the Reliance 
o f those Suffering Discrimination 

The impact of Jones and Runyon is not limited to the work of 
this Court Even the briefest glance at Shepard’s Citations or a 
computer print-out of Lexis or Westlaw will disclose the extent to 
which these cases have become embodied in the daily work of the 
lower federal and state courts, and an element of the national 
campaign against racial discrimination. The citations also evi­
dence the extent to which a body of law has led the public at large 
to rely on the Jones-Runyon line of decisions. Stare decisis protects 
such settled expectations, Vasquez v. Hillery, 106 S.Ct. 617 (1986); 
Helvenng v. Griffiths, 318 U.S. 371, 400, 404 (1943).

In employment discrimination cases, which constitute the 
bulk of the reported §1981 cases in the lower courts, §1981 differs 
in several respects from Title VII: immediate access to court, pu- 9

9 In 1980, private construction constituted almost 80 percent of the 
value of all construction. 1987 Statistical Abstract of the U.S. at 701 (Ta­
ble 1263).

17

nitive and compensatory damages (particularly important in hos­
tile environment cases, where backpay is not appropriate), jury 
trials, and, in many states, a longer statute of limitations, Johnson 
v. Railway Express Agency. Inc., supra. It applies to employers of 
firms hiring less than 15 employees. Those who might otherwise 
prefer to take advantage of the Equal Employment Opportunity 
Commission’s conciliation processes may be deterred by long de­
lay and errors by the Commission. '0 See Staff Report on the Inves­
tigation of Civil Rights Enforcement By the E.E.O.C., Serial No. 
99-Q, House Committee on Educ. and Labor, 99th Cong. 2d. Sess. 
(May 1986). On the other hand, Title VII offers a lower standard 
of proof, and the availability of E.E.O.C. investigation, concili­
ation, and enforcement. The remedies are independent and com­
plementary; and by Congressional choice, the election of 
remedies is for the plaintiff.

If the Court were to reverse Runyon, parties who have relied 
upon §1981 procedures and remedies, some of them having fore­
gone redress available under Title VII, would find themselves 
without remedy. The “injustice and oppression” inherent in the 
disappointment of legitimate reliance on Runyon by lawyers and 
their clients “would be so great as to be intolerable.” B. Cardozo, 
The Nature o f the Judicial Process (1921) at 147.

Jones and Runyon are much more than illustrations of what 
Justice Douglas described when he referred to stare decisis as “a 
strong tie which the future has to the past,” Stare Decisis, 49 
Colum. L.Rev. 735, 736 (1949). With effects radiating beyond 
their specific holdings, these precedents have helped to build and 
sustain the “fundamental national public policy” against racial 
discrimination in legal relationships, public or private.

To gouge them out of the body of the law could not work 
neatly as micro-surgery, excising only two “cases.” The overruling 
would cast doubt upon living legal doctrine of which the two cases 
are vital parts. It would unsettle congressional and wider public 
understandings that racial discrimination is illegal in employ­
ment, in private as well as public education and in many large, not 
necessarily all, social and economic arrangements which take
10 Cf. Age Discrimination Claim Assistance Act of 1988, P.L. No. 

100-283, 102 Stat. 78 (extending statute of limitations in cases held 
beyond limitations period by E.E.O.C.)



18

contractual form. Stepping in now to work such a revision in the 
meaning of a statute, when Congress has not seen fit to do that, 
would disserve the national purposes for which mis Court sits.

III.
THE CONSTRUCTION IN RUNYON HAS BEEN 

STRENGTHENED AND APPROVED BY THE TESTS OF 
TIME, SOCIAL APPROVAL AND RELIANCE

A. The Inquiry in a Start Dtcisis Case is Broader and More Pol­
icy-Driven Than in a De Novo Case of Statutory Interpreta­
tion

Stare decisis rests on “practical . . and PoHcy considera­
tions,” U.S. v. Southeastern Underwriters Ass n, 322 U.i>. . 4 . •
(1944) (Jackson, J. dissenting), underlying the role of the judici­
ary, and the public perception of it, in the society. Whether or no 
to overturn a particular decision depends on a careful appraisa 
of the “practical effects of one [rule] against the other R. Jac - 
son, Decisional Law and Stare Decisis, 30 A.B.AJ. 334 (1944).

The presumption against overruling embodied in stare 
decisis, a presumption not overcome by a mere showing that a new 
rule is sounder in a technical sense than the old, Illinois Bnck Co. 
v Illinois, supra, 431 U.S. at 737, requires a court not only to con­
sider a narrow legal issue, but to gauge the impact that the very 
fact of changing the legal position will have on society. See Helver­
ing v. Griffiths, supra, 318 U.S. at 400.

Here, the sure foreknowledge of what the relevant impacts 
will be adds to the weighty reasons for renewed adherence to, not 
departure from, Runyon. The proponents, if any, of abandoning 
Runyon cannot meet “the heavy burden of persuading the Court 
that changes in society or in the law dictate that the values served 
by stare decisis yield in favor of a greater objective. . . .  Vasquez v. 
Hillery, supra, 106 S.Ct. at 625. On the contrary, the Runyon rule 
furthers the “social interest served by equity and fairness or other 
elements of social welfare." B. Cardozo, The Nature o f the Judicial 
Process, 113 (1921).

B. The Runyon Rule Captures the National Consensus Against 
Racial Discrimination

If governmental discrimination was and is peculiarly obnox­
ious, it remains true that no minority group can be, and perceive

19

itself as being, fully part of the community when it is subject to 
invidious discrimination in the sector still fairly called “private.” 
The ability to compete effectively in that sector—in employment, 
in housing, in access to public accommodations, in admission to 
non-public schools and the like—is a critical necessity.

Runyon, its progenitors and progeny, are not legal anomalies 
extending the rule of non-discrimination where democratically 
elected legislatures fear to tread. Rather, as Senator Javits said in 
1972, “the laws of 1866, 1871 as well as 1964, are to implement 
[the] promise . . .  we make under the Constitution to prevent dis­
crimination,” 118 Cong. Rec. 3961 (1972).

These and still other legislative responses to the problem of 
private racial bias are not the product of a determined minority or 
highly skilled lobbyists, but a reflection of a broad and deep- 
seated public consensus. H. Schulman, C. Stech, and L. Bobo, Ra­
cial Attitudes in America (1985). It is indicative of that consensus 
that there have been no serious efforts to overturn Runyon legisla­
tively, that the decision is not the subject of great controversy in 
the legal or popular literature, cf. Gulfstream Aerospace Corp. v. 
Mayacamas Corp., 108 S.Ct. 1133 (1988), and that no party in this 
very case sought to have Runyon reconsidered.

This Court uses particular “cases” or “controversies” to de­
cide “important questions of federal law,” Sup. Ct. R. 17, for the 
benefit of the Nation as a whole. And for the Nation as a whole, 
questions of technical doctrine, or the correctness of the Court’s 
historical judgments, are not at center stage. A sua sponte deci­
sion to overturn a prior decision outlawing racial discrimination 
would be seen by many as a signal that racial discrimination is 
once again tolerable, that such discrimination is socially and mor­
ally acceptable, that the Supreme Court, which for so many years 
was the bellwether institution in American life on civil rights, is 
signaling a shift in national attitudes on this paramount problem. 
Even if Congress were to overturn such a decision, irreparable 
damage would be done, for the Court would have used its unique 
role as a teacher of national values to suggest the acceptability of 
racial discrimination.

It is the very fact of change that would be of the greatest sig­
nificance as far as the public is concerned. This is a time, then, for



20

reaffirming principles of stare decisis recalled by the Court not 
long ago in Vasquez v. Hillery, supra, 106 S.Ct. at 625.

[SJtare decisis [is] the means by which we ensure that the law 
will not merely change erratically, but will develop in a prin­
cipled and intelligible fashion. That doctrine permits society 
to presume that bedrock principles are founded in the law 
rather than in the proclivities of individuals, and thereby 
contributes to the integrity of our constitutional system of 
government, both in appearance and in fact.

The negative impact of a reversal of Runyon would be felt 
particularly by minorities and members of other groups pro­
tected by civil rights statutes. Affected ineluctably would be their 
feelings about themselves, their neighbors, their place in the soci­
ety, and their confidence in the institutions of government, par­
ticularly the courts. There is no judicial philosophy and no valid 
perception of this Court’s role that can give these prospective 
consequences less than compelling weight in considering the 
question of overturning at this time such precedents as Jones and 
Runyon.

IV.

NONE OF THE REASONS THAT MAY JUSTIFY A DE­
PARTURE FROM PRECEDENT IS PRESENT HERE

Judge Cardozo described circumstances that warrant depar­
tures from stare decisis:

If judges have wo[e]fully misinterpreted the mores of their 
day, or if the mores of their day are no longer those of ours, 
they ought not to tie, in helpless submission, the hands of 
their successors.

The Nature of the Judicial Process, supra, at 151-52. Stare 
decisis does not require the Court blindly to “perpetuate the in­
justice,” Jones v. U.S., 366 U.S. 213, 221 (1967) of an earlier deci­
sion. Stability and predictability are valuable principles, but they 
are not the only, nor necessarily the most important, values for the 
legal system.

21

There is nothing of that sort to weigh in this case against stare 
decisis. Respect for “the mores of [our] day” counsels an entirely 
opposite judgment.

The national needs that underlay Runyon are as pressing to­
day for its reaffirmation. Although racial discrimination is now 
generally regarded as unacceptable, the unfortunate fact remains 
that, like the grand jury discrimination considered in Vasquez v. 
Hillery, supra, it has not become unacceptable in practice. Statu­
tory protections for racial minorities are not mere surplusage, rel­
ics of a battle long ago won, which unnecessarily clutter the 
United States Code. The construction of §1981 to cover private 
conduct is as essential now as it was in 1976 when Runyon was 
decided.

The present utility of the prior rule is only half the stare 
decisis equation; the other half is whether the proposed new rule 
of decision—in this case, one permitting racial discrimination in 
private contracts—would “represent what should be according to 
the established and settled judgment of society.”12 Again, there is 
no need to speculate on what that judgment, is for “few social or 
political issues in our history have been more vigorously debated 
and more extensively ventilated than the issue of racial discrimi­
nation.” Bob Jones University v. United States, supra, 461 U.S. at 
595.

• In Norwood v. Harrison, 413 U.S. 455,469-70 (1973) (footnote 
omitted) this Court noted the disfavored status of racial discrimi­
nation; “although the Constitution does not proscribe private 
bias, it places no value on discrimination.” The array of anti-dis­
crimination statutes passed by Congress and the States, the nu­
merous public and private corporate affirmative action plans 
aimed at increasing the ability of minority-owned businesses to 
enter into contractual relationships previously denied to them, 
give eloquent testimony to the need and resolve to continue the 
legal assault against racial discrimination. So do the public opin­
ion polls collected and described in H. Schuman, C. Stech and L. 
Bobo, Racial Attitudes In America, supra. And there are no legiti­

12Dwy v. Connecticut Co., 89 Conn. 74,99 (1915), quoted in B. Cardozo, 
The Nature of the Judicial Process, supra, at 151.



mate countervailing goals or pressures that would be served by 
overruling.

A. No Changed Economic or Social Circumstances Warrant 
Departure from the Rule of Start Decisis

The “assault on the citadel of privity”, MacPherson v. Buick 
Motor Co., 217 N.Y. 382(1916) and the overturning of the ill-con­
ceived separate-but-equal rule of Plessy v. Ferguson, 163 U.S. 537 
(18%), in Brown v. Board o f Education, 347 U.S. 483 (1954) are 
among the best known instances of abandoning a long-settled rule 
of law in light of changed economic or social circumstances. Nei­
ther case, of course, involved statutory interpretation.

In both McPherson and Brown there were fundamental 
changes in society that the Court pointed to as a justification for 
overturning earlier decisions. In the case of McPherson, the rele­
vant change was from a market composed of artisans dealing di­
rectly with customers to a mass market in which producers of 
goods were several steps removed from the ultimate consumer.

Brown reflected, among many forces, domestic social 
changes after which it could no longer be pretended that enforced 
separation of races comported with equality. Emphasizing the 
latter point in regard to education, the Court said, 347 U.S. at 492, 
“we must consider public education in light of its full develop­
ment and its present place in American life. . . "  and not the more 
limited role it played at the time the 14th Amendment was 
adopted or Plessy was decided.

There is no comparable change of circumstances to support 
overruling in this case. Contracts are still an indispensable part of 
doing business, and doing business is still a crucial aspect of life 
in the United States. Private racial discrimination is as offensive 
as it ever was.

B. The Runyon Decision Places No Unusual Burdens on the Ju­
dicial System

Amici have discovered no case overturning prior statutory 
decisions because of changed economic or social conditions 
alone. There have, of course, been some cases involving departure 
from stare decisis because of changed legal circumstances. In

22 23

these cases departing from precedent, not adhering to it, brings 
unity and cohesiveness to the law, the very goals stare decisis is 
intended to further. No such special circumstances are present 
here.

In Puerto Rico v. Branstad, 107 S.Ct. 2802 (1987), this Court 
overruled the holding of Kentucky v. Dennison, 24 How. 66 (1861), 
that the federal courts could not order state officials to comply 
with the mandatory provisions of the Extradition Clause, Art. IV, 
§2. Dennison reasoned that a federal order to a state official 
would violate the sovereignty of the states. That conception of the 
relation of the states to the federal government no longer pre­
vailed, at least after Ex parte Young, 209 U.S. 123 (1908).

In Boys Markets, Inc. v. Retail Clerks Union Local 770, 398 
U.S. 235 (1970), the Court overruled its earlier decision in Sinclair 
Refinery Co. v. Atkinson, 370 U.S. 195 (1962), that federal courts 
could not issue injunctions to enforce contractual no-strike provi­
sions. Developments subsequent to Sinclair Refinery—the hold­
ings that federal common law governed collective bargaining 
agreements and that cases involving interpretations of collective 
bargaining agreements could be removed from state to federal 
courts—left no-strike clauses wholly unenforceable. Since that 
combination of legal rules was at odds with federal labor policy 
favoring no-strike agreements, Sinclair Refining was overruled.

Likewise, in MonelI v. Department o f Social Services o f New 
York City, the Court overruled that portion of Monroe v. Pape, 
supra, which had held that a city was not a "person” for purposes 
of §1983 liability. It noted that the Monroe holding was inconsis­
tent both with earlier decisions and with subsequent ones involv­
ing other governmental bodies, notably school boards. The rule 
allowing a school board to be sued was inconsistent with the 
Monroe rule and one or the other had to yield. Since the Monroe 
rule could not be justified on the basis of reliance—no municipal­
ity could expect to violate federal law with impunity—it had to 
yield, Monell v. City o f New York, supra, 436 U.S. at 699-701.

Here there are no legal policies at odds with each other. True, 
in those cases in which Title VII and §1981 overlap, plaintiffs have 
an opportunity to elect remedies. But the existence of these op­



24

tions does not reflect conflicting legal policies which if enforced 
would be at war with each other or with some important federal 
policy. On the contrary, they represent a conscious policy choice 
to afford a variety of weapons with which to attack private racial 
discrimination.

Sometimes social and legal changes converge to require re­
consideration of an earlier precedent. Batson v. Kentucky, 106 
S.Ct. 1712 (1986), overturning Swain v. Alabama, 380 U.S. 202 
(1964), illustrates this point. In Swain, the Court refused to con­
sider a claim that, in a particular case, the prosecutor had used 
peremptory challenges in a racially discriminatory manner. It did 
so because it thought it impossible to prove in a particular case 
that such challenges were racially motivated.

Although the Court in Swain was careful to note its disap­
proval of the racially discriminatory use of peremptory chal­
lenges, its decision was nevertheless taken by some prosecutors to 
signal approval of such actions. In succeeding years, the discrimi­
natory use of peremptory challenges not only did not decline, 106 
S.Ct. at 1725 (White, J., concurring) but, possibly as a result of 
Swain, may have become still more common. See 106 S.Ct. at 
1726-27 (Marshall, J., concurring).

Moreover, as the Batson majority demonstrated, the Court 
since Swain had held that a defendant could in fact prove pur­
poseful discrimination in the selection of a particular jury panel 
from “the totality of the relevant facts” 106 S.Ct. at 1721, thus un­
dercutting the theoretical grounds of Swain.

The combined impact of these social, factual and legal 
changes left Swain an obstacle to “the court’s unceasing efforts to 
eradicate racial discrimination in the procedures used to select 
the venire from which individual jurors are drawn. Hence it was 
overruled. Runyon, by contrast, is part of “the court’s unceasing 
efforts to eradicate racial discrimination;” it is as essential as ever 
to those efforts.

C. The Runyon Rule Has Not Proven Unworkable

A rule of law which in the abstract is thought to be sound 
may prove unworkable in practice. Stare decisis is no barrier to the

25

discarding of such a rule. Such was the case of Gulfstream Aero­
space Corp. v. Mayacamas Corp., supra, overruling Enelow v. N. Y. 
Life Ins. Co., 293 U.S. 379 (1935), and Ettelson v. Metropolitan Life 
Ins. Co., 317 U.S. 188 (1942).

Enelow and Ettelson held that whether stays of certain ac­
tions wefe immediately appealable depended on whether the un­
derlying action was one at law or in equity. Given the merger of 
the law and equity sides of the District Court, and the difficulty of 
determining retrospectively and hypothetically whether modern 
causes of action would have been considered equitable or legal at 
the time that those terms had substantial significance, the 
Enelow-Ettelson doctrine “lost all moorings to the actual practice 
of the federal courts,” was “deficient in utility and sense,” “un- 

< sound in theory, unworkable and arbitrary in practice,” and “un­
necessary to achieve any legitimate goals.” Gulfstream Aerospace 
Corp. v. Mayacamas Corp., 108 S.Ct. at 1140. Understandably, 
with so little to recommend it, the Enelow-Ettleson doctrine was 
abandoned.

As is the case with every prohibitory statute, there is always 
the question of how far a statute should sweep.13 The Jones- 
Runyon reading of §§1981 and 1982 raises fewer problems in this 
regard than do decisions under Title VII, the Sherman Anti-Trust 
Act, the Clean Air Act, or hundreds of other statutes.

The familiar problem of setting limits, to be dealt with case 
by case, is no ground for overruling a precedent that gives rise to 
the problem. There are, in a word, no reasons of substance for 
discarding the settled interpretations of §§1981 and 1982 so long 
accepted by the Congress and the affected citizenry.

13 It is also quite possible that in some future case the Court will be 
called upon to determine the reach of §1981 in light of constitutional 
claims of association or religion. That situation, not present in the in­
stant case, would not in any event suggest the unworkabilty of §1981.



26

CONCLUSION
For the reasons stated, the interpretation of §1981 an­

nounced in Runyon v. McCrary should not be reconsidered.
Marvin E. Frankel 

Counsel of Record 
Kramer, Levin, Nessen,
KAM1N & FRANKEL 

919 Third Avenue 
40th Floor
New York, New York 10022 
(212)715-9430

Marc D. Stern
American Jewish Congress 

15 East 84th Street 
New York, New York 10028 
(212) 879-4500 

Attorneys for the Amici

June, 1988
RlCKl L. SEIDMAN — People Fo r T hb American Way 

JO E RAUH— Leadership Conference On Civil Rights 
ARLENE MAYERSON — Disability Rights And Education Defense Fund

ANTONIA H E R N A N D E Z -T he Mexican American Legal 
E. Richard Larson defense and  educational fund

JOHN A. POWELL— American Civil Liberties Union 
JACQUEUNE BERR1ER
C. Edwin Baker 
Laurence Gold—afl-cto
Lois C. W ALDMAN— American Jewish Congress

Jeremy S. G arber
JILL L. K a h n  — Anti-Defamation League Of Bnai B rith 

Li VIA D. THOMPSON
Samuel RABINOVE—American Jewish Committee 
Richard Foltin
SARAH BURNS— National Organization Of Women Legal 

Defense And Education Fund

GROVER G. HANKINS— National Association For The 
Joyce Knox advancement of colored people

Charles Carter

Of Counsel



APPENDIX A
INTEREST OF THE AMICI

The American Jewish Congress is an organization of Ameri­
can Jews founded in 1918 to preserve the civil, religious, political 
and economic rights of American Jews and all Americans. It par­
ticipated in many of the leading civil rights cases of the last four 
decades, including both Jones v. Alfred H. Mayer and Runyon v. 
McCrary.

Affiliated Leadership League of and for the Blind of Amer­
ica is a coalition of national and state groups interested in blind­
ness and programs for the blind and severely visually impaired. 
Also, it seeks to protect the civil rights of the disabled.

The Alliance for Justice is a national association of public 
interest legal organizations working for equal justice. It is par­
ticularly concerned with the rights of minorities and women and 
works toward removing the vestiges of discrimination against 
these groups. A number of the Alliance's member organizations 
representing these groups have relied on Runyon as precedent for 
further delineating the rights of minorities.

Alpha Kappa Alpha Sorority Inc. is a national Greek-let­
tered organization which is comprised of over 100,000 members 
in more than 725 undergraduate and graduate chapters. In 1908, 
the Sorority became the country’s first Greek lettered organiza­
tion which was established by and for Black women. Long active 
in the civil rights and affirmative action movement, the Sorority is 
concerned with this court’s decision to revisit the issues decided 
in Runyon v. McCrary and urges that the interpretation of 42 
U.S.C §1981 announced therein should be reaffirmed.

The American-Arab Anti-Discrimination Committee 
(ADC), founded in 1980 to defend the civil rights of people of 
Arab descent and to promote their rich ethnic heritage, is a grass­
roots advocacy organization based in Washington, D.C. The 
ADC works toward protecting the civil rights of all people and 
assuring equal treatment under the law regardless of race, relig­
ion, national origin, sex or any other basis of invidious discrimi­
nation.

The American Association for Affirmative Action is a na­
tional association of individuals and organizations from the pub­
lic and private sectors who are dedicated to the development and



enhancement of equal employment opportunity, affirmative ac­
tion programs and to professional growth in the field.

American Association of University Women (AAUW), a na­
tional organization of over 150,000 college-educated women and 
men, is strongly committed to promoting and achieving legal, so­
cial, educational and economic equity for women. AAUW sup­
ports legal protection for the rights of all individuals and opposes 
all forms of discrimination.

The American Civil Liberties Union (ACLU) is a nation­
wide, nonpartisan organization of over 250,000 members dedi­
cated to preserving and advancing the fundamental civil rights 
and civil liberties of the people of the United States. In particular, 
the ACLU has long been involved in the effort to eliminate racial 
discrimination from our society. In pursuit of that goal, the 
ACLU has participated in numerous discrimination cases before 
this Court, and filed an earlier amicus brief in this case.

The American Council of the Blind is a national member­
ship organization of the blind and visually handicapped consist­
ing of chapters in almost every state. It has approximately 35,000 
members and is dedicated to improving the well being of blind 
people in all aspects of society.

The American Ethical Union of the Ethical Culture Socie­
ties. Ethical culture is a humanistic religious and educational 
movement inspired by the idea that the supreme aim of human 
life is working to create a more humane society.

The American Federation of Government Employees, AFL- 
CIO, (AFGE), is a labor organization which represents approxi­
mately 700,000 civilian employees of the federal government. 
AFGE is the largest labor organization of nonpostal federal em­
ployees and represents employees in nearly every major depart­
ment and agency of the federal government including the 
Department of Defense Schools. AFGE is deeply committed to 
the eradication of any form of discrimination.

The American Federation of Labor and Congress of Indus­
trial Organizations (AFL-CIO) is a federation of 90 national and 
international unions having a total membership of approximately

2-A

Interest o f the Amici

13 million working men and women of all races, colors, religions 
and national origins.

The American Federation of State, County & Municipal 
Employees (AFSCME) represents more than 1.4 million public 
employees throughout the United States. Its membership in­
cludes efnployees of state, county, municipal governments, school 
districts, public hospitals, and nonprofit agencies who work in a 
cross section of jobs ranging from blue collar to clerical, profes­
sionals and para-professionals.

The American Federation of Teachers, AFL-CIO (AFT) is a 
labor organization of 680,000 teachers, school related personnel, 
nurses and health professionals, and state employees, with a long 
tradition of commitment to civil rights.

The American Jewish Committee is a national organization 
of approximately 50,000 members founded in 1906 for the purpose 
of protecting the civil and religious rights of Jews. It believes that 
the security and the constitutional rights of Jewish Americans can 
best be protected by helping to preserve the security and the 
rights of all Americans, irrespective of race, creed or national ori­
gin, including the broad availability of remedies for invidious dis­
crimination. It, too, was amicus curiae in Runyon and Jones.

The American Nurses Association, (ANA), is a professional 
association representing 53 constituent state and territorial 
nurses associations and their almost 200,000 members. As such 
the ANA is the largest professional representative of registered 
nurses in the United States and is concerned with the economic, 
social, and general welfare of both nurses and the society.

Americans for Democratic Action, Inc. (ADA), a liberal, in­
dependent, political action, membership organization. ADA is 
committed to achieving economic and social justice and the pro­
motion of civil, human and constitutional rights for all.

Americans for Indian Opportunities is a nonprofit organiza­
tion working toward economic self-sufficiency for American Indi­
ans and political self-government for tribal members.

The American Veterans Committee, Inc. (AVC), founded in 
1943, is a national organization of veterans who served honorably 
in the Armed Forces of the United States in World War I, World

3-A

Interest o f the Amici



War II, Korean War, or Vietnam War. AVC has filed amicus 
briefs in many court cases expressing AVC’s strong belief that 
discrimination based on race, color, religion, sex, or national ori­
gin is detrimental to the national welfare.

The Anti-Defamation League of B’nai B’rith is an organiza­
tion of American Jews formed in 1913 to combat all forms of big­
otry. Throughout its history, it has sought “to secure justice and 
fair treatment to all citizens alike and to put an end forever to un­
just and unfair discrimination against and ridicule of any sect or 
body of citizens” as demonstrated by its briefs in Runyon and 
Jones.

The Asian American Legal Defense and Education Fund is 
a nonprofit corporation established in 1974 under the laws of the 
states of California and New York. It was formed to protect the 
civil rights of Asian Americans throughout the Nation through 
the prosecution of lawsuits and the dissemination of public infor­
mation.

The Association for Retarded Citizens of the United States, 
(ARC) marking its 39th year of nationwide service to people with 
mental retardation, is made up of over 160,000 members in some 
1,300 local and state ARC chapters across the country. One of 
ARC’S goals is to ensure that persons with mental retardation are 
entitled to and exercise their full range of human and civil rights.

ASPIRA is a national nonprofit association providing edu­
cational and leadership services and advocacy on behalf of His­
panic youth.

The Black Women’s Agenda, Inc., (BWA), founded in 1979, 
is a private, nonprofit, voluntary organization of distinguished 
black women invited to serve. BWA is committed to public policy 
changes to secure human and civil rights for black women and 
their families.

B’nai B’rith Women, Inc., (BBW) is a Jewish women’s serv­
ice and advocacy organization.

Business and Professional People in the Public Interest, 
(BPI), is a nonprofit law center active in civil rights and other pub­
lic interest cases. BPI members are dedicated to securing fair 
treatment and effective remedies for all persons.

4-A

Interest of the Amici
Catholics For A Free Choice (CFFC) is a national educa­

tional organization that supports the right to legal reproductive 
health care, especially to family planning and abortion. As an or­
ganization of Catholics, it is committed to social justice and to a 
public policy of non-discrimination toward all persons.

The Center for Community Change (CCQ is a nonprofit or­
ganization which provides technical assistance to low income and 
minority community organizations around the country.

The Center for Law and Social Policy (CLASP), founded in 
1969, is one of the oldest public interest law firms in the country. It 
has developed new areas of the law and has served as a model for 
similar firms.

The Children’s Defense Fund (CDF) represents the interests 
of low income and minority children and families in the areas of 
education, child welfare, health, child development, and issues re­
lated to adolescent pregnancy. CDF is a national advocacy or­
ganization based in Washington, D.C., with state offices in 
Mississippi, Texas, Ohio, and Minnesota. The organization uses 
a combination of advocacy strategies including lobbying and ad­
ministrative advocacy, technical assistance to federal and state 
officials, to child advocates and, where appropriate, litigation.

The Church of the Brethren (COTB), a Christian body be­
gun in 1708, with a current membership of 160,000, has a deep 
commitment to justice, including civil rights. The COTB would 
view with great concern any sign of regression in settled law re­
lated to racial discrimination.

Citizen Action is a national federation of 24 statewide citizen 
groups with 1.75 million members interested in social and eco­
nomic justice issues that affect people’s lives.

The Coalition of Labor Union Women (CLUW) is a national 
membership organization of women and men who are members 
of labor unions. CLUW, with 72 active chapters throughout the 
United States and members from more than 65 International Un­
ions, is dedicated to removing all forms of discrimination in the 
workplace.

Common Cause is a non-profit, non-partisan citizens’ or­
ganization with more than 280,000 members, which has been

5-A

Interest of the Amici



Interest of the Amici

dedicated to furthering responsible and accountable government 
and enhancing and protecting individual civil rights.

The Communications Workers of America (CWA) is a na­
tional labor union representing over 750,000 members.

The Community Relations Conference of Southern Califor­
nia is a coalition of ninety community, governmental, religious 
and labor organizations that promotes civil rights, intergroup re­
lations, and equality in education, work and society for all peo­
ples. CRCSC is committed to the elimination of racism and bias
in all forms.

The Congress of National Black Churches, (CNBC), is a coa­
lition of seven major black denominations throughout the United 
States. CNBC focuses its efforts on matters relating to economic 
development, health, employment, and human development.

The Department of Church in Society, Division of Home­
land Ministries, Christian Church, (Disciples of Christ), is a pro­
gram unit of the Christian Church (Disciples of Christ) that is 
assigned responsibilities for matters pertaining to racial justice in 
the Untied States.

Disability Rights and Education Defense Fund (DREDF) is 
a national disability civil rights organization, founded in 1979, 
dedicated to securing equal citizenship for disabled Americans. 
From its inception, DREDF’s primary purpose has been to in­
clude disability within the civil rights arena by demonstrating the 
connection between disability-based discrimination and dis­
crimination based on race and gender.

The Federation of Organizations for Professional Women is 
a nonprofit organization of 45 affiliated women’s organizations 
and several hundred individual associate members joined to­
gether to achieve the mutual goal of equality in the professions.

The General Board of Church and Society of the United 
Methodist Church is a program board of the 9.5-milhon-member 
United Methodist Church. Its mandate is to “challenge the 
members of the United Methodist Church to work through their 
own local church, through ecumenical channels, and through 
society . . .  to analyze the issues which confront the person, the 
local community, the nation, and the world, and to encourage

6-A

Christian lines of action which assist humankind to move toward 
a world where peace and justice are achieved.”

The Human Rights Campaign Fund, (HRCF), is the largest 
political action committee representing the interests of the gay 
and lesbian community on the national level, and the ninth largest 
independent PAC in the United States. HRCF is dedicated to 
equal rights for all and works diligently to preserve civil rights.

The Indian Law Resource Center is a non-profit legal and 
educational organization promoting the rights of Native Ameri­
cans in the United States and throughout the Americas. The Cen­
ter is dedicated to ending racial discrimination and to 
guaranteeing equality and opportunity for Indians under the law.

The International Union of Electronic, Electrical, Salaried, 
Machine and Furniture Workers, AFL-CIO, (IUE) has approxi­
mately 200,000 members throughout the Nation who are em­
ployed in the electrical equipment and related industries. Of this 
total membership, substantial numbers are minorities and/or 
women. The IUE, by its constitution, contracts, actions and law­
suits, has been in the forefront of the Nation’s struggle to estab­
lish equal opportunity in employment for minorities and women.

International Union, United Automobile Aerospace & Agri­
cultural Implement Workers of America (UAW), with about one 
million members and 500 retired members, has been one of the 
labor movement’s leaders in protecting civil rights and in prose­
cuting civil rights cases during its 50 year history.

The Japanese American Citizens League (JACL) is a non­
profit, educational, human and civil rights organization. As a na­
tional organization, JACL has 115 chapters throughout the United 
States, incorporating 25,000 members.

The Jewish Labor Committee (JLC) is a nonsectarian Jewish 
defense agency which serves as a link between the Jewish commu­
nity and the trade union movement bringing to each the concerns 
of the other.

The Leadership Conference on Civil Rights is a voluntary, 
nonpartisan association of approximately 180 autonomous na­
tional organizations representing minorities, women, disabled 
persons, labor, and major religious groups and older Americans.

7-A

. Interest of the Amici



The Conference has served for 38 years as the coordinating 
mechanism on behalf of legislative and executive branch advocay 
for the civil rights coalition.

The League of Rural Voters Education Project, (LR VEP), is 
dedicated to increasing the effective participation of rural voters 
in the political process. Since 1983, LRVEP has provided educa­
tional media tools, a national strategy, and various educational 
publications to help rural people change the political roots of the 
current farm crisis.

The League of United Latin-American Citizens (LULAC) is 
the oldest and largest Hispanic organization in the United States. 
Since 1929, LULAC has worked to assure Hispanic citizens a 
good education, a better job and the civil rights promised to every 
American.

The League of Women Voters of the United States 
(LWVUS) is a non-partisan, nonprofit membership organization 
with 105,000 members in all 50 states, the District of Columbia, 
Puerto Rico, and the Virgin Islands. The LWVUS believes that 
government and private institutions share responsibility to pro­
vide equal opportunity in education, housing and employment.

The Mental Health Law Project (MHLP) is a nonprofit pub­
lic-interest organization established in 1972 to protect and expand 
the legal rights of mentally ill and mentally retarded children and 
adults. MHLP has represented thousands of mentally disabled 
people in individual cases and class actions establishing funda­
mental rights.

The Mexican American Legal Defense and Educational 
Fund (“MALDEF”) is a national civil rights organization estab­
lished in 1967. Its principal objective is to secure through litiga­
tion and education the civil rights of Hispanics living in the 
United States. Because of the continued discrimination suffered 
by Hispanics in the private sector—particularly in employment, 
education, and housing—Hispanics continue to place extensive 
reliance on the Civil Rights Act of 1866 to vindicate their civil 
rights. '

The Mexican American Women’s National Association 
(MANA) is the Nation’s largest membership organization for

Interest o f the Amici

Hispanic women. MANA was founded to promote the social, 
educational, and economic advancement of Hispanic women.

The Migrant Legal Action Program, Inc. is a national legal 
services support center which provides legal representation to mi­
grant and seasonal farm workers nationwide.

•

The Minority Business Enterprise Legal Defense and Edu­
cation Fund, Inc., (“MBELDEF”) is a nonprofit corporation 
founded in 1980 by former Maryland Congressman Parren J. 
Mitchell. The primary purpose of MBELDEF is to obtain full 
enforcement of minority business opportunity programs de­
signed to overcome the effects of racial discrimination in public 
procurement. Section 1981 has been an indispensable tool for en­
forcement of private sector compliance with such programs (i.e., 
remedying the effects of racial exclusion of minority subcontrac­
tors by prime contractors). MBELDEF therefore has a signifi­
cant interest in the Court’s reconsideration of its longstanding 
interpretation of 42 U.S.C. §1981.

The Minnesota Lawyers International Human Rights Com­
mittee is a non-profit organization committed to promoting hu­
man rights and to investigating human rights violations in the 
United States and abroad. The Committee was formed in 1983 by 
a group of lawyers who share a strong interest in working to end 
human rights violations. The Committee has grown to include 
over 600 lawyers.

The National Abortion Rights Action League (NARAL) is 
the political arm of the pro-choice movement, working since 1969 
to preserve and expand reproductive freedom through a national 
membership of more than 100,000 and 34 state-based affiliates. 
NARAL fears that if Runyon v. McCrary is no longer settled law 
then other established civil rights and liberties may similarly be at 
risk.

9-A

Interest o f the Amici

The National Alliance of Postal and Federal Employees is 
the oldest and largest black-led independent labor union in the 
nation with 127 locals in 37 states, the District of Columbia and 
the Virgin Islands.

The National Association for the Advancement of Colored 
People (NAACP) was established to promote equal justice for all



10-A

Interest of the Amici

Americans; to promote equality of rights and eradicate caste or 
race prejudice among the citizens of the United States; to secure 
for them impartial suffrage; and to increase their opportunities 
for securing justice in the courts, education for their children, em­
ployment according to their ability, and complete equality before 
the law.

The National Association for Equal Opportunity in Higher 
Education (NAFEO) founded in 1969, is the membership organi­
zation of 117 public and private historically and predominately 
black colleges and universities.

The National Association of Human Rights Workers’ pur­
pose is to encourage the collection, compilation and dissemina­
tion of information and research to facilitate the exchange of 
knowledge among governmental and private organizations deal­
ing with racial, ethnic and cultural relations in the improvement 
of inter-group relations.

The National Association of Social Workers (NASW), a non­
profit professional association with over 115,000 members, is the 
largest association of social workers in the United States. The 
association has an abiding commitment to combating discrimi­
nation and its effects.

The National Bar Association, Inc., founded in 1925, is a pro­
fessional membership organization which represents more than 
12,000 Black attorneys, judges and law students in the United 
States. Its purposes include achieving equal opportunities for mi­
norities in the legal profession and protecting the civil and politi­
cal rights of all citizens.

The National Black Caucus of State Legislators is an organi­
zation composed of 411 legislators from 42 states and the United 
States Virgin Islands. The organization was founded to represent 
the interests of black legislators and their 26 million black con- 
stitutents around the United States.

The National Black Leadership Roundtable is a national or­
ganization comprised of the heads of over 300 national black or­
ganizations.

The National Catholic Conference for Interracial Justice was 
established to implement the teachings of the Catholic Church on

cultural and racial justice and to promote the Church’s vision of 
multi-cultural, multi-racial understanding, mutual respect and 
collaboration consistent with the values and principles of democ­
racy and the Constitution of the United States.

The National Caucus and Center on Black Aged is a mem- 
bership’based organization of 30,000 that provides advocacy serv­
ices to the low income and minority elderly throughout the United 
States.

The National Community Action Agency Executive Direc­
tors’ Association, (NCAAEDA), represents a network of 980 
community action agencies around the country who are fighting 
poverty. NCAAEDA is a professional organization providing 
training and technical services that support community action.

The National Congress for Puerto Rican Rights is a national 
Puerto Rican civil rights organization founded in 1981. Its basic 
mission is to seek the political empowerment and defend the civil 
rights of all Puerto Ricans and Latinos in the United States.

The National Council of Churches of Christ in the U.S.A. 
(NCC) is a “community of communions” composed of thirty-two 
national religious bodies in the United States having an aggregate 
membership of over 44,000,000. The NCC has been committed 
throughout its history to the attainment and protection of the civil 
rights and liberties of all citizens.

The National Council of Jewish Women (NCJW), was 
founded in 1893. It is an organization comprised of 200 sections 
across the country with over 100,000 members who are active in 
advocacy and community service. NCJW is the oldest major Jew­
ish women’s organization in the United States. Its members are 
volunteers dedicated in the spirit of Judaism to the advancement 
of human welfare and the democratic way of life.

The National Council of La Raza exists to improve opportu­
nities for the more than 20 million Americans of Hispanic de­
scent. Incorporated in 1968, the Council serves as an advocate for 
Hispanic Americans and as a national umbrella organization for 
its local “affiliates”—Hispanic community-based groups which 
serve 32 states, Puerto Rico, and the District of Columbia—and 
for other local Hispanic organizations nationwide. The Council’s

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Interest o f the Amici



network includes more than 3,000 Hispanic organizations and in­
dividuals nationwide.

The National Council on the Aging, Inc. is a national non­
profit association of organizations and professionals serving the 
needs of older citizens. It engages in research, demonstration 
programs, professional standards setting and advocacy.

The National Council of Senior Citizens, Inc., is a public in­
terest advocacy organization established to represent the inter­
ests of older people before local, state and federal governments.

The National Education Association (NEA) is the largest 
public employee organization in the United States, with approxi­
mately 1.9 million members, virtually all of whom are employed by 
public educational institutions. One of NEA’s principal pur­
poses is to safeguard the civil rights of its members in matters 
pertaining to their employment. To this end NEA has funded liti­
gation on behalf of its members alleging violations of 42 U.S.C. 
§1981. In addition, NEA has a major interest in the elimination of 
racial and ethnic discrimination. NEA filed an amicus brief in 
Runyon v. McCrary.

The National Federation of Business and Professional 
Women’s Clubs, Inc. (BPW/USA) is the world’s oldest and larg­
est organization of working women. With 125,000 members in 
3,400 local organizations across the country BPW/USA promotes 
full participation, equity, and economic self-sufficiency for work­
ing women. BPW/USA includes among its members men and 
women of every age, religion, race, political party and socioeco­
nomic background.

The National Federation of Temple Sisterhoods, represent­
ing the women of Reform Judaism with more tnan 100,000 mem­
bers in 600 local sisterhoods throughout the United States, is 
dedicated to religious and educational programs and projects 
that translate the prophetic teachings of Judaism into our lives, 
synagogues and communities. An organization of religious 
women it is committed to the pursuit of justice and freedom.

The National Gay and Lesbian Task Force (NGLTF), with 
0,000 members nationwide, lobbies, advocates and educates to 
achieve full civil rights for lesbians and gay men. NGLTF is

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Interest of the Amici

deeply committed to ending discrimination on the basis of race, 
sex, ethnicity, physical ability, religion and sexual orientation.

The National Jewish Community Relations Advisory Coun­
cil is an umbrella organization consisting of 13 national member 
agencies and the 114 Community Relations Councils represent­
ing ill Jewish major communities in the United States. These 
Jewish community relations agencies have held a longstanding 
and deep commitment to promoting social and economic justice 
for all people. The history and experience of anti-Jewish persecu­
tion and discrimination underscores its efforts to ensure that all 
minorities are afforded protections against discrimination and 
oppression.

The National Legal Aid and Defenders Association 
(NLADA) is a private charitable association started some 77 
years ago by prominent members of the legal profession. The 
purpose of the organization is to contribute to the accessibility, 
quality and effectiveness of legal representation of those indigent 
persons in the United States who cannot pay for representation. 
The clients of the civil organizations are poor, and often members 
of minority groups who have historically depended on the post 
Civil War Civil Rights Acts to pursue legal remedies otherwise 
unavailable to them.

The National Low Income Housing Coalition is a member­
ship organization of housing groups and individual activists 
across the country. Its basic principle is that housing is a basic 
principle human right and all people are emitted to decent, safe, 
sanitary and acceptable housing.

National Neighbors is a national federation of 260 multira­
cial neighborhood groups in 27 states and the District of Colum­
bia working to promote fair housing and successful multiracial 
neighborhoods.

The National Organization for Women (NOW) is a member­
ship organization with more than 700 chapters in all 50 states. 
NOW’s purpose is to take action to bring women into full and 
equal participation in American society. One of NOW’s top pri­
orities is combating racism and the double burden faced by 
women of color.

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Interest o f the Amici



The National Puerto Rican Forum is a 32 year old national 
Puerto Rican and Hispanic organization involved in providing di­
rect services in the area of employment and education.

The National Urban League, Inc.. (NUL) is a non-profit 
community-based agency which works to secure equal opportu­
nity for blacks and other minorities in every sector of American 
society. The vigor of the NUL is manifested through its 112 affili­
ates in 34 states and the District of Columbia.

The National Women’s Law Center is a non-profit legal ad­
vocacy organization dedicated to the advancement and protec­
tion of women’s rights and to the elimination of discrimination 
from all facets of American life.

The National Women’s Political Caucus is dedicated pri­
marily to the election and appointment of qualified women to po­
litical office. Representing thousands of members of all ages, 
lifestyles and economic and ethnic backgrounds, the Caucus is 
committed to working for women’s rights, civil rights and legisla­
tion supporting women and families,.

The NOW Legal Defense and Education Fund (NOW 
LDEF) was founded in 1970 by leaders of the National Organiza­
tion for Women as a nonprofit civil rights organization to perform 
a broad range of legal and educational services nationally in sup­
port of women’s effort to eliminate sex-based discrimination and 
secure equal rights. A major goal of the NOW LDEF is eliminat­
ing barriers that deny women economic opportunities. In further­
ance of that goal, NOW LDEF has participated in numerous 
cases to secure full enforcement of laws prohibiting discrimina­
tion against women and minorities by both public and private en­
tities.

Opportunities Industrialization Centers of America, Inc. is a 
private non-profit organization, which promotes full employment 
and is especially organized for the purpose of finding, motivating, 
training, counseling and placing on jobs the unemployed and un­
deremployed but primarily persons who are poor, with little or no 
skills, young or old.

The Organization of Chinese Americans, Inc., (OCA) with 
7,500 members in 41 chapters nationwide is committed to encour­

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Interest o f the Amici
aging the active leadership of all Chinese Americans in all levels 
of civic affairs. The OCA promotes civil rights for all individuals 
regardless of race or ethnic background.

The Organization of Pan Asian American Women (Pan 
Asia) was founded in 1976. It is a national, non-profit member­
ship organization composed of Filipino, Chinese, East Indian, 
Japanese, Korean, Vietnamese, Pacific Islander, and other 
American women of Asian descent. Pan Asia seeks to ensure the 
full participation of Asian-Pacific American women in all aspects 
of American society, particularly in those areas where they have 
traditionally been excluded or under represented. It is particu­
larly concerned about the negative impact reversal of Runyon 
would have on equality of educational opportunities for racial mi­
norities.

The Phi Beta Sigma Fraternity, Inc., with the force, vigor, 
power and energy of more than 85,000 dedicated men in more 
than 600 chapters across the United States, Africa, Europe, Ko­
rea and the Caribbean, continues faithfully to perpetuate com­
posite growth and progress as the “People’s Fraternity” 
dedicated to providing services to all humanity. The officers and 
members of Phi Beta Sigma support equality regardless of race, 
color, creed, national origin, or sex.

Planned Parenthood Federation of America, Inc. (PPFA) is 
the nation’s oldest and largest voluntary family planning organi­
zation with 182 affiliates in 44 states and the District of Columbia 
operating approximately 800 clinics. PPFA supports the princi­
ples of equality articulated in Runyon and believes that racial bias 
or discrimination in any form is intolerable.

People for the American Way is a nonpartisan, education- 
oriented citizens’ organization established to promote and pro­
tect civil and constitutional rights. Founded in 1980 by a group of 
religious, civic, and education leaders devoted to the Nation’s 
heritage of tolerance and pluralism, People for the American Way 
now has 270,000 members nationwide. The organization’s pri­
mary mission is to educate the public on the vital importance of 
the democratic tradition.

Interest of the Amici



9

Project Equality, Inc. is a national non-profit organization 
established by the religious community to support equal employ­
ment opportunities for minorities and women.

The Progressive National Baptist Convention was founded 
twenty-seven years ago to promote and work for certain goals, in­
cluding the realization of racial, social and economic injustice. 
Today, the PNBC numbers 1.8 million members in primarily 
Black American Baptist churches nationwide.

The Puerto Rican Legal Defense and Education Fund, Inc. is 
a national civil rights organization established in 1972. Its princi­
pal objective is to secure, through litigation and education, the 
civil rights of Puerto Ricans and other Latinos living in the United 
States. Because of the continued discrimination suffered by 
Puerto Ricans and other Latinos in the private sector, particu­
larly in employment, education, and housing, Puerto Ricans and 
other Latinos continue to place extensive reliance on the Civil 
Rights Act of 1866 to vindicate their civil rights.

The A. Philip Randolph Institute is a national organization 
of black trade unionists representing some 40 unions with 200 
chapters in 37 states. Since its inception in 1965, it has served as a 
bridge between the labor movement and the black community.

The Southern Christian Leadership Conference, (SCLC), 
founded in 1957, is a voluntary civil rights organization comprised 
of 18 chapters throughout the United States. SCLC is dedicated 
to improving the quality of life of African American people.

The Southern Poverty Law Center is a nonprofit organiza­
tion whose purpose is to advance the legal rights of the poor 
through litigation and education. It provides class action litiga­
tion in areas of civil rights and representation of those injured or 
threatened by activities of the Klu Klux Klan and related groups.

The Synagogue Council of America is an umbrella organiza­
tion representing Orthodox, Conservative and Reform Jewish 
Rabbinical and Congregational bodies in the United States. It 
has long supported strong measures to ensure the civil rights of all 
Americans.

The Union of American Hebrew Congregations (UAHC) 
represents 800 Reform congregations and 1.2 million Reform

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Interest o f the Amici

i /-a.

Jews across the U.S. Throughout its history, the UAHC has 
steadfastly supported efforts to provide civil rights and equality 
for all Americans.

The United Church of Christ, Office for Church and Society, 
is the agency of the UCC assigned the social action mission of the 
1.7 million member church. The Office for Church and Society 
has the responsibility of addressing questions of civil and equal 
rights and social issues that empower individuals to have choices.

The United States Student Association (USSA) is a national 
membership organization representing college and university stu­
dents in the United States. USSA seeks to expand educational 
opportunities for all individuals in our nation regardless of race, 
sex, physical ability, or ability to pay.

The Villers Foundation is a private, nonprofit foundation 
concerned with assuring that the essential needs of elders, espe­
cially those of lower income, are met, and concerned with ena­
bling elders to be active participants in society so they are 
empowered to act on their own behalf.

The Washington Ethical Action office is the Washington of­
fice of the American Ethical Union, a national federation of ethi­
cal societies (ethical cultural movement). The ethical cultural 
movement is a humanistic, religious, and educational movement 
inspired by the ideal that the supreme aim of human life is work­
ing to create a more humane society.

Women Employed is a national membership association of 
working women. Over the past fifteen years, the organization has 
assisted thousands of women with problems of discrimination, 
monitored the performance of equal opportunity enforcement 
agencies, analyzed equal employment opportunity policies, and 
developed specific, detailed proposals for improving enforce­
ment efforts.

The Women’s Equity Action League (WEAL) was founded 
in 1972 as a national, non-profit membership organization spon­
soring research, education, litigation, and advocacy to advance 
the economic status of women. It is committed to the full and 
effective enforcement of anti-discrimination laws in order to en­
sure equality of opportunity for all, regardless of race, sex, nation-

'  Interest o f the Amici



ality. age religion or disability. WEAL has appeared before this 
court as amicus curiae in several cases concerning the rights of 
women.

The Women’s Legal Defense Fund is a non-profit member­
ship organization founded in 1971 to provide pro bono legal assis­
tance to women who have been the victims of discrimination 
based on sex. The Fund devotes a major portion of its resources 
to combating sex discrimination in employment through litiga­
tion of significant employment discrimination cases, operation ol 
an employment discrimination counseling program and advo­
cacy before the Equal Employment Opportunity Commission 
and other federal agencies charged with enforcement of the equal 
opportunity laws.

The Workmen's Circle is a Jewish organization that offers 
benefits and services to its members, supports legislative and 
other action for social progress in the liberal tradition and is com­
mitted to the perpetuation and enrichment of Jewish secular cul­
ture.

Interest of the Amici

For 130 years, the YWCA of the U.S.A. has struggled to se­
cure equity and dignity for all people. Thus, it has a strong inter­
est in the outcome of the issue of statutory interpretation that is 
now before the U.S. Supreme Court. 42 U.S.C. §1981 has been an 
important tool for redress, one which the YWCA of the U.S.A. 
believes should remain available to parties seeking justice.