Patterson v. McLean Credit Union Brief on Reargument Amicus Curiae

    *



TABLE OF CONTENTS

Page

Table Of Au t h o r it ie s .......................................  u

Consent Of Parties ...........................................  2

Interest Of Amicus Curiae .............................  2

Summary Of Ar g u m e n t ....................................  3

Argument .............................................................  5

I. Runyon v. McCrary Should Not Be
Overruled ..................................................  5

II. Petitioner’s Racial Discrimination 
Claim Does Not Call for A Fun­
damental Extension of Liability
Under Section 1981   18

Co n c l u sio n .............................................................  20



TABLE OF AUTHORITIES
Page

Cases:

Ahrens v. dork, 335 U.S. 188 (1948) ..............  17

Alyeska Pipeline Serv. Co. v. Wilderness 
Soc'y, 421 U.S. 240 (1975) ............................ 15

Andrews v. Louisville & Nashville R.R.,Co.,
406 U.S. 3 2 0 (1 9 7 2 ).................................. ... . 18

Arizona v. Rumsey, 467 U.S. 203 (1984) . . . .  3, 10

Atascadero State Hosp. v. Scanlon, 473 U.S.
234 (1 9 8 5 ) ........................................................... 10

Boys Markets, Inc. v. Retail Clerks Union, 398 
U.S. 2 3 5 (1 9 7 0 ) ................................................  11,17

Braden v. 30th Judicial Circuit Court o f Ken­
tucky, 410 U.S. 484 (1 9 7 3 )...............................  17

Brown v. Board o f Educ., 347 U.S. 483 (1954) 4

Chapman v. Houston Welfare Rights Org., 441 
U.S. 6 0 0 (1 9 7 9 ) ................................................  9

City o f Mobile v. Bolden, 446 U.S. 55 (1980) . . 12

Continental T.V., Inc. v. GTE Sylvania, Inc.,
433 U.S. 36(1977) .........................................  10,17

Firefighters Inst, for Racial Equality v. City of 
St. Louis, 549 F.2d 506 (8th Cir.), cert, 
denied sub nom. Bant a v. United States, 434 
U.S. 8 1 9 (1 9 7 7 ) ................................................  18

Florida Dep’t o f Health & Rehabilitative Servs. 
v. Florida Nursing Home Ass’n, 450 U.S.
147(1981) . . .................................................... 7

Garcia v. San Antonio Metro. Transit Autho.,
469 U.S. 528 (1985) ......................................  4

-ii-

P«ge

General Bldg. Contractors Ass’n, Inc. v. Penn­
sylvania, 45* U.S. 315 ( m i )  . . . . . . . .  8 ,9

General Elec. Co. v. Gilbert, 429 U.S. 125
(1976) ..............................................................  12, 13

Goodman v. Lukens Steel Co., 107 S. Ct. 2617 
(1 9 8 7 ) ..................................................... 8, 19

Gordon v. Ogden, 28 U.S. (3 Pet.) 32 (1830) . . 10

Gray v. Greyhound Lines, East, 545 F.2d 169 
(D.C. Cir. 1 9 7 8 ) ........................................  19

Griggs v. Duke Power Co., 401 U.S. 424 
(1971) ..............................................................  9

Grove City College v. Bell, 465 U.S. 555 
(1 9 8 4 ) .........................................................  12

Guardians Ass’n v. Civil Serv. Comm'nofNew
York , 463 U.S. 582 (1983) ............................ 11

Illinois Brick Co. v. Illinois, 431 U.S. 720
(1 9 7 7 )  ................................................................ 10

International Union, Local 232 v. Wisconsin 
Employment Relations Bd., 336 U.S. 245 
(1 9 4 9 ) .................................................................  17

Johnson v. Railway Express Agency, Inc., 421
U.S. 454 ( 1 9 7 5 ) ................................................  passim

Jones v. Alfred H. Mayer Co., 392 U.S. 409 
(1968) ..............................................................  13, 16

Lodge 76, International Ass'n o f Machinists v.
Wisconsin Employment Relations Comm’n,
427 U.S. 132 (1976) ......................................  17

Martinez v. Oakland Scavenger Co., 680 F.
Supp. 1377 (N.D. Cal. 1987) ........................  19

McDonald v. Santa Fe Trail Transp. Co., 427 
U.S. 273 ( 1 9 7 6 ) ................................................  9, 15

-iii-



McNally v. Hill, 293 U.S. 131 (1 9 3 4 ).................  15

Meritor Savings Bank v. Vinson, 106 S. Ct.
2399 ( 1 9 8 6 ) .......................................................  19

Monell v. Department o f Social Servs. o f New
York, 436 U.S. 658 (1 9 7 8 ) ...............................  4, 11, 16

Monroe v. Pape, 365 U.S. 167 (1961) ..............  16

Moore v. Illinois Central R.R. Co., 312 U.S.
630(1941) .......................................................  18

Moragne v. State Marine Lines, 398 U.S. 375 
(1970) .................................................................  6

Oklahoma City v. Tuttle, 471 U.S. 808 (1985) 10

Papasan v. Allain, 478 U.S. 265 (1986) . . . .  10

Patterson v. McLean Credit Union, 108 S. Ct.
1419 ( 1 9 8 8 ) .......................................................  3, 16,18

Peyton v. Rowe, 391 U.S. 54 (1968) .................  18

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

Saint Francis College v. Al-Khazcaji, 107 S.
Ct. 2022 (1987) ..........................................  8, 9

Sears, Roebuck A Co. v. San Diego County 
Disl. Council o f Carpenters, 436 U.S. 180
(1978) .................................................................  3

Sinclair Refining Co. v. Atkinson, 370 U.S. 195
(1962)   17

Square D Co. v. Niagara Frontier Tariff 
Bureau, 476 U.S. 409 (1986) ........................  5,11

Tillman v. Wheaton-Haven Recreation Ass'n,
Inc., 410 U.S. 431 (1973) .............................. 15, 16

United States v. Arnold, Schwinn A Co., 388 
U.S. 365 ( 1 9 6 7 ) ................................................  I7

P«ge

-IV

Page

United States v. South Buffalo R.R. Co., 333 
U.S. 771 ( 1 9 4 8 ) ............................................. '• 10

Welch v. Texas Dep’t o f Highways A Pub.
Transp., 107 S. Ct. 2941 ( 1 9 8 7 ) .....................  10

Young v. l.T. A T. Co., 438 F.2d 757 (3d Cir.
1971) ..................................................................  I9

STATUTES:

Civil Rights Act of 1866, 42 U.S.C. § 1981 
(1 9 8 2 ) ....................................................................  passim

Civil Rights Act of 1964, Title VII, 42 U.S.C.
§ 2000e et seq. ( 1 9 8 2 ) .......................................  passim

Civil Rights Attorney’s Fees Award Act of 
1976, Pub. L. No. 94-559, 90 Stat. 2641 
(1976), codified as amended at 42 U.S.C.
§ 1988(1982)   I4. 15

Civil Rights Restoration Act of 1987, Pub. L.
No. 100-259, 102 Stat. 28 (1988) .................. 12

Education Amendments of 1972, Pub. L. No.
92-310, 86 Stat. 235 (1972), codified at 20 
U.S.C. § 1681 (1982)   12

Pregnancy Discrimination Act, Pub. L. No. 95- 
555, 92 Stat. 2076 (1978), codified as 
amended at 42 U.S.C. § 2000e-2(k) (1982) 12

Voting Rights Act of 1965, § 2, 42 U.S.C.
§ 1973(1982)   I2

Voting Rights Act Amendment of 1982, Pub.
L. No. 97-205, 96 Stat. 131 (1982), codified 
as amended at 42 U.S.C. § 1973 (1982) . . .  12

LEGISLATIVE MATERIALS:

118 Cong. Rec. 3368-71 (1972)   13

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Page

Civil Rights Attorney’s Fees Award Act o f1976,
S. Rep. No. 1011, 94th Cong., 2d Sess., 
reprinted in 1976 U.S. Code Cong. &
Admin. News 5900   15

Civil Rights Attorney's Fees Award Act o f1976,
H.R. Rep. No. 1558, 94th Cong., 2d Sess.
(1976)   15

Equal Employment Opportunities Enforcement 
Act o f 1971, H.R. Rep. No. 238, 92d Cong.,
2d Sess., reprinted in 1972 U.S. Code Cong.
A Admin. News 2137   14

Pregnancy Discrimination Act o f 1978, H.R.
Rep. No. 948, 95th Cong., 2d Sess., 
reprinted in 1978 U.S. Code Cong. A 
Admin. News 4749   13

Voting Rights Act Amendments o f1982, S. Rep.
No. 417, 97th Cong., 2d Sess., reprinted in 
1982 U.S. Code Cong. A Admin. News 177 12

Other Authorities:

B. Cardozo, The Nature o f the Judicial Process
(1921) .................................................................. 6

A. Cox, The Court and the Constitution (1987) 7

A. Cox, The Role o f the Supreme Court in 
American Government (1976)   7

A. Goldberg, Equal Justice: The Warren Era of 
the Supreme Court (1971)   6

C. Hughes, The Supreme Court o f the United 
States (1 9 2 8 ).......................................................  7

Levy, Posner Portrays Judges as Decoders,
Harv. L. Rec., Nov. 21, 1986, at 5 .................  7

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Page

Maltz, Some Thoughts on the Death o f Stare 
Decisis in Constitutional Law, 1980 Wis. L.
Rev. 467 ..............................................................  8

Monaghan, Stare Decisis and Constitutional 
Adjudication, 88 Colum. L. Rev. 723 (1988) 6, 8, 9

Note, Is Section 1981 Modified by Title VII o f 
the Civil Rights Act o f1964?, 1970 Duke L.J.
1223 .....................................................................  9

Pound, What o f Stare Decisis?, 10 Fordham L.
Rev. 1(1941)   3 ,4 ,8

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No. 87-107

IN THE

Supreme Court of the United States
October term 1987

BRENDA PATTERSON,

V.

McLean Credit Union,

Petitioner,

Respondent.

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

BRIEF ON REARGUMENT FOR THE LAWYERS’ 
COMMITTEE FOR CIVIL RIGHTS UNDER LAW AS 

AMICUS CURIAE IN SUPPORT OF PETITIONER



2

CONSENT OF PARTIES

Petitioner and respondent have consented to the filing of 
this brief, and their letters of consent are being filed separate­
ly herewith.

INTEREST OF AMICUS CURIAE

The Lawyers’ Committee for Civil Rights Under Law 
(“Lawyers’ Committee”) is a nationwide civil rights organ­
ization that was formed in 1963 by leaders of the American Bar, 
at the request of President Kennedy, to provide legal repre­
sentation to Blacks who were being deprived of their civil 
rights. The national office of the Lawyers’ Committee and its 
local offices have represented the interests of Blacks, Hispanics 
and women in hundreds of class actions relating to employment 
discrimination, voting rights, equalization of municipal ser­
vices and school desegregation. Over one thousand members 
of the private bar, including former Attorneys General, former 
presidents of the American Bar Association and other leading 
lawyers, have assisted the Lawyers’ Committee in such efforts.

Amicus has a direct interest in the law governing the con­
struction and application of the civil rights statutes. Amicus 
and its clients litigate under these statutes regularly and thus 
have a substantial incentive to prevent diminution of the 
statutes’ powers as sources of redress for civil rights violations.

The Lawyers’ Committee has a particularly strong inter­
est in preserving the section 1981 anti-discrimination rights 
recognized by this Court in Runyon v. McCrary, 427 U.S. 160 
(1976). The Washington Lawyers’ Committee represented Mc­
Crary in that case and urged the result reached by the Court. 
Since that time, the Lawyers’ Committee has been involved in 
many section 1981 cases and views that statute, as interpreted 
in Runyon, as essential in the battle against discrimination.

Amicus submits this brief to emphasize the view that, even 
if a majority of this Court were now to conclude that Runyon 
was incorrectly decided, it should not be overruled under es­
tablished principles of stare decisis. That is so especially consi­
dering “congressional agreement” with the result, Runyon, 427 
U.S. at 175, and its complete consistency with the anti-dis­
crimination “mores of [tojday”, /</. at 191 (Stevens, J.,concur­

3

ring) (citing Justice Cardozo). Consideration must also be 
given to the serious harm overruling Runyon would cause to 
many pending cases in the lower courts and to the future 
enforcement of civil rights under law.

SUMMARY OF ARGUMENT

twelve years ago this Court held in Runyon v. McCrary 
that 42 U.S.C. § 1981 prohibits private, commercially 
operated, non-sectarian schools from discriminating on the 
basis of race, and therefore that section 1981 “reaches purely 
private acts of racial discrimination”. 427 U.S. at 170.

This Court now asks “(wjhether or not the interpretation 
of 42 U.S.C. § 1981 adopted by this Court in Runyon v. Mc­
Crary should be reconsidered?” Patterson v. McLean Credit 
Union, 108 S. Ct. 1419, 1420 (1988) (citation omitted). The 
answer is no.

For the reasons set forth by the majority and concurring 
opinions in Runyon, and those set forth in the 1976 Lawyers’ 
Committee Brief for Respondent McCrary, the Lawyers’ Com­
mittee believes that the legislative history of the 1866 Civil 
Rights Act and the doctrine of stare decisis overwhelmingly 
support the result reached in Runyon. There is, therefore, in 
the Lawyers’ Committee’s view, no cause or reason to recon­
sider the interpretation of section 1981 adopted by the Court in 
Runyon. Moreover, stare decisis, itself a fundamental basis for 
the majority and concurring opinions in Runyon, counsels even 
more strongly now than it did in 1976 against overruling this 
important statutory precedent.

Unless a prior decision is “‘flatly’ unjust”1 or “disserves 
important interests”,2 stare decisis constrains this Court from 
reconsidering statutory precedent. For stare decisis not to 
apply, there must be “special justification”,3 for “[o]nly the

1 Pound, What of Stare Decisis?, 10 Fordham L. Rev. 1,6(1941).

2 Sears, Roebuck A Co. v. San Diego County Dist. Council of Car­
penters, 436 U.S. 180, 216 (1978) (Brennan, J., dissenting).

* 3 Arizona v. Rumsey, 467 U.S. 203, 212 (1984).



4

most compelling circumstances can justify this Court’s 
abandonment o f . . .  firmly established statutory precedent!]”.

Dean Pound expressed his view on this point a half cen­
tury ago:

“[N]othing less than an overriding conviction that a 
precept fixed by a prior decision was contrary to the prin­
ciples of the law so that it had an ill effect upon the process 
of determining new questions by analogical reasoning and 
was, as Blackstone puts it, ‘flatly’ unjust in its results, 
could justify judicial rejection of it.”

Whether or not Runyon was correctly decided twelve years ago, 
it is not so “contrary to the principles of the law so that it [has] 
had an ill effect upon the process of determining new questions 
by analogical reasoning”. Nor could anyone seriously argue 
today that the decision in Runyon is “‘flatly’ unjust in its 
results” . Runyon’s recognition of an unquestionably consti­
tutional statutory right to be free from private racial discrimina­
tion cannot be deemed a “‘flatly’ unjust” result.

Other fundamental stare decisis considerations also weigh 
heavily against overruling Runyon. First, this Court has 
repeatedly and recently reaffirmed the Runyon holding, there­
by directly implicating the purposes of stare decisis—consis­
tency, predictability and stability—values central to the very 
concept of the rule of law. Second, Runyon is statutory prece­
dent. This Court has long recognized that it is most bound by 
stare decisis when reconsidering statutory precedent, especial­
ly in a case such as Runyon, where Congress explicitly endorsed 
that precedent only four months after it was handed down by 
passage of the Civil Rights Attorney’s Fees Award Act of 1976. 
See infra at 14-16.

This is not a case where the Court is called upon to ad­
dress asserted error of constitutional dimension as in Brown v. 
Board o f Education, 347 U.S. 483 (1954), and Garcia v. San 
Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), 4 5

4 MoneU v. Department of Social Servs. of New York, 436 U.S. 658, 
715 (1978) (Rehnquist, J., dissenting).

5 Pound, supra note 1, at 6 (emphasis added).

5

where effective congressional action may be difficult or impos­
sible. Rather, this Court’s interpretation of the federal civil 
rights laws, and section 1981 in particular, is “an area that has 
seen careful, intense, and sustained congressional attention”. 
Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 
409, 424 (1986).

«Lastly, nothing in the circumstances of the petitioner’s 
claim in this case could in any event justify overruling Runyon. 
Petitioner’s racial harassment claim states a cause of action 
under section 1981.

ARGUMENT

I. RUNYON v. McCRARY SHOULD NOT BE OVER­
RULED

Twelve years ago, our local affiliate, the Washington 
Lawyers’ Committee for Civil Rights Under Law, represented 
Michael McCrary before this Court. In our brief to this Court 
in February 1976, we argued that “[t]he court of appeals was 
plainly correct in holding that plaintiffs’ rights guaranteed by 
42 U.S.C. Sec. 1981 were violated as a result of the racially 
discriminatory admission policies of the defendant schools”.

Twelve years ago seven members of this Court agreed that 
section 1981 barred private acts of discrimination, expressing 
the view that the result in Runyon itself followed from “well- 
settled principles of stare decisis applicable to this Court’s con­
struction of federal statutes”. Runyon, 427 U.S. at 175; see 
also id. at 186-89 (Powell, J., concurring); id. at 189-92 
(Stevens, J., concurring).

In the interim, has anything happened which could or 
should change the Court’s result on solely the stare decisis 
issue, fully litigated in Runyon itself? Since 1976, has there 
been a change in the anti-discrimination “mores of [the] day” 
that Justice Stevens found to support the result in RunyonT Has 6 7 *

6 Brief for the Respondents, Runyon v. McCrary, Nos. 75-62, 75- 
66 and 75-278, p. 13.

7 Runyon, A ll U.S. at 191 (Stevens, J., concurring) (citing Justice
Cardozo).



6

there been any indication from Congress which would change 
what Justice Stewart concluded, writing for the Court in 
Runyon: “There could hardly be a clearer indication of congres­
sional agreement with the view that 5 1981 does reach private 
acts of racial discrimination”? Id. at 174t75.

Each of these questions must be answered flatly and une­
quivocally no. This Court correctly decided Runyon in 1976 
and it remains correct today. Runyon has become an important 
part of the fabric of civil rights law enforcement in this country. 
For Runyon to be overruled at this point, it would necessarily 
be true that “stare decisis seemingly operates with the random­
ness of a lightning bolt: on occasion it may strike, but when 
and where can be known only after the fact”.

That would be a deplorable result. As Justice Cardozo 
recognized over a half-century ago:

“One of the most fundamental social interests is that law 
shall be uniform and impartial. There must be nothing in 
its action that savors of prejudice or favor or even ar­
bitrary whim or fitfullness. . . .  [T)here shall be adherence 
to precedent.”9

Similarly, Justice Harlan, writing for the Court in 
Moragne v. Slate Marine Lines, 398 U.S. 375 (1970), em­
phasized the importance of stare decisis10 to an ordered society:

“Very weighty considerations underlie the principle that 
courts should not lightly overrule past decisions. Among 
these [is] the desirability that the law furnish a clear guide 
for the conduct of individuals, to enable them to plan their 
affairs with assurance against untoward surprise

Id. at 403.

8 Monaghan, Stare Decisis and Constitutional Adjudication, 88 
Colura. L. Rev. 723.743 (1988).

9 B. Cardozo, The Nature of the Judicial Process 112(1921).

10 Stare decisis is derived from the Latin phrase stare decisis el non 
quielo movere, which means “let the decision stand and do not disturb things 
which have been settled". A. Goldberg, Equal Justice: The Warren Era of 
the Supreme Court 74 (1971)

Overruling precedent, especially recent precedent, 
Professor Archibald Cox wrote, “undermine[sj the belief that 
judges are not unrestrainedly asserting their individual or col­
lective wills, but following a law which binds them as well as 
the litigants”.11 More recently, Professor Cox concluded:

“The future of judicial review probably depends in good 
jmeasure on whether the view that law is only policy made 
by courts carries the day in the legal profession, or 
whether room is left for the older belief that judges are 
truly bound by law both as a confining force and as an 
ideal search for reasoned justice . . . . 2 13

Justice Stevens, declining to argue for overruling a prior 
decision which he believed may have been erroneously decid­
ed, summarized:

“Of even greater importance, however, is my concern 
about the potential damage to the legal system that may be 
caused by frequent or sudden reversals of direction that 
may appear to have been occasioned by nothing more 
significant than a change in the identity of this Court’s 
personnel.”

Florida Dep’t o f Health & Rehabilitative Servs. v. Florida 
Nursing Home Ass’n, 450 U.S. 147, 153 (1981) (concurring 
opinion) (footnotes omitted).

Recently, Judge Posner observed that failure to follow 
precedent undermined the legitimacy of the federal judiciary by 
weakening popular acceptance of the force of judicial 
decisions. Chief Justice Hughes expressed the same view 
sixty years ago, stating: “Stability injudicial opinions is of no 
little importance in maintaining respect for the Court’s 
work”.14

11 A. Cox, The Role of the Supreme Court in American Government 
50(1976).

12 A. Cox, The Court and the Constitution 377 (1987).

13 Levy, Posner Portrays Judges as Decoders, Harv. L. Rec., 
Nov. 21, 1986, at 5, 13.

14 C. Hughes, The Supreme Court of the United Slates 53 (1928).



8

For these reasons, even if a majority of this Court should 
now conclude that Runyon was incorrectly decided, it should 
not be overruled. As Professor Monaghan wrote:

“Even an ‘overriding conviction’ of prior error is not 
enough; the precedent must have some palpable adverse 
consequences beyond its existence.”15 16

This basic principle of stare decisis should control the 
result here. First, Runyon is not so “contrary to the principles 
of the law” that it has had “an ill effect upon the process of 
determining new questions by analogical reasoning”. Since 
Runyon, this Court has held repeatedly that section 1981 
reaches private conduct, see Goodman v. Lukens Steel Co., 107 
S. Ct. 2617 (1987); Saint Francis College v. Al-Khazraji, 107 
S. Ct. 2022 (1987); General Bldg. Contractors Ass’n, Inc. v. 
Pennsylvania, 458 U.S. 375 (1982); and in no decision since 
Runyon has any member of this Court suggested that the 
“precept fixed” by that decision is somehow “contrary to prin­
ciples of law” or that it has “had an ill effect” upon determin­
ing new questions.

Nor, moreover, could this Court reasonably conclude that 
Runyon was “‘flatly’ unjust in its results”,17 for Runyon is 
neither inconsistent with related laws nor has it led to unforesee­
able, unjust results.18 The Runyon decision upheld “the mores 
of (its] day". Id. at 191 (Stevens, J., concurring) (quoting Jus­

ts  Monaghan, supra note 6, at 758 (quoting Pound, supra note 1, 
at 6). Similarly, Professor Maltz noted:

“|R]eaching . . .  a conclusion that a prior case is erroneous is only 
the first step in deciding to override that case. In making the decision, 
the justice must be sensitive to the tangible and intangible problems 
involved when a precedent is abandoned. Only if these problems are 
outweighed by the benefits to be derived from the new doctrine to be 
adopted should the Court abandon stare decisis in a particular case."

Maltz, Some Thoughts on the Death of Stare Decisis in Constitutional Law, 
1980 Wis. L. Rev. 467, 493 (footnote omitted).

16 Pound, supra note 1, at 6.

17 Id.
18 For example, section 1981 overlaps largely with Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. } 2000e et seq. (“Tide VII"), although
the two statutes differ in both scope and application. Tide VII prohibits

y

tice Cardozo). Runyon remains completely consistent with the 
mores of the present day which find racial discrimination ab­
horrent. When presented with the issue, every Justice on this 
Court has joined opinions affirming Runyon's holding that sec­
tion 1981 affords a remedy against private acts of racially 
motivated discrimination.19 For example, writing for a unan­
imous Court in Saint Francis College, Justice White stated:

«
“[T]he Court has construed [section 1981] to forbid all 
‘racial’ discrimination in the making of private as well as 
public contracts. The petitioner college, although a 
private institution, was therefore subject to this statutory 
command.”

Id. at 2026 (citation omitted).

A “‘flatly’ unjust” result is not merely one which a 
majority of the Court now may believe is “clearly wrong” or 
that it “very much dislikes”. The majority and dissent in 
Runyon disagreed strongly over the legislative history of sec­
tion 1981. However, whether the majority was correct in its

employment discrimination based on race, color, religion, sex or nadonal 
origin, 42 U.S.C. § 2000e-2, while secdon 1981 prohibits only discrimina­
tion based on race or color, Saint Francis College, 107 S. Ct. at 2028. See 
Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460-61 (1975)^ 
(comparing section 1981 and title VII); Note, Is Section 1981 Modified by 

• Title VII of the Civil Rights Act of 19647, 1970 Duke L.J. 1223, 1230-31 
(same). Compare Griggs v. Duke Power Co., 401 U.S. 424 (1971) (Title 
VII liability may be predicated upon disproportionate impact) with General 
Bldg. Contractors Ass'n, 458 U.S. 375 (section 1981 liability requires proof 
of discriminatory intent).

19 See Goodman, 107 S. Ct. at 2622-23, 2625 (employer’s inten­
tional racially discriminatory treatment of employees violated section 1981; 
union’s refusal to file grievances for victims of racial harassment violated 
section 1981); Saint Francis College, 107 S. Ct. at 2026-28 (section 1981 
protects against intentional discrimination motivated by ethnic characteris­
tics or ancestry; Arab has remedy against employer); General Bldg. Con­
tractors Ass’n, 458 U.S. at 391 (proof of intentional discrimination required 
to impose section 1981 liability); Chapman v. Houston Welfare Rights Org., 
441 U.S. 600,653 (1979) (White, J.,concurring)(“[sections 1981 and 1982] 
remained a declaration of rights that all citizens in the country were to have 
against each other, as well as against their Government"); McDonald v. 
Santa Fe Trail Transp. Co., 427 U.S. 273, 286-87 (1976) (section 1981 ap­
plies to racial discrimination in private employment against while persons).

20 Monaghan, supra note 6, at 760, 762.



10

historical interpretation twelve years ago does not determine 
this Court’s decision today, especially given this Court’s clear 
line of subsequent decisions affirming Runyon’s interpretation 
of section 1981.21 In sum, the “exceptional action of overrul­
ing”22 cannot be predicated on incorrectness.23 24

Beyond the general considerations weighing against over­
ruling precedent, special considerations have guided this Court 
when it has reconsidered statutory interpretation. These spe­
cial considerations are premised upon Congress’ ability to cor­
rect interpretations it considers in error. Chief Justice 
Rehnquist, writing for the Court in Oklahoma City v. Tuttle, 
471 U.S. 808, 818-19 n.5 (1985), observed that where this 
Court’s “decision is subject to correction by Congress, we do a 
great disservice when we subvert these concerns [of stare 
decisis] and maintain the law in a state of flux”.

21 Even in constitutional cases, where this Court has suggested the 
constraints of stare decisis are more easily overcome, ambiguous historical 
evidence has not been sufficient to provide the “special justification re­
quired for a departure from stare decisis. See Welch v. Texas Dep I of High­
ways and Pub. Transp., 107 S. Cl. 2941, 2956-57 (1987) (discussing the 
force of Justice Brennan's historical arguments for a re-interpretation of the 
Eleventh Amendment cases); Papasan v. Attain, 478 U.S. 265 (1986); Atas­
cadero State Hosp. v. Scanlon, 473 U.S. 234, 243 n.3 (1985). A fortiori, 
where the constraints of stare decisis are more severe, such as with statutory 
precedent, historical evidence of contrary intent alone cannot suffice as “spe­
cial justification".

22 Rumsey, 467 U.S. at 212.

23 Chief Justice Marshall acknowledged this principle when he 
noted that only the combination of several factors warranted overruling: “Al­
though (the prior) case was decided by a divided court, and although we 
think, that upon the true construction of the . . .  act [the prior case was 
wrongly decidedl, we should be much inclined to adhere to the decision . 
had not a contrary practice since prevailed." Gordon v. Ogden, 28 U.S. (3 
Pet.) 32, 34 (1830).

24 See also Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977) 
(White. J., writing for the Court) (“(W)e must bear in mind that considera­
tions of stare decisis weigh heavily in the area of statutory construction, 
where Congress is free to change this Court's interpretation of its legisla­
tion"); United States v. South BufffaloR.R. Co., 333 U.S. 771,774-75 (1948) 
(Jackson, J., writing for the Court) (“[WJhen the questions are of statutory 
construction, . . . Congress can rectify our mistake . . .  and in these cir­
cumstances reversal is not readily to be made") (citation omitted); Continen­
tal T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 60 (1977) (White,

11

This Court recently reviewed a Second Circuit decision in 
which Judge Friendly suggested that a 60 year-old Supreme Court 
precedent, upon which he based the Second Circuit’s decision, 
might be overruled in light of subsequent developments. Justice 
Stevens, writing for the Court, declined to do so:

“We conclude, however, that the developments in the six 
* decades since Keogh was decided are insufficient to over­

come the strong presumption of continued validity that ad­
heres in the judicial interpretation of a statute. As Justice 
firandeis himself observed, a decade after his Keogh 
decision, in commenting on the presumption of stability 
in statutory interpretation: ‘Stare decisis is usually the 
wise policy because in most matters, it is more important 
that the applicable rule of law be settled than that it be set­
tled right. . . . This is commonly true, even where the 
error is a matter of serious concern, provided correction 
can be had by legislation.’ We are especially reluctant to 
reject this presumption in an area that has seen careful, 
intense, and sustained congressional attention. If there 
is to be an overruling of the Keogh rule, it must come from 
Congress, rather than from this Court.”

Square D, 476 U.S. at 424 (footnotes omitted) (emphasis 
added).

Over the past two decades, this Court's interpretation of 
the federal civil rights laws generally, and this Court’s inter­
pretation of section 1981 specifically, is “an area that has seen

J., concurring in judgment) (“(Considerations of stare decisis are to be 
given particularly strong weight in the area of statutory construction"); 
Guardians Ass’n v. Civil Serv. Comm'n of New York, 463 U.S. 582, 641 
(1983) (Stevens, J., dissenting) (“If a statute is to be amended after it has 
been authoritatively construed by this Court, that task should almost always 
be performed by Congress”); Monell, 436 U.S. at 714-15 (Rehnquist, J., 
dissenting) (“In all cases, private parties shape their conduct according to 
this Court’s settled construction of the law, but the Congress is at liberty to 
correct our mistakes of statutory construction, unlike our constitutional in­
terpretations, whenever it sees fit"); Boys Markets, Inc. v. Retail Clerks 
Union, 398 U.S. 235, 257-58 (1970) (Black, J., dissenting) (“IA)ny sub­
sequent ‘reinterpretation’ . . .  is gratuitous and neither more nor less than 
an amendment: it is no different in effect from a judicial alteration of lan­
guage that Congress itself placed in the statute”).



12

careful, intense, and sustained congressional attention” . Id. 
Congress’ recent passage of the Civil Rights Restoration Act of 
1987, Pub. L. No. 100-259, 102 Stat. 28 (1988), was in direct 
response to this Court’s interpretation of Title IX of the Educa­
tion Amendments of 1972 in Grove City College v. Bell, 465 
U.S. 555 (1984).25 Similarly, in 1982 Congress amended sec­
tion 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, to 
restore the legal standard that had governed voting dis­
crimination cases prior to this Court’s holding in City o f Mobile 
v. Bolden, 446 U.S. 55 (1980) (plurality opinion).26 27 * * And in 
1978 Congress enacted the Pregnancy Discrimination Act, Pub. 
L. No. 95-555,92 Stat. 2076(1978), responding to this Court’s 
interpretation of Title VII of the Civil Rights Act of 1964 in 
General Electric Company v. Gilbert, 429 U.S. 125 (1976).

25 In Grove City, this Court held that the non-discrimination 
provisions of Title IX could be applied only to the particular program or ac­
tivity actually receiving federal financial assistance, not to the recipient in­
stitution as a whole. Given the similarity of the language and legislative 
history of other statutes barring discrimination in federal financial assis­
tance. Id. at 566, Congress acted to correct the Court’s interpretation as it 
might apply to each of these statutes. The Civil Rights Restoration Act stated 
that “recent decisions and opinions of the Supreme Court have unduly nar­
rowed or cast doubt upon the broad application of title IX of the Education 
Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age 
Discrimination Act of 1975, and title VI of the Civil Rights Act of 1964” and 
that “legislative action is necessary to restore the prior consistent and long­
standing executive branch interpretation and broad, institution-wide applica­
tion of those laws as previously administered". Pub. L. No. 100-259, § 2, 
102 Stat. 28 (1988)

26 In Bolden, this Court held that a challenge to an electoral system 
under section 2 of the Voting Rights Act must demonstrate purposeful racial 
discrimination. 446 U.S. at 62-65. Congress'amendment to the statute cor­
rected this interpretation. Voting Rights Act Amendment of 1982, Pub. L. 
No 97-205, 96 Stat. 131 (1982), codified as amended ai 42 U.S.C. $ 1973 
(1982). The Senate Judiciary Committee explicitly rejected this Court’s 
reading, stating it found no persuasive evidence to support the Court’s ar 
gurnent that the 15th Amendment and the 1965 Voting Rights Act made proof 
of discriminatory purpose an essential requirement of section 2 when it was 
first enacted. Voting Rights Acl Amendments of 1982, S. Rep. No. 417, 97th 
Cong , 2d Sess. 15-16, reprinted in 1982 U.S. Code Cong. & Admin. News 
192 93

27 Finding that an employer’s disability plan which excluded sick­
ness and accident benefits connected with disabilities arising from pregnan
cy did not violate Title VII, this Court held “gender-based discrimination

In each case, when Congress considered this Court’s inter­
pretation of a federal civil right statute to be incorrect, it acted to 
change that interpretation. In sharp contrast, Congress has 
repeatedly acknowledged the correctness of the Runyon result.

Prior to Runyon, Congress specifically affirmed the vitality 
of section 1981 as applied to private acts of discrimination. As 
noted in Runyon, this Court had acknowledged as early as 1968 
that section 1981 applied to private acts of discrimination. 427 
U.S. at 168 (citing Jones v. AlfredH. Mayer Co., 392 U.S. 409, 
441-43 (1968)). It was in light of this interpretation that Con­
gress, in 1972, specifically rejected an amendment offered by 
Senator Hruska to the Equal Employment Opportunities Act that 
would have consolidated all anti-discrimination remedies under 
Title VII. 118 Cong. Rec. 3368-70 (1972). Opposing this 
amendment, Senator Williams stated that the proposed improve­
ments in the enforcement machinery and coverage of Title VII 
were “premised on the continued existence and vitality of other 
remedies for employment discrimination”. Id. at 3371. Senator 
Williams also observed that:

“[The] right of individuals to bring suits in Federal courts 
to redress individual acts of discrimination . . . was first 
provided by the Civil Rights Acts of 1866 and 1871, 42 
U.S.C. sections 1981, 1983. It was recently stated by the 
Supreme Court in the case of Jones v. Mayer, that these 
acts provide fundamental constitutional guarantees. In 
any case, the courts have specifically held that title VII 
and the Civil Rights Act of 1866 and 1871 are not mutual­
ly exclusive and must be read together to provide alterna­
tive means to redress individual grievances.”

13

Id.

does not result simply because an employer’s disability-benefits plan is less 
than all-inclusive". General Electric, 429 U.S. at 138-39. In 1978, Con­
gress rejected this interpretation, and amended Title VII “to clarify 
Congress’ intent to include discrimination based on pregnancy, childbirth 
or related medical conditions in the prohibition against sex discrimination in 
employment". Pregnancy Discrimination Act of 1978, H.R. Rep. No. 948, 
95th Cong., 1st Sess. 2, reprinted in 1978 U.S. Code Cong. & Admin. News 
4749, 4750. Concerned that the “Supreme Court’s narrow interpretations 
of Title VII [would) tend to erode our national policy of nondiscrimination 
in employment", id. at 4751, Congress clarified its objective through 
statutory amendment.



14

Additionally in the House Education and Labor 
Committee s°report on the Equal Employment O p p o r tu n e  
Act the Committee explicitly affirmed the resu lt of recent ^,r 
cuit court decisions which had held that “remedies available to 
an individual under Title VII are . coef™ .? 'V£

- d  l«*  mutually exclusive1̂.

c S e  Cong A Admin. News 2137, 2154. Congress’ rejection 
of the proposal to consolidate anli-discrim.nat.on remedies 
under Title VII was unanimously relied upon b>[/g* 4 5 4  459 
Johnson v Railway Express Agency, Inc., 421 U.S.
(1975); id. at 468 (Marshall, Douglas, and Brennan, JJ., c 
curring on this point); and also in Runyon:

“There could hardly be a clearer indication of con­
gressional agreement with the view that § 1981 does reac 
private acts of racial discrimination.

427 U.S. at 174-75.28
Congress has taken no action to correct this Court’s mter- 

f  cAr»inn 1981 in R unyon. Instead, Congress has

Runyon result isclearly evidenced by
ing the award of attorney’s fees in section 1981 cases eg.s a? 
ion enacted just four months after Runyon was decided. 

Acknowledging that civil rights laws “depend heavtly upon

28 Section 1981 complement,1 other sUlutory cause, o f« tio " .p « -  
ticularly Title VII of the Civil Rights cl °  employment discrimination,
w a n e “ to£ is; s
tints of discrimination to recover corapen *01?  . 460 6 i. ln

«m e ends, .re  separate, disUnct. and mdependent. Id.

29 Runyon was decided on June 25, ,92^ ’^ 1C 
Attorney’s Fee, Award Act of 1976 was enacted on October 19. •

I J

private enforcement” and fee awards are “an essential remedy” 
to allow private citizens “a meaningful opportunity to vindicate 
the important Congressional policies which these laws con­
tain”, Civil Rights Attorney's Fees Award Act o f 1976, S. Rep. 
No 1011,94th Cong., 2d Sess. 2, reprinted in 1976 U.S. Code 
Cong. & Admin. News 5900, 5910, Congress specifically 
amended the Civil Rights Act of 1866 to include a provision for 
fee awards. Civil Rights Attorney’s Fees Awards Act of 1976, 
Pub. L. No. 94-559, 42 U.S.C. § 1988.30 In passing the Act, 
Congress explicitly relied upon the fact that section 1981 is 
frequently used to challenge employment discrimination based 
on race or color” . Civil Rights Attorney's Fees Award Act of 
1976, H.R. Rep. No. 1558, 94th Cong., 2d Sess. 4 (1976) 
(citing Johnson and McDonald v. Santa Fe Trail Transporta­
tion Co., 427 U.S. 273 (1976)). Congress also relied upon the 
use of section 1981 as a remedy against racially exclusionary 
policies in recreational facilities, as this Court had earlier 
recognized in Tillman v. Wheaton-Haven Recreation Associa­
tion, Inc., 410 U.S. 431 (1973). H.R. Rep. No. 1558, 94th 
Cong., 2d Sess. 4. The Senate Report, noting the inter­
relationship between promoting civil rights and granting fee 
awards, flatly stated that “li]n the civil rights area, Congress 
has instructed the courts to use the broadest and most effective 
remedies available to achieve the (law’s) goals” . S. Rep.

30 The Act was passed in response to this Court’s holding in Alyes- 
ka Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), that 
federal courts had no discretion to award attorney’s fees to prevailing plain­
tiffs absent statutory authorization. Congress acted quickly to eliminate the
inconsistent situation that allowed an award of attorney’s fees in an employ^ 
ment discrimination suit brought under Title VII, but denied such an award 
in a similar suit brought under section 1981 As the Senate Report pointed 
out:

“Alyeska . . . created anomalous gaps in our civil rights laws whereby 
awards of fees are, according to Alyeska, suddenly unavailable in the 
most fundamental civil rights case. For instance, fees are; now 
authorized in an employment discrimination suit under Title• Vll . ■ • 
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."

Civil Rights Attorney's Fees Award Act of 1976, S. Rep. No. 1011, 94th 
Cong.. 2d Sess. 4, reprinted in 1976 U.S. Code Cong. & Admin. New, 
5900, 5910.



16

No. 1011,94th Cong., 2d Sess. 3, reprinted in 1976 U.S. Code 
Cong .&. Admin. News at 5910.

The foregoing provides the context for assessing the state­
ment in the Court’s per curiam opinion in this case that “we 
have explicitly overruled statutory precedents in a host of 
cases”. Patterson, 108 S. Ct. at 1420. Certainly there are 
cases where stare decisis has not been given effect, even with 
respect to statutory precedent. However, a review of each of 
the cases cited in the Court’s per curiam opinion on this point 
strongly suggests that they rest on very different footing from 
this case: in each case cited, there was “special justification” 
for departure from precedent; there was not the congressional 
attention to, agreement with, and support of, the precedent as 
is so demonstrably present here; those cases did not involve 
sharp departure from the mores of their day; they did not 
produce “flatly unjust” results; none overruled recent precedent 
which itself was explicitly based upon stare decisis; none in­
volved overruling precedent recognizing or affirming a sub­
stantive statutory right; and none carried the tremendous threat 
of harm to many pending cases and to the future enforcement 
of civil rights under law.

(i) By overruling Monroe v. Pape, 365 U.S. 167(1961), 
in Monell v. Department o f Social Services o f New York, 436 
U.S. 658 (1978), this Court returned consistency to the law 
regarding the liability of local governments for civil rights 
violations. The immunity from section 1983 liability that 
Monroe had granted municipal corporations conflicted with 
decisions imposing section 1983 liability on school boards.31 
Unlike Monroe, Runyon is consistent both with prior and sub­
sequent decisions. In Jones, 392 U.S. at 441-43 n.78, this 
Court had interpreted section 1981 as barring racial dis­
crimination in the making and enforcement of contracts. Sub­
sequently, the Court banned racial exclusivity in the 
membership and guest policy of a private neighborhood swim­
ming club under sections 1981 and 1982, Tillman, 410 U.S. 
at 439-40, and the Court unanimously concluded in Johnson 
that “[section] 1981 affords a federal remedy against 
discrimination in private employment on the basis of race”,

31 Ste Monell, 436 U.S. at 663 o.3 (citing school board cases).

1/

421 U.S. at 459-60; id. at 468 (Marshall, Douglas, and Bren­
nan, JJ., concurring on this point). Furthermore, as Justice 
Stevens noted, concurring in Runyon, Congress had formu­
lated a policy of “eliminating racial segregation in all sectors 
of society”, and “[tjhis Court has given a sympathetic and 
liberal construction” to the legislation directed at racial dis­
crimination. 427 U.S. at 191. It would have been inconsis­
tent, Justice Stevens concluded, for the Court to have decided 
Runyon differently in light of congressional policy and 
Supreme Court precedent. Id. at 191-92.

(ii) In Lodge 76, International Association o f Machinists 
v. Wisconsin Employment Relations Commission, 427 U.S. 132 
(1976), this Court overruled International Union, Local 232 v. 
Wisconsin Employment Relations Board, 336 U.S. 245 (1949), 
recognizing that its previous interpretation of the Wagner Act 
and Taft-Hartley Act had been undermined by subsequent 
decisions and now operated to frustrate national labor policy. 
Similarly, this Court overruled Sinclair Refining Co. v. Atkin­
son, 370 U.S. 195 (1962), in Boys Markets, Inc. v. Retail Clerks 
Union, 398 U.S 235, 254-55 (1970), on the grounds that 
Sinclair's holding frustrated the peaceful settlement of labor 
disputes and constituted a significant departure from the con­
sistent emphasis on arbitration. Runyon, however, does not 
frustrate but rather furthers congressional policy against racial 
discrimination, and its holding has not been weakened but 
rather bolstered by subsequent decisions.

(iii) In Continental T. V., Inc. v. GTESylvania, Inc., 433 
U.S. 36 (1977), this Court overruled its earlier interpretation 
of section 1 of the Sherman Act in United States v. Arnold, 
Schwinn & Co., 388 U.S. 365 (1967). The Court in Continen­
tal T.V. overruled precedent which was “itself . . .  an abrupt 
and largely unexplained departure” from the law in the antitrust 
area, which the lower courts had “sought to limit” . Id. at 47- 
48. Runyon, in contrast, is consistent with other anti-dis­
crimination laws.

(iv) This Court overruled Ahrens v. Clark, 335 U.S. 188 
(1948), in Braden v. 30th Judicial Circuit Court o f Kentucky, 
410 U.S. 484 (1973), because the strict territorial limit Ahrens 
imposed on the filing of habeas corpus petitions had been un­



18

dermined both by congressional amendments to the habeas cor­
pus statute and by subsequent decisions of this Court.

(v)ln Peyton v. Rowe, 391 U.S. 54 (1968), the Court over­
ruled the prematurity rule of McNally v. Hill, 293 U.S. 131 
(1934), and held that a prisoner serving consecutive sentences 
may challenge sentences he had not yet begun to serve. The 
Peyton Court concluded that the holding in McNally under- 
mineld] the character of the writ of habeas corpus”, and that the 
reasoning in McNally was “ inconsistent” with subsequent 
decisions of the Court. 391 U.S. at 63-64. Similarly, this 
Court overruled Moore v. Illinois Central Railroad Co., 312 
U.S. 630(1941), in Andrews v. Louisville & Nashville Railroad 
Co., 406 U.S. 320(1972), because congressional modifications 
to the arbitration procedures of the Railway Labor Act and 
subsequent decisions of this Court making arbitration a compul­
sory remedy contradicted Moore's holding.

In sum, by overruling precedent in these cases this Court 
enhanced the consistency and fairness of the law. That con­
clusion could not follow from a decision to overrule Runyon.

II P E T IT IO N E R ’S RA CIA L D ISC R IM IN A TIO N  
CLAIM DOES NOT CALL FOR A FUNDAMENTAL 
EXTENSION OF LIABILITY UNDER SECTION 1981

The Court’s per curiam opinion stated that the decision to 
reconsider Runyon was based on “the difficulties posed by 
petitioner’s argument for a fundamental extension of liability 
under 42 U.S.C. § 1981” . Patterson, 108 S. Ct. at 1420. 
Respectfully, petitioner’s argument does not call for a funda­
mental extension” of section 1981 liability. The nghttobe free 
from racial harassment in the performance of an employment 
contract is an essential element of the right to make and enforce 
contracts free from racial discrimination.

Racial harassment has long been recognized as a cause of 
action under Title VII of the Civil Rights Act of 1964, 42 
U S C. § 2000e et seq. (“Title VII”). See, e.g., Firefighters 
Inst, for Racial Equality v. City of St. Louis, 549 F .2d 506 514- 
15 (8th Cir.), cert, denied sub nom. Banta v. United States,

434 U.S. 819(1977); Grayv. Greyhound Lines, East, 545 F.2d 
169, 176 (D.C. Cir. 1976).32

Victims of racial harassment, however, derive little prac­
tical benefit under Title VII. Unlike section 1981, Title VII 
remedies are limited to back pay, 42 U.S.C. § 2000e-5(g); this 
is an illusory remedy for a plaintiff who has not been fired or 
denied promotion. Section 1981, in contrast, provides real 
relief for victims of racial harassment33 in the form of compen­
satory and punitive damages.34

32 Citing these cases, this Court in Meritor Savings Bank v. Vinson, 
106 S. Ct. 2399, 2405 (1986), unanimously relied upon Title VH’s prohibi­
tion against racial harassment in recognizing similar protections against 
sexual harassment.

33 See, e.g.. Young v. I.T.SlT. Co., 438 F.2d 757, 758 (3d Cir. 
1971) (recognizing section 1981 claim where p lain tiff was 
“harassed . . both maliciously and wantonly”); Martinez v. Oakland 
Scavenger Co., 680 F. Supp. 1377, 1385 (N.D. Cal. 1987) (allowing 
damages under section 1981'upon a finding, inter alia, of a “racially dis­
criminatory atmosphere within the company").

34 Johnson, 421 U.S. at 460(“An individual who establishes acause 
of action under 5 1981 is entitled to both equitable and legal relief, includ­
ing compensatory and, under certain circumstances, punitive damages. ). 
In both Johnson, 421 U.S. at 455, and Goodman. 107 S. Ct. at 2620, plain­
tiffs raised claims including racial harassment and discrimination in the 
terms and conditions of employment. In neither case did this Court suggest 
that such claims were beyond the scope of section 1981.



20

CONCLUSION

For all these reasons, the Court’s decision in Runyon v. 
McCrary should not be overruled.

June 24, 1988
Respectfully submitted,

Conrad K. Harper 
Stuart J. Land 

Co-Chairmen 
Norman Redlich 

Trustee
WILLIAM L ROBINSON 
JUDITH A. WINSTON
Richard T. Seymour 
Stephen L. Spitz 

Lawyers' Committee 
For Civil Rights 
Under Law

1400 Eye Street, N.W.
(Suite 1400)
Washington, D.C. 20005 
(202)371-1212

Albert E. Arent 
1050 Connecticut Avenue, N.W. 
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THOMAS I. ATKINS 
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St. John Barrett 
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G D’ANDELOT BELIN
53 State Street
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BROOKS LEY BORN
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Wiley A. branton, Sr.
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Thomas D. Barr
ROBERT F. MULLEN 

Counsel o f Record 
Pa u l M. O’Connor ill

CRAVATH, SWAINE & MOORE 
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New York, New York 10005 
(212) 428-1000

Paul A. Brest 
Stanford University 
Law School
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D avid R. Brink 
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William H. Brown, III 
1600 Market Street 
Philadelphia, Pennsylvania 19103

GOLER TEAL BUTCHER
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Robert Carswell 
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Ramsey Clark 
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) erome A. Cooper 
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Michael A. Cooper 
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Lloyd N. Cutler 
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James T. Danaher 
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Yale Law School 
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Armand Derpner 
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Sara-Ann Determan 
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Pa u l R. Dimond 
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Ann Arbor, Michigan 48107

John w. Douglas 
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Victor M. Earle, III 
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Robert Ehrenbard 
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Fred N. Fishman 
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MACDONALD FLINN 
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Laurence S. Fordham 
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Alexander D. Forger 
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Eleanor M. fox 
New York University 
Law School
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John d . French 
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Lloyd K. Garrison 
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A. Spencer Gilbert, III 
Post Office Box 651 
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William m . Guttman 
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Joan Hall 
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Herbert J. Hansell 
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Hugh r . Jones, Jr.
60 State Street
Boston, Massachusetts 02109 

John B. Jones
1201 Pennsylvania Avenue, N.W. 
Washington, D.C 20044



22 I

Stuart L. Kadison 
2049 Century Park East 
Los Angeles, California 90067

Robert H. Kapp 
555 Thirteenth Street, N.W. 
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Nicholas deB. Katzenbach 
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Maximilian W. Kempner 
237 Park Avenue 
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Robert m . Landis 
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Jerome B. Libin 
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George N. Lindsay 
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John v . Lindsay 
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Hans F. Loeser 
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Henry L. Marsh III 
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ROBERT W. MESERVE 
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Robert B. McKay 
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Ronald S. Miller 
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Peter p . Mullen 
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Robert a . Murphy 
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John E. Nolan, Jr.
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Sheldon Oliensis 
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Kenneth Penegar 
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School of Law 
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Judith Resnick 
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California Law Center 
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Charles S. Rhyne 
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James Robertson 
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Mitchell Rogovin 
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23

Edwin A. Rothschild 
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Charles Runyon 
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Sterhen h . Sachs 
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Bernard G. Segal 
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Jerome G. Shapiro 
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Jerome J. Shestack 
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Nicholas U. Sommerfeld 
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Asa d . Sokolow 
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Chesterfield Smith 
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David S. Tatel 
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Randolph W. Thrower 
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John E. Tobin 
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Michael Traynor 
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Marna S. Tucker 
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Harold R. Tyler, Jr 
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Herbert M. Wachtell 
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Attorneys fo r the Lawyers’ 
Committee for Civil Rights 
Under Law as Amicus Curiae