Patterson v. McLean Credit Union Brief Amici Curiae in Support of Respondent

    No, 87-107

In T he

gatym tu? (Uintrt n f tl|P S ta te s
October Term, 1987

Brenda Patterson,
Petitioner,v.

McLean Credit Union ,
Respondent.

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

BRIEF OF AMICI CURIAE 
THE WASHINGTON LEGAL FOUNDATION, 

CONGRESSMEN HENRY J. HYDE, JACK F. KEMP, 
NORMAN D. SHUMWAY, ROBERT S. WALKER, 

GEORGE C. WORTLEY, ROBERT E. BADHAM, DONALD 
E. “BUZ” LUKENS, WILLIAM E. DANNEM EYER; 

SENATORS JESSE HELMS, GORDON J. HUMPHREY, 
STEVE SYMMS; THE LINCOLN INSTITUTE FOR 

RESEARCH AND EDUCATION, AND THE 
ALLIED EDUCATIONAL FOUNDATION  

IN SUPPORT OF RESPONDENT

Daniel  J. P opeo 
Paul  D. Kam enar  *
W ashington  L egal Foundation 
1705 N Street, N.W.
Washington, D.C. 20036 
(202) 857-0240

Date: August 12,1988 * Counsel of Record

W i l s o n  - E p e s  P r i n t i n g  C o . ,  In c . - 7 8 9 - 0 0 9 6  - W a s h i n g t o n , D . C .  2 0 0 0 1



TABLE OF CONTENTS
Page

INTERESTS OF AMICI CURIAE ..... .............. ............. 1

STATEMENT OF THE CASE __________ __________  1

SUMMARY OF THE ARGUMENT ................ ............. 1

ARGUMENT.... .................................................................. 2

TABLE OF AUTHORITIES ........... .................... .........  v

I. CONGRESS INTENDED THAT SECTION 
1981 ONLY REMOVE LEGAL DISABILITIES 
IMPOSED BY THE STATES AND SUCH 
READING OF THE LAW HAS HAD THE 
EFFECT OF REMEDYING BOTH PUBLIC
AND PRIVATE DISCRIMINATION ...........  2
A. The Language of Section 1981____ __ ____ _ 3

B. The Legislative and Legal History of Section
1981............        7

1. The Schurz Report ........ ........................... 8
2. Congressional Debates in the 39th Con­

gress ....................................     12
3. Judicial Enforcement ___    16

II. STARE DECISIS CONCERNS DO NOT COM­
PEL ADHERENCE TO RUNYON.................... 20

A. Runyon Does Not Bring Stability to the
Law .........  21

B. The Reliance Interests Are Not Compelling.. 24
C. Congress Has Not Affirmatively Adopted

Runyon’s Interpretation of Section 1981.......  26

CONCLUSION ..........     30

APPENDIX......... ............... ........................................



11

TABLE OF AUTHORITIES
CASES Page

Alyeska Pipeline Service Co. v. Wilderness So­
ciety, 421 U.S. 240 (1975) ................... ................ 28

Barnes v. Browning (unreported) (1866)) .........  18
Bhandari v. First National Bank of Commerce,

829 F.2d 1343 (5th Cir. 1987)..............................  22
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393

(1932) ........      20
Central Machinery Co. v. Arizona State Tax

Comm’n, 448 U.S. 160 (1980) ........... ..    2
Civil Rights Cases, 109 U.S. 3 (1883)  ___ ___  13,20
Cleveland v. U.S., 392 U.S. 14 (1946)  ........ ....... 27
Bred Scott v. Sanford, 112 How. 392 (1856).......  16,17
Gay Rights Coalition of Georgetown University 

Law Center v. Georgetown University, 536 A.2d
1 (D.C. Ct. App. 1987) ................ ......................... 25

General Electric Co. v. Gilbert, 429 U.S. 125
(1976) ...................................................................... 30

Grove City College v. Bell. 465 U.S. 555 (1984).... 29, 30 
Immigration & Naturalization Service v. Chadha,

462 U.S. 919 (1983) ........................................... 25
In re Turner, 24 Fed. Cas. 337, 1 Abb. 84 (1867).. 18
Johnson v. Railway Express Agency, Inc., 421

U.S. 459 (1975) ...... ..........................'..................... 4, 27
Johnson v. Transportation Agency of Santa Clara

County, 107 S. Ct. 1442 (1987)................ ............  24, 26
Jones v. Alfred H. Mayer Co., 392 U.S. 409

(1968) ..........................................................8,15, 21, 22, 25
McDonald v. Santa Fe Trail Transportation Co.,

427 U.S. 273 (1976)..... ........................................... 7, 23
Mohasco Corp. v. Silver, 447 U.S. 807 (1980) .... 3,7
NAACP v. Claiborne Hardware Company, 458

U.S. 886 (1982)..................... ................................  23
Patterson v. McLean Credit Union, 108 S. Ct. 1419

(1988) ....................................................................... 5,21
Runyon v. McCrary, 427 U.S. 160 (1976)____ passim
Shaare Tefila Congregation v. Cobb, 107 S. Ct.

2019 (1987) .....................................................   23
Shapiro v. United States, 335 U.S. 1 (1948).......  26



I l l

Page
TABLE OF AUTHORITIES—Continued

Smith v. Moody, 26 Ind. 299 (1866)........................  18
Steinberg v. Chicago Medical School, 69 I11.2d 320,

371 N.E.2d 634 (1977) .......................................... 6
The Westchester and Philadelphia Railroad Com­

pany v. Myers, 55 Pa. 209 (1867) ....... .... ...........  19
CONSTITUTIONAL PROVISIONS

U.S. Const. Art. I, sec. 1 ..............................................  29
U.S. Const. Amend. I ................................................... 23
U.S. Const. Amend. XIII......................................... 1, 8, 9,17
U.S. Const. Amend. X IV ........................................ 1, 8, 9,13

STATUTES
42 U.S.C. § 1982 (1982) ..............................................passim
42U.S.C. § 1982 (1982) ............................. ............. . 23
42 U.S.C. § 1983 (1982) .........   28
42 U.S.C. § 1985 (1982) .............................................. 6
42 U.S.C. § 1988 (1982) ...........................    28
42 U.S.C. § 1986 (1982) .............................................. 28
42 U.S.C. § 1994 (1982) .............................................. 12
Anti-Kidnapping Act of 1866 .................................... . 12
Anti-Ku Klux Klan Act of 1871 .... ......... ............. . 12-13
Anti-Peonage Act of 1867............................................ 12
Civil Rights Act of 1866 ............................................. passim
Civil Rights Act of 1875, 18 Stat. 335 (1875).......  20
Civil Rights Act of 1964, Title V II ...............5, 25, 27, 28, 30
Civil Rights Attorneys’ Fees Awards Acts of

1976) .......................................................................  26,28
Equal Employment Opportunity Act of 1972....26, 27, 28
Pennsylvania Act of March 22,1867.........................  19
Public Accommodations Act of 1875.........................  13
Revised Statutes of 1874............................................  8
Voting Rights Act of 1870 .......................................  8

LEGISLATIVE MATERIALS
Cong. Globe, 39th Cong., 1st Sess. (1866).................passim
S. 232, 39th Cong., 1st Sess. (1866)...........................  17
Cong. Globe, 43d Cong., 1st Sess. (1874)..................  19
117 Cong. Rec. (1971) ............................... ...............  28
118 Cong. Rec. (1972).................................................. 27



IV

MISCELLANEOUS AUTHORITIES Page
Avins, The Civil Rights Act of 1875: Some Re­

flected Light on the Fourteenth Amendment and 
Public Accommodations, 66 Colum. L. Rev. 873
(1966) .............   20

Belz, A New Birth of Freedom: The Republican
Party and Freedman’s Rights, 1861-1866 ______  8

Cardozo, B., The Nature of the Judicial Process
(1921) ........................................  21

Casper, Jones v. Mayer: Clio, Bemused & Con­
fused Muse 1968 Sup. Ct. Rev. 89 ................... . 8

Cincinnati Commercial, March 30, 1866..................  15
Cincinnati Commercial, April 16, 1866 ........... 16, App. B
Cooper, Stare Decisis: Precedent & Principle in 

Constitutional Adjudication, 73 Cornell L. Rev.
401 (1988) ...... ...........................................   21

Eskridge, Overriding Statutory Precedents, 76
Geo. L.J. 1361 (1988) ............................................ 20-21

Fairman, C, Reconstruction & Reunion (1971).... 8,11
Flack, The Adoption of the Fourteenth Amend­

ment (1908)................   18
Maltz, The Nature of Precedent, 66 N.C. L. Rev.

367 (1988)............................................................... 21
Maltz, Reconstruction Without Revolution: Re­

publican Civil Rights Theory in the Era of the 
Fourteenth Amendment, 29 Hous. L. Rev. 221
(1986) ....................................................................... 14

Philadelphia North American (April 10, 1866) ....App. B
Restatement (Second) of Contracts........................ 6
Schurz Report, S. Exec. Doc. No. 2, 39th Cong.,

1st Sess. (1865)....................................... .8,10,11,12,16

TABLE OF AUTHORITIES—Continued



BRIEF OF AMICI CURIAE 
THE WASHINGTON LEGAL FOUNDATION, 

CONGRESSMEN HENRY J. HYDE, JACK F. KEMP, 
NORMAN D. SHUMWAY, ROBERT S, WALKER, 

GEORGE C. WORTLEY, ROBERT E. BADHAM, DONALD 
E. “BUZ” LUKENS, WILLIAM E. DANNEM EYER; 

SENATORS JESSE HELMS, GORDON J. HUMPHREY, 
STEVE SYMMS; THE LINCOLN INSTITUTE FOR 

RESEARCH AND EDUCATION, AND THE 
ALLIED EDUCATIONAL FOUNDATION  

IN SUPPORT OF RESPONDENT

INTERESTS OF AMICI CURIAE
The interests of amici curiae are described in Appendix 

A hereto.
STATEMENT OF THE CASE

Amici adopt the Statement of the Case as set forth 
in respondent’s brief.

SUMMARY OF THE ARGUMENT

The issue presented in this case is fundamentally a 
question of separation of powers and fidelity to the rule 
of law. Amici submit that Runyon v. McCrary, 427 U.S. 
160 (1976) should be reconsidered and overruled or mod­
ified because it is a clear misinterpretation of the intent 
of the Congress that enacted 42 U.S.C. § 1981, and be­
cause stare decisis concerns are not compelling in this 
case.

The language of Section 1981, which quite often is 
ignored in judicial interpretations, clearly shows that the 
rights guaranteed were of the nature of legal capacities, 
including the capacity to contract. The legislative history 
of Section 1981, whether derived from the Thirteenth or 
Fourteenth Amendments, further demonstrates that in­
tent. Nevertheless, by providing freedmen with these 
legal capacities, Section 1981 enabled private wrong­
doing to be redressed without the tortured reading that 
petitioner gives to the “ right to contract” clause.

Stare decisis, which is rooted in the stability of the 
law, is not compelling here precisely because Runyon



2

gives Section 1981 an unsettled reading. Finally, Con­
gress has not “ affirmatively endorsed” Runyon or other 
decisions interpreting Section 1981. The legislative ac­
tivity cited by the petitioner is equivocal at best, but in 
any event, is no substitute for the proper exercise of con­
gressional powers under Article I of the Constitution. 
This Court should not usurp the role of Congress even if 
some of its members may be willing to shirk their legis­
lative responsibility to make the hard policy decisions.

ARGUMENT

I. CONGRESS INTENDED THAT SECTION 1981 RE­
MOVE ONLY LEGAL DISABILITIES IMPOSED BY  
THE STATES AND SUCH A READING OF THE 
LAW HAS HAD THE EFFECT OF REMEDYING  
BOTH PUBLIC AND PRIVATE DISCRIMINATION.

A fundamental principle of statutory interpretation 
is that courts are to examine the words that the legisla­
ture chose in framing the law and to give those words 
their ordinary and plain meaning as they were un­
derstood at the time they were used. See Central Ma­
chinery Co. v. Arizona State Tax Comm’n, 448 U.S. 160, 
166 (1980) (statutes must be interpreted “ in light of the 
intent of the Congress that enacted them” ). A corollary 
rule is that the words of the statute are to be read in the 
context of the entire statute in question. It is only when 
those words are unclear or their meaning ambiguous, 
either by themselves or in context with the rest of the 
statute in question, that a court should look outside the 
statute to discern what the Congress meant by the lan­
guage it selected.

Although these rules of statutory construction are ba­
sic, amici find it necessary to repeat them because they 
are disregarded by the petitioner. In her 118-page brief, 
the petitioner’s methodology of discerning congressional 
intent is, as she puts it, “ an essentially pragmatic one.” 
Pet. Brief at 40. That is, faced in 1866 with evidence 
of wrongdoing by private individuals against the freed-



3

men, did the 39th Congress intend to outlaw only public 
discrimination by passing the 1866 Act? Accordingly, 
petitioner’s brief first discusses the existing conditions 
that the freed slaves faced (Pet. Brief at 14-40), and 
then it analyzes the congressional debates on the bill 
(Pet. Brief at 41-71). We are also told what the editorial 
writers of certain newspapers felt about the legislation. 
(Pet. Brief at 49). The remainder of the brief deals 
with the legislative acquiescence of later Congresses and 
the stare decisis doctrine.

Notably absent in all of this is any discussion and 
analysis of the language of Section 1981 itself. Amici 
believe it is imperative that any judicial interpretation 
or re-interpretation of Section 1981 must begin— and 
indeed may even end— with the language Congress chose. 
The law as ivritten is what this Court is required to in­
terpret. As Justice Stevens, speaking for the Court in 
Mohasco Corp. v. Silver, 447 U.S. 807 (1980), stated: 
“ It is our task to give effect to the statute as enacted.” 1

Accordingly, amici will first examine the language of 
Section 1981, and then discuss the congressional debates 
and the context in which the law was passed, including 
subsequent litigation, to demonstrate that Congress in­
tended to provide the freedmen with important legal 
capacities.

A. The Language of Section 1981

Section 1981 states in full:
All persons within the jurisdiction of the United 

States shall have the same right in every State and

1 Id. at 819. In Mohasco, Justice Stevens gave a literal reading to 
the filing requirements of the Civil Rights Act of 1964 and rejected 
a pro se discrimination complaint as untimely even though the lower 
court’s more equitable interpretation of the Act would be faithful to 
“ the strong federal policy of insuring that employment discrimina­
tion is redressed.” Id. at 813. The Court ruled that the word “ filed” 
used in two separate subsections of the same statute must be given 
the same meaning.



4
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal bene­
fit of all laws and proceedings for the security of 
persons and property, as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, pen­
alties, taxes, licenses, and exactions of every kind, 
and to no other.

The key phrase in question is the “ right . . .  to make 
and enforce contracts.” 8 These precise words are crucial 
to a proper understanding of the statute. Grammatically, 
the rights declared are cast in infinitive phrases, e.g., 
“ to make and enforce contracts,” “ to sue, be parties, give 
evidence.” As this statute is discussed and analyzed in 
various cases, however, the Court and the parties quickly 
deviate from this original language and begin discussing 
this phrase as if it were a gerund, i.e., that 1981 pro­
hibits discrimination “ in the making and enforcement of 
private contracts.” Runyon v. McCrary, 427 U.S. 160, 
163 (1976 ). (Emphasis added.)

The gerund is often converted into a noun when we 
are told that Section 1981 prohibits “ employment dis­
crimination.” Johnson v. Railway Express Agency, Inc., 
421 U.S. 459, 460 (1975). Thus, the language of § 1981 
has undergone a judicial metamorphosis such that the 
“ right to make” no longer reflects the right or capac­
ity “ to do” something; rather, it has come to mean an 
ongoing process by the use of a gerund— “ no discrimina­
tion in the making and enforcement of a contract— as 
well as “ employment,” a noun denoting a status or rela­
tionship. Amid believe that this deviation from the ac­
tual language of Section 1981 has caused some of the 
difficulties in applying it to cases such as this.8

2 More accurately, the phrase under scrutiny is simply the “right 
• . . to make . . . contracts” since all parties would agree that the 
“ right to enforce” contracts means only the right to enforce the 
contract in a court. As such, that right cannot be infringed by 
private persons once a contract has been made.

s That is why we find petitioner in this case struggling to fit 
her allegations that she was harassed during the performance of



As Justice White clearly put it in his dissent in
Runyon:

On its face the statute [which] gives “ [a]ll per­
sons” . . . the “same right . . .  to make . . . contracts 
. . .  as is enjoyed by white citizens” clearly refers to 
rights existing apart from this statute. Whites had 
at the time when § 1981 was first enacted, and have 
[today]. . . .  no right to make a contract with an 
unwilling private person, no matter what that per­
son’s motivation for refusing to contract. . . . What 
is conferred by 42 U.S.C. § 1981 is the right—which 
was enjoyed by whites— “to make contracts” with 
other willing parties and to “enforce” those contracts 
in court.

427 U.S. 160, 193-94 (emphasis in original).
Slaves were considered chattel or property and thus 

had no legal rights or capacities whatsoever. Section 1 
of the Civil Rights Act of 1866 gave the freed slaves both 
citizenship and the natural rights that go along with 
that status. The right of a citizen to “ make a contract” 
means the legal capacity to accept offers or to make them,

her job into the language of the statute. She does this by creating 
the fiction that her single at-will contract with her employer is 
really a new contract to be made every day, and that her agree­
ment to work each day wfith the possibility of being harassed in ap­
parently a condition precedent to her acceptance of a daily contract 
to work. See Transcript of Oral Argument at 10 (Feb. 29, 1988). 
This novel theory obviously gave the Court some difficulty and the 
Court alluded to it as one of the reasons that caused it to rehear 
this case and reconsider Runyon. See Patterson v. McLean Credit 
Union, 108 S.Ct. 1419 (1988). If a single contract at-will can be 
construed to be multiple contracts made each work day, as peti­
tioner contends, why not construe it as multiple contracts made each 
hour (since the employee is likely to be paid by the hour), ad 
infinitum'! In that way, the transformation of the phrase “ to make 
a contract” into “performance of a contract” is complete.

Amici believe that the language of § 1981 cannot bear such con­
struction and that claims for discrimination under the terms and 
conditions of employment, including harassment, are more properly 
covered by Title VII, 42 U.S.C. § 2000e-2 and related state claims, 
such as tortious interference with contractual rights, or breach of 
implied duty of good faith in the performance of a contract.

5



but not the right to compel others to accept offers or 
make them.4

That Justice White was correct in characterizing the 
“ right . . .  to contract” as a legal right or capacity to 
contract is evidenced by examining the other “rights” 
provided in Section 1981. For example, all persons are 
given the “ right . . .  to sue, be parties, give evidence, 
and to [enjoy] the full and equal benefit of all laws and 
proceedings for the security of persons and property as 
is enjoyed by white persons. . . .”

It is evident that the other “ rights” provided by Sec­
tion 1981 involve rights that affect the legal status or 
capacity of the person. Those rights can only be affected 
by the state rather than by private individuals.5

6

4 Even as a matter of simple contract law, the majority in Runyon 
erred. The Court stated that the private schools “ advertised and 
offered” its “ educational services” to “members of the general pub­
lic” through the Yellow Pages and brochures addressed to “ resi­
dent.” 427 U.S. at 166, 172. The Court thus characterized the 
school as the “offeror” and the public as “offerees.”  Id. at 171. 
However, it is well-settled under contract law that advertising does 
not constitute an “offer.” See Restatement (Second) on Contracts, 
§§ 23, 26, Comment b. At best, it is a solicitation for offers from 
those who read the advertisements. See Steinberg v. Chicago Medi­
cal School, 69 111. 2d 320, 371 N.E. 2d 634, 639 (1977). Indeed, in 
common parlance, an applicant (offeror) may have his or her ap­
plication “ accepted” by the school (offeree). The private school is 
not bound to accept all the offers made to it. Even after the school 
has accepted the offer, the offeror is usually not bound under normal 
contract rules to the contract, but instead is allowed a certain period 
of time within which to confirm or reject the contract. In such a 
case, the school does eventually extend a legal “ offer.”  In any event, 
the plaintiffs in Runyon were at least one if not two transaction 
levels away from being considered an “ offeree”  as this Court mis- 
eharacterized them.

5 Of course, if someone has the right to give evidence, that is, 
to testify in court, theoretically that right can be frustrated if the 
potential witness is kidnapped by private individuals to prevent 
the giving of the testimony at a particular proceeding. But those 
kinds of private wrongs are not addressed in this legislation but in 
other sections of the civil rights laws. See, e.g., 42 U.S.C. § 1985(3).



7
Thus, to be internally consistent, the “ right . . .  to 

contract” must be interpreted in the same way as the 
other rights specified in § 1981. After all, if it is a rule 
of construction that the same word used twice in a stat­
ute should be interpreted the same way (see Mohasco 
Corp. v. Silver, supra) , a word used only once ( “ right” ) 
should mean the same for all of its subsequent descrip­
tive modifiers. Since those other rights indisputably refer 
to legal capacities, and the removal of legal disabilities, 
so too is the right to contract. No one could argue, for 
example, that since the freedmen have the “right to give 
evidence” or testify in court that a potential witness in 
a criminal or civil action could sue the prosecutor or at­
torneys involved for failing to call them as witnesses, 
alleging discrimination.6

B. The Legislative And Legal History Of Section 1981

Amici submit that because the language of Section 1981 
is clear, there is no need to examine the legislative his­
tory of the measure. Nevertheless, an examination of 
that history clearly shows that Congress intended only to 
remove legal disabilities.7

6 Thus, if Section 1981 is interpreted to mean that discrimina­
tion is prohibited “ in the making of a contract” so too must it be 
prohibited “ in the giving of evidence” or in “ testifying.” Does a 
prosecutor risk violating Section 1981 or a private defense attorney 
for interrogating a black witness in a “ harassing” manner? Are 
jury members liable for a suit under Section 1981 because it is 
alleged that the jurors gave more credence to the testimony of a 
white witness or party than a black one, or vice-versa? See 
McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273 
(1976) (white persons may invoke § 1981). Could a student of 
one race sue the school for discrimination under § 1981 because the 
student claims that he or she is being “disciplined” (harassed) 
more than students of a different race in performance of his or her 
educational contract? These issues will be further discussed below 
under the section on stare decisis.

7 Amici agree completely with Justice White’s analysis in Runyon 
of the legislative history of Section 1981 which shows that it is 
derived not from Section one of the Civil Rights Act of 1866, but 
from Section 16 of the Voting Rights Act of 1870 which was passed



8

1. The Schurz Report.

At the outset, amici do not dispute for the most part 
the historical picture painted by the petitioner of the 
abuses suffered by many of the former slaves in 1865 
after they were freed. The petitioner cites at length the 
findings in the reports of General Carl Schurz and others 
which describe the various abuses committed by the for­
mer slave owners and others from the time of the slaves’ 
emanicipation toward the end of the Civil War until 
November, 1865. Pet. Brief at 16-40.8

pursuant to the Fourteenth Amendment proscribing only discrimina­
tory state action. 427 U.S. at 192. The petitioner’s argument that 
the Reviser’s marginal note in the Revised Statutes of 1874 cap­
tioned “ equal protection of the laws”  appeared after the 1874 law 
was revised (Pet. Brief at 6), does not diminish the unrefuted and 
unequivocal statements of Senator Stewart indicating that what is 
now Section 1981 applied only to state action. Runyon, 427 U.S. at 
210.

Nevertheless, amici will demonstrate that even if  Section 1981 
is derived from both the Voting Rights Act of 1870 and the Civil 
Rights Act of 1866, or for that matter, from the Civil Rights Act 
of 1866 alone, the 39th Congress did not intend in 1866 to require 
unwilling parties to make private contracts. As even Justice 
Stevens clearly put it in his concurring opinion in Runyon:

There is no doubt in my mind that that construction of the 
statute [that section 1 of the Civil Rights Act of 1866 pro­
hibits private racial discrimination] would have amazed the 
legislators who voted for it. Both its language and the his­
torical setting in which it was enacted convince me that Con­
gress intended only to guarantee all citizens the same legal 
capacity to make and enforce contracts, to obtain, own, and 
convey property, and to litigate and give evidence.

427 U.S. at 189-90. For an excellent scholarly discussion of the 
history of the Reconstruction legislation and criticisms of the 
rationale in Jones v. Alfred H. Mayer, 392 U.S. 409 (1968), see
C. Fairman, Reconstruction and Reunion 1117-1258 (1971) ; Casper, 
Jones v. Mayer: Clio, Bemused and Confused Muse, 1968 Sup. Ct. 
Rev. 89. See generally Belz, A New Birth of Freedom: The Re­
publican Party and Freedman’s Rights, 1861-1866 (1976).

8 S. Exec. Doc. No. 2, 39th Cong., 1st Sess.



9

The fact that the Congress was aware of these prob­
lems when it began in January 1866 to consider the Civil 
Rights Act, however, does not mean that the Congress in­
tended to address all of those problems and their mani­
festations in one of the very first pieces of legislation 
that came before them. In addition, other legislation was 
proposed and some of it enacted into law between 1866 
and 1875 which deals specifically with private discrimi­
natory action. Thus, petitioner’s “pragmatic approach” 
of discerning legislative intent is disingenuous, and does 
not take into account the fact that Congress does not 
fully address a problem all at once.

But as will be demonstrated below, even many of the 
problems referred to by the petitioners of private dis­
crimination were able to be corrected by the Civil Rights 
Act of 1866 because of the right given to the freedmen 
to sue in courts and give evidence. Thus, although amici 
maintain that Congress only intended to remove legal 
disabilities of the freed slaves, that notion is not in­
compatible with the prospect that private discriminatory 
actions would also thereby be redressed. In amici’s view, 
the traditional “ either/or” question of “ whether Section 
1981 covers only state action or does it also prohibit pri­
vate discrimination” is therefore misleading.

The debates of the 1866 legislation during the three 
months from the time the bill was introduced by Sena­
tor Trumbull on January 6, 1866, until the law was 
passed over President Johnson’s veto on April 9, clearly 
show that the 39th Congress was attempting to remove 
or prevent the legal disabilities that were or might be 
placed in the way of the freed slaves.

To put this in perspective, after the 13th Amendment 
was ratified in December 1865, it was unconstitutional 
for slavery or involuntary servitude to “exist” except for 
punishment of a crime. While it was incumbent upon the 
reconstructed southern states to enact laws to protect



10

the newly freed slaves, many of these measures were 
thinly veiled disguises to perpetuate many features of the 
slave system. These “Black Codes” as they were called, 
were ostensibly enacted to protect the freed Negroes, but 
contained pernicious measures such as making vagrancy 
a crime and thereby subjecting the former slave to in­
voluntary servitude.

The petitioner’s brief attempts to downplay the prob­
lems that blacks faced by these legal disabilities by stat­
ing, for example, that at the time that. General Schurz 
drafted his report in November 1865 detailing the post­
war abuses in five southern states, there were only “ scat­
tered local ordinances in Louisiana and Mississippi, meas­
ures which Schurz acknowledged were as of yet ‘mere 
isolated cases,’ ” Pet. Brief at 24.

The petitioner seriously miseharaeterizes the thrust 
and import of the Schurz report, however, by attempting 
to show that private conduct rather than laws or regula­
tions were of primary concern to Schurz (and inferen- 
tially, to the Congress). Much of the report, however, 
focused on these local ordinances and what they forebode 
to the freed slaves if such laws were used to replace the 
old slave codes. Thus, rather than diminishing the im­
pact of these regulations, Schurz quoted whole sections 
of them, some of which he noted “ deserves careful 
perusal.” 9

9 Schurz Report at 23. Schurz highlighted the following regula­
tions of a Louisiana town:

Section 3. No negro or freedman shall be permitted to rent 
or keep a house within the limits of the town under any cir­
cumstances, and any one thus offending shall be ejected and 
compelled to find an employer or leave the town within twenty- 
four hours. The lessor or furnisher of the house leased or kept 
as above shall pay a fine of ten dollars for each offence.

Section 4. No negro or freedman shall reside within the 
limits of the town of Opelousas who is not in the regular 
service of some white person or former owner.

Id. (emphasis in original).



11
Schurz was obviously concerned about the effect these 

laws and regulations had on the status of the freed 
slaves, and he had a clear sense that these regulations in 
Mississippi and Louisiana portended a bleak future for the 
blacks if other jurisdictions were to embark on the same 
path. It was in this context that Schurz stated:

“ It may be said that these are mere isolated cases; 
and so they are. But they are the local outcroppings 
of a spirit which I found to prevail everywhere.”

Schurz Report at 25.
Thus, rather than finding Schurz dismissing these reg­

ulations as “ mere isolated cases”  as petitioner would 
have us believe (Pet. Brief at 24), we find Schurz sound­
ing a warning note of state legislative activity to come.10 11

Of course, what Schurz was referring to was the soon 
to be enactment of the infamous Black Codes on a state­
wide rather than local basis. Indeed, Schurz’s warning 
was correct, for after his report was finished, not only 
did South Carolina enact its Black Code, but similar ones 
were enacted at the end of 1865 by Louisiana, Missis­
sippi, Alabama, and in early 1856 by Virginia, North 
Carolina, Georgia, and Texas. See Fairman, Reconstruc­
tion and Reunion 106 (1971) .u

10 Schurz’s report continues:
[TJhere are systems intermediate between slavery as it for­

merly existed in the south, and free labor as it exists in the 
north, but more nearly related to the former than to the latter, 
the introduction of which will he attempted. I have already 
noticed some movements in that direction, which . . . [the 
Louisiana] ordinances were the most significant. Other things 
of more recent date, such as a new negro code submitted by a 
committee to the legislature of South Carolina, are before the 
country. They have all the same tendency [as the municipal 
regulations of Louisiana], because they spring from the same 
cause.

Schurz Report at 33 (emphasis in original).
11 Another example of the petitioner’s mischaracterization of the 

Schurz’s report as emphasizing private wrongs rather than legal 
disabilities is the petitioner’s cite to Schurz’s report:



12

2. Congressional Debates In The 39th Congress.

An examination of the numerous statements made by 
the proponents of the Civil Rights Act of 1866 clearly 
demonstrate that Congress did not intend to require pri­
vate individuals to contract with others, but rather in­
tended to remove legal disabilities and to punish state 
officials for violating those rights. While the phrase 
“ state action” was not used in those days, the key con­
cern of the Congress after the Civil War was the con­
stitutional limits of the federal government to interfere 
in state affairs.12

There is not a single unambiguous statement in the 
numerous debates which indicated that Congress intended 
to legislate beyond the state level and go so far as to 
regulate private contractual decisions. Such a notion 
would have sparked great debate.13

“ [M]any ingenious heads set about to solve the problem, how 
to make free labor compulsory. .. .”

Petitioner’s Brief at 23. What is ingenious is petitioner’s con­
venient use of the ellipsis; the rest of the sentence of that excerpt 
reads: “by permanent regulations.” Sclfqi/z Report at 22. The peti­
tioner also ignores another relevant statement by Schurz who 
quotes Colonel Thomas’s observations that the private prejudices 
are “ apt to bring forth that sort of class legislation which produces 
laws to govern one class with no other view than to benefit an­
other.” Schurz Report at 21. (emphasis added).

13 It is ludicrous, therefore, for amici Eric Foner, et al., to argue 
that the framers “ did not recognize the modern ‘state action doc­
trine’ as a possible . . . limitation on their power to redress civil 
rights violations.”  Brief at 11. While the framers could be easily 
forgiven for not understanding our “ modern state action doctrine,” 
they certainly understood the “old” state action doctrine and leg­
islated in that context. The principal argument during the de­
bates centered around Congress’ constitutional power to “ enter the 
domain of a State and interfere with its internal police, statutes, 
and domestic regulations.”  (Cong. Globe, 39th Cong., 1st Sess. 1120 
(Rep. Rogers)).

13 Where Congress legislated against private racial conduct, it 
clearly did so. See, e.g., the Anti-Kidnapping Act of 1866, the Anti- 
Peonage Act of 1867 (see 42 U.S.C. § 1994), the Anti-Ku Klux



13
What one clearly finds in the debates is an attempt to 

codify the “natural rights” belonging to the freed slaves. 
Thus, the first section of the 1866 bill declares that “ all 
persons born in the United States . . . are hereby de­
clared to be citizens of the United States. . . .” While 
this declaration was later constitutionalized in the Four­
teenth Amendment, the 1866 Act proceeded to declare 
what the natural rights were that were associated with 
citizenship. Those natural rights were described by Con­
gressman James F. Wilson, House floor manager of the 
Civil Rights Act, and other proponents of the bill as they 
were described by Blackstone, Chancellor Kent, and other 
legal philosophers, i.e., the “ right of personal security” 
(legal enjoyment of his life and lim b); “ right of personal 
liberty” (described as a power of locomotion or travel) ; 
and “ right of personal property” (to acquire and dispose 
of his acquisitions). Cong. Globe, 39th Cong., 1st Sess. 
1118.

As Congressman Wilson stated:
It is not the object of this bill to establish new 

rights, but to protect and enforce those which al­
ready belong to every citizen. . . .  If the States would 
observe the rights of our citizens, there would be no 
need of this bill. . . . And if above all . . . the State 
should admit . . . that a citizen does not surrender 
these rights because he may happen to be a citizen 
of the State which would deprive him of them, we 
might without doing violence to the duty devolved 
upon us, leave the whole subject to the several 
States. But . . .  the practice of the States leaves us 
no avenue of escape, and we must do our duty by 
supplying the protection which the States deny.

Id. at 1117-18 (emphasis added).14

Klan Act of 1871, 42 U.S.C. §§ 1985, 1986, and the Public Accom­
modations Act of 1875.

14 Amici do not understand how amici Foner, et at, who cite 
only the last phrase of this passage “we must do our duty by 
supplying the protection which the states [sic] deny.”  Foner Brief 
at 10, can possibly claim that Wilson’s statements support their



14
As one commentator put it, if the guarantee on the 

right to make and enforce contracts were viewed as pro­
hibiting private discrimination,

“ the Bill would not only have effected a truly rev­
olutionary change in the federal system but would 
also have been entirely inconsistent with the very 
natural rights theory which the Republicans sought 
to implement. . . . ”

Maltz, Reconstruction Without Revolution: Republican 
Civil Rights Theory in the Era of the Fourteenth Amend­
ment, 24 Hous. L. Rev. 221 (1986) .1S

Numerous other statements by the proponents of the 
bill further demonstrate the state action nature of the 
measure. Typical is the statement of Senator Trumbull, 
the bill’s sponsor:

[The bill] will have no operation in any State 
where the laws are equal, where all persons have the 
same civil rights without regard to color or race. 
It will have no operation in the State of Kentucky 
when her slave code and all her laws discriminating 
between person on account of race or color shall be 
abolished.

Cong. Globe, 39th Cong., 1st Sess. 476.16

argument that Congress intended to legislate against discrimination 
by private persons rather than by the state.

«  The argument that the law was not needed to strike down the 
Black Codes because the military commanders under the Freedmen’s 
Bureau had begun to enjoin the operation of some of those laws is 
misleading. See Foner Brief at 8. The Civil Rights Act was seen 
as legal mechanism to replace that military procedure in a compre­
hensive manner. As Congressman Thayer noted, the very fact 
that the military was attempting to deal with the Black Codes 
“ demonstrates the necessity for enforcing the guarantees of liberty 
and of American citizenship conferred by the Constitution . . . 
[n]ot by military force . . . but through the quiet, dignified, firm, 
and constitutional forms of judicial procedure.” Cong. Globe at 1153.

16 See also id. at 474 (Sen. Trumbull); id. at 1118 (Rep. W ilson); 
id. at 1291 (Rep. Bingham); id. at 1293-1294 (Rep. Shellabarger).



15
Even after President Johnson’s veto of the bill (which 
referred to the law as providing a “capacity to make a 
contract,”  Cong. Globe 1690) Senator Trumbull insisted 
in unambiguous language that:

This bill in no manner interferes with the munic­
ipal regulations of any State which protects all like 
in their rights of person and property. It could have 
no operation in Massachusetts, New York, Illinois, 
or most of the States of the Union.

Id. at 1761.
Petitioners are unable to refute or counter this clear 

and overwhelming evidence of legislative intent by the 
sponsor and supporter of the bill. Instead, they quibble 
with a bit or two of inconsequential legislative state­
ments referred to in Justice Harlan’s dissent in Jones v. 
Alfred H. Mayer Co., claiming he is taking them out of 
context.17

Petitioner’s reliance on the editorial comments by sev­
eral newspapers on the bill as somehow evidencing Con­
gressional intent to regulate private conduct is not only 
exceedingly weak, but inaccurate. For example, peti­
tioner cites to the Cincinnati Commercial of March 30, 
1866, raising the spectre of the bill applying to public 
accommodations such as hotels and theaters. Last minute

17 Thus, when Justice Harlan quoted an excerpt of Congressman 
Thayer’s remarks about the “ tyranny of laws,” the petitioner seizes 
upon an earlier statement where Thayer spoke of “ tyrannical acts, 
the tyrannical restrictions, and the tyrannical laws.” Petitioner 
Brief at 60. Amici find no discrepancy here. Tyrannical laws qua 
laws are of no real effect unless some official or even private person 
“ acts” pursuant to them. In addition, it is hardly a “ tyrannical 
act” if a person decides not to enter into a voluntary contract. If 
anything, it is tyranny to force such private conduct. This scrap 
of legislative intent hardy proves petitioner’s point. And if peti­
tioner is so concerned with quoting Thayer in context, she seems 
content to overlook his remarks just one sentence later from Har­
lan’s reference, where Thayer talked about “ the ability to make a 
contract; . . . the ability to sell or convey real or personal estate.” 
Globe at 1152 (emphasis added). Obviously, Thayer is talking in 
terms of legal capacities, not absolute rights.



16

editorials, or even a remark made by a bill’s opponents 
to exaggerate the impact of measure to scare off votes, is 
nearly weightless evidence of intent by those who voted 
for the bill, just as a dissenting opinion in a court deci­
sion does not authoritatively explain the holding of the 
majority opinion.18 19

3. Judicial Enforcement.

While Section 1 of the Civil Rights Act of 1866 was 
couched in declaratory terms and did not proscribe private 
conduct, the removal of legal disabilities would themselves 
remedy the private wrongs petitioner refers to in her brief. 
By prohibiting the states from incapacitating the freedmen 
from his right to make contracts, to sue, and to enjoy 
the equal protection of the laws, those very rights would 
go a long way to redress the abuses committed against 
the freedmen.

For example, we are told in the Schurz report that the 
emancipated Negroes who walked away from the planta­
tions “ were shot or otherwise severely punished. . . .”  Pet. 
Brief at 20. By giving the Negro the right to give evi­
dence, their attackers could be prosecuted for murder, 
criminal assault, kidnapping, and the like. After all, 
crimes of violence against slaves and freedmen went un­
punished since blacks could not testify in a court of law. 
In addition, by giving the freedmen the legal capacity 
“ to sue,” the freedmen could now avail themselves of civil 
remedies and sue those who would commit violence on 
them by utilizing common law tort actions of assault, bat­
tery, false imprisonment, and the like.18

18 In any event, once the Cincinnati Commercial got its facts 
straight from the Ohio delegation about the scope of the bill, it 
changed its views in its April 16 edition. See Appendix B hereto. 
Other newspapers agreed. See id.

19 Indeed, Dred Scott sued his former master Sanford for “ tres­
pass vi et armis" (trespass with force and arms) for assaulting 
him, his wife, and his two children by holding them as slaves in



17
As for the abuses suffered by the former slaves in their 

contractual affairs, those too could be remedied by both the 
right to contract and to sue. Thus petitioner tells us that 
where “ contracts agreed to by the land owners contained 
fair terms, the employers frequently broke them.” Pet. 
Brief at 22. However, the slaves could now sue for breach 
of contract, a right which they did not have as slaves. Other 
abuses such as “ defrauding of wages,” “ extortion,” and 
the like could also be addressed under common law rem­
edies for fraud. Contracts made under duress and so 
forth could be voided under contract law since there was 
no voluntary “ meeting of the minds.” Forcing a freed- 
man to work and then not paying him would subject the 
employer to a suit for quantum meruit. As for disparate 
treatment of the workers, petitioner states that “ [b] y 
far the most widespread abuse was the beating or whip­
ping of black workers.” Pet. Brief at 35. Here again, 
recourse was now available under tort law for assault 
and battery.

Accordingly, the remedy for the private abuses suffered 
by the freed slaves flowed from the legal capacities de­
clared in Section 1, leaving Section 2 of the Act to provide 
criminal penalties against state officials. Civil actions 
could also be taken against state officials for violation of 
the rights in Section 1, including the right to equal pro­
tection provided therein.20

Missouri. Sanford claims he was free when he was taken to Illinois, 
a free state, and remained so upon his return to Missouri. Dred 
Scott v. Sanford, 112 How. 392 (1856). The Court ruled against 
Scott on two separate grounds, the first being that Dred Scott was 
not a citizen of Missouri and thus did not have the legal capacity 
to sue in the first place. Id. at 427.

20 As previous noted, supra note 13, Congress was able to make 
itself clear when it was proscribing private conduct as well as 
providing private rights of action against wrongdoers. See also 
S.232 (introduced by Senator Doolittle on March 27, 1866 to enforce 
13th Amendment) including a provision in § 4 for civil suit 
against private wrongdoers to “recover the sum of one thousand



18
If petitioner is correct that Congress primarily in­

tended to ban private discrimination and provide a civil 
cause of action in federal court for discriminatory and 
abusive treatment of the freedmen on the job, where are 
all the lawsuits that one would expect to have flooded the 
courts by the abused freedmen? There is not a single 
lawsuit that petitioner can point to where the abuses she 
recounts have been adjudicated. Surely, these abuses did 
not automatically discontinue the day after the law was 
passed, and are now only rearing their heads 100 years 
later. Indeed, an examination of the litigation that en­
sued following passage of the 1866 Act supports amici’s 
interpretation of the “ right to contract” clause.

The very first suit filed involving the new Civil Rights 
Act was instituted on April 11, 1866, just two days after 
its passage. In Barnes v. Browning, (unreported) a 
Negro had sued his employer for wages in Indiana state 
court, but the employer defended by arguing that In­
diana’s Constitution barred Negro immigration and de­
clared null and void all contracts made with such persons, 
and that a state law stated such persons could not 
make or enforce contracts. See Flack, The Adoption of 
the Fourteenth Amendment 47-48 (1908). The court 
ruled that the Indiana Constitution and statute which 
incapacitated the Negro was void under the first section 
of the Civil Rights Act. Id. The first decision by the 
highest state court applying this law came shortly there­
after and also was rendered in Indiana. The Indiana Su­
preme Court ruled that a Negro could sue on a promissory 
note, striking down the laws incapacitating the black to 
make contracts. Smith v. Moody, 26 Ind. Rep. 299 (1866).

Petitioner highlights In re Turner, 24 Fed. Cas. 837, 
1 Abb. 84 (1867) as significant because it was a civil 
suit brought against a white employer for failing to in-

dollars, in addition to all damages sustained by such person, to­
gether with the costs of the prosecution” ). Neither the Civil Rights 
Act of 1866 nor Section 1981 refers to such type of actions.



19
elude certain benefits in the indenture contract that the 
State of Maryland required to be provided in the iden- 
ture contracts for whites. Pet. Brief at 10, n.4. The 
petitioner cites Chief Justice Chase, sitting as Circuit 
Justice, as holding that the indenture violates “ the first 
section of the civil rights law enacted by Congress on 
April 9, 1866.” Id. In this instance, the petitioner ne­
glected to use an ellipsis, for there is a comma after 
“ 1866” and the rest of the sentence reads: “which assures 
to all citizens without respect to race or color ‘full and 
equal benefit of all laws and proceedings for the security 
of persons and property as is enjoyed by white citizens.’ ” 
24 Fed. Cas. at 339. Thus, this habeas corpus action had 
the effect of striking down the discriminatory state law, 
and did not discuss the contract clause of the statute.

To be sure, there were suits filed by blacks against 
common carriers, hotels, and so forth for refusing to admit 
them, or for giving them second-class accommodations 
when they paid for first-class, and some of those suits were 
successful. See Foner Brief at 21. But none of these 
cases, as far as amici has been able to determine, dis­
cussed the contract clause of Section 1 of the Civil Rights 
Act of 1866. A better explanation of these cases is that 
under the common law, public carriers and inns had a 
duty to provide service to all who tendered the required 
fare or rate. In that regard, they functioned as state 
actors and were not considered private persons. See 
Cong. Globe, 43d Cong., 1st Sess. 412 (Cong. Lawrence).

In other cases, there may have been state laws that 
provided for disparate treatment, or there may have been 
laws that provided for equal treatment but which were 
not being followed by the carrier. See, e.g., The West 
Chester and Philadelphia Railroad Company v. Myers, 100 
Pa. 209, 215 (1867) (referring to Pennsylvania’s “Act of 
March 1867, declaring it an offense for railroad com­
panies to make any distinction between passengers on 
account of race or color” ). Suits may also have been



filed simply on the grounds of breach of contract or 
bailment.

In any event, the Civil Rights Act of 1866 was not 
universally understood to provide a cause of action in 
these situations, for it was not until Congress passed the, 
Civil Rights Act of 1875, 18 Stat. 335 (1875), that it 
prohibited discrimination by public accommodations, thea­
ters, inns, and so forth. See Avins, The Civil Rights Act 
of 1875: Some Reflected Light on the Fourteenth Amend­
ment and Public Accommodations, 66 Colum. L. Rev. 873 
(1966). Even Senator Trumbull, who sponsored the Civil 
Rights Act of 1866, felt that Congress had no authority 
to legislate in this area. Cong. Globe, 42 Cong., 2d Sess. 
3190. In the notorious Civil Rights Cases, the Supreme 
Court agreed. 109 U.S. (1883).

II. STARE DECISIS CONCERNS DO NOT COMPEL 
ADHERENCE TO RUNYON.

Stare decisis is a judicially created doctrine that is 
used by the courts to justify their refusal to overrule 
erroneous decisions. The underlying principle of that doc­
trine seems to be that stability in the law and the reli­
ance placed on erroneous decisions are preferable to cor­
recting judicial mistakes. As Justice Brandeis observed, 
“ [I]t is more important that the applicable rule of law 
be settled than that it be settled right. . . . ” Burnet v. 
Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932). This 
observation is an overstatement since this Court does not 
blindly adhere to stare decisis; otherwise, no decision 
would ever be reversed.

Although it is generally stated that the Court is more 
likely to correct erroneous constitutional decisions than 
statutory decisions since the latter can be more easily 
corrected by Congress, the fact is that this Court has 
frequently overruled many of its statutory cases. Since 
1961 alone, this Court has overruled or materially modi­
fied statutory precedents more than 80 times. See Esk­

20



21
ridge, Overruling Statutory Precedents, 76 Geo. L.J. 1361 
(1988).

Amici submit that the stare decisis concerns articu­
lated by the petitioner in this case are not compelling 
and that neither stability in the law nor legitimate reli­
ance interests are served by adhering to Runyon.

A. Runyon Does Not Bring Stability To The Law.

Even though he believed that Runyon and Jones v. Al­
fred H. Mayer Co. were wrongly decided, Justice Stevens 
concurred in the former out of an “ interest in stability 
and orderly development of the law,” and because of his 
belief that the “ mores of today” dictate liberal construc­
tion of civil rights statutes. 427 U.S. at 189, 191. Jus­
tice Stevens also cited Justice Cardozo’s remarks that the 
“ labor of judges would be increased almost to the break­
ing point if every past decision could be reopened in 
every case, and one could not lay one’s own course of 
bricks on the secure foundation of the courses laid by 
others who had gone before him.” Id., citing B. Cardozo, 
The Nature of the Judicial Process 149 (1921).21

Amici submit, however, that this interest in stability 
and settled law is not compelling in this case precisely 
because the erroneous interpretation given Section 1981 
has been unsettling and marked by instability. The peti­
tioner in this case is asking this Court to lay yet another 
course of bricks on a foundation built on sand. When 
the Court recently decided to consider whether Runyon 
should be “modified or overruled,”  it did so “ in light of 
the difficulties posed by petitioner’s argument for a fun­
damental extension of liability under 42 U.S.C. § 1981.” 
Patterson v. McLean Credit Union, 108 S.Ct. 1419

21 Cardozo, however, was writing in 1921 about stare decisis in 
the context of common law, not statutory law, where fidelity to 
judge-made law as precedence has more application. See generally 
Cooper, Stare Decisis: Precedent and Principle in Constitutional 
Adjudication, 73 Cornell L.R. 401 (1988); Maltz, The Nature of 
Precedent, 66 N.C. L. Rev. 367 (1988).



22

(1988). Nothing in the briefs filed by the petitioner or 
her supporting amici address these serious concerns of 
the Court. Rather, the briefs focus on the general as­
pects of the stare decisis doctrine.

As amici noted earlier, supra n.3, the petitioner’s at­
tempt to bring her case within the language of Section 
1981 is premised on the fiction that her single contract 
at will is a series of multiple contracts made each work 
day. Other judges are experiencing difficulties in apply­
ing Runyon in other contexts as well. For example, 
in Bhandari v. First National Bank of Commerce, 829 
F.2d 1343 (5th Cir. 1987), an alien brought suit against 
a bank for refusing to issue him a credit card partly 
because he was not a United States citizen. The alien 
sued under Section 1981 claiming that the bank refused 
to enter into a contract for credit with him. In an en 
banc decision, a majority of the court declined to apply 
Runyon to aliens (even though § 1981 applies to all “per­
sons” ) stating:

For the reasons expressed by Justice White in his 
McCrary dissent, and echoed by most observers who 
take the view that words have an ascertainable 
meaning, it seems to us beyond serious dispute that 
the reasoning in Jones and McCrary cannot stand 
of its own force.

Id. at 1349.

Further unresolved is the reach of Section 1981 into 
the countless private contracts made every day. Employ­
ment contracts include a number of personal relation­
ships voluntarily entered into between parties. As Jus­
tice White stated in his dissent, “a racially motivated 
refusal to hire a Negro or white babysitter”  would sub­
ject the parents to liability under Runyon’s reading of 
Section 1981. 427 U.S. at 211. Amici, and no doubt the 
petitioner as well, do not share Justice Powell’s observation 
in Runyon that while the private school in that case is 
“clearly” covered under Section 1981, a “kindergarten



23

and music school . . . are clearly on other side.”  There 
is nothing clear about it.

Furthermore, since § 1981 can be invoked by whites as 
well as by blacks, see McDonald v. Santa Fe Trail Trans­
portation Co., 427 U.S. 273 (1976), one is faced with the 
anomaly, as Justice White described in Runyon, of a 
“ former slaveowner [being] given a cause of action 
against his former slave if the former slave refused to 
work for him on the ground that he was a white man.” 
427 U.S. at 211. Modern day anomalies can be found as 
well. In NAACP v. Claiborne Hardware Company, 458 
U.S. 886 (1982), for example, white merchants, invok­
ing state laws, had sued the NAACP and its local sup­
porters in Claiborne County, Mississippi in 1972 for boy­
cotting their stores and intimidating black customers to 
keep them from patronizing the targeted businesses. This 
Court ruled that recovery could be had for damages that 
were attributed to that part of the boycott that resulted 
in violence, but not for the peaceful aspects of the boy­
cott protected by the First Amendment. Id. at 890.

Under the rationale of Runyon, the plaintiffs in Clai­
borne could have alleged a cause of action under Section 
1981 against the NAACP. After all, by boycotting the 
stores and intimidating others into doing so as well, they 
were refusing to enter into contracts with others because 
of their race. In addition, a cause of action under both 
Sections 1981 and 1982 would clearly have been available 
to the blacks who wanted to patronize the stores but who 
were harassed by the enforcers of the boycott (the “black 
hats” ), id. at 895 (cf. to the “black cavalry”  of 1866), 
had their houses fired upon, id. at 904, (cf. Shaare Tefila 
Congregation v. Cobb, 107 S. Ct. 2019 (1987), and had 
goods purchased in white-owned stores forcefully taken 
away from them. Refusals to contract with U.S. com­
panies that do business with South Africa could subject 
the local governmental units or private organizations 
which have adopted such policies to liability under Sec­
tion 1981.



24

The prospect of having Section 1981 apply to peaceful 
economic boycotts is only one of many examples that 
demonstrates the open-ended and unsetting nature of the 
Court’s decision in Runyon. Section 1981, as interpreted 
in Runyon, would create a cause of action for all racially- 
motivated torts interfering with the enjoyment of any 
kind of contractual rights, whether caused by the other 
contracting party or even by third persons. The issue is 
not whether such results are desirable or undesirable, 
but whether the Congress or the courts should be making 
those policy decisions. Instability and uncertainty in the 
law will continue unless this Court returns to the text 
and original meaning of the statute. See Johnson v. 
Transportation Agency of Santa Clara County, 107 S.Ct. 
1442, 1473 (1987) ( “ substitution of judicial improvisa­
tion for statutory text” in the name of stare decisis pro­
duces not “ stability and order” but rather “ instability 
and unpredictable expansion.” ) (Scalia, J., dissenting).

B. The Reliance Interests Are Not Compelling.

Another factor considered by the Court in deciding 
whether to overrule an erroneous decision is to determine 
whether substantial reliance has been placed on the de­
cision in the form of settled expectations and the growth 
of institutions on that interpretation. This factor is 
related to the stability concern, since it is grounded in 
the notion that people expect stability in the law and 
plan their lives accordingly.22

22 The notion that society expects stability in the law seems to 
be a curious one inasmuch as Congress, who makes the law, is not 
only able to change or modify it, but often does so in many regula­
tory areas which greatly affect the reliance interests of businesses, 
consumers, and taxpayers. Since society has come to expect such 
changes in the law, and often lobbies for or against them, why 
should courts be loathe to change “the law” when in fact, all they 
are doing by reversing an erroneous statutory interpretation is 
simply restoring the law to what Congress intended it to be in the 
first place? Furthermore, if the Court is not hesistant to upset ex­
pectations and stability in the law when it examines the validity



25
Just as Justice Stevens stated in his concurring opin­

ion in Runyon, that “ it is extremely unlikely that reliance 
upon Jones [v. Alfred H. Mayer Co.] has been so exten­
sive that this Court is foreclosed from overruling it,” 
427 U.S. at 190, so too is it unlikely that the reliance on 
Runyon has been so extensive to preclude its modifica­
tion or correction. Since Runyon involves applying Sec­
tion 1981 to prospective contractual rights, there will be 
no upsetting of contracts already made. Breaches in con­
tracts are actionable under normal contract law, and dis­
crimination in employment is extensively covered by Title 
VII and numerous state laws.28

If anything, amici submit that in the area of em­
ployment law, expectations and institutions have been 
established under Title VII and state laws that provide 
for carefully crafted administrative and judicial pro­
cedures to resolve employee disputes, including concilia­
tion provisions. These reliance interests must also be 23

of the consistent exercise of power by the other coordinate branches, 
see, e.g., Immigration and Naturalization Service v. Chadha, 462 
U.S. 919 (1983), it should not be so reluctant to do the same when 
the Court itself oversteps its role and usurps the legislative powers 
of the Congress. Congress should not be continuously pressed into 
service to correct this Court’s mistakes since Congress is faced with 
other pressing problems and a “ docket” no less crowded than this 
Court’s.

23 State laws prohibiting discrimination are in many cases far 
more expansive than federal legislation. See, e.g., Gay Rights Coali­
tion of Georgetown University Law Center v. Georgetown Uni­
versity, 536 A.2d 1 (D.C. Ct. App. 1987) (local human rights law 
requires religious school to provide facilities and assistance to 
homosexual student group despite school’s religious objections). 
Indeed, since Section 1981 originally was directed at the states and 
rooted in concerns of federalism, its non-application to private con­
duct would not make it a dead letter or “nullity” as petitioner sug­
gests. Rather, it would recognize that the primary purposes of 
§ 1981 have been realized and that states are indeed providing pro­
tections well beyond § 1981, as the amici brief filed by the 47 State 
Attorneys General ably demonstrates.



26
taken into account. In addition, Section 1981 allows for 
awards of punitive damages which may be abused.24

C. Congress Has Not Affirmatively Adopted Runyon’s 
Interpretation of Section 1981.

As part of the reliance component of the stare decisis 
argument, petitioner cites a series of legislative develop­
ments in the Congress over the years in the civil rights 
area, and concludes from this chronology that it is “ clear 
that Congress adopted the body of [case] law interpret­
ing sections 1981 and 1982, including application of 
those provisions to the terms and conditions of employ­
ment.” Pet. Brief at 97. Congressional amici support­
ing petitioner similarly assert that “ Congress Has A f­
firmatively Endorsed This Court’s Interpretation of Sec­
tion 1981.” Point III of Amici Brief at 20. Congress 
has done no such thing.

While amici are aware of the general proposition that 
“ Congress is presumed to adopt judicial interpretation 
of a statute when that statute is re-enacted,” Shapiro 
v. United States, 335 U.S. 1, 16 (1948), the fact of the 
matter is that since 1874, Congress has never re-enacted 
Section 1981. Admittedly, Congress has enacted related 
civil rights measures such as the Equal Employment 
Opportunity Act of 1972 and the Civil Rights Attor­
neys’ Fees Awards Act of 1976, in light of judicial in­
terpretations of Section 1981, but there are many reasons 
for Congressional inaction or acquiescence other than an 
agreement with those decisions. As Justice Scalia cor­
rectly observed in his dissent in Johnson v. County of 
Santa Clara:

24 The argument by petitioner and amicus American Bar Associa­
tion that lawyers have relied on Section 1981 in advising their 
clients of possible avenues of relief for alleged discrimination they 
may have suffered is of no consequence. Pet. Brief at 104. If that 
were true, then no case would ever be overturned since presuambly 
lawyers are always advising their clients on what the law is (and 
more likely what the law should be) as embodied in the erroneous 
precedent at the time they gave their advice.



27
The “ complicated check on legislation,” The Fed­

eralist No. 62, . . . erected by our Constitution 
creates an inertia that makes it impossible to assert 
with any degree of assurance that congressional fail­
ure to act represents (1) approval of the status quo, 
as opposed to (2) inability to agree upon how to 
alter the status quo, (3) unawareness of the status 
quo, (4) indifference to the status quo, or even (5) 
political cowardice.

107 S. Ct. at 1473 (1987). See also Cleveland v. United 
States, 329 U.S. 14, 21 (1946) (Rutledge, J., concurring).

For example, the petitioner discusses at length Senator 
Hruska’s proposed amendment in 1972 to the Equal Em­
ployment Opportunity Act amending Title VII of the 
Civil Rights Act of 1964, making Title VII the exclusive 
remedy for employment discrimination. Senator Hruska’s 
amendment was defeated by the Senate after Senator 
Williams and Senator Javits stated, inter alia, that liti­
gants should not be forced to seek remedies in only one 
place when they frequently “ face a large and powerful 
employer.” 118 Cong. Rec. 3372. Shortly before the vote 
was taken, Senator Williams forcefully argued that Mr. 
Hruska’s amendment “will repeal the first major piece 
of civil rights legislation in this Nation’s history. We 
cannot do that.” Id. at 3371.

The vote on Senator Hruska’s amendment was 33 
Yeas, 33 Nays, and 33 not voting. Id. at 3373. This 
evenly split vote in 1972 by one body of the Congress is 
hardly a ringing Congressional endorsement of judicial 
opinions that Section 1981 provides a private cause of 
action, especially since the vote preceded the Supreme 
Court’s decisions in this area. See Johnson v. Railway 
Express Agency, Inc., 421 U.S. 459 (1975), and Runyon, 
decided in 1976. The vote is also of dubious weight since 
some of the negative votes may have been cast on the 
basis of Senator Williams’ erroneous statement that Sen­
ator Hruska’s amendment “would repeal”  Section 1981. 
Senator Hruska’s amendment did not propose to repeal 
1981, but instead provided for alternative rather than



2 8

multiple remedies. See Cong. Rec. at 3173. In addition, 
Senators voting “ nay” may not have wanted to “ repeal” 
a statute that forbade discrimination by public officials, 
or they may have wanted alternative remedies available 
for suits against small companies, but multiple remedies 
against the “ large and powerful employer” contemplated 
by Senator Williams. Since this legislative issue simply 
was not presented cleanly to the Senators, their intent 
cannot be discerned.

On the House side, Congressman Erlenborn offered a 
substitute bill for the bill reported by the House Judi­
ciary Committee. Erlenborn’s bill also contained a pro­
vision making Title VII an exclusive remedy similar 
to Senator Hruska’s amendment. See Pet. Brief at 87. 
That substitute bill passed the House by 200 to 195. 117 
Cong. Rec. 32111. In the Conference Committee, the 
House exclusive remedy provision was dropped, and the 
Equal Employment Opportunity Act of 1972 was passed. 
The final vote for this law can hardly be characterized 
by the petitioner as one where “ Congress endorsed the 
judicial interpretation of section 1981” as applying to 
private employers.

The other major piece of legislation that petitioner 
cites as evidence of Congress’s adoption of Runyon is the 
passage of the Civil Rights Attorneys’ Fees Awards 
Act of 1976. That law was designed to remedy this 
Court’s decision in Alyeska Pipeline Service Co. v. Wild­
erness Society, 421 U.S. 240 (1975) which held that ordi­
narily attorneys’ fees will not be awarded absent explicit 
statutory authorization. The legislation as passed, 42 
U.S.C. § 1988, merely provides that a court may award 
attorneys’ fees as costs for civil actions that might be 
brought under § § 1981-1983, 1985, 1986. Since Section 1983 
already provides for civil actions against state officials, 
petitioner argues that Congress meant the law to apply 
to civil actions brought against private individuals under 
1981. A vote for this measure does not constitute Con­
gressional endorsement of the Runyon decision any more 
than the vote in 1972 on the EEO Act.



29

Congressmen may have voted for the legislative pack­
age because they supported the award of attorneys’ fees 
under sections other than § 1981, but did not want to cast 
a negative vote against the entire bill. Others may have 
felt that the Runyon was wrongly decided, but that if 
Congress was going to allow for attorneys’ fees in all 
these cases, it should be allowed across the board.®1’

If, as we contend, this Court should reverse or modify 
Runyon, Congressional amici supporting respondent are 
prepared to debate and enact whatever legislation is 
necessary to remedy any “gaps” in the law. Indeed, 
with a virtual veto-proof number of Senators support­
ing the petitioner as amici, and a substantial number 
of members of the House of Representatives, any “ gap” 
would surely not go unfilled. While there is a risk that any 
“ remedial” legislation may go far beyond the ruling in 
Runyon, as was done in the aftermath of Grove City Col­
lege v. Bell, 465 U.S. 555 (1984), and thus may cause some 
delay in the legislative process, that is the price one must 
pay if we are to show fidelity to the separation of powers 
and the Constitution which reposes “all legislative Pow­
ers” in the Congress. Art. I, sec. 1.

In contrast, Congressional amici supporting petitioner 
appear all too willing to allow the Court to usurp their 
legislative powers :

The Congress’ primary role in lawmaking under 
the Constitution dictates that any change in the 
meaning of the statute be effected legislatively rather 
than judicially. In exercising its constitutional 
power to legislate, the Congress must be able to rely 
on the stability of the Court’s interpretations of its 
statutes. For this reason, stare decisis . . . operates 
with its greatest strength where a statutory inter­
pretation, such as Runyon, is concerned.

Congressional Brief at 3.

35 While petitioner cites a House Judiciary Committee Report 
discussing Section 1981 cases, the Runyon decision was not listed. 
Pet. Brief at 93.



30

It is especially important that the Court correct 
erroneous decisions that expand the intended scope of 
statutes in areas that generally cover “good govern­
ment” topics such as environmental, civil rights, and 
consumer protection laws, not only because Congress has 
a full calendar already and cannot always deal with 
erroneous decisions, but because of the additional bur­
den placed on the passage of correcting legislation per­
ceived to be “ cutting back” in these areas when the law 
is only being restored to its original meaning. Thus, by 
leaving Runyon intact, the Court would in essence be given 
an incentive to read such statutes broadly rather than na- 
rowly, allowing the law to be amended judicially in one 
direction in a ratchet-like manner. Better for the Court to 
err on the side of judicial restraint and fidelity to the 
statute, such as it did in Grove City, and General Elec­
tric Co. v. Gilbert, 429 U.S. 125 (1976) (ruling that 
Title VII did not cover discrimination based on preg­
nancy) , and thereby allowing the Congress to expand the 
statute’s reach if it chooses, rather than the other way 
around and usurping Congress’ powers.

CONCLUSION
The integrity of and respect for this Court is en­

hanced by following the rule of law. In deciding this 
case, the Court should not succumb to what it perceives, 
either rightly or wrongly, to be the “ mores of the day.” 
For the reasons stated herein, the decision in Runyon v. 
McCrary should be reconsidered, and either be over­
ruled or modified.

Respectfully submitted,

Daniel  J. P opeo
Paul D. K am enar  *
W ashington  Legal F oundation
1705 N Street, N.W.
Washington, D.C. 20036
(202) 857-0240

Date: August 12,1988 * Counsel of Record



la

APPENDIX A

INTERESTS OF AMICI CURIAE

The Washington Legal Foundation ( “ WLF” ) is a 
national nonprofit public interest law center with more 
than 120,000 members and supporters throughout the 
United States, WLF engages in litigation and admin­
istrative proceedings in matters promoting the free 
enterprise system and the economic and civil rights and 
liberties of individuals and businesses.

WLF has a record of longstanding interest and in­
volvement regarding the controversial issues of affirm­
ative action, racial quotas, and reverse discrimination.

In its pursuit of its view that the equal protection 
clause and the civil rights laws protect all citizens 
against discrimination, WLF has filed briefs amicus 
curiae in many of the leading Supreme Court cases in 
the area. See e.g., Firefighters Local No. 1784. v. Stotts, 
467 U.S. 561 (1984) ; United Steelworkers v. Weber, 
443 U.S. 193 (1979); City of Richmond v. Croson, No. 
87-998 (S. CL 1988).

Congressional amici Congressmen Henry Hyde, et al, 
are here to assert and preserve their legislative interests 
under Article 1 of the Constitution. They are concerned 
that the Court has all too often usurped the powers of 
the Congress in adjudicating cases before it, and desire 
to have this Court perform its function under Article 
III by faithfully interpreting the statutes of Congress as 
enacted.

The Lincoln Institute for Research and Education, 
named after Abraham Lincoln, was founded in 1978 to 
study public policy issues that impact on the lives of 
black middle America, and to make its findings available 
to elected officials and the public.

The Institute, based in Washington, D.C., aims to 
reevaluate those theories and programs of the past



2a

decades which were highly touted when introduced, but 
have failed to fulfill the claims represented by their 
sponsors— and in many cases, have been harmful to the 
long-range interest of blacks. The Institute is dedicated 
to seeking ways to improve the standard of living, the 
quality of life and the freedom of all Americans, and 
has also appeared as amicus in City of Richmond v. 
Croson.

Amicus the Allied Educational Foundation (AEF) is 
a non-profit charitable and educational foundation based 
in Englewood, New Jersey. Founded in 1964, AEF is 
dedicated to promoting education in diverse areas of 
study such as history, law, and public policy, and has 
appeared as amicus in this Court on several occasions in 
cases involving individual rights.



3a

APPENDIX B

Cincinnati Commercial, April 16, 1866 (p. U)

“ The Civil Rights Bill reduced to the facts and adapted 
for practice does not seem to have the portentous propor­
tions which it assumed in theory while under discussion. 
Congressmen who support it declare that it has no opera­
tion whatever in three-fourths of the loyal States (in­
cluding Ohio) and none in three or four of the rebel 
States, that it does no more than our military com­
manders are doing in the Southern States where the 
Black Codes are unrepealed and is intended a law simply 
authorizing to be done what the President is doing. A 
few months experience will develop the scope and bearing 
of this measure and possibly may go far to settle the 
differences between the President and Congress by show­
ing that they were in many particulars unsubstantial.”

Philadelphia North American, April 10, 1866 (p. 1, col. 1)

“ It secures to all such, without any distinction of race 
or color, the right to testify in courts of justice, or in 
law proceedings of any kind; to sue and be sued; to plead 
and to be impleaded; to hold property; to conduct busi­
ness; to be free from outrage in person or property, and 
to enjoy all the liberties peculiar to our institutions ex­
cept suffrage. This does not, however, include any right 
to sit on juries or to hold office, or to go in any car, 
coach, hotel, church, public place, etc., where the local 
regulations prohibit it. It, in fact, is only a law to pro­
tect the rights of persons and property. It does not 
undertake to deal with political rights at all, nor does 
it meddle with the social position of any race or class.”