Patterson v. McLean Credit Union Brief for Petitioner on Reargument
Public Court Documents
October 5, 1987
Cite this item
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Brief Collection, LDF Court Filings. Patterson v. McLean Credit Union Brief for Petitioner on Reargument, 1987. ce49bac4-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/35ce0abe-b8d4-45cb-ba34-039dcc21b962/patterson-v-mclean-credit-union-brief-for-petitioner-on-reargument. Accessed May 18, 2025.
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No. 87-107
1 st t h e
&uprrmr Court of tho luxtri £>tatra
October Term, 1987
Brenda P atterson,
Petitioner,
vs.
McLean Credit U nion,
Respondent.
ON WRIT OE CERTIORARI TO THE UNITED STATES COURT
OF APPEALS POR THE FOURTH CIRCUIT
BRIEF FOR PETITIONER ON REARGUMENT
J ulius LeVonne Chambers
Charles Stephen R alston*
E ric Schnapper
R onald L. E llis
99 Hudson Street
New York, New York 10013
(212) 219-1900
P enda D. H air
806 15th Street, N.W.
Washington, D.C. 20010
(202) 638-3278
H arold L. K ennedy, III
H arvey L. K ennedy
Kennedy, Kennedy,
Kennedy and Kennedy
710 First Union Building
Winston-Salem, NC 27101
(919) 724-9207
Attorneys for Petitioner
*Counsel of Record
QUESTION PRESENTED
Whether or not the interpretation of 42
U.S.C. § 1981 adopted by this Court in Runyon v.
McCrary. 427 U.S. 160 (1976), should be
reconsidered?
l
3. The Dissenting Opinion in
Jones Is Not Persuasive .
Page
54
III. CONGRESS HAS ADOPTED THE
PRINCIPLE THAT § 1981 PROHIBITS
PRIVATE RACIAL DISCRIMINATION . . 71
IV. THE DOCTRINE OF STARE DECISIS
COMPELS REAFFIRMATION OF THE
DECISIONS IN RUNYON AND JONES . .100
A. Widespread Reliance on Runyon
and Jones Strongly Supports
Reaffirmation of those
Decisions .....................................................102
B. Runyon and Jones Resulted
From Thorough Analysis...............................106
C. No "Special Justification"
Exists for Overruling Runyon
or J o n e s .........................................................107
CONCLUSION 118
TABLE OF AUTHORITIES
Cases Page
Albert v. Carovano,
824 F.2d 1333 (2d
Cir. 1987).................................. . . . . n o
Alyeska Pipeline Service Co.
v. Wilderness Society,
421 U.S. 240 (1975) 91
Arizona v. Rumsey, 467 U.S. 203
(1984) 108
Batson v. Kentucky, 476 U.S. 79
(1986) 109
Brown v. Balias, 331 F. Supp.
1033 (N.D. Tex. 1971) . . . . . . . . 93
Brown v. Dade Christian School,
Inc., 556 F.2d 310
15th Cir. 19771. cert, denied.
434 U.S. 1063 (1978) . . . 110
Bob Jones University v. United
States, 461 U.S. 574
(1983) ...................................... . . . 75,110
Bourdreaux v. Baton Rouge
Marine Contracting Co.,
437 F.2d 1011 (5th Cir.
(1971) ...................................... • • 98,99,116
v
Basic v. United States, 446
U.S. 398 (1 9 8 0 ) ....................................... 102
Chapman v. Houston Welfare
Rights Organization, 441
U.S. 600 (1 9 7 9 ) ....................................... 95
Civil Rights Cases, 109
U.S. 3 (1 8 8 3 ) ........................................... 70,71
Clark v. Universal Builders,
Inc., 409 F. Supp. 1274
(N.D. 111. 1 9 7 6 ) ....................................... 116
Continental T.V. Inc. v. GTE
Sylvania, Inc., 433 U.S.
36 (1977) 102,109
Copperweld Corp. v.
Independence Tube Corp.,
467 U.S. 752 ( 1 9 8 4 ) ............................... 106
Cornelius v. Benevolent
Protective Order of the
Elks, 382 F. Supp. 1182
(D. Conn. 1 9 7 4 )....................................... 112
Page
Crawford Fitting Co. v. J. T.
Gibbons, Inc., 482 U.S.
_ , 107 S.Ct. 2494
(1 9 8 7 ) ...................................................... 95
vi
Page
Darensbourg v. Dufrene, 460
F. Supp. 662 (E.D. La. 1 9 7 8 )..................... I l l
Edmonds v. Compagnie Generale
Transatlantique, 443
U.S. 256 (1979) ................................ 74
Fiedler v. Marumsco Christian
School, 631 F.2d 1144
(4th Cir. 1980) 98,110
Firefighters Institute v. City
of St. Louis, 549 F.2d 506
(8th Cir.), cert, denied sub
nom, Banta v. United States.
434 U.S. 819 (1977) ................................ 117
Francis v. Southern Pacific
Co., 333 U.S. 445
(1948) 74
General Building Contractors
Ass’n. v. Pennsylvania,
458 U.S. 375 (1982)....................... 72,95,115
Goodman v. Lukens Steel Co.,
482 U.S. _ , 107 S.Ct.
2617 (1987) 72,95,115
Grier v. Specialized Skills,
326 F. Supp. 856 (W.D.N.C. 1971) ■ • • 110
Vll
Page
Gulfstream Aerospace Corp. v.
Mayacamas Corp., 108
S.Ct. 1133 (1988) 109
Hodges v. United States, 203
U.S. 1 (1906) ....................... ................ 97
Hurd v. Hodge, 334 U.S. 24
(1948) 64
Illinois Brick Co. v. Illinois,
431 U.S. 720 (1977) . . . . ................102,108
Johnson v. Brace, 472 F. Supp.
1056 (E.D. Ark. 1979) . . . ............... 112
Johnson v. Railway Express
Agency, Inc., 421 U.S.
454 (1975) 4,72,73,89,93,
99,103,115
Johnson v. Zaremba, 381
F. Supp. 165 (N.D. 111.
1973) 112
Jones v. Mayer Co., 392 U.S.
490 (1968) . ................passim
Keller v. Prince George Co.,
827 F.2d 952 (4th Cir.
1987) 116
V lll
Page
Kentucky v. Dennison, 24 How.
66 (1861).......................
Lee v. Southern Home Sites,
429 F.2d 290 (5th Cir.
1970) ...........................
Lindahl v. OPM, 470 U.S. 768
(1985) ...........................
Long v. Ford Motor Co., 496
F.2d 500 (6th Cir. 1974)
Matter of Turner, 24 Fed Cas.
337, 1 Abb. 84 (1867) .
McDonald v. Santa Fe Trail
Transportation Co., 427
U.S. 273 (1976) . . . .
Memphis v. Greene, 451 U.S.
100 (1981)
Meritor Savings Bank v. Vinson,
477 U.S. _ , 91 L.Ed 2d
49 (1986) ....................
Miller v. Fenton, 474 U.S. 104
(1985) .......................
Monell v. New York City Dept,
of Social Services, 436
U.S. 658 (1978) . . . .
70
93
74
98
10
4,72,90,93,103,115
. . 16,72,95
117
101,102
71,102
IX
Page
Monessen Southwestern Railway
Co. v. Morgan, 56 U.S.L.W.
4494 (U.S. June 6, 1 9 8 8 ) ....................... 74
Moragne v. State Marine Lines,
398 U.S. 375 (1 9 7 0 ) ............................... 101
Nesmith v. Grimsley,
No. 2-86-3248-8 (D .S .C .)....................... 113
NLRB v. Longshoremen, 473 U.S.
61 (1985).................................................. 102
Norwood v. Harrison, 413 U.S.
455 (1 9 7 3 ) ................................... 112
Oklahoma City v. Tuttle, 471
U.S. 808 (1 9 8 5 ) ....................................... 106
Ortega v. Merit Insurance Co.,
433 F. Supp. 135 (N.D.
111-1977).................................................. I l l
Patsy v. Florida Board of
Regents, 457 U.S. 496
(1 9 8 2 ) .............................................. 102,107
Prigg v. Pennsylvania, 16
Pet. 539 (1 8 4 2 ) ....................................... 70,71
x
Page
Riley v. Adirondack Southern
School for Girls, 541
F.2d 1124 (5th Cir.
1 9 7 6 ) ...................................................... 110
Rogers v. EEOC, 454 F.2d 234
(5th Cir. 1971), cert-
denied. 406 U.S. 957
(1972) 99,117
Runyon v. McCrary, 427 U.S.
160 (1976).............................................. passim
Sanders v. Dobbs Houses, Inc., 431
F.2d 1097 (5th Cir.),
cert, denied. 401 U.S.
948 (1971) 86
Scott v. Eversole Mortuary,
522 F.2d 1110 (9th Cir.
1975) I l l
Shaare Tefila Congregation v.
Cobb, 481 U.S. _ ,
107 S.Ct. 2019 (1 9 8 7 )................... 72,95,113
Shapiro v. United States, 335
U.S. 1 (1948) 74
xi
Page
Sims v. Order of United
Commercial Travelers,
343 F. Supp. 112 (D. Mass.
1972) . . . . HI
Square D Co. v. Niagara
Frontier Tariff
Bureau, Inc., 476
U.S. 409 (1986) ................... . . . . 102
St. Francis College v. Al-
Khazraji, 481 U.S. ,
107 S.Ct. 2022 (1987) . . 72,95,115
Sud v. Import Motors Limited,
Inc., 379 F. Supp. 1064
(W.D. Mich. 1964) . . . . . . I l l
Sullivan v. Little Hunting
Park, Inc., 396 U.S.
229 (1969) 72,79,103,112
Swain v. Alabama, 380 U.S.
202 (1965)............................... . . . . 109
Terry v. Elmwood Cemetery, 307
F. Supp. 369 (N.D. Ala.
1969) 93,111
Thomas v. Washington Gas
Light Co., 448 U.S. 261
(1980) ....................................... . . . 101,106
Xll
Page
Tillman v. Wheaton-Haven
Recreation Ass’n, 410
U.S. 431 (1973)............................... 72,88,112
United States v. Arnold Schwinn & Co.,
388 U.S. 365 (1967)................................... 109
United States v. Maine, 420
U.S. 515 (1975)........................................... 101
United States v. Medical
Society of South
Carolina, 298 F. Supp.
145 (D.S.C. 1969)............................... 98,116
United States v. Rhodes,
27 Fed. Cas. 785, 1 Abb. 28
(1866) ...................................................... 10
United States v. South Buffalo
Railway Co., 333 U.S. 771
(1948) 74
Vasquez v. Hillery, 474 U.S.
254 (1986) .................................................. 101
Vietnamese Fishermen’s Ass’n
v. Knights of the Ku Klux
Klan, 518 F. Supp. 993
(S.D. Tex. 1981) . .
xiii
113
Page
Welch v. State Dept, of Highways, 483
U.S. 107 S.Ct. 2941
(1 9 8 7 ) ...................................................... 101
Whiting v. Jackson State
University, 616 F.2d 116
(5th Cir. 1980)........................................... 115
Wright v. Salisbury Club, Ltd.,
632 F.2d 309 (4th Cir.
1980) 112
Young v. I. T. & T., 438 F.2d
757 (3rd Cir. 1971)................ 86,97,98,99,116
Statutes
42 U.S.C. § 1 9 8 1 .......................................... passim
42 U.S.C. § 1982 .......................................... passim
42 U.S.C. § 1983 ........................................... 95,115
42 U.S.C. § 1988 .................................................. 94
42 U.S.C. § 2000a 76
42 U.S.C. § 2000b 76
42 U.S.C. § 2000c 76
42 U.S.C. § 2000e 98,105,112
xiv
Page
Civil Rights Act of 1866 ............................... passim
Civil Rights Act of 1964 ....................................... 76
Civil Rights Attorneys’
Fees Awards Act of
1976 91,92,93,94,95
Equal Employment Opportunity
Act of 1972 ............................................... 81
Fair Housing Act of 1968 ................................... 78
Revised Code of 1874, § 1977 6,7
Voting Rights Act of 1870 ................................... 5
Legislative Authorities
Cong. Globe, 39th Cong.,
1st Sess. (1866)................................... passim
2 Cong. Rec. (1874)................................... 8,9,12,13
110 Cong. Rec. (1964)........................................... 74
114 Cong. Rec. (1968).......................................... 78
117 Cong. Rec. (1971).......................................... 87
118 Cong. Rec. (1972)....................... 81-85,112,115
xv
122 Cong Rec. (1976 )................................... 93,94
H. R. Rep. No. 238, 92d Cong.,
1st Sess. (1971)........................................... 86
H. R. Rep. No. 899, 92d Cong.,
2d Sess. (1972)........................................... 88
H. R. Rep. No. 1558, 94th
Cong., 2nd Sess. (1976)........................... 93,94
H. R. Rep. No. 415, 92d Cong.,
1st Sess. (1971)........................................... 86
S. Rep. No. 1011, 94th Cong.,
2d Sess. (1976)................................... 92,93,94
Report of the Joint Committee
on Reconstruction, 39th
Cong., 1st Sess. (1866) 29-39
S. 61, 39th Cong., 1st Sess. (1866)....................... 25
Freedmen’s Bureau Bill (1 866 ).................... 51-54,67
Page
xvi
Page
Equal Employment Opportunities
Enforcement Act of 1971:
Hearings on S. 2515,
S. 2617 and H.R. 1746
Before the Subcomm. on
Labor of the Senate Comm,
on Labor and Public
Welfare, 92d Cong., 1st
Sess. (1 9 7 1 ) .............................................. 83
Hearing on the Effect of Legal
Fees on the Adequacy of
Representation Before the
Subcomm. on Representa
tion of Citizen Interests
of the Senate Comm, on
the Judiciary, 93d Cong.,
1st Sess. (1973) ....................................... 93
H. Exec. Doc. No. 11, 39th
Cong., 1st Sess. (1866)....................... 25,26,27
Report of Carl Schurz on the
States of South Carolina,
Georgia, Alabama,
Mississippi and Louisiana,
S. Exec. Doc. No. 2, 39th
Cong., 1st Sess. ( 1 8 6 6 ) .................... 16,19-25
xvu
Page
Report of Thomas Jefferson
Durant to Joint Comm, on
the Progress of Revising the
Statutes of the United
S ta te s ...................................................... 11
Revision of the United States
Statutes as Drafted by the
Commissioners Appointed
for That Purpose (1872) 9
Untitled Report, Library of Cong.
No. "Law U.S. 2, L L R B R ".................... 11
Other Authorities
J. James, The Framing of the
Fourteenth Amendment
(1956)...................................................... 17,18
E. Foner, Reconstruction:
America’s Unfinished
Revolution 1863-1877
(1988).......................................................... 43
E. McPherson, The Political
History of the United
States of America During
the Period of Reconstruc
tion (1871).................................................. 52
xvm
Page
H. Monaghan, Stare Decisis
and Constitutional Ad
judication, 88 Col. L. Rev.
723 (1988).................................................. 102
xix
No. 87-107
IN THE
SUPREME COURT OF THE UNITED STATES
_____________ October Term, 1987_____________
BRENDA PATTERSON,
Petitioner,
vs.
McLEAN CREDIT UNION,
Respondent.
On Writ Of Certiorari To The
United States Court Of Appeals
For The Fourth Circuit
BRIEF FOR PETITIONER ON REARGUMENT
CITATIONS TO OPINIONS BELOW
Petitioner incorporates by reference the citations
to opinions below set out in her Brief on the Merits.
JURISDICTION
Petitioner incorporates by reference the section on
- 2 -
jurisdiction set out in her Brief on the Merits.
STATUTE INVOLVED
This case involves 42 U.S.C. § 1981, which
provides:
All persons within the jurisdiction of the
United States shall have the same right in
every State and Territory to make and
enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit
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, penalties, taxes, licenses,
and exactions of every kind, and to no
other.
STATEMENT OF THE CASE
Petitioner incorporates by reference the statement
of the case set out in her Brief on the Merits.
SUMMARY OF ARGUMENT
l. Both § 1981 and § 1982 derive from the Civil
Rights Act of 1866. When the actual Revisers’ Note for
the 1874 codification is examined, it is clear that the
Congress did not intend to repeal that part of the 1866
Act that contained what is now § 1981 and that, to the
contrary, the Revisers cited judicial interpretations of the
1866 Act.
II. When Congress passed the Civil Rights Act of
1866 it was concerned with, and intended to prohibit, all
actions both public and private that might lead to the
effective reintroduction of slavery or peonage. Congress
was aware of various schemes and devices of private
parties to deny blacks the equal right to contract with
regard to their labor. Therefore, § 1981 had as a central
purpose the guaranteeing of the right to contract free of
racial discrimination by private persons.
m . Congress has both ratified and adopted this Court’s
-3 -
- 4 -
holding that §§ 1981 and 1982 prohibit discrimination by
private parties. When it passed the Civil Rights Act of
1964, the Fair Housing Act of 1968, and the Equal
Employment Opportunities Act of 1972, Congress rejected
repeated attempts to eliminate the Reconstruction
statutes as alternative remedies for private discrimination.
When it passed the Civil Rights Attorneys’ Fees Act of
1976, Congress endorsed this Court’s decisions in Johnson
v. Railway Express Agency and McDonald v. Santa Fe.
and amended a companion statute for the specific
purpose of permitting the recovery of attorneys’ fees in
cases against private as well as public defendants brought
under §§ 1981 and 1982.
IV. The doctrine of stare decisis militates against the
overruling of Runyon and McDonald. None of the
factors that would lead to ignoring the doctrine apply in
this case. To the contrary, since Runyon and its progeny
involve statutory construction and since it is clear that
Congress approves that construction, those same factors
are overwhelmingly in favor of adhering to the doctrine in
this case and letting the decision in Runyon stand.
ARGUMENT
I.
SECTION 1981, AS WELL AS § 1982, DERIVES
FROM § 1 OF THE 1866 CIVIL RIGHTS ACT
In Jones v. Mayer Co.. 392 U.S. 409 (1968), the
Court held that 42 U.S.C. § 1982 extends to wholly
private discrimination. The Jones ruling was based on the
legislative history of § 1 of the Civil Rights Act of 1866,
from which § 1982 is derived. In Runvon v. McCrary. 427
U.S. 160, 169 & n.8 (1976), the Court held that § 1981, as
well as 1982, derives from § 1 of the Civil Rights Act of
1866. The dissenting opinion in Runyon urged that
§ 1981 derives solely from § 16 of the Voting Rights Act
of 1870.
- 5 -
Section 1 of the 1866 Act was explicitly reenacted
as § 18 of the Voting Rights Act of 1870, which also
included, in § 16, other language similar to § 1 of the
1866 Act. In 1874, all then-existing federal laws were
incorporated by Congress into a Revised Code. Sections
1981 and 1982 are identical to §§ 1977 and 1978,
respectively, of the Revised Code of 1874. According to
the Runyon dissent, a significant part of § 1 of the 1866
Act, as reenacted by § 18 of the 1870 Act, simply
disappeared when the Revised Code was enacted in 1874.
The dissent in Runyon was premised on the assumption
that when Congress in 1874 enacted the predecessor of §
1981, § 1977 of the Revised Code of 1874, it had before
it and relied on a "Revisers’ unambiguous note that the
section derived solely from" § 16 of the Voting Rights Act
of 1870. 427 U.S. at 195 n.6. This assumption regarding
the content of the revisers’ notes was incorrect.
The dissenting opinion in Runvon apparently relied
- 6 -
upon the note printed alongside § 1977 (§ 1981) in the
1874 Revised Code. That note reads:
Equal rights under the law.
31 May, 1870, c. 114,
S. 16, v. 16, p. 1447
This is, indeed, a reference only to the Voting Rights Act
of 1870, but the notes printed in the Code of 1874 were
not those written by the revisers themselves. Rather, the
annotations found in the printed Revised Code of 1874
were actually written and published after the passage of
the law itself, pursuant to a contract between the
Secretary of State and the publishing firm of Little,
Brown and Company.2 It is unclear whether the notes in
question were prepared at the direction of the Secretary
or by an employee of the publisher.
The revision of the federal statutes was originally
1 Revised Code of 1874, p. 348 (1875).
- 8 -
authorized by an 1866 law which created a commission
for that purpose. The Commissioners were authorized
not only to compile existing law, but to make "such
alterations as may be necessary to reconcile the
contradictions, supply the omissions, and amend the
imperfectioas of the original text." 16 Stat. 74-75. The
Commissioners were directed to point Congress to the
derivation of each provision in two ways, referring either
to "the original text from which each section is compiled"
or "to the decisions of the federal courts, explaining or
expounding same." Id. at 75. When in 1872 the
Commissioners presented their report to Congress, the
inclusion in their draft of "alterations" in the law --
although originally authorized by the 1866 statute --
proved to be a legislative nightmare. Congress quickly
concluded that it would be "utterly impossible to carry the
measure" if it were understood to contain any alterations
whatever in existing law. 2 Cong. Rec. 646 (1874).
Accordingly a second reviser, Thomas Jefferson Durant,
was engaged to prepare a new draft. Durant was
instructed to compare the Commissioners’ draft with the
original laws enacted by Congress, and to undo any
alterations in existing law that had been made by the
Commissioners. 2 Cong. Rec. 646-650 (1874); see 17 Stat.
579. Durant’s draft and report were presented to
Congress in 1873.
The Commissioners’ 1872 note to § 1977, unlike
the Revised Code annotation, is not limited to the 1870
Voting Rights Act. The Commissioners’ note reads:
Equal rights under the law
31 May, 1870 - ch. 114,
§ 16. vol. 16. p. 144
1 Abb. U.S. 28, 84, 588J
The last line refers to three lower court opinions printed
- 9 -
Revision of the United States Statutes as Drafted by the
Commissioners Appointed for That Purpose, v. 1, p. 85 (1872) (Library
of Congress No. "KF 50.U5”).
- 10-
in Abbott’s Reports. Two of these opinions "explain and
expound," not the 1870 Voting Rights Act, but § 1 of the
Civil Rights Act of 1866. Matter of Turner. 24 Fed. Cas.
337, 1 Abb. 84 (1867); United States v. Rhodes. 27 Fed.
Cas. 785, 1 Abb. 28 (1866)/ Insofar as Congress relied
on the Commissioners’ notes to determine the source of
section 1977, it would necessarily have concluded that that
section derived both from the 1866 Civil Rights Act and
the 1870 Voting Rights Act.
Durant’s 1873 report would undoubtedly have led
Congress to the same conclusion. Durant’s draft of the
revised code did not include any side notes regarding the
Turner is of particular interest because it was a civil action
brought against a private white employer by a black apprentice; the
apprentice complained that the employer had violated her rights under
§ 1 by failing to include in her contract of indenture various provisions
required by state law in the case of a white apprentice, such as a
guarantee that the apprentice would be taught to read. Chief Justice
Chase, sitting as circuit justice, concluded that "the indenture ... is ... in
contravention of ... the fust section of the civil rights law enacted by
Congress on April 9, 1866." 24 Fed. Cas. at 339.
-11 -
derivation of particular provisions.5 Durant’s silence as to
the particular origin of § 1977 could not have led
Congress to believe that that section of his draft was a
tacit repeal of part of the 1866 Act. Durant’s
introduction to his draft expressly assured Congress that
no such repeals were worked by his draft:
Every section reported by the
commissioners has been compared with the text of
the corresponding act or portion of the act of
Congress referred to, and wherever it has been
found that a section contained any departure from
the meaning of Congress as expressed in the
Statutes at Large, such change has been made as
was necessary to restore the original signification.6
Durant’s assurance that his version of the revised code
would result in no change in the law was constantly
reiterated by the sponsors of the bill, and was clearly
5 Untitled Report, Library of Congress No. "Law U.S. 2, LLRBR"
(rare book room), p. 432.
6 Report of Thomas Jefferson Durant to the Joint Committee on
the Progress of Work Revising the Statutes of the United States, p. 1
(Library of Congress No. "Americana 7," Durant (rare book room)).
- 12 -
critical to its passage.7
That assurance was specifically reiterated on the
floor of the House with regard to the civil rights
provisions of the revised code. Representative Lawrence
advised his colleagues that the bill was framed to
brinfg] "together ah statutes and parts of statutes
which from similarity of subject ought to be
brought together".... The plan ... is to collate in
one title of "civil rights" the statutes which declare
them.2 * * 5 * * 8
Lawrence then referred the House to the specific
provisions of the 1866 Civil Rights Act and 1870 Voting
Rights Act. He read into the record the language of § 1
of the 1866 Act, and commented that § 16 of the 1870
Act "re-enacts in modified words the substance of the
2 Cong. Rec. 647 (Rep. Dawes; "What we want is to reproduce
the law as it is") (Rep. Poland; bill is "free from any effort to change
existing law”), 648 (Rep. Poland; bill is "a reflex of existing statutes")
(Rep. Hoar; bill will "codify existing laws, and nothing more ... there is
no change in the existing law," bill "does not change existing law ... even
though the difference be on ly ... the difference between comma and a
semicolon"), 649 (Rep. Hoar; bill "contains no alteration of the law”).
8 2 Cong. Rec. 827 (emphasis added).
- 13 -
original civil-rights section."9 He then assured Congress
that "in the reported draft of the commissioners, as in
Durant’s revision, the act of May 31, 1870, is very
properly not treated as a revision of the whole subject,
and hence as superseding the entire original act."70
Lawrence pointed to the treatment of civil rights as a "fair
specimen" of Durant’s work in codifying without altering
the law, and insisted "from these all can judge of the
accuracy of the translation."77 Viewed in light of these
circumstances, because § 1 of the 1866 Civil Rights Act
extends to private acts of discrimination, § 1981 does so
as well.
9
Id-
i o Id- at 828 (emphasis added).
11 Id.
- 14 -
n.
CONGRESS INTENDED SECTION 1 OF THE CIVIL
RIGHTS ACT OF 1866 TO BAR ALL RACIAL
DISCRIMINATION, BOTH PUBLIC AND PRIVATE
The actions of Congress in enacting §§ 1981 and
1982 must be examined in light of the historical
conditions in 1866, at the close of a bloody conflict fought
to end slavery. When viewed in its entirety, the legislative
history of what was to become §§ 1981 and 1982 makes
it clear that Congress was attempting to pass
comprehensive legislation that would outlaw all forms of
discrimination or other attempts to subjugate the former
slaves, whatever the source of those attempts. Some
actions that these provisions sought to interdict were the
official acts of various states. Many other actions, which
Congress was equally intent upon prohibiting, were those
of private parties who were seeking to reintroduce slavery
by every means available to them.
- 15 -
A. In the Area of Contract and Property Rights, the
Problems that Congress Intended to Remedy Were
Largely Caused by Private Action._____________
When Congress first reconvened after the end of
the Civil War, the facts concerning conditions in the
southern states, particularly the treatment of the
freedmen, were in dispute. By this time, major
differences were beginning to emerge between President
Johnson and many of the Republican leaders in Congress.
In this climate, Congress made efforts to determine for
itself the truth concerning the condition of freedmen.
The information thus obtained — from the Schurz Report,
the hearings of the Joint Committee on Reconstruction
and letters and petitions addressed to Congress
identified the problems that the Civil Rights Act of 1866
was designed to remedy. Examination of the information
upon which Congress acted demonstrates that, with regard
to contract and property rights, the primary difficulties
facing freedmen stemmed from the actions of private
- 16 -
individuals, not state legislatures and officials.
1. The Schurz. Howard and Grant Reports,
a. The Schurz Report. The pivotal
event in the origin of congressional reconstruction policy,
and in the drafting by Senator Trumbull of the 1866 Civil
Rights Act, was the report of Major General Carl Schurz
on conditions in the South following the end of the war.72
In June of 1865, "President Johnson assigned Schurz the
task of traveling through a number of Southern States for
the purpose of gathering information and making
observations as to the postwar conditions to be found in
that region." Memphis v. Greene. 451 U.S. 100, 131 n.4
(1981) (White, J., concurring). In November 1865 Schurz
completed his report, but President Johnson declined to
release the report until the Senate adopted a resolution
Report of Carl Schurz on the States of South Carolina,
Georgia, Alabama, Mississippi and Louisiana, S. Exec. Doc. No. 2, 39th
Cong., 1st Sess.
- 17 -
insisting that it be made public.1*
When the Schurz report was finally released to the
Senate on December 19,1865, Senator Sumner demanded
that the entire report be read aloud on the floor,
denouncing as a "white-wash" President Johnson’s benign
account of conditions in the South. Cong. Globe, 39th
Cong., 1st Sess. 79. After the introductory paragraphs of
the Schurz report had been read as requested, Senator
Trumbell urged the Senate to defer further debate on the
accuracy of the President’s representations until the
Senate had had sufficient time to read and understand
the Schurz report itself, and joined in a motion to direct
that the entire report be printed.*’*
Congress recessed for the holiday on December 21,
Cong. Globe, 39th Cong., 1st Sess. 30, 78. See J. James, The
Framing of the Fourteenth Amendment 19 (1956).
Id- at 80. Senator Sherman, in successfully urging that the
Schurz report be printed, argued: "I have no doubt whatever that the
report of General Schurz is a very able, elaborate, and excellent
document; I have no doubt we shall be advised and informed when we
read it...." Id- at 79.
- 18 -
but the Schurz report, having finally been released, played
a key role in shaping public opinion.75 To assure that the
Schurz Report was widely disseminated and read,
Congress ordered the printing of 10,000 additional
copies.76
General Schurz’ grim account of conditions in the
South stood in stark contrast with the benign description
that had been offered by President Johnson. Schurz
reported that southern whites, far from accepting the
victory of the union forces and the emancipation
proclamation, were almost universally determined to
reintroduce some form of slavery, and had already taken
a variety of steps to achieve that end. In discussions with
Schurz, white southerners insisted:
[i]n at least nineteen cases of twenty ... "you cannot
make the negro work without physical compulsion."
I heard this hundreds of times, heard it wherever
I went, heard it in nearly the same words from so 15
15
16
J. James, at 50-51.
Cong. Globe, 39th Cong., 1st Sess. 265.
- 19 -
many different people that at last I came to the
conclusion that this is the prevailing sentiment
among the southern people.
S. Exec. Doc. No. 2, 39th Cong., 1st Sess. 16. That
"widely spread ... and ... deeply rooted" prejudice
naturally produced a desire to preserve slavery in
its original form as much and as long as possible
... or to introduce into the new system that element
of physical compulsion that would make the negro
work.
Id- at 17. That attitude was compounded by a general
belief among whites that "the negro exists for the special
object of raising cotton, rice and sugar for the whites, and
that it is illegitimate for him to indulge, like other people,
in the pursuit of his own happiness in his own way.” Id.
at 21 (emphasis in original). In the absence of federal
intervention, Schurz warned, those two beliefs
will tend to produce a system of coercion, the
enforcement of which will be aided by the hostile
feeling against the negro now prevailing among the
whites, and by the general spirit of violence which
in the south was fostered by the influence slavery
exercised upon the popular character.
- 2 0 -
Id- at 32. The former slave owners, Schurz predicted in
an italicized passage, would devise schemes for the
reintroduction of practical slavery, "the introduction of
which will be attempted." Id. (emphasis in original).
There was, of course, no practical reason why the
coercion and slavery-like working conditions favored by
whites could be imposed only through legislation or
actions by state officials. Schurz reported that widespread
efforts to re-enslave the freedmen were being made by
private citizens. The majority opinion in Jones v. Maver
Co, noted that the Schurz report referred to lawless acts
of brutality directed against blacks. 392 U.S. at 428-29.
These were not random acts of racially motivated
violence but, according to Schurz, an effort to prevent
blacks from exercising the rights of freedmen:
In many instances negroes who walked away from
plantations ... were shot or otherwise severely
punished, which was calculated to produce the
impression among those remaining with their
masters that an attempt to escape from slavery
would result in certain destruction. A large
- 21 -
proportion of the many acts of violence committed
is undoubtedly attributable to this motive.
S. Exec. Doc. No. 2, at 17. For example, General Swayne,
the Freedmen’s Bureau assistant commissioner in
Alabama, reported
The bewildered and terrified freedmen know not
what to do — to leave is death; to remain is to suffer
the increased burden imposed upon them by the
cruel taskmaster, whose only interest is their labor,
wrung from them by every device an inhuman
ingenuity can devise; hence the lash and murder is
resorted to intimidate those whom fear of an awful
death alone cause to remain, while patrols, negro
dogs and spies, disguised as Yankees, keep constant
guard over these unfortunate people.
Id. 19 See also id- at 18 (Georgia), 19 (Mississippi).
Whether former slaves remained with their old
masters or succeeded in finding work with another land
owner, they were likely to be subject to abuse by their
employers, who often imposed on them conditions as bad
or even worse than slavery itself.
[Mjany attempts were made to ... adherje], as to
the treatment of laborers, as much as possible to
the traditions of the old system, even where the
relations between employers and laborers had been
- 2 2 -
fixed by contract. The practice of corporal
punishment was still continued to a great extent....
The habit is so inveterate with a great many
persons as to render on the least provocation, the
impulse to whip a negro almost irresistible.
Id. at 19-20. A black worker might be disciplined for
insolence or insubordination "whenever his conduct
varie[d] in any manner from what a southern man was
accustomed to when slavery existed." Id- at 31. Wages
were often paltry:
I have heard a good many freedmen complain that,
taking all things into consideration, they really did
not know what they were working for except food,
which in many instances was bad and scanty; and
such complaints were frequently well founded.
Id- at 29. Where blacks worked as sharecroppers, their
portion of the plantation’s crop was at times "so small as
to leave them in the end very little or nothing." Id.
Where the contracts agreed to by the land owners
contained fair terms, the employers frequently broke
them. Id- at 16, 30.
General Schurz found that plantation owners
-23 -
specifically attempted to use labor contracts as a method
to reintroduce slavery:
[M]any ingenious heads set about to solve the
problem, how to make free labor compulsory ....
[S]ome South Carolina planters tried to solve this
problem by introducing into the contracts
provisions leaving only a small share of the crops
to the freedmen, subject to all sorts of constructive
charges, and then binding them to work off the
indebtedness they might incur. It being to a great
extent in the power of the employer to keep the
laborer in debt to him, the employer might thus
obtain a permanent hold upon the person of the
laborer.
Id- at 22 (emphasis added). Thus, the former masters
were generally willing and even anxious to enter into
contracts with their former slaves; it was the freedmen
who were wary, "afraid lest in signing a paper they sign
away their freedom." Id. at 30; see also id. at 27.
Although he was apprehensive that legislation
would be enacted to facilitate the return of de facto
slavery, id- at 35, the actual abuses of freedmen which
Schurz described were almost exclusively private in
-24 -
nature. At the time he drafted the report, the only post
war laws of which Schurz was aware that had an adverse
effect on blacks were scattered local ordinances in
Louisiana and Mississippi, measures which Schurz
acknowledged were as of yet "mere isolated cases." Id. at
25.
This was the preeminent account of conditions in
the South when Senator Trumbull drafted and introduced
the Civil Rights Bill. As late as December 13, Trumbull
professed uncertainty as to whether the situation in the
former slave states required federal legislation. Cong.
Globe, 39th Cong., 1st Sess. 43. On December 19, when
the Schurz report was released, Trumbull admonished the
Senate to defer any judgments until the report was read.
Id- at 80. Seventeen days later, on January 5, 1866,
Senator Trumbull, now convinced that congressional
action was indeed necessary, introduced S. 61, the bill
that was to become the Civil Rights Act of 1866. It is
- 25 -
difficult to believe that Trumbull, acting against the
background of the Schurz report, would have intended
under S. 61 to permit continuation of the forms of private
abuse already then in existence, and to extend federal
protection only to certain types of potential, and
somewhat hypothetical, statutory problems.
b. The Howard Report. General
Howard’s account of conditions in the South was
contained in his summary of work of the Freedmen’s
Bureau, which he directed. According to Howard, the
greatest actual difficulties encountered by the Bureau
were with abusive or dishonest employers. Reports from
South Carolina, for example, were "replete with instances
of ... cruelty towards the freedmen - whipping, tying up
by the thumbs, defrauding of wages, over-working,
combining for purposes of extortion." H. Exec. Doc. No.
11, 39th Cong., 1st Sess. 26 (1866). In Louisiana whites
were often unwilling "to fulfill their contracts with the
- 2 6 -
freedmen." Id. at 28. The critical problem in Mississippi,
as in "many of the other States," was to induce the
land owners "to treat [freedmen] kindly, respect their
rights, and pay them promptly, as agreed upon in the
contract." Id- at 30. Howard’s circular orders to his
subordinates, annexed to his report, reflected a
preoccupation with these problems. Id.
Howard’s report made no mention of any problems
created for freedmen by post-war southern legislation,
instead noting with approval the action of several states
authorizing blacks to testify in their courts. Id- at 29
(Louisiana and Alabama). Howard warned that federal
protection was required because of private attitudes
towards and treatment of freedmen: "[TJhere is danger of
the [state] statute law being in advance of public
For example, Circular No. 5 directed: "Negroes must be free to
choose their own employers, and be paid for their labor. Agreements
should be free, bona fide acts, approved by proper officers, and their
inviolability enforced on both parties. The old system of overseers,
tending to compulsory unpaid labor and acts of cruelty and oppression
is prohibited." Id. at 45. See also id. at 49.
- 27 -
sentiment, so that where there is the most liberality, ill
consequences would be likely to result if [federal]
government protection should be immediately withdrawn."
Id. at 32-33.
c. The Grant Report. General Grant,
commenting in a letter requested by President Johnson,
envisioned a need for a federal role in protecting the
freedmen, particularly from abuses by "ignorant men":
It cannot be expected that the opinions held by
men at the south for years can be changed in a
day, and therefore the freedmen require for a few
years ... laws to protect them....
Cong. Globe, 39th Cong., 1st Sess. 78. Grant’s only
reference to southern legislation was a suggestion that it
would ultimately provide whatever protection blacks
might require.
2. Hearings of the Joint Committee on
Reconstruction.
Trumbull’s Civil Rights Bill was referred to the
- 28 -
Judiciary Committee on January 5; the Committee
reported the bill to the Senate a week later without
conducting any hearings on the legislation. Cong. Globe,
39th Cong., 1st Sess. 211. The investigation of actual
conditions in the South had been consigned by Congress
to a special Joint Committee on Reconstruction. See id.
at 24-30, 47, 57, 60-62, 69. The hearings of the Joint
Committee began on January 22, and continued
throughout the congressional consideration of S. 61. The
ongoing revelations produced by the Joint Committee
hearings supplemented the earlier reports of Generals
Schurz, Howard and Grant in providing the factual
foundation of congressional reconstruction policy/5
The Joint Committee hearings painted a detailed
Transcripts of the hearings were available to and mentioned by
members of the House during the first debate on the Civil Rights Act.
Cong. Globe, 39th Cong., 1st Sess. 1267. During the period between
initial passage and the vote to override the President’s veto, Congress
directed that several thousand copies of the hearings be printed. Id. at
- 29 -
and often grim picture of the serious difficulties then
faced by the freedmen, and of the potential significance
of pending legislation such as S. 61. Some forms of
discrimination forbidden by § 1 of the bill proved to be
of little immediate importance; in 776 pages of testimony
there are less than half a dozen complaints regarding any
inability of freedmen to sue or testify, or the imposition of
unequal penalties/9 The overwhelming majority of the
testimony concerning blacks was concerned with three
problems -- the inability of blacks to make labor contracts
on fair, non-discriminatory terms, the inability of blacks to
buy, lease or hold real or personal property, and the
failure of local officials to enforce state criminal laws
where the victim of an offense was a freedman. All of
the testimony regarding labor contract problems, and
virtually all the testimony regarding real and personal
Report of the Joint Committee on Reconstruction, 39th Cong.,
1st Sess., pt. iii, p. 8 (excessive penalties), 37 (testimony); pt. iv, p. 50
(right to sue and be sued), 75 (excessive penalties) (1866).
-3 0 -
property, concerned abuses by private parties, rather than
discriminatory officials or laws.
There were numerous reports of violence being
used to prevent former slaves from exercising the right to
make employment contracts. In Mississippi an
organization known as the "black cavalry" forcibly
returned to their old masters freedmen who obtained jobs
elsewhere:
[Fjreedmen [who] have gone from one county to
another and made contracts, ... were brought back
by men with their faces blackened, who whipped
them and ordered them not to leave again ... even
though they were under no contract with their
former masters.20
Similar organized patrols, which attacked any blacks
found on the roads without written permission from their
employers, were reported in Alabama, South Carolina,
and Louisiana.27 White employers themselves often
20
21
Id- at pt. iii, p. 143; $££ aisjQ id. at pt. iii, p. 145.
Id- at pt. ii, p. 222; pt. iii, p. 8; pt. iv, pp. 77, 83.
-31 -
attacked or killed former slaves if they attempted to quit
and seek jobs elsewhere.22 23
Freedmen who succeeded in leaving their old
masters had little chance of contracting to sell their
services on fair, non-discriminatory terms. White land
owners, still attached to the slave system in which blacks
had worked without compensation, were almost
universally unwilling to pay blacks the wages commanded
by whites, or the sums for which black slaves, as property,
had been rented by their owners prior to the Civil War.
Clara Barton and others reported that many former
slave owners objected to paying blacks any wages
whatever, and were intent upon withholding ail
compensation once the union army and Freedmen’s
Bureau were withdrawn from the South 22 Even under
Id. at pt. ii, pp. 187,188; pt. iii, p. 42; pt. iv, pp. 39, 65,66,125.
23 Id. at pt. ii, pp. 30, 51, 52, 175; pt. iii, pp. 10, 103 (statement of
Clara Barton); pt. iv, pp. 37, 46.
-32 -
pressure from federal officials, most planters balked at
paying blacks more than $8 a month, and often insisted
on paying even less, only a fraction of the rate at which
slaves had been hired out prior to the war.24 In the case
of sharecropping, although a share of one-third or one-
half of the crop was generally regarded as the fair rate,
land owners were often willing to offer blacks only one-
sixth or one-tenth.25
Most land owners were entirely willing to contract
with blacks, providing their onerous terms were accepted;
among former slave owners contracts were regarded as a
device by which some form of practical slavery could be * 41
Id- at pt. 1, p. 108 (unfair rates); pt. ii, pp. 13 ($8 a month), 54
($3-7 a month), 55 ($6 a month), 210 (unfair rates), 226, 227 (unjust
rates), 234 ($2 a month); pt. iii, pp. 6 ($7 a month), 12 ($2 a month),
41 ($8-12 a month), 43, 44, 46 (unfair rates), 143 ($7-10 a month), 150
($8-12 a month); pt. iv, p. 116 ($8 a month). Prior to the Civil War a
slave was typically rented out at a rate of $17 a month. Id., at pt. iii, p.
6. After the war the non-discriminatory rate for agricultural workers
was approximately $25 per month. Id. at pt. iii, p. 126.
oo — at pt' pp- 182> ^ Pl- PP- 9, 44, 45, 46; pt. iv, pp. 69,
o o , 116.
-33 -
established. Officials of the Freedmen’s Bureau
explained:
Slavery they have given up in the old form, but
they want to subdue and keep in a low place the
negroes, by some compulsion which ii seems to me
they are trying to effect ... privately .... The idea
was that the negro was to be kept subservient to
the white race and compelled to labor for low
wages. Contracts ..., unless regulated by the agents
of the Freedmen’s Bureau, have been very much
on the side of the white man."6
The planters are disposed, in many cases, to insert
in their contracts tyrannical provisions, to prevent
the negroes from leaving the plantation without a
written pass from the proprietor; forbidding them
to entertain strangers, or to have fire-arms.... A
contract ... stipulated that the freedman, in
addressing the proprietor, should always call him
"master. 26 27
26 Id. at pt. ii, p. 243 (emphasis added).
27 Id. at pt. ii, p. 240. See also id. at pt. ii, pp. 123 (There is a
disposition on the part of citizens to secure, as far as possible, the same
control over the freedmen by contracts which they possessed when they
held them as slaves."), 126 ("by availing themselves of the ignorance of
negroes in the making of contracts, by getting them in debt, and
otherwise, they would place them ... in a worse condition than they were
in when slaves").
-34 -
One land owner demanded that his workers "sign a
contract to work for him during their lifetime."28 There
was also considerable interest among white land owners
in replacing slavery with some form of contractual
peonage. In Texas and Louisiana planters agreed on a
form of contract, or a series of charges, designed to insure
that the debts of the freedmen would equal or exceed any
wages they were owed.29
The detailed terms and conditions of a freedman’s
employment frequently were not addressed in any written
contract, but were resolved on the job. Here too blacks
could not expect fair, non-discriminatory treatment. "The
old master was not inclined to treat them differently from
what he did when they were slaves.... The old planters
were unwilling to come down and make bargains in good
Id- at pt. ii, p. 228.
29 Id. at pt. iii, pp. 80 (system of charges), 124-25 ("blank forms
of contracts); see also id. at pt. i, p. 107 (peonage); pt. ii, p. 270
(peonage); pt. iii, p. 7 (peonage); pt. iv, p. 9 (peonage).
-35 -
faith with those who had been slaves."30 31 By far the most
widespread abuse was the beating or whipping of black
workers. One official of the Freedmen’s Bureau
observed:
Q. Are the people there disposed to resort to
personal violence or chastisement to compel
the negroes to work now?
A They are so disposed in nearly every
instance. A resort to violence is the first
thought that I have seen exhibited when
freedmen did not act exactly to suit the
employer.... It is the universal ... purpose
with them ... to do that.37
The hearings of the Joint Committee abounded with
stories of black employees who were beaten by their
masters for the least transgression, or for no apparent
reason whatever; such treatment was never visited upon
white employees.32 * * *
30 Jd. at pt. iv, p. 116.
31 Id. at pt. iv, p. 83.
32 Id. at pt. ii, pp. 17 (white "disposition ... to maltreat the negro"),
55 (whipping), 61 (whipping), 83 ("cruelty," "scourging" and "torturing"),
170 (beating and whipping), 188 (whipping and beating), 226 (beating)
(continued...)
-36 -
Equally abundant was testimony about employers
who, having received the services agreed upon by their
black workers, disregarded their contractual obligations to
pay them in return. After the crops of 1865 were
harvested in the fall of that year, many thousands of black
workers, a majority of all the freedmen in some areas,
were driven from the plantations without being paid. In
other instances white planters simply refused to pay their
black employees, provided them with a smaller proportion
of the crops than had been agreed upon, attempted to
deduct from their wages unjustified charges, or sought to * 33
^(...continued)
228 (beating); pt. iii, pp. 42 (beating), 43 (violence), 146 (beating); pt.
iv, pp. 46-47 (beating), 47 (shooting), 65 (beating).
33 Id. at pt. ii, pp. 52, 188, 222, 223, 225, 226, 228; pt. iii, pp. 142,
173-74; pt. iv, pp. 64, 66, 68.
-37 -
defraud them in other ways.54 The Freedmen’s Bureau
was forced to intervene on behalf of blacks in thousands
of such cases, and federal officials estimated that a
majority of the wages actually paid would have been
withheld but for the Bureau’s action.55
Except in the case of Mississippi, there were no
complaints regarding legal obstacles to the purchase or
leasing of real property by blacks. But the legal right to
buy or rent such property was meaningless, because white
land owners were generally unwilling to sell or lease real 35
Id. at pt. ii, pp. 188, 194, 195, 225, 228, 229, 272; pt. iii, pp. 42,
43,151 ("[t]here seemed to be a disposition on the part of a very large
number of the planters to overreach ... the freedmen, and to defraud
them of a part of their earnings"); pt. iv, pp. 8, 10, 37, 38 (freedmen
"have universally been treated with bad faith and very few have received
any compensation for work performed up to the close of the year
1865").
35 Id. at pt. ii, pp. 19, 195; pt. vi, pp. 8, 37 ("Not one in ten
[freedmen] would have received any compensation for labor performed
during the year 1865, had it not been for the vigorous measures" of
union army officials); 38 ("seven out of every ten who have paid wages
to the freed people ... have done so over the point of the bayonet"), 45,
80 (T h e negroes ... without the aid of the government, would not be
able to secure their wages....").
-3 8 -
property to freedmen.56 A series of witnesses observed
that, because of the resistance of white land owners, "it is
with great difficulty that a negro can rent land to tend
himself.... If the negroes will work for them they will hire
them, but they are not willing to rent them lands."57 In
particular, "[fjormer slave owners will not lease or sell
land to negroes."55 "Most of them leave their plantations
lying idle rather than to sell or rent any of their lands to
on
negroes. One witness testified, "A rebel colonel told
me that he would rather his property were sunk in the
middle of perdition than to lease it to negroes, much less
to sell it to them; and many others expressed similar * 30
36
at pt. ii, pp. 149,154,182, 235-36 243; pt. iii, pp. 4, 6, 25, 27,
30, 36, 45, 62, 66, 71, 101, 12, 151; pt. iv, pp. 10, 56, 62, 69, 117.
37
38
Id- at pt. ii, p. 154.
Id- at pt. iii, p. 154.
Id. at pt. iv, p. 10.39
-39 -
sentiments."40 41 When blacks succeeded in leasing land, it
was often through subterfuge, such as by enlisting a white
man to act as the nominal lessee.42 Planters opposed
leasing lands to blacks because it interfered with their
ability to dictate the terms under which freedmen would
be hired; "They say that unless negroes work for them
they shall not work at all."42
In most states there were no complaints about any
problems that had been caused by post-war legislation in
the South. While there was fear that some future official
action might aggravate the position of blacks,42 there was
a widespread agreement that existing private
40 Id- at pt. iv, p. 69; see also id- at pt. iii, p. 66 ("combination of
landowners, agreed not to rent to blacks").
41 Id. at pt. iii, pp. 4-45.
Id. at pt. iv, p. 62; see also id. at pt. ii, p. 101 ("farm owners ...
desire to keep negroes landless, and as nearly in a condition of slavery
as it is possible for them to do"); pt. iv, p. 117 (land holders oppose
selling land to blacks "because it was putting them in a position of
independence....").
43
Id- at pt. iii, pp. 18, 25, 70, 143, 183; pt. iv, p. 33.
discrimination and abuses had already rendered the
situation of freedmen intolerable. There was some
concern that in the future, state action might be used to
support a system of de facto slavery but the record before
the Joint Committee demonstrated that this insidious goal
had in many areas already been achieved in part, and in
some regions been accomplished in full, as a result of
existing private discrimination and abuse.
B. The 1866 Congressional Debates Establish that
Congress Intended § 1 of the 1866 Act to Reach
Purely Private Conduct._____________________
In light of the circumstances that existed in the
South in early 1866, as reported to Congress by Schurz,
the Joint Committee, and others, the question of
Congressional intent raised in Runyon and Jones is an
essentially pragmatic one -- did Congress intend the
existing systematic oppression and even practical re
enslavement of freedmen to continue so long as the
former slave owners achieved their ends solely through
private acts? It would be surprising indeed if Congress,
- 40 -
- 41 -
fully aware that those goals were being pursued with
considerable efficacy by means of both private conduct
and governmental discrimination, chose not to forbid the
success of such schemes, but only to channel the desire
for restoration of slavery into private techniques alone.
The debates of the thirty-ninth Congress make clear that
the supporters of the Civil Rights Act were determined to
end the oppression of blacks, not merely to refine the
methods of their oppression.
1. Congress Included Private Actions Among
the Problems It Intended to Address.
References to the problem and varieties of private
discrimination against freedmen are found in virtually
every debate of the thirty-ninth Congress regarding the
condition of freedmen. The very first speech on the
condition of former slaves, by Senator Wilson on
December 13, 1865, asserted that blacks were the victims
of killings, atrocities, and outrages. Wilson quoted a
- 42 -
letter describing the situation of blacks in Mississippi
prior to the adoption of any of the black codes as "worse
off in most respects than they were as slaves." Cong.
Globe, 39th Cong., 1st Sess. 39-40f 4 Senator Johnson,
who would later be among the chief opponents of the
Civil Rights Act, promptly disputed these charges, denying
the claim that the men of the South were "semi-
barbarous," and challenging Wilson’s "supposed means of
information." Id- at 40. Senator Trumbull, although
uncertain whether Wilson’s charges were accurate,
admonished that strong legislation would be needed "if
what we have been told today in regard to the treatment
of freedmen in the South is true." Id- at 43.
Wilson’s allegations were reiterated in the days
immediately preceding the introduction of S. 61 on
January 5, 1866. Senator Sumner reported that planters * 25
The letter is dated November 13, 1865, id. at 95; the
Mississippi laws respecting freedmen were not adopted until November
25.
-43 -
in South Carolina had agreed in public meetings not to
rent land to blacks or "to contract with any freedman
unless he can produce a certificate of regular discharge
from his former owner." Id. at 93. In Tennessee "in very
many cases" "rascally employers" refused to pay wages
earned by their black workers. Id- at 95. Wilson
defended his original charges, challenging his colleagues
to examine the records and reports at the office of the
Freedmen’s Bureau documenting these "great atrocities
and cruelties." Id. at 111. One of those who did so was
Senator Trumbull.4'5 A petition to the Senate from blacks
in Alabama complained that "many of their people are
now in a condition of practical slavery, being compelled
to serve their fellow owners without pay and to call them
‘master.’" Id- at Y l l . 46
E. Foner, Reconstruction: America’s Unfinished Revolution
1863-1877 243 (1988).
The Alabama laws regarding labor contracts and apprentices
were not enacted until late February, 1866.
- 44 -
References to such private outrages continued
throughout the debates on the Civil Rights Act.
Representative Wilson’s opening speech in support of the
bill admonished:
the hate of the controlling class in the insurgent
States toward our colored citizens is a fact against
which we can neither shut our ears nor close our
eyes. Laws barbaric and treatment inhuman are
the rewards meted out by our enemies to our
colored friends. We should put a stop to this at
once and forever.
Id- at 1118 (emphasis added). Other speakers referred
specifically to the killing, whipping and robbing of blacks,
attacks on black schools, conspiracies by white planters
not to hire freedmen, and gangs of whites enforcing a de
facto pass system.47 Representative Lawrence observed
that
[Tjhere is a present necessity for this bill.... [I]t
would take an army of twenty thousand men to
compel the planters to do justice to the freedmen.
This bill takes right hold of this matter.
Id. at 1159-60 (Rep. Windom), 1759 (Sen. Trumbull), 1833-35
(Rep. Lawrence), 1828-39 (Rep. Clark), App. 181 (Sen. Wade).
- 45 -
Id. at 1833 (emphasis added). Lawrence quoted the
testimony of Major General Alfred H. Terry that:
Many persons are treating the freedmen ... with
great harshness and injustice, and seek to obtain
their service without just compensation, and to
reduce them to a condition which will give to the
former masters all the benefits of slavery....
Id. Speakers in favor of the bill cited the reports of
Generals Schurz and Grant, as well as testimony before
the Joint Committee.^5 Senator Wade observed on the
day of the critical vote to override the President’s veto,
that the "flood of testimony brought from this great
committee has enlightened everybody upon the facts." Id.
at 180.
There was widespread agreement with the view
earlier expressed by General Schurz that the old slave
owners were determined to hold freedmen in a state of
Id. at 1267 (remarks of Rep. Raymond), 1407-13,1827 (remarks
of Rep. Baldwin), 1833-34 (remarks of Rep. Lawrence), 1839 (remarks
of Rep. Clarke).
- 46 -
practical slavery/9 Proponents of the Civil Rights Act
were under no illusion that the former masters would
restrict themselves to seeking to achieve that end by
enacting onerous legislation, but knew that "the old
slaveholders ... would resort to every means in their
power." Id. at 503 (Sen. Howard). Thus, the purpose of
the Civil Rights Act was not simply to bar the former
slave holders from utilizing the machinery of state
government to achieve that end, but to thwart altogether
attempts to re-enslave and oppress the freedmen. For
Senator Trumbull the critical issue was whether "this bill
[will] be effective to" "end and prevent slavery," and he
insisted that if the measure was adopted "we shall have
secured freedom in fact." Id- at 474-76. See also id- at
1118 (Rep. Wilson), 1151-53 (Rep. Thayer), 1159 (Rep.
Windom), 1759 (Sen. Trumbull), 1761 (Sen. Trumbull),
Id. at 504 (Sen. Howard), 1118 (Rep. Wilson), 1125 (Rep.
Cook), 1833-35 (Rep. Lawrence), 1838 (Rep. Clarke).
- 47 -
1828 (Rep. Baldwin). This fierce determination to end
completely and for all time the subjugation of freedmen
reflected the fearful cost incurred by the nation in lives
and destruction in order to bring an end to chattel
slavery. Senator Trumbull admonished those of his
colleagues who insisted that Congress lacked the power to
protect the freedmen from practical slavery:
Go tell it, sir, to the father whose son was starved
at Andersonville, or the widow whose husband was
slain at Mission Ridge, or the little boy who leads
his sightless father through the streets of your city,
... or the thousand other mangled heroes to be
seen on every side.-50
These are not the words of a person who believed that
the whites of the rebel states were to remain free to work
their will on the freedmen so long as they were careful to
do so without resort to the machinery of government.
Id- at 1757; see also id. at 341 (Sen. Wilson), 344 (Sen. Wilson),
504 (Sen. Howard), 1124 (Rep. Cook), 153 (Rep. Thayer), 1839 (Rep.
Clarke).
- 48 -
Opponents of the civil rights bill focused their
objections on two aspects of the bill -- nullification of
state statutes and the imposition of criminal penalties on
state officials who carried out those laws. As a
consequence, proponents of the Civil Rights Act
concentrated their own arguments on the need to deal
with state discrimination. But both sides recognized that
the Civil Rights Act was not limited to such
discriminatory governmental measures. Senator Trumbull
announced prior to introducing S. 61 that it was intended
to deal with the danger that "by local legislation or a
prevailing public sentiment in some of the States persons
of the African race should continue to be oppressed."57
Representative Thayer condemned "the tyrannical acts,
the tyrannical restrictions, and the tyrannical laws which
belong to the condition of slavery, and which it is the
Id. at 77 (emphasis added). See also id. (duty of Congress to
protect freedmen against "any legislation or any public sentiment which
deprives any human being in the land of those great rights of liberty").
- 49 -
object of this bill forever to remove." Id- at 1152.
Representative Kerr opposed the bill because it would
apply to a church which refused to rent its most desirable
pews to blacks. Id. at 1268. Senator Davis objected that
the Act would apply not only to churches, but also to
railroads, street cars, boats, hotels, restaurants, saloons
and baths which practiced racial segregation. Id. at App.
183. During the critical days preceding the vote to
override President Johnson’s veto, the argument that the
bill would affect such public accommodations was widely
repeated in newspapers and journals supporting the
S'?veto.
Davis also complained that the bill would interfere
with relations between black workers and white
employers, relations that he insisted would be handled in
a fair manner by the parties themselves if only there were
We set out in Appendix A the texts of some of these published
objections.
-5 0 -
no federal intervention:
The passage of such a bill is calculated to produce
interference between, and a disturbance of, the
relations of the black laborer and his white
employer, to get up feuds and quarrels.... The way
to avoid that feud ... is to leave the relationship to
itself and the parties to it....
Id- at 1416. This objection would have made no sense if
Davis had thought the act was inapplicable to private
employment relationships. President Johnson expanded
on this argument in his veto message, objecting that the
bill attempted to regulate by law employment questions
which could be fairly resolved through ordinary economic
forces. Black workers and white employers, the President
urged, had
equal power in settling the terms, and if left to the
laws that regulate capital and labor, ... [would]
satisfactorily work out the problem.... This bill
frustrates this adjustment. It intervenes between
capital and labor, and attempts to settle questions
of political economy through the agency of
numerous officials.
-51 -
Although proponents of the Civil Rights Act were quick
to disavow what they thought were deliberately inaccurate
interpretations of the bill,55 and although Senator
Trumbull responded to virtually every paragraph in
Johnson’s veto message, no member of the House or
Senate rose to dispute these descriptions of the law by
Kerr, Davis, and the President.
2. Congress Understood § 1 of 1866 Civil
Rights Act to Have The Same Scope as § 7
of the Vetoed Freedmen’s Bureau Bill.
Section 7 of the Freedmen’s Bureau Bill,
introduced by Senator Trumbull as a companion to the
Civil Rights Bill, extended "military protection and
jurisdiction" over all cases in which persons in the former
rebel States were "in consequence of any State or local
law, ordinance, police or other regulation, custom, or
prejudice, [denied or refused] any of the civil rights or
immunities belonging to white persons, including the right
53 Cong. Globe, 39th Cong., 1st Sess., at 1837 (Rep. Lawrence).
- 5 2 -
to make and enforce contracts ... on account of race.""54
Justice Harlan acknowledged in his dissent in Jones that
§ 7 would have applied to private discrimination, but
insisted that the different wording of § 1 of the Civil
Rights Act reflected a different intent on the part of
Congress:
In the corresponding section of the ... civil rights
bill ... the reference to "prejudice" was omitted
from the rights-defining section. This would seem
to imply that the more widely applicable civil rights
bill was meant to provide protection only against
those discriminations which were legitimated by a
state or community sanction sufficiently powerful
to deserve the name "custom."
392 U.S. at 457.
Justice Harlan’s argument would have had
considerable force if § 1 limited its application to denials
"in consequence of any State or local law, ordinance,
police or other regulation or custom," but deleted the
The text of the bill is set forth in E. McPherson, The Political
History—of the—United_States of America During the Period of
Reconstruction 72 (1871) (emphasis added).
-53 -
word "prejudice." But what is "omitted" from § 1 is not
simply the word "prejudice," but the entire phrase,
beginning with the word "in consequence," in which
prejudice as well as laws and customs are mentioned. A
closer comparison of §§ 7 and 1 suggests a conclusion
opposite to that reached by Justice Harlan. The right
protected by § 7 is "the ... righ[t] of white persons ... to
make and enforce contracts," language substantially
identical to the right-defining terminology of § 1. The
phrase in § 7 referring to denials of rights "in
consequence of ... law or prejudice" describes the
circumstances under which military jurisdiction will be
exercised, not the substance of the right to be enforced by
the Freedmen’s Bureau officials. The fact that Congress
foresaw that the right referred to in § 7 - and § 1 -
might be denied by reason of private "prejudice" strongly
suggests that Congress understood § 7 to protect against
private as well as government imposed discrimination, for
- 54 -
only a right to be free from private discrimination was
likely to be denied "in consequence of' private prejudices.
The congressional debates make clear that
Congress understood § 1 of the Civil Rights Act to have
the same scope as § 7 of the vetoed Freedmen’s Bureau
Bill. Representative Bingham insisted that § 7
enumerated "the same rights and all the rights and
privileges that are enumerated in the first section of the
Civil Rights Bill." Cong. Globe, 39th Cong., 1st Sess.
1291 (emphasis added). Senator Davis, who opposed
both measures, repeatedly referred to the Freedmen’s
Bureau Bill and the Civil Rights Bill as "twins."55
3. The Dissenting Opinion in Jones Is Not
Persuasive.
The dissenting opinion in Jones makes two primary
arguments in support of the conclusion that Congress
intended § 1 of the 1866 Act to reach only state action.
Id. at 523, 575, 595; see also id- at 1121 (Rep. Rogers; civil
rights bill a "relic" of Freedmen’s Bureau bill).
First, Justice Harlan interprets a number of statements
made during the debates as reflecting an intent on the
part of Congress to reach only "state-sanctioned
discrimination." 392 U.S. at 453. Second, Justice Harlan
notes the existence of only a few statements either
supporting or opposing coverage of private discrimination,
and argues that, had Congress intended such coverage,
the supporters would have defended this aspect of the bill
more vigorously, 392 U.S. at 461, and the opponents
would have protested this coverage more "strenuously,"
id- at 463. As discussed below, the remarks relied upon
by Justice Harlan, when read in the context in which they
were made, do not support the interpretation advanced in
the dissent. And the relative lack of attention to the
coverage of private racial discrimination is understandable
when viewed in the historical context.
(i) There are a number of statements in the
debates which stress the need to prevent discriminatory
- 55 -
-56 -
state action. Read in the context in which they occurred,
however, the passages in question emphasize only the
importance of ending such invidious official conduct, and
do not evidence an intent to tolerate similar conduct
taken with a similar purpose by whites holding no public
office. From the very outset of the debates on the Civil
Rights Bill, opponents focused their arguments on two
principal objections - that § 1 would have the effect of
nullifying discriminatory state statutes,56 and that § 2
would impose criminal penalties on state officials,
particularly judges, who implemented such state laws.57
Opponents argued that any statutory invalidation of state
laws violated the tenth amendment, id- at 595 (Sen.
£&> Cong. Globe, 39th Cong., 1st Sess. 478 (Sen. Saulsbury),
499 (Sen. Cowan), 601 (Sen. Guthrie), 606 (Sen. Saulsbury), 1121 (Rep.
Rogers), 1270 (Rep. Kerr), 1415 (Sen. Davis), 1680 (veto message),
1777 (Sen. Johnson), 1782 (Sen. Cowan), App. 182-84 (Sen. Davis).
57
&£., id. at 597, 599 (Sen. Davis), 602 (Sen. Hendricks), (Rep.
1154-55 (ReP’ Eldridge), 1265 (Rep. Davis) 1271 (Rep. Kerr),
1291 (Rep. Bingham) 1296 (Rep. Latham), 1680 (veto message), 1780-
83 (Sen. Cowan), 1809 (Sen. Saulsbury).
- 57 -
Davis), 1977 (Sen. Johnson), App. 184 (Sen. Davis), and
some, including Representative Bingham, insisted that
Congress could never impose the criminal penalties on
state officials, see, e*g„ id. at 1291. In the face of these
attacks, proponents of the Civil Rights Bill understandably
devoted most of their own remarks to justifying the
application of § 1 to discriminatory state statutes, and the
application of § 2 to discriminatory state officials.
A number of the passages cited by Justice Harlan
merely emphasize the importance of dealing with
governmental discrimination. Of such limited significance
are passages such as these:
Sir, if it is competent for the new-formed
legislature of the rebel States to enact laws . . .
which declare, for example, that they shall not
have the privilege of purchasing a home for
themselves and their families; . . . then I demand
to know, of what practical value is the amendment
abolishing slavery?'55
392 U.S. at 466 (emphasis by Justice Harlan) (citing Cong.
Globe, 39th Cong., 1st Sess. 1151 (Rep. Thayer)).
- 5 8 -
[W]hat kind of a freedom is that by which the man
placed in a state of freedom is subject to the
tyranny of laws which deprive him of [natural]
rights . . .?5~
What is the necessity which gives rise for that
protection? See, in at least six of the lately
rebellious States the reconstructed Legislatures of
those States have enacted laws which, if permitted
to be enforced, would strike a fatal blow at the
liberty of freed men....60
Statements of this sort fall far short of indicating that
state action was Congress’ sole concern.
In a number of instances, passages quoted by
Justice Harlan are taken out of a context which give them
a meaning quite different than that suggested by the
dissent. For example, Justice Harlan excerpted from this
statement by Representative Wilson only the first
sentence:
It will be observed that the entire structure
392 U.S. at 466, (emphasis by Justice Harlan) (citing Cong.
Globe, 39th Cong., 1st Sess. 1152 (Rep. Thayer)).
at ^ (emphasis by Justice Harlan) (citing Cong.
Globe, 39th Cong., 1st Sess. 1153).
- 59 -
of this bill rests on the discrimination relative to
civil rights and immunities made by the states on
"account of race, color, or previous condition of
'slavery." That these things should not be is no
answer to the fact of their existence. That the
result of the recent war, and the enactment of the
measures to which the events of the war naturally
led us, have intensified the hate of the controlling
class in the insurgent states toward our colored
citizens is a fact against which we can neither shut
our ears nor close our eyes. Laws barbaric and
treatment inhuman are the rewards meted out by
our white enemies to our colored friends. We
should put a stop to this at once and forever.67
Read in full this passage makes clear that Wilson
intended the bill to deal not only with discriminatory laws,
but also "treatment inhuman . . . by our white enemies."
Justice Harlan quotes Representative Thayer as
asking:
[W]hat kind of freedom is that by which the man
placed in a state of freedom is subject to the
tyranny of law which deprive him of [natural]
rights?* 62
1 Cong. Globe, 39th Cong., 1st Sess. 1118 (emphasis added). The
passage in the dissenting opinion is at 392 U.S. at 465.
62 Id- at 1152, dted at 392 U.S. at 466.
- 60 -
By italicizing the word "law," the dissent suggests that
Thayer was concerned only about tyrannical statutes. But
only seven sentences before this passage Representative
Thayer more broadly condemned:
the tyrannical acts, the tyrannical restrictions, and
the tyrannical laws which belong to the condition
of slavery, and which it is the object of this bill
forever to remove.6,3
Many of the tyrannical acts and restrictions appurtenant
to slavery were taken and imposed by slave owners, rather
than by any state government. The most plausible
interpretation of Thayer’s remarks is that he intended the
bill to apply to these private abuses as well.
Justice Harlan cites the following statement by
Senator Trumbull as a "wholly unambiguous statement]
which indicated that the bill was aimed only at "state
action":
If an offense is committed against a colored person
simply because he is colored, in a state where the
law affords him the same protection as if he were
63 Id.
- 61 -
white, this act neither has nor was intended to
have anything to do with his case, because he has
adequate remedies in state court.64
A review of the page of the Congressional Globe where
this sentence appears, however, makes it clear that
Trumbull was discussing, not the bill as a whole, but the
penal provisions of the bill, which are contained in § 2
and which were expressly limited to state action and to
customs. The sentence immediately before the portion of
the speech quoted by Justice Harlan sets forth the reason
why the punitive provisions would be inapplicable in the
hypothesized case. The explanation is not that the bill as
a whole does not reach private conduct, but that in § 2
"[tjhese words ’under color of law’ were inserted as words
of limitation."65 Such "words of limitation" would have
been entirely unnecessary if § 1 itself had been limited to
actions under color of law and custom.
392 U.S. at 460 (citing Cong. Globe, 39th Cong., 1st Sess. 1758).
Cong. Globe 39th Cong., 1st Sess. 1758.
- 62 -
Another "wholly unambiguous" statement cited by
Justice Harlan is excerpted from the following statement
by Senator Trumbull. The portion actually reproduced in
the dissenting opinion is underscored:
The President in his annual message . . .
was . . . decided in the assertion of the right of
every man to life, liberty, and the pursuit of
happiness. This was his language . . . . "good faith
requires the security of the free men in their
liberty and their property." . . . Acting from the
considerations I have stated, and believing that the
passage of a law by Congress, securing equality in
civil rights when denied by State authorities to
freed men and all other inhabitants of the United
States, would do much to relieve anxiety in the
North, to induce the southern states to secure
these rights by their own action, and thereby
remove many of the obstacles to an early
reconstruction, I prepared the bill substantially as
it i s ___ 66
Justice Harlan italicized the words "when denied by State
authorities." The omission of the reference to the other
"considerations" obscured the fact that Trumbull actually
gave not one but two reasons for proposing the act. That
2 Cong. Globe, 39th Cong., 1st Sess. 1760. The partial
quotation by Justice Harlan is at 392 U.S. at 461.
- 63 -
other consideration, the protection of the lives, property
and liberty of freedmen, almost certainly referred to
private action, since attacks on the lives and property of
blacks were virtually all committed by private citizens.
Other passages cited by Justice Harlan would, if
construed in the manner he suggests, simply prove too
much. The dissent cites, for example, the following
remark by Representative Bingham:
[W]hat, then, is proposed by the provision of the
first section? Simply to strike down by
congressional enactment every state constitution
which makes a discrimination on account of race
or color in any of the civil rights of the citizen.67
If by "simply" Bingham meant "solely," this passage would
indeed indicate that private acts of discrimination were
not covered. But Bingham cannot have meant "solely,"
because that would limit § 1 to state constitutions, and
render it inapplicable, for example, to state statutes or
392 U.S. at 467 (emphasis by Justice Harlan) (citing Cong.
Globe, 39th Cong., 1st Sess. 1291).
- 64 -
actions by state officials. Similarly, Senator Trumbull is
quoted as asserting:
[This bill] will have no operation in the State of
Kentucky when her slave code and all her laws
discriminating between persons on account of race
or color shall be abolished.6**
This too would support Justice Harlan’s view of the 1866
act, if Trumbull were asserting that Kentucky could
remove itself from the operation of the act by repealing
all discriminatory statutes. But that cannot have been
Trumbull’s meaning, since Justice Harlan concedes that
the act clearly covers discriminatory administration of
neutral laws, state enforcement of private agreements to
discriminate,* 69 and even acts of private persons if done
pursuant to "custom," 392 U.S. at 457.
The dissent notes other similarly intriguing
remarks by Senator Trumbull:
392 U.S. at 459 (emphasis by Justice Harlan) (citing Cong.
Globe, 39th Cong., 1st Sess. 476).
69 Hurd v. Hodge. 334 U.S. 24 (1948).
- 65 -
Why, sir, if the State of Kentucky makes no
discrimination in civil rights between its citizens,
this, bill has no operation whatever in the Statp. r>f
Kentucky.
This bill ... could have no operation in
Massachusetts. New York. Illinois, or most of the
states of the Union.77
But these remarks cannot literally mean the Civil Rights
Act would have no operation in these states because, even
if a state and all its subdivisions did not engage in
discrimination, the act would still apply, as Justice Harlan
acknowledged, to "those discriminations which were
legitimated by a ... community sanction sufficiently
powerful to deserve the name ’custom’." 392 U.S. at 457.
In each of these cases the context in which the remark
was uttered makes clear that Bingham and Trumbull
meant only that, in the absence of specified forms of * *
392 U.S. at 459, (emphasis by Justice Harlan) (citing Cong.
Globe, 39th Cong., 1st Sess. 476).
392 U.S. at 460 (emphasis by Justice Harlan) (citing Cong.
Globe, 39th Cong., 1st Sess. 1761).
- 6 6 -
discrimination, the act would not apply to the type of
state action referred to.72
Justice Harlan cites a statement by Senator
Trumbull that § 2 of the Thirteenth Amendment was
adopted:
for the purpose, and none other, of preventing
State Legislatures from enslaving, under any
pretense, those whom the first clause declared
should be free.72
Since Trumbull "indicated that he would introduce
separate bills to enlarge the powers of the recently
founded Freedmen’s Bureau and to secure the freedmen
in their civil rights" immediately after making this
statement, Justice Harlan inferred that the stated purpose
of § 2 of the Thirteenth Amendment "also [was] the aim
of the promised bills." 392 U.S. at 455-56. However, this
72 The last of the Trumbull quotation, for example, is proceeded
by the following sentence: "This will in no manner interfere with the
municipal regulations of any State which protects all alike in their rights
of person and property." Id. at 1761.
73 392 U.S. at 455 (citing Cong. Globe, 39th Cong., 1st Sess. 43).
- 67 -
reasoning supports the conclusion that Trumbull intended
the Civil Rights Bill to cover private racial discrimination,
since there is no doubt that the Freedmen’s Bureau Bill
reached such conduct. Certainly, the fact that the
Freedmen’s Bureau Bill extended to private conduct
demonstrates that Trumbull did not use "and none other"
to mean "only." Indeed, Trumbull cannot have meant that
§ 2 of the Thirteenth Amendment reaches only actions by
State legislatures. Both §§ 1 and 2 obviously extend as
well to enslavement at the hands of any other branch of
state government or by state subdivisions, and even the
most conservative members of the thirty-ninth Congress
agreed that § 2 authorized federal legislation to protect
freedmen from private individuals who sought to restrain
and enslave them by force. Read in the context of the
debate in which they were spoken, as Justice Stewart
noted in Jones, the words "and none other" were meant to
emphasize that § 2 was adopted "precisely," not
- 6 8 -
exclusively, to authorize congressional action to nullify
oppressive state laws. 392 U.S. at 430 n.48.
Finally, Justice Harlan cites a statement by
Trumbull in which, after objecting to several recently
adopted state laws, the Senator commented:
[t]he purpose of the bill under consideration is to
destroy all these discriminations, and carry into
effect the constitutional amendment.74
The portion of this passage beginning with "and" makes
clear that the Bill had a second broader purpose, to
assure implementation of the Thirteenth Amendment.
(ii) Justice Harlan also relies upon Congress’
relative silence with respect to coverage of private
discrimination. In the course of a speech justifying § 3
of the Civil Rights Bill, which conferred jurisdiction on
the federal courts to redress violations of § 1, Senator
Trumbull asserted that § 2 of the Thirteenth Amendment
392 U.S. at 458 (emphasis by Justice Harlan)(citing Cong.
Globe, 39th Cong., 1st Sess. 474).
- 69 -
provided authority to establish such jurisdiction where
needed to protect freedmen from discriminatory laws or
customs. Cong. Rec., 39th Cong., 1st Sess. 1759. Justice
Harlan argued:
If the bill had been intended to reach purely
private discrimination it seems strange that Senator
Trumbull did not think it necessary to defend the
surely more dubious federal jurisdiction over cases
involving no state action whatsoever.
392 U.S. at 461. Similarly, Justice Harlan concluded that
if the bill’s opponents thought that the bill reached wholly
private conduct, "it seems a little surprising that they did
not object more strenuously." 392 U.S. at 463.
The focus of Senator Trumbull’s remark, however,
is entirely understandable when one notes that his entire
speech was intended as a response to President Johnson’s
veto message. The aspect of § 3 to which the President
objected was the existence of what he believed would be
exclusive federal jurisdiction over cases in which states
denied the rights secured by § 1. Cong. Rec., 39th Cong.,
- 7 0 -
lst Sess. at 1680-81.
More importantly, Justice Harlan’s argument
reflects an historical anachronism. Writing in 1968, after
the adoption of the Fourteenth Amendment and the
decision in the Civil Rights Cases. 109 U.S. 3 (1883),
limiting the reach of that amendment to state action,
Justice Harlan understandably regarded federal
prohibitions against private discrimination as more
unusual, and constitutionally more "dubious," than a
federal law against state discrimination. But in early 1866
these developments lay in the future. At that point in
American constitutional history, the imposition of federal
obligations on state officials was the more dubious
proposition. Prigg v. Pennsylvania. 16 Pet. 539 (1842),
and Kentucky v, Dennison. 24 How. 66 (1861), then held
that Congress generally could not impose such duties on
-71 -
states or their officials/'5 Justice Harlan suggested that
the intent of the framers of the 1866 Act be construed in
light of the 1883 decision in the Civil Rights Cases. 392
U.S. at 458 n.19, but the case actually cited during the
1866 debates was the 1842 decision in Prigg.75 76 Thus, in
the constitutional context in which the 1866 Act was
debated, it was the imposition of federal restrictions on
states and state officials, not on individuals, that was
particularly likely to encounter fierce opposition.
III.
CONGRESS HAS ADOPTED THE PRINCIPLE THAT
§ 1981 PR O H IB ITS PR IV A TE RACIAL
DISCRIMINATION
The Court has requested additional briefing and
argument on whether it should reconsider the ruling in
Runvon v. McCrary. 427 U.S. 160 (1976), that 42 U.S.C.
§ 1981 prohibits private contractual discrimination on the
75 See Monell v. New York City Dept, of Soc. Services. 436 U.S.
658, 676-78 (1978).
76 Cong. Globe, 39th Cong., 1st Sess. 1270 (Rep. Kerr), 1294
(Rep. Wilson), 1836 (Rep. Lawrence). Cf. id. at 1154 (Rep. Eldridge).
- 72 -
basis of race. The Runvon decision is part of a line of
cases concerning the scope and meaning of 42 U.S.C. §§
1981 and 1982 that began in 1968 with Jones v. Mayer
Co.. 392 U.S. 409, and is capped by three unanimous
decisions in 1987.77
The decisions in Jones. Johnson. Runvon.
McDonald and other § 1981 and § 1982 cases do not
stand alone as an independent body of law that can be
internally revised with no external consequences. Rather,
the chronology of developments over the past twenty-four
years shows that the Court’s decisions interpreting §§
1981 and 1982 have been woven into the larger body of
laws protecting civil rights that has been developed
Goodman v. Lukens Steel Co.. 482 U.S. __ , 107 S. Ct. 2617
(unanimous agreement that private racial discrimination prohibited by
§ 1981); St. Francis College v. AI-Khazraii. 481 U .S .__, 107 S. Ct. 2022
(1987); Shaare Tefila Congregation v. Cobb. 481 U .S .__ , 107 S. Ct.
2019 (1987). The other cases are: Sullivan v. Little Hunting Park. Inc..
396 U.S. 229 (1969); Tillman v. Wheaton-Haven Recreation Ass’n. 410
U.S. 431 (1973); Johnson v. Railway Express Agency, Inc.. 421 U.S. 454
(1975) ; McDonald v, Santa Fe Trail Transportation Co.. 427 U.S. 273
(1976) ; Memphis v. Greene. 451 U.S. 100 (1981); General Building
Contractors Ass’n v, Pennsylvania. 458 U.S. 375 (1982).
- 73 -
through the interaction of the courts, Congress and the
executive branch.
As we set out below, Congress has consistently
expressed its intent to leave § 1981 standing as an
independent remedy for employment discrimination, has
demonstrated its awareness of decisions of this Court and
the lower courts that have held that the section prohibits
discrimination by private employers, and has specifically
broadened the remedies available in § 1981 actions
against private defendants to include attorneys’ fees.
These actions establish Congress’ agreement with,
acquiescence in, and ratification and adoption of, the
holdings in Runyon. Johnson and McDonald, among
others.
This case does not, of course, present an instance
where Congress has reenacted a statute in light of court
decisions interpreting it, since there was no need to
reenact § 1981. There is, however, no meaningful
- 74 -
distinction between Congress’ actions concerning § 1981,
and the amendment or reenactment of statutes involved
in numerous cases in which the Court has concluded that
Congress adopted Court precedents.75
Indeed, it is difficult to conceive of a clearer
example of Congress’ adoption of judicial interpretations
of existing statutes — an adoption that goes beyond mere
acquiescence or even ratification. The chronology below
shows that Congress was not only aware of, but expressed
specific approval of, the Court’s decisions in Jones.
E.g, Lindahl v. PPM . 470 U.S. 768 (1985) (amendment of
statute without explicitly repealing Supreme Court decision creates
presumption that Congress intended to embody the doctrine in
amended statute); Edmonds v. Comnagnie Generate Transatlantique.
443 U.S. 256 (1979) (where statute amended in reliance upon Supreme
Court interpretation, the Court is no longer free to change its
interpretation); Shapiro v. United States. 335 U.S. 1 (1948); United
States v. South Buffalo Railway Co.. 333 U.S. 771 (1948) (rejection of
proposed amendment to nullify judicial interpretation demonstrated a
deliberate decision not to modify the Act; therefore, Court could not
change its interpretation); Francis v. Southern Pacific Co.. 333 U.S. 445
(1948). See also Monessen Southwestern Railway Co, v. Morgan. 56
U.S.L.W. 4494, 4496 (U.S. June 6, 1988) ("Congress’ failure to disturb
a consistent judicial interpretation of a statute may provide some
indication that Congress at least acquiesces in, and apparently affirms,
that [interpretation].").
-75 -
Johnson and McDonald, as well as numerous lower court
decisions applying them. Congress not only rejected
amendments that would have nullified those decisions, but
built upon them when it specifically provided for awards
of attorneys’ fees in actions brought under §§ 1981 and
1982 against private parties. These actions go far beyond
what the Court found to constitute acquiescence by
Congress in the revenue ruling at issue in Bob Jones
University v. United States. 461 U.S. 574, 599-600 (1983).
Given the events in Congress, the principle that §§ 1981
and 1982 prohibit private racial discrimination has
attained the force of an explicit legislative enactment.
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Civil Rights Act of 1964
In enacting the first major piece of modern civil
rights legislation, Congress left no doubt that the Civil
Rights Act of 1964 was intended to supplement, not to
supplant or cut back on, existing remedies.79 Senator
Tower offered an amendment that would have made Title
VII the exclusive remedy for employment discrimination.
110 Cong. Rec. 13650-13652. Senator Ervin, arguing in
favor of the amendment, read the text of § 1981 into the
record. Since Title VII as enacted in 1964 covered only
private employers, it seems clear that members of the
Senate, including Senator Ervin, believed that § 1981
already prohibited such private discrimination. The
Senate rejected the Tower amendment, making clear its
intent to retain other statutory remedies.
An explicit disclaimer of any adverse effect on the availability of
other remedies was included in several Titles of the 1964 Act. See 42
U.S.C. Section 2000a-6(b) (Title II—Public Accomodations), Section
2000b-2 (Title Ill-Desegregation of Public Facilities), Section 2000c-8
(Title IV—Discrimination in Public Education).
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The Jones Decision
In 1968, the Court ruled in Jones v. Mayer that §
1 of the Civil Rights Act of 1866 "was designed to do just
what its terms suggest: to prohibit all racial
discrimination, whether or not under color of law, with
respect to the rights enumerated therein — including the
right to purchase or lease property." 392 U.S. at 436.
The Court had the benefit of detailed analyses of the
legislative history provided by the parties, the United
States and several other capable amici. Justice Stewart’s
opinion, joined by six other Justices, thoroughly canvassed
the history and precedents and responded to detailed
arguments made in the dissenting opinion.50 Although
primarily addressed to § 1982, the opinion in Jones made
SIclear that the Court’s reasoning also applied to § 1981. 80 81
80 392 U.S. at 449 (Harlan, J., joined by White, J., dissenting).
81 392 U.S. at 435-436 (interpreting § 1 of 1866 Act), 422 n.28 (§
1981 derives from § 1 of 1866 Act), 442 n.78.
- 7 8 -
The Fair Housing Act of 1968
The oral argument in Jones was presented on
April 1 and 2, 1968. On April 10, 1968, Congress passed
the Fair Housing Act.'*'2 Congress was fully aware of the
pendency of the Jones case, and of the possibility that §
1982 would be construed to cover private conduct.52
Congress was also aware that the procedures and
remedies under § 1982 would be different from those
under the Fair Housing Act.54 With this background,
Congress explicitly provided that the Fair Housing Act
does not "invalidate or limit any law ... that grants,
guarantees, or protects the rights ... granted by this title * 83
Title VIII of the Civil Rights Act of 1968, Pub. L. 90-284, 82
Stat. 81, codified at 42 U.S.C. § 3601 et sect. (1982).
83 During the floor debate on the Fair Housing Act,
Representative Kelly recited the text of § 1982, described the Jones case
and explained that the Attorney General had informed the Court that
"the scope [of § 1982] was somewhat different, the remedies and
procedures were different, and that the new law was still quite
necessary.” 114 Cong. Rec. 9601-9602 (1968).
84 See note 82, supra.
- 79 -
42 U.S.C. § 3615 (1982).
Court Decisions: 1968-1972
In 1969, the Court ruled in Sullivan v. Little
Hunting Park. 396 U.S. 229, that § 1982 prohibits a
private recreation association from withholding, on the
basis of race, approval of an assignment of membership
that was transferred incident to a lease of real property.S5
The Court concluded that "[a] narrow construction of the
language of § 1982 would be quite inconsistent with the
broad and sweeping nature of the protection intended to
be afforded by § 1 of the Civil Rights Act of 1866." 396
U.S. at 237.
The impact of the Jones and Sullivan decisions on
§ 1981 and its scope was not lost on the lower federal
courts. These courts immediately began to apply § 1981
Three members of the Court dissented, 396 U.S. at 241 (Harlan,
J., joined by Burger, CJ., and White, J.).
- 80 -
to private discrimination related to contracts.56 The
federal courts fully embraced the implications of the
Jones decision and without hesitation applied both §§
1981 and 1982 to various forms of private discrimination.
86
B.
The lower court cases from 1968 to 1972 are set out in Appendix
- 81 -
Equal Employment Opportunity
Act of 1972
In 1972, Congress amended Title VII of the Civil
Rights Act of 1 9 6 4 .87 The 1972 legislative history shows
that both the Senate and the House fully understood and
approved of the broad scope of § 1981, and its
relationship to Title VII.
In the Senate, Senator Hruska introduced an
amendment which would have made Title VII the
exclusive remedy for employment discrimination. 118
Cong. Rec. 3172 (1972). He argued that current law
permitted "a multiplicity of actions to be instituted against
a respondent before a number of separate and distinct
forums for the same alleged offense." Id- at 3172. He
used as an example "a black female employee"
complaining of discrimination with regard to "denial of
Equal Employment Opportunity Act of 1972, Pub. L. No. 92-
261, 86 Stat. 108.
- 82 -
either a promotion or a pay raise" by her union and
employer. Id. at 3368. He noted that among other
remedies, the employee could "completely bypass both
the EEOC and the NLRB and file a complaint in Federal
court under the provisions of the Civil Rights Act of 1866
against both the employer and the union." Id- at 3173.
Senator Hruska argued that the availability of such
multiple remedies "could result in the virtual bankruptcy
of a small employer or labor organization." Id. at 3172.55
Thus, there can be no doubt that the Senator was
referring to actions against private defendants and that he
understood § 1981 to cover the terms and conditions of
employment.
Senator Hnasia is o contended that the aviiiabtlitv of a 'hodse-
pecke.’ US Cobe. xec. a: SSoS. of mukipie remedies ’dissirafedr the
EECX. crodSatut rrecess. id. at 51~L. 336SL. and disccxiracred vofamtarv
at >*>1_ He eroed that hk amendment be adccted to
correct these ' < n h a | and chaotic ccoEcicessd id. at 53er?.
- 83 -
Senator Hruska’s proposal was forcefully rejected
by Senator Williams, the floor manager of the bill.59
Senator Williams emphasized that the Hruska amendment
"would be inconsistent with our entire legislative history
of civil rights."90 He noted that the 1972 bill "is an
improvement [on the 1964 Act] which is premised on the
continued existence and vitality of other remedies for
employment discrimination." Id- at 3371. Senator
Williams went on to discuss the interrelationship between
This objection to the Hruska amendment was shared by the
executive branch. During hearings on the 1972 amendments, Assistant
Attorney General David Norman testified:
"[W]e are concerned that ... there be no elimination of any of
the remedies which have achieved some success in the effort to
end employment discrimination. In the field of civil rights, the
Congress has regularly insured that there be a variety of
enforcement devices to insure that all available resources are
brought to bear on problems of discrimination."
Equal Employment Opportunities Enforcement Act of 1971: Hearings
on S. 2515. S. 2617 and H.R. 1746 Before the Subcomm. on Labor of
the Senate Comm, on Labor and Public Welfare. 92d Cong., 1st Sess.
163 (1971) (quoted at 118 Cong. Rec. 3369).
90 See also id. at 3371 (Hruska amendment "would severely weaken
our overall effort to combat the presence of employment
discrimination").
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Congress and the courts in "a concentrated effort to
eliminate the presence of this national blight":
The law against employment discrimination did not
begin with title VII and the EEOC, nor is it
intended to end with it. The right of individuals to
bring suits in Federal courts to redress individual
acts of discrimination, including employment
discrimination was first provided by the Civil
Rights Acts of 1866 and 1871.
I d 91
Both Senator Williams and Senator Javits
emphasized the benefits of retaining the § 1981 remedy
against private employers. Senator Williams argued that
"[t]he peculiarly damaging nature of employment
discrimination is such that the individual, who is
frequently forced to face a large and powerful employer,
should be accorded every protection that the law has in
its purview, and that the person should not be forced to
See also id. at 3371 ("It is not our purpose to repeal existing
civil rights laws."), 3372 ("We are dealing with a problem in this country
that needs all available resources ... One way to reach [this problem]
is not to strip from [the victim of discrimination] his rights that have
been established, going back to the first Civil Rights Law of 1866").
- 85 -
seek his remedy in only one place.” Id- at 3372. He also
noted that the other remedies are needed to provide
relief in situations that Title VII does not cover. Id.
Senator Javits was even more explicit regarding the
specific benefits of retaining "the possibility of using civil
rights acts long antedating the Civil Rights Act of 1964."
Id- at 3370. He pointed out that these "other remedies
are not surplusage." Id. at 3961. Rather, they provide a
"valuable protection" to address "a given situation which
might fall, because of the statute of limitations or other
provisions, in the interstices of the Civil Rights Act of
1964." Id- at 3370. Such "interstices" included "cases in
which third parties have been guilty of bringing about the
discrimination." Id. at 3962.92 The Hruska amendment
was rejected twice by the Senate. Id- at 3373, 3965.
In the House of Representatives, the Committee
The bill’s sponsors concluded that it would be better to
abandon the Bill than to permit it to become a vehicle for repealing §
1981 and other remedies. Id. at 3963.
- 8 6 -
Report "emphasize [d] that the individual’s right to file a
civil action in his own behalf, pursuant to [§ 1981] is in no
way affected."95 92d Cong., 1st Sess. 18. This Report
cited "[t]wo recent court decisions," which applied § 1981
to private employment discrimination,94 as affirming the
"Committee’s belief that the remedies available to the
individual under Title VII are co-extensive with the
individual’s right to sue under the provisions of the Civil
Rights Act of 1866, 42 U.S.C. § 1981, and that the two
The House Report concluded: "Title VII was envisioned as an
independent statutory authority meant to provide an aggrieved
individual with an additional remedy to redress employment
discrimination." H.R. Rep. No. 238, at 18-19.
The Senate Report is consistent, stating:
"The committee would also note that neither the above
provisions regarding the individual’s right to sue under
title VII, nor any of the other provisions of this bill,
are meant to affect existing rights granted under other
laws."
S. Rep. No. 415, 92d Cong., 1st Sess. 24 (1971).
94 Sanders v. Dobb Houses. Inc.. 431 F.2d 1097 (5th Cir. 1970),
cert, denied. 401 U.S. 948 (1971), and Young v, I. T. & T„ 438 F.2d 757
(3d Cir. 1971).
- 87 -
procedures augment each other and are not mutually
exclusive." Id. at 19.
On the floor of the House, the "Erlenbom
substitute" bill was adopted in place of the bill reported
by the House Judiciary Committee. The major feature
of the Erlenbom substitute was that it provided for court
enforcement by the EEOC, rather than for agency "cease
and desist" powers. The Erlenbom substitute also
included a provision to make Title VII the exclusive
remedy.95 The Erlenbom substitute passed in the House
by a vote of 200 to 195. Id- at 32111. In conference with
the Senate, the court enforcement mechanism of the
Erlenbom substitute was retained, but the exclusive
Representative Erlenborn explained that a party who proceeds
under the 1964 Act can also fde an action "under the old Civil Rights
Act of 1866." 117 Cong. Rec. 31973 (1971). Since the 1964 Act covered
only private employers, there can be no doubt that Representative
Erlenborn was referring to suits against private employers under § 1981.
Representative Erlenborn noted that "in our substitute bill ... [t]here
would no longer be recourse to the old 1866 civil rights act." Id- Critics
of the Erlenborn substitute argued that, among other things, the
substitute would "repeajl] the Civil Rights Act of 1866." Id. at 31978
(Rep. Eckhardt). See also 117 id- at 32100 (Rep. Hawkins).
- 8 8 -
remedy provision was dropped. H.R. Rep. No. 899, 92d
Cong. 2d Sess. 17 (1972) (Conference Report). Thus,
Congress endorsed the judicial interpretation of § 1981 as
extending to private employment discrimination and chose
to preserve the § 1981 remedy as an important part of the
scheme to eliminate racial discrimination.
Court Decisions: 1973-1976
In 1973, the Court unanimously held that § 1982
prohibited racial discrimination by a private swimming
pool club that gave a membership preference to property
owners in a defined geographic area. Tillman v.
Wheaton-Haven. 410 U.S. at 437. The Court again
indicated that § 1981 as well as § 1982 covers private
discrimination.96
In 1975, the Court unanimously held that § 1981
provides a cause of action for private racial discrimination
"In light of the historical interrelationship between § 1981 and
§ 1982, we see no reason to construe these sections differently...." 410
U.S. at 440.
- 89 -
in employment. Johnson. 421 U.S. at 459-460; id- at 468
(Marshall, Douglas & Brennan, JJ., concurring in part and
dissenting in part). The Court cited many of the lower
court decisions that had reached this conclusion. 421 U.S.
at 459 n.6.
In deciding that the statute of limitations on a §
1981 claim of employment discrimination is not tolled
while an administrative charge under Title VII was
pending, the Court in Johnson analyzed the relationship
between § 1981 and Title VII. Relying in large part on
the 1972 legislative history of Title VII, the Court
concluded that even though "the filing of a lawsuit [under
§ 1981] might tend to deter efforts at conciliation,... these
are the natural effects of the choice Congress has made
available to the claimant by its conferring upon him
independent administrative and judicial remedies."
- 90 -
421 U.S. at 461.97
In June 1976, the Court decided Runyon v.
McCrary and McDonald v. Santa Fe Trail Transportation
Co., on the same day. With two Justices dissenting in
each case,95 the Court held in Runyon that § 1981 bars
racial discrimination by a private school, 427 U.S. at 172,
and held in McDonald that § 1981 bars racial
discrimination by a private employer against a white
worker, 427 U.S. at 287. The Court in both Runyon and
McDonald had the benefit of numerous amicus briefs
from the United States and private institutions. The
majority and the dissenters produced lengthy opinions
that fully considered and discussed the legislative history * 98
The United States filed a brief in Johnson, which concluded that
"Congress ... clearly intended that [employees aggrieved by racial
discrimination] should be permitted to pursue their rights under both
Title VII and Section 1981.” Brief for the United States as Amicus
Curiae, at 11-12.
98
Runyon. 427 U.S. at 192 (White, J., joined by Rehnquist, J.,
dissenting); McDonald. 427 U.S. at 296 (White, J., joined by Rehnquist,
J., concurring in part and dissenting in part). Two Justices concurred
in Runvon. 427 U.S. at 187 (Powell, J.); id. at 189 (Stevens, J.).
- 91 -
and the prior cases.
Civil Rights Attorney’s Fees
Awards Act of 1976
In the Fall of 1976, Congress enacted the Civil
Rights Attorney’s Fees Awards Act. The clarity of
Congress’ endorsement of § 1981’s coverage of private
discrimination is established by the sequence of events
leading up to the passage of the Fees Act. In 1975, the
Court in Alveska Pipeline Service Co. v. Wilderness
Society. 421 U.S. 240, ruled that attorneys’ fees ordinarily
may not be awarded absent an explicit statutory
authorization. The Court thus overruled a series of lower
court decisions that had permitted the recovery of
attorneys’ fees in cases brought under the various
Reconstruction Era Civil Rights Acts, including §§ 1981
and 1982. 421 U.S. at 270, n. 46. On June 25, 1976, the
Court decided Runyon and McDonald. In June and
September of 1976, the Senate and House committee
- 92 -
reports on the Civil Rights Attorney’s Fees Awards Act
were issued and the Act itself was passed by the Senate
on September 29 and by the House on October 1,
1916.100
The specific purpose of the Act was to overrule
Alyeska insofar as it applied to cases brought under §§
1981 and 1982 and the other Reconstruction Era civil
rights statutes. Thus, the Senate Report noted:
[F]ees are now authorized in an employment
discrimination suit under Title VII of the 1964
Civil Rights Act, but not in the same suit brought
under 42 U.S.C. § 1981, which protects similar
rights but involves fewer technical prerequisites to
the filing of an action. Fees are allowed in a
housing discrimination suit brought under Title
VIII of the Civil Rights Act of 1968, but not in the
same suit brought under 42 U.S.C. § 1982, a
Reconstruction Act protecting the same rights.
99
S. Rep. No. 1011, 94th Cong., 2d Sess.; H.R. Rep. No. 1558, 94th
Cong., 2d Sess.
100
Pub. Law No. 94-559, 90 Stat. 2641, codified at 42 U.S.C. §
1988.
- 93 -
S. Rep. No. 1011, at A.101 The House Report discussed §
1981 and cited with approval the decision in McDonald v.
Santa Fe Trail Transportation Company, as well as its
precursor, Johnson v. Railway Express Agency. H.R.
Rep. No. 1558 at A.102 103
During the floor debates on the availability of
attorneys’ fees, the existence of a cause of action under §
1981 for private discrimination was recognized/0̂
Representative Drinan, the floor leader in the House,
The Senate Report also incorporated by reference a list of
cases summarized in Hearings on the Effect of Legal Fees on the
Adequacy of Representation Before the Subcomm. of Citizen Interests
of the Senate Comm, on the Judiciary. 93d Cong., 1st Sess., pt. Ill, pp.
888-1024, 1060-62 (1973). S. Rep. No. 1011, at 4 n.3. A number of
these cases were actions brought under §§ 1981 and/or 1982 against
private parties. Hearings at 949, 953, 957-961, 966.
102 The House Report similarly cited and discussed with approval
the Court’s decisions in Tillman and Jones. H.R. Rep. No. 1558 at 4.
103 See 122 Cong. Rec. 35126 (1976) (Rep. Fish) (citing Lee v.
Southern Home Sites. 429 F.2d 290 (5th Cir. 1970) and Brown v, Balias,
331 F. Supp. 1033 (N.D. Tex. 1971)); id. (Rep. Kastenmeier) (citing case
of "the family of a veteran of the U.S. Army who could not be buried
in a local cemetery because his skin was black" [Terry v. Elmwood
Cemetery. 307 F. Supp. 369 (N.D. Ala. 1969)]).
- 94 -
emphasized that §§ 1981 and 1982 and the other statutes
to which the bill would apply:
generally prohibit the denial of civil and
constitutional rights in a variety of areas, including
contractual relationships, property transactions, and
federally assisted programs and activities. [The
Fees Act] would not make any substantive changes
in these statutory provisions. Whatever is presently
allowed or forbidden under them would continue
to be permitted or proscribed.
122 Cong. Rec. at 35122.iW
The Fees Act itself refers specifically to §§ 1981
and 1982. 42 U.S.C. § 1988. The express purpose of the
Fees Act was to provide an additional incentive to
plaintiffs to vindicate the rights guaranteed by §§ 1981
and 1982 and the other Reconstruction Era civil rights
statutes. S. Rep. No. 1011 at 2-3; H.R. Rep. No. 1558 at
2-3. The only possible reason for Congress’ inclusion of
§§ 1981 and 1982 within the Fees Act is to encourage
plaintiffs to use those sections to remedy private
104 See also 122 Cong. Rec. at 31472 (Sen. Kennedy).
- 95 -
discrimination. Section 1983, which is also covered by
the Fees Act, provides a cause of action with respect to
governmental action that violates § 1981 or 1982. Thus,
if §§ 1981 and 1982 did not reach private action, their
inclusion in the Fees Act would be redundant.
Court Decisions Since 1976
Since 1976, the prohibition of private racial
discrimination by §§ 1981 and 1982 has been treated as
well-settled by all members of the Court participating in
such cases/05
* * *
Memphis v. Greene. 451 U.S. at 120 (majority), 147 (dissenting
opinion); General Building Contractors v. Pennsylvania. 458 U.S. at 387
(majority), 406 (concurring opinion) (1982); St. Francis College v. Al-
Khazraii. 107 S. Ct. at 2026 ("petitioner college, although a private
institution, was ... subject to [§ 1981’s] statutory command"); Shaare
Tefila Congregation y, Cobb. 107 S. Ct. at 2021; Goodman v. Lukens
Steel Co.. 107 S. Ct. at 2625 ("courts below ... properly construed and
applied ... § 1981" in finding private union liable). See also Chapman
v. Houston Welfare Rights Organization. 441 U.S. 600, 652
(1979)(White, J., concurring) (remedies for violations of §§ 1981 and
1982 "applicable to private deprivations as well as deprivations under
color of state law"); Crawford Fitting Co. v. J.T. Gibbons. Inc., 482 U.S.
_ , 107 S. Ct. 2494 (1987) (ruling on prevailing party’s right to recover
cost of expert witness in context of a § 1981 employment discrimination
lawsuit against a private defendant).
-96 -
This chronology makes clear that for almost a
quarter of a century, Congress has fashioned modern civil
rights laws with a detailed understanding of judicial
decisions regarding §§ 1981 and 1982, and in reliance on
that case law. These events reveal a tremendous depth of
understanding by Congress of the meaning and
significance of the Court rulings. Congress, in legislating
on the subject of civil rights, did not have simply an
abstract idea that some other overlapping remedies might
exist. Instead, Congress understood the details and
nuances of Reconstruction Era remedies and their
relationship to modern enactments. Congress knew, and
considered it desirable, that § 1981 provides a remedy
where the statute of limitations has run under Title VII;
that § 1981 covers employers too small to be included in
Title VII; that a claimant can go directly into court under
§ 19S1 or § 1982; that § 1981 has fewer "technical
prerequisites" than Title VII; and that the procedures and
- 97 -
remedies are different under § 1982 and the Fair Housing
Act.
The chronology also makes clear that Congress
adopted the body of law interpreting §§ 1981 and 1982,
including application of those provisions to the terms and
conditions of employment. That application of § 1981
was first approved by the Court in Jones, which held that
§ 1981 prohibits racially motivated private interference
with performance of an employment contract/06
Following Jones, several of the early lower court rulings
applied § 1981 to racial discrimination in the conditions
of employment, such as discrimination in work
assignments and racial harassment. For example, in
Young v. I.T.&T.. 438 F.2d 757 (3rd Cir. 1971), the
plaintiff alleged that § 1981 was violated when he was
The Court concluded that where "a group of white men had
terrorized several Negroes to prevent them from working in a sawmill
... there was no doubt that the [whites] had deprived their Negro
victims, on racial grounds, of the opportunity to dispose of their labor
by contract," in violation of § 1981. 392 U.S. at 441-42, n. 78 (1968)
(overruling Hodges v. United States. 203 U.S. 1 (1906)).
- 98 -
harassed "maliciously and wantonly" by his union and
employer.^7
When Congress amended Title VII in 1972, it
clearly understood that discrimination in the terms and
conditions of employment is prohibited by § 1981. One
of the cases cited by the House Report as affirming that
§ 1981 is "coextensive" with Title VII was Young v.
I.T.&T.. which involved application of § 1981 to a claim
of racial harassment. Significantly, the Title VII remedies
to which the § 1981 "right to sue" is "coextensive" include
protection against discrimination in the "terms and
conditions of employment." 42 U.S.C. § 2000e-2
Accord Bourdreaux v. Baton Rouge Marine Contracting Co..
437 F.2d 1011 (5th Cir. 1971) (applying § 1981 to claim that undesirable
jobs were always assigned to blacks); Long v. Ford Motor Co.. 496 F.2d
500, 505-506 (6th Cir. 1974)(§ 1981 applies to claim of discrimination
in training). See also United States v. Medical Society of South
Carolina, 298 F. Supp. 145, 148-149 (D.S.C. 1969) (private hospital’s
segregation of outpatients); Fiedler v. Marumsco Christian School. 631
F.2d 1144 (4th Cir. 1980) (private school policy prohibiting interracial
romantic relationships).
- 99 -
(1982).^ Also in 1972, Senator Hruska’s example of a
lawsuit under § 1981 for salary discrimination shows that
he understood the scope of § 1981 to be broader than did
the Fourth Circuit in this case.
The Court in Johnson cited two cases that applied
§ 1981 to a claim of discriminatory terms and conditions
of employment. 421 U.S. at 459 n.6 (citing Young v.
I.T.&T.). 457 n.4 (citing Bourdreaux v. Baton Rouge
Marine Contracting Co.V Significantly, the plaintiffs
claims in Johnson primarily concerned racial harassment
and other racial discrimination in the terms and
conditions of employment. See 421 U.S. at 455 (seniority
rules and job assignments). The petitioner’s brief opened
with the statement: "Petitioner Willie Johnson, Jr., is a
black man who claims to have been subjected by 108
108 This protection had been construed prior to 1972 to encompass
racial harassment on the job. Rogers v. EEOC. 454 F.2d 234 (5th Cir.
1971), cert, denied. 406 U.S. 957 (1972).
- 100 -
respondents to racial discrimination in the terms and
conditions of employment." Brief for Petitioner at 2
(emphasis added). The Complaint alleged, inter alia, that
the employer "assigns, reassigns, promotes and otherwise
acts or fails to act" in a discriminatory manner. Supreme
Court Appendix at 6a (Complaint f V(2)).i09 In
amending the Fees Act in 1976, Congress explicitly relied
upon the Johnson decision, as discussed above.
IV.
THE DOCTRINE OF STARE DECISIS COMPELS
REAFFIRMATION OF THE DECISIONS IN
RUNYON AND JONES
Petitioner explains in Parts I and II above that
Runyon and Jones are consistent with the intent of
Congress when it enacted, reenacted and codified §§ 1981
and 1982. But even without revisiting the merits of the
109 .
The EEOC Final Investigative Report, attached to the
Complaint, described a variety of allegations, including racial
harassment of Willie Johnson, "more severe" work orders and discipline
for black employees and "dual standards, based on race, for conditions
of employment and disciplinary action." Supreme Court Appendix at
22a, 36a.
- 101 -
Runyon and Jones decisions, the doctrine of stare decisis
mandates that those decisions be retained.
"[T]he doctrine of stare decisis is ... a powerful
force in our jurisprudence...." United States v. Maine. 420
U.S. 515, 527 ( \ 9 1 5 ) . 110 Among the "weighty
considerations" that underlie the doctrine are "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; the importance
of furthering fair and expeditious adjudication by
eliminating the need to relitigate every relevant
proposition in every case; and the necessity of maintaining
public faith in the judiciary as a source of impersonal and
reasoned judgments." Moragne v. States Marine Lines,
398 U.S. 375, 403 (1970). This doctrine applies with most
110 Accord Welch v. State Dept, of Highways. 483 U .S .__, 107 S.
Ct. 2941, 2956-57 (1987) ("the doctrine of stare decisis is of fundamental
importance to the rule of law”); Vasquez v. Hillery. 474 U.S. 254, 265-
266 (1986); Miller v, Fenton. 474 U.S. 104, 115 (1985); Thomas v.
Washington Gas Light Co.. 448 U.S. 261, 272 (1980).
- 102 -
force in situations where the Court has definitively
construed a federal statute/77
A. Widespread Reliance on Runvon and Jones Strongly
Supports Reaffirmation of Those Decisions.
The case for stare decisis is compelling where, as
here, Congress has relied and built upon the Court’s
precedents in enacting subsequent legislation/72 As
discussed above, Congress’ actions in approving and
building upon the rulings in Runyon and Jones are much 111 112
111 Illinois Brick Co. v. Illinois. 431 U.S. 720, 736 (1977)
("considerations of stare decisis weigh heavily in the area of statutory
construction, where Congress is free to change [the] Court’s
interpretation of its legislation"). Accord NLRB v. Longshoremen. 473
U.S. 61, 84 (1985); Oklahoma City v. Tuttle. 471 U.S. 808, 818 n.5
(1985); Busic v. United States. 446 U.S. 398, 404 (1980); Continental
T.V., Inc, v. GTE Sylvania, Inc., 433 U.S. 36, 60 (1977) (White, J.,
concurring in the judgement). Even in the area of constitutional
interpretation, stare decisis plays a very large role. See, e.g.. H.
Monaghan, Stare Decisis and Constitutional Adjudication. 88 Colum.
L. Rev. 723 (1988).
112 See, e.g.. Miller v. Fenton. 474 U.S. at 115 (1985) (relying on
the "benefit of some congressional guidance" in declining to overturn a
prior ruling); Patsy v. Florida Board of Regents. 457 U.S. 496, 501
(1982) (factor in applying stare decisis is "whether overruling [a prior
decision] would be inconsistent with more recent expressions of
congressional intent"); Monell v. New York City Dept, of Social
Services. 436 U.S. 658, 695 (1978). See also Square D Co. v. Niagara
Frontier Tariff Bureau. Inc.. 476 U.S. 409, 422 (1986).
- 103 -
stronger than the congressional actions (or inactions)
found determinative in any other case.
Widespread reliance upon Runyon and Jones has
occurred at every level of government and private activity.
The Solicitor General filed a brief on behalf of the
United States as amicus curiae in Jones v. Mayer. Sullivan
v. Little Hunting Park. Tillman v. Wheaton-Haven.
Johnson v. Railway Express Agency. Runyon v. McCrary,
and McDonald v. Santa Fe. arguing in each case for
broad coverage of private discrimination under §§ 1981
and 1982. The brief in Runvon indicated that the
Attorney General and the Department of Health,
Education and Welfare, have significant responsibilities
for "efforts to desegregate public educational systems,"
and that these efforts "may be seriously impaired" "[i]f
private schools may lawfully deny admission to black
children on account of race." Brief for U.S. as Amicus
Curiae, at 2-3. In the instant case, the United States
- 104 -
explained that "the availability of remedies under 42
U.S.C. 1981 for acts of racial discrimination in
employment affects the degree of compliance with, and
allocation of government resources in enforcing, the
proscriptions of Title VII." Brief for U.S. as Amicus
Curiae, at 2 .113
State and local governments also have built upon
the rights provided under Runyon and Jones in
structuring their own remedies and enforcement
activities.^ Attorneys have relied upon Runyon and
Jones in advising clients.
The victims of racial discrimination also have
legitimately relied upon the rights provided under Jones
and Runyon. The situation of petitioner, Brenda * 114
The United States also stated: "It is now well-established that
Section 1981 prohibits racial discrimination in the making and
enforcement of private contracts, including contracts of employment."
Id- at 6.
114 See Brief of New York, 46 Other States, the District of
Columbia, Puerto Rico and the Virgin Islands, as Amici Curiae.
- 105 -
Patterson, illustrates the type of detrimental reliance that
is likely to have occurred with many victims of racial
discrimination. Mrs. Patterson could have brought her
racial harassment and promotion discrimination claims
against McLean Credit Union under Title VII.775 She
chose to sue under § 1981 and to forego the Title VII
claims.^6 Reasonably relying on the availability of a
remedy under § 1981, Mrs. Patterson let the short statute
of limitations expire on her Title VII claim. If the
Court now overrules Runyon. Mrs. Patterson will be left
without any remedy for either her harassment claim or
her promotion claim.
Mrs. Patterson filed a timely charge with the EEOC and
received a right to sue letter. Record, Exs. 3 and 5 to Defendant’s Brief
in Support of Motion for Summary Judgment.
116 Mrs. Patterson would not have been entitled to a jury trial or
to compensatory and punitive damages under Title VII. A major
element of Mrs. Patterson’s claim was discrimination in the terms and
conditions of her employment, for which Title VII provides no monetary
remedy.
117 Title VII requires that the recipient of a right to sue letter
bring suit within 90 days. 42 U.S.C. § 2000e-5(f)(l) (1982).
- 106 -
The doctrine of stare decisis is in large part a
recognition that individuals and institutions reasonably
rely on judicial decisions/75 The reliance of
governmental actors and the public is especially justified
in the case of the Runyon and Jones decisions. Each of
those cases was decided with only two dissenting votes
and has been reaffirmed repeatedly, including three
unanimous decisions as recently as 1987.
B. Runyon and Jones Resulted From Thorough Analysis.
The doctrine of stare decisis is particularly strong
where the precedent at issue resulted from thorough
briefing and careful analysis779 and no new evidence casts
doubt on the Court’s original conclusion. The Runyon
and Jones decisions resulted from a careful, deliberative
E.g. Oklahoma City v. Tuttle. 471 U.S. at 819 n.5; Thomas v.
Washington Gas Light Co.. 448 U.S. at 272.
119
Compare, e.g.. Copperweld Corp. v. Independence Tube Corp,.
467 U.S. 752 (1984) (overruling antitrust precedent where doctrine was
never analyzed in depth and was not necessary to result).
- 107 -
process. Those who disagree with the Court’s reading of
that history do not believe that Runyon or Jones was
clearly wrong/20 Justice White’s reasoning in Patsy with
regard to the exhaustion requirement under § 1983,
applies equally well to the current situation:
For nearly 20 years and on at least 10 occasions
the Court has clearly held that [§§ 1981 and 1982
prohibit private discrimination]. Whether or not
this initially was a wise choice, these decisions are
stare decisis, and in a statutory case, a particularly
strong showing is required that we have misread
the relevant statute and its history.
457 U.S. at 517 (concurring opinion).
C. No "Special Justification" Exists For Overruling
Runyon or Jones.
Because of the strong societal interests in the
doctrine of stare decisis, there is a "presumption of
adherence to ... prior decisions construing legislative
Jones. 392 U.S. at 450 (Harlan, J , joined by White, J ,
dissenting) (Court’s construction "at least is open to serious doubt"),
452-453 ("there is an inherent ambiguity in the term ‘right’ as used in
§ 1982"), 454 ("debates do not ... overwhelmingly support the result
reached by the Court, and ... a contrary conclusion may equally well be
drawn").
- 108 -
enactments." Illinois Brick Co. v. Illinois. 431 U.S. 720,
736 (1977). Even in the constitutional context, the
overruling of a precedent is an "exceptional action," which
must be supported by "special justification." Arizona v.
Rumsev. 467 U.S. 203, 212 (1984). No special
justification exists to overcome this presumption with
respect to Runyon or Jones.
The Court has identified several factors that may
in some combination outweigh the interests of stare
• • 7 7 7decisis. A very important countervailing consideration
is whether the precedent under review has proved
unworkable or has caused significant harm in its
application. In making the determination of workability
or harm, the Court generally looks to the experience in
applying the decision at issue. Criticism of the precedent
121 Counsel for petitioner have located 39 cases in which the Court
has overturned a statutory precedent. Those cases are listed in
Appendix C. In 33 of those 39 cases, the Court explicitly relied upon
either the harm of the prior decision (13 cases) or a subsequent change
in the law (20 cases).
- 109 -
by lower courts or commentators also is relevant to this
determination/22 For example, in Continental T.V.. Inc,
v. GTE Svlvania. Inc.. 433 U.S. 36, 47 (1977), the Court
overruled United States v. Arnold Schwinn & Co.. 388
U.S. 365 (1967), because "[s]ince its announcement,
Schwinn had been the subject of continuing controversy
and confusion, both in the scholarly journals and in the
federal courts."225
Far from causing great harm in application, the
Runyon and Jones rulings have produced tremendous
benefits. As interpreted in Runyon and Jones. §§ 1981
E.g. Gulfstream Aerospace Corp. v, Mavacamas Corp„ 108 S.
Ct. 1133, 1140, 1142 & n.10 (1988) (overruling procedural doctrine
based on "[a] half century’s experience," which demonstrated that the
doctrine was "unworkable," "arbitrary," produced "bizarre outcomes,"
had been "repeatedly ... lambasted" by the lower federal courts, and had
been subjected to "scathing" criticism by commentators).
123 Similarly, in the constitutional context, the Court overturned
part of its decision in Swain v. Alabama. 380 U.S. 202 (1965), because
the experience since Swain showed that the rule resulted in placing on
defendants a crippling burden of proof," and making "prosecutors
peremptory challenges ... largely immune from constitutional scrutiny.
Batson v. Kentucky. 476 U.S. 79, 92-93 (1986). Seg also id. at 101
(White, J., concurring) (experience under Swain showed that
discriminatory use of peremptory challenges "remains widespread ).
- 110 -
and 1982 have played a vital role in the national effort to
eliminate intentional racial discrimination. Sections 1981
and 1982 provide a remedy for discriminatory conduct in
many situations where no other federal statute operates.
For example, § 1981 has played a critical role in
■t'y j
preventing discrimination by private schools. Such
discrimination "is contrary to fundamental public policy."
Bob Jones. 461 U.S. at 592. Private schools which receive
no federal funds are subject to no other federal anti-
discrimination statute. The application of § 1981 to
See e.g.. Fiedler v, Marumsco Christian School. 631 F.2d 1144
(4th Cir. 1980) (white student expelled for talking to black student);
Brown v. Dade Christian Schools. Inc.. 556 F.2d 310 (5th Cir. 1977),
cert, denied. 434 U.S. 1063 (1978) (refusal to admit black students);
Riley v, Adirondack Southern School for Girls. 541 F.2d 1124 (5th Cir.
1976) (refusal to admit black student). See also Albert v. Carovano. 824
F.2d 1333 (2d Cir. 1987) (unequal discipline by private college); Grier
v. Specialized Skills. 326 F. Supp. 856 (W.D.N.C. 1971) (barber school).
In addition to the cases actually litigated under § 1981, other
private schools have voluntarily modified their policies in light of
Runyon. For example, following the Fourth Circuit’s ruling in Runyon.
515 F.2d 1082 (1975), Bob Jones University revised its policy and
permitted unmarried blacks to enroll. Bob Jones. 461 U.S. at 580. In
the absence of coverage under § 1981, many private schools are likely
to revert to their prior racially exclusionary policies.
- I l l -
private schools is essential not only to guarantee equal
access to the educational opportunities provided by such
schools, but also to prevent private segregation academies
from undermining the desegregation process in the public
schools/25
Sections 1981 and 1982 also provide a cause of
action for intentional discrimination by insurance
companies/26 commercial day care centers/27 private
cemeteries and mortuaries/25 contractors and
franchisers/29 certain private clubs/20 private * 126 127 128 129
See Brief for United States as Amicus Curiae, Runyon v.
McCrary, at 2-3. See also Norwood v. Harrison. 413 U.S. 455, 457,467
& n.9 (1973).
126 Sims v. Order of United Commercial Travelers. 343 F. Supp.
112 (D. Mass. 1972); Ortega v. Merit Insurance Co.. 433 F. Supp. 135
(N.D. IU. 1977).
127 Darensbourg v. Dufrene. 460 F. Supp. 662 (E.D. La. 1978).
128 Scott v. Eversole Mortuary. 522 F.2d 1110 (9th Cir. 1975);
Terry v, Elmwood Cemetery. 307 F. Supp. 369 (N.D. Ala. 1969).
129 Sud v. Import Motors Limited. Inc.. 379 F. Supp. 1064 (W. D.
Mich. 1964).
- 112 -
homeowners and employers with fewer than 15
employees/52 No other federal statute provides a cause
of action to combat these types of private, non-federally-
funded invidious racial discrimination.
Additionally, §§ 1981 and 1982 afford an
important remedy against third-party interference with the
enjoyment of contract or property rights. For example,
§ 1981 was held to prohibit Ku Klux Klan use of * 131 132 133
13o°(".continued)
Tillman v. Wheaton-Haven: Sullivan v. Little Hunting Park:
Wright v. Salisbury Club. Ltd.. 632 F.2d 309 (4th Cir. 1980); Johnson v.
Brace. 472 F. Supp. 1056 (E.D. Ark. 1979); Cornelius v. Benevolent
Protective Order of the Elks. 382 F. Supp. 1182 (D. Conn. 1974).
131 The Fair Housing Act exempts from coverage certain sales or
rentals of single family homes by an owner and certain rooms or units
in dwellings occupied by the owner and by four or fewer families. 42
U.S.C. § 3603(b). See Johnson v. Zaremba. 381 F. Supp. 165 (N.D. 111.
1973) (applying § 1982 to owner-occupied dwelling with less than four
units).
132 Title VII exempts from coverage employers with fewer than 15
employees. 42 U.S.C. § 2000e-l(b).
133 Protection against this type of discrimination was one of
Congress’ concerns when it enacted § 1 of the Civil Rights Act of 1866,
see Part II above, and was one of the reasons that Congress rejected
proposals to repeal §§ 1982 and 1982, see 118 Cong. Rec. at 3962 (Sen.
Javits).
- 113 -
intimidation tactics, such as cross-burning, for the purpose
of discouraging Vietnamese fishermen from contracting
with dock owners. Vietnamese Fishermen’s Ass’n v.
Knights of the Ku KIux Klan. 518 F. Supp. 993 (S.D.
Texas 1981). Similarly, a black former student at the
Citadel is suing white students for harassment and
intimidation because of his race. Second Amended
Complaint f 22, Nesmith v. Grimslev. No. 2-86-3248-8
(D.S.C.).^ And, pursuant to the Court’s 1987 decision
in Shaare Tefila. § 1982 is being used to remedy race-
based desecration of a synagogue.
In addition to filling in gaps in the coverage of
federal anti-discrimination statutes, §§ 1981 and 1982
provide important supplemental procedures and remedies
in areas where other federal statutes operate. A trial by
This harassment, which interfered with the black student s right
to enjoy the benefits of his contract for a college education, included an
incident in which five white students "entered [his dormitory] room
dressed in sheets and towels resembling Ku Klux Klan attire, chanted
threatening remarks ... and left behind a burned paper cross. Id- at 1
18.
- 114 -
jury is guaranteed in actions for legal damages under §§
1981 and 1982. In contrast, a jury trial is not available
under Title VII. Full legal remedies, including
compensatory and, in appropriate cases, punitive
damages, may be awarded for violations of §§ 1981 and
1982. Title VII monetary relief is limited to backpay, and
punitive damages under the Fair Housing Act are limited
to $1,000. The availability of compensatory and punitive
damages is especially important in cases of racial
harassment, where the plaintiff may not have suffered any
loss of wages and would be entitled to no monetary
remedy under Title VII.
The fact that multiple remedies with differing
procedures are available in some situations to redress
racial discrimination is itself a positive benefit, as has
been recognized by the Court, Congress and the
Executive Branch. Moreover, the existence of multiple
- 115 -
remedies has not produced problems of workability/55
Instead, the federal courts have, for almost twenty years,
routinely applied §§ 1981 and 1982 to allegations of
private discrimination, without fanfare or complaint. The
major substantive756 and procedural757 questions now
have been settled by definitive rulings from this Court or
by a consensus among the lower courts. The federal
agencies charged with enforcement of statutes that 135 136 137 138
135 Senator Hruska argued in 1972 that the existence of multiple
remedies would harm employers. Senator Javits responded that these
theoretical problems had not occurred in actual experience, 118 Cong.
Rec. at 3370, and Congress rejected the Hruska amendment.
136 ELg, General Building Contractors v. Pennsylvania. 458 U.S. at
391 (intentional discrimination required); Saint Francis College v. Al-
Khazraii. 107 S. Ct. at 2022 (discrimination on basis of ancestry
covered); McDonald v. Santa Fe. 427 U.S. at 280 (discrimination against
whites covered).
137 E.g. Goodman v. Lukens Steel Co.. 107 S. Ct. at 2621 (statute
of limitations); Johnson v. Railway Express Agency. 421 U.S. at 460,
463-464 (no tolling; compensatory and punitive damages available).
138 The lower courts have used the rules of proof of intentional
discrimination developed under the Constitution and other federal
statutes. ILg, Whiting v, Jackson State University. 616 F.2d 116 (5th Cir.
1980) (elements of violation are identical under § 1981, § 1983 and Title
VII disparate treatment claim).
- 116 -
overlap with §§ 1981 and 1982 have consistently
maintained that the Reconstruction Era remedies
complement the governmental procedures.^9
The availability of a cause of action under §§ 1981
and 1982 for racial harassment or discrimination in the
terms and conditions of performance of a contract also
creates no workability problems. Such causes of action
have been routinely handled by the federal courts under
§§ 1981 and 1982 at least since 1969,^ and have been * 140
See, ê g. United States v. Medical Society of South Carolina.
298 F. Supp. 145 (D.S.C. 1969) (Attorney General lawsuit enforcing,
inter alia, § 1981); Brief of the Equal Employment Opportunity
Commission as Amicus Curiae, Keller v. Prince Georges Co.. 827 F.2d
952 (4th Cir. 1987) (Title VII did not preempt Reconstruction Era
remedies).
140 E.r., United States v. Medical Society of South Carolina. 298
F. Supp. at 148-149 (racially segregated waiting rooms in private
hospital); Bourdreaux v. Baton Rouge Marine Contracting Co.. 437 F.2d
at 1016 (racial discrimination in job assignments); Young v. I.T.&T,. 438
F.2d at 757 (racial harassment in employment); Clark v. Universal
Builders, Inc.. 409 F. Supp. 1274 (N.D. 111. 1976) (racially discriminatory
prices and terms in home sales). See also cases cited in Brief for
Petitioner at 35 nn. 12 & 13.
- 117 -
recognized for many years under Title V I I . 141
Another factor that can constitute a countervailing
force to the doctrine of stare decisis is an intervening
change in the law, either through legislation or
subsequent court decisions. No such change has occurred
with respect to Runyon and Jones. As discussed above,
subsequent legislative developments strongly support
continued adherence to Runvon and Jones.
See, e.g.. Meritor Savings Bank v. Vinson. 91 L. Ed. 2d 49
(1986) (sexual harassment actionable under Title VII; relies on racial
harassment cases in lower courts); Ropers v. EEOC, 454 F.2d 234 (5th
Cir. 1971), cert denied. 406 U.S. 957 (1972) (racially offensive work
environment); Firefighters Institute v. City of St. Louis, 549 F.2d 506,
514-515 (8th Cir.), cert, denied sub nom. Banta v. United States. 434
U.S. 819 (1977) (racially discriminatory supper clubs on employer s
premises violates Title VII).
- 118 -
Conclusion
For the reasons stated, the Court should reaffirm
the holding in Runyon that § 1981 prohibits wholly
private, contractual discrimination on the basis of race.
Respectfully submitted,
JULIUS LEVONNE CHAMBERS
CHARLES STEPHEN RALSTON*
RONALD L. ELLIS
ERIC SCHNAPPER
99 Hudson Street, 16th Floor
New York, New York 10013
(212) 219-1900
PENDA D. HAIR
806 15th Street, N.W.
Suite 940
Washington, D.C. 20005
(202) 638-3278
HAROLD L. KENNEDY, III
HARVEY L. KENNEDY
Kennedy, Kennedy, Kennedy and
Kennedy
710 First Union Building
Winston-Salem, N.C. 27101
Attorneys for Petitioner
‘Counsel of Record
APPENDICES
APPENDIX A
Newspaper Articles Concerning
The Application of 1866 Civil
Rights Act to Private Contacts
(1) Washington Intelligencer. March 24. 1866
"The ’Civil Rights’ Bill"
* * *
"2. It establishes negro superiority.
. . It would be an offense to recognize in state
law, or even in private contract, a distinction
of color or race ’under color of any custom’.
This is, we believe, an unprecedented provision.
It carries Federal interference into privacies
into which the most local and domestic laws
never intrude. It might -- nay, does -- daily
happen, that bargains are made between whites
and colored men which are indispensable to the
well-being of the latter, yet which would be
unintelligible without recourse to the custom of
- A2 -
distinguishing on account of race or color - an
observance of which is made penal by this stat
ute. . . . Let us consider how this provision
would operate. For example, at a public sale of
pews in a church, a negro or a Chinaman born in
this country might offer the highest bid. The
custom of the church might be against selling to
one of either race or color, and if the bidder
should bring an action in the state court, there
is no doubt he would fail to establish a right to
the pew. But here is a right withheld on account
of race or color . . . . [A] negro, though an
infidel, could enforce his right as the highest
bidder, in spite of the Congregation, the
courts, the people, and the whole state itself.
"Again: at hotels, what landlord would
venture upon enforcing the customs of his hotel
- A3 -
against negroes? . . . . [I]f the wrong be done to
a negro, however bestial or ignoble, the excuse
that it was done under color of custom would
aggravate the offense; and the greatest military
power on earth could be invoked for the punish
ment of a publican. . . ."
(2) Cincinnati Commercial. March 30. 1866
" The Civil Rights Bill"
* * *
"Politicians must admit that there still
exists, in some quarters, among white folks, a
prejudice against the colored people. This may
be a mean thing to appeal to, and [we] wouldn’t
appeal to it, but we mention the fact. The
prejudice of which we speak is developed in
objections to allowing negroes to own pews in
the churches, or to seating themselves without
consulting the color of their neighbors, in
- A4 -
churches, concert halls or theaters, in the
dining-rooms of hotels, and elsewhere in the
congregation of the people.
"Colored schools are established, and
there are persons, who are not traitors, who
think it would not be well to mix the white and
black children in the same school rooms. We do
not know that either would be hurt by the proce
ss, but the prejudice against such a mixture is,
perhaps, pretty strong. How many wards of
Cincinnati, for instance, would cast large
majorities for the re-election of General HAYES
and BENJAMIN EGGLESTON to Congress, upon the
ground that they had assisted in passing over
the President’s veto a measure that opened the
schools where the white children are being
educated to the blacks, and not only opened the
schools but the churches, theaters and hotels,
- A5 -
making all distinctions against any color any
where, according to the established customs of
our society, a crime, punished with severe
penalties?"
(3) Indianapolis Daily Herald. April 17. 1866
(p. 2, col. 1)
"The Negro Rights Act"
* * *
"No one can read these provisions of the
law, and doubt that its design and purpose, so
far as legislation can accomplish it, is to make
the negroes fully equal to the white citizens.
And what will be its practical effect? . . .
[D]oes it not [make] the negro [on an equal
footing] in all respects? Under the act can the
proprietors of a hotel, of a place of amusement,
of a railroad, make any distinction on account
of color or race? If a negro should go to the
- A6 -
Palmer House and thrust himself upon the guests
in the dining room, would not the proprietor
subject himself, under the new law, to damages,
if he should forcibly eject him from the premis
es, or refuse to allow him the same privileges as
other guests? Could not a negro, if refused an
unoccupied seat at any place of amusement,
subject the proprietor to damages for the as
sault upon his dignity and rights? If there
should be a public letting of pews at any of our
churches, would not the negro have the right to
have his bid respected, if it should be the
highest? And could a negro be ejected from any
unoccupied seat in a railroad car?
"During the canvass preceeding the last
two presidential elections, the Republicans
denied most stoutly and indignantly that they
tolerated any such idea as negro equality. But
- A7 -
what is the result? A law . . . to break down all
distinctions between races and color . . . .
"We regard this attempt by legislation to
lift the negro to the same level with the white
race, to overcome the prejudices of color and
race by legal enactments, as unwise and detrime
ntal to the best interests of the blacks. The
antagonism of the races, which is deep seated,
will only be developed and intensified by such
laws . . . . But such is Republicanism."
APPENDIX B
Lower Court Cases Applying §§ 1981 and
1982 to Private Discrimination: 1968-1972
1968: Newburn v. Lake Lorelei. Inc.. 308 F. Supp
407 (S.D. Ohio) (lot in housing development).
1969: Scott v. Young. 307 F. Supp. 1005 (E. D.
Va.), affd, 421 F.2d 143 (4th Cir.), cert.
denied. 398 U.S. 929 (1970) (amusement park
admissions policy); Terry v. Elmwood Cemetery.
307 F. Supp. 369 (N.D. Ala. 1969) (burial plots
in private cemetery); United States v. Medical
Society of South Carolina. 298 F. Supp. 145
(D.S.C.) (discrimination in hospital admis
sions; segregation of patients).
1970: Waters v. Wisconsin Steel Works. 427 F.2d
476 (7th Cir.), cert, denied. 400 U.S. 911
(private employment discrimination); Sanders v.
Dobbs House. 431 F.2d 1097 (5th Cir.), cerL
denied. 401 U.S. 948 (1971) (employment).
1971: Young v. I.T.&T.. 438 F.2d 757 (3d Cir.)
(employment); Caldwell v. The National_Brewing
Co.. 443 F.2d 1044 (5th Cir.) (employment);
Boudreaux v. Baton Rouge Marine Contracting Co.,
437 F.2d 1011 (5th Cir.) (employment); Grier v.
Specialized Skills. 326 F. Supp. 856 (W.D.N.C.)
(adm ission to professional barber school;
refusal to serve black customers).
- B2 -
1972: Brady v. Bristol-Mevers. Inc.. 459 F.2d
621 (8th Cir.) (employment); Brown v. Gaston
County Dyeing Machine Co.. 457 F.2d 1377 (4th
Cir.) (employment); Sims v. Order of United
Commercial Travelers. 343 F. Supp. 112 (D.
Mass.) (insurance).
APPENDIX C
STATUTORY PRECEDENTS OVERRULED7
Statutory Precedent Overruled
Because of Harm or Unworkabilitv
1. Gulfstream Aerospace Corp. v. Mavacamas.
108 S. Ct. 1133, 1140 (1988), overruling
Ettelson v. Metropolitan Life Insurance Co.. 317
U.S. 188 (1942) and Enelow v. New York Life
Insurance Co.. 293 U.S. 379 (1935) ("A half
century’s experience has persuaded us ... that
the rule is unsound in theory, unworkable and
arbitrary in practice, and unnecessary to
achieve any legitimate goals").
2. United States v. Ross. 456 U.S. 798, 803
(1982), overruling Robbins v. California. 453
U.S. 420 (1981) (lower courts were divided and
confused on the meaning of the Court’s decisions
and "[tjhere is ... no dispute among judges
a b o u t t he i m p o r t a n c e of s t r iv ing for
clarification in this area of the law"); id- at
825 (Blackmun, J., concurring); id- at 826
The cases included in Appendix C are those identified by counsel
for petitioner as involving a statutory precedent from the list of
overruled cases in The Constitution of the United States of America:
Analysis and Interpretation. S. Doc. No. 99-16, 99th Cong., 1st Sess.
2117-2127 (J. Killian ed. & L. Beck assoc, ed. 1987) and S. Doc. No.
100-9,100th Cong., 1st Sess. 143 (Supp. 1987), as well as cases in which
a statutory precedent was overruled after the date of the 1987
Supplement. Cases in which a prior decision was overturned on
rehearing of the same case are omitted.
- C2 -
(Powell, J., concurring).
3. Continental v. GTE Svlvania. 433 U.S. 36,
47 (1977), overruling United States v. Arnold.
Schwinn & Co,. 388 U.S. 365 (1967) ("Schwinn has
been the subject of continuing controversy and
confusion").
4. Boys Markets v. Retail Clerks Union. 398
U.S. 235, 241 (1970), overruling Sinclair
Refining Co. v. Atkinson. 370 U.S. 195 (1962)
("it has become clear that the Sinclair decision
does not fu r ther but r a t he r f r us t ra t es
realization of an important goal of our national
labor policy").
5. Lee__v. Florida. 392 U.S. 378, 385-386
(1968), overruling Schwartz v. Texas. 344 U.S.
199 (1952) (decision based on changes in federal
c o n s t i t u t i o n a l law and " c o u n s e l e d by
experience" showing that the prior decision was
ineffective).
6. Peyton v, Rowe. 391 U.S. 54, 61-62 (1968),
overruling McNally v. Hill 293 U.S. 131 (1934)
(the "harshness of [the McNally rule] becomes
obvious when applied to the cases of Rowe and
Thacker" and demonstrates that the rule "can
harm both the prisoner and the State and lessens
the probability that final disposition of the
case will do substantial justice"). 7
7. Swift & Co. v. Wickham. 382 U.S. I l l , 116,
124-25 (1965), overruling Kesler v. Department
gf—Public Safety, 369 U.S. 153 (1962) (prior
interpretat ion of three-judge court statute
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"proved to be unworkable in practice," produced
^ m i s c h i e v o u s c o n s e q u e n c e s , " c r e a t e d
"uncertainty" and difficulties in application
by the lower courts and was "uniformly
criticized by commentators").
8. Fay v, Noia, 372 U.S. 391, 435, 437 (1963),
overruling Parr v. Burford. 339 U.S. 200 (1950)
("the expectation [of the prior ruling] has not
been realized in experience" and instead the
rule "has proved only to be an unnecessarily
burdensome step in the orderly processing of the
federal claims" that has "impeded" the "goal of
p r om p t and fai r cr iminal just ice" and
"unwarrantably taxed the resources of this
Court").
9. James v. United States. 366 U.S. 213, 221
(1961), overruling Commissioner v. Wilcox. 327
U.S. 404 (1946) (tax law precedent had caused
"confusion" in the lower courts and had resulted
in "injustice").
10. Brady v. Roosevelt Steamship Co.. 317 U.S.
575, 578, 581 (1943), overruling Johnson v.
Fleet Corp.. 280 U.S. 320 (1930) (prior ruling
had resulted in "a substantial dilution of the
rights of claimants").
11. Helvering v. Hallock. 309 U.S. 106, 110
(1940), overruling Helvering v. St. Ixntis Trust
Co.. 296 U.S. 39 (1935) and Becker v. St. Louis
Trust Co.. 296 U.S. 48 (1935) (relying on
"difficulties which the lower courts have found
in applying the distinctions made by these cases
and the seeming disharmony of their results").
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12. Lee v. Chesapeake & Ohio Railway Co.. 260
U.S. 653, 659 (1923), overruling Ex parte
Wisner, 203 U.S. 449 (1906) ("Much that was said
in the opinion [Wisner] was soon disapproved in
In re Moore. 209U.S. 490, where the Court
returned to its former rulings ..." and "it has
been a source of embarrassment and confusion in
other courts").
13. Gazzam v. Phillip’s Lessee. 20 How. (61
U.S.) 372, 377-378 (1858), overruling Brown’s
Lessee v. Clements. 3 How. (44 U.S.) 649 (1845)
(adherence to Brown principle "in its practical
operation will unsettle the surveys and sub
divisions of fractional sections of the public
land" and result in "disturbance and con
fusion").
Statutory Precedent Overruled
Because of Change in Tnw
1- Monell v. New York City Department of
Social Services. 436 U.S. 658, 696 (1978),
overruling in part Monroe v. Pape. 365 U.S. 167
(1961) (Monroe holding was inconsistent with
prior decisions and with subsequent practice).
2- Lodge 76. International Association of
Machinists & Aerospace Workers v. Wisconsin
Employment Relations Comm’n. 427 U.S. 132, 153
(1976), overruling International Union v.
Wisconsin__Employment Relations Board (Briggs-
Stratton), 336 U.S. 245 (1948) (later decisions
made clear that labor law precedent was
inconsistent with the federal regulatory
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scheme").
3. Braden v. 30th Judicial Circuit Court of
Kentucky. 410 U.S. 484, 497 (1973), overruling
Ahrens v. Clark . 335 U.S. 188 (1948)
("developments since Ahrens have had a profound
impact on the continuing vitality of that
decision").
4. Andrews v. Louisville & Nashville Railroad
Co.. 406 U.S. 320, 322 (1972), overruling Mooie
v. Illinois Central Railroad Co., 312 U.S. 630
(1941) ("Later cases from this Court have
repudiated the reasoning advanced in support of
the results reached in Moore....").
5. Griffin v. Breckenridge, 403 U.S 88, 96
(1971), o v erru lin g in p a r t Collins v.—Hardyman,
341 U.S. 651 (1951) (relying on "evolution of
decisional law").
6. Smith v. Evening News Ass’n, 371 U.S. 195,
199 (1962), overruling in part Employees— w
Westinghouse Corp., 348 U.S. 437 (1955)
("subsequent decisions ... have removed the
underpinnings of Westinghouse and its holding is
no longer authoritative as a precedent").
7. C o n stru c tio n T ̂ borers v,__Curjy, 371 U.S.
542, 552, overruling in part Building Union w
Tedhetter Co.. 344 U.S. 178 (1952) (relying on
changes in the law concerning pre-emption and
jurisdiction of NLRB).
8. Cosmopolitan Co. v. McAllister, 337 U.S.
783, 793 (1949), overruling Hust— v.— Mo°re-
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McCormack Lines. 328 U.S. 707 (1946) ("[t]he
Caldarola case ... undermined the foundations of
Hu-st").
9. Comm’r v. Estate of Church. 335 U.S. 632,
636-637 (1949), overruling May v. Heiner. 281
U.S. 238 (1930) (citing "confusion and doubt as
to the effect of our Hallock case on May v.
Heiner" and holding "that the Hallock and May v.
Heiner holdings and opinions are irrecon
cilable").
10. Angel v. Bullington. 330 U.S. 183, 192
(1947) overruling David Lupton’s Sons v.
Automobile Club of America. 225 U.S. 489 (1912)
(a subsequent case "drastically limited the
power of federal district courts to entertain
suits in diversity").
11. Mercoid Corp. v. Mid-Continent Co.. 320
U.S. 661, 668 n.l (1944), overruling Leeds &
Catlin Co. v. Victor Talk Mach. fNo. 21. 213 U.S.
325 (1909) (relying upon subsequent doctrinal
developments and fact that crucial point had
been only "adverted to in the briefs" in initial
case).
12. FPC v. Hope Gas Co.. 320 U.S. 591, 606-607
(1944), overruling United Railways v. West. 280
U.S. 234 (1930) (subsequent decisions eroded
precedent).
13. Oklahoma Tax Comm’n. v. United States. 319
U.S. 598, 602-605 (1943), overruling Childers v.
Beaver. 270 U.S. 555 (1926) (change in law and in
status of Indian tribes).
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14. Rochester Tel. Corp. v. United States. 307
U.S. 125, 136 & n.13, 140-143 (1939), overruling
Procter & Gamble v. United States 225 U.S. 282
(1912) (subsequent decisions eroded doctrine of
prior case).
15- Fox Film Corp. v. Doyaj, 286 U.S. 123, 129-
BO (1932), overruling Long v. Rockwood. 277
U.S. 142 (1928) (subsequent decisions and
inconsistent authorities);
16- Chicago—& E.I.R. Co. v. Commission. 284
U.S. 296, 299 (1932), overruling Erie R.R, Co.
y- Collins, 253 U.S. 77 (1920) and Erie R. R. Co
----Szary, 253 U.S. 86 (1920) (irreconcilable
authorities).
B. Boston Store v. American Graphophone Co..
246 U.S. 8, 25 (1918) and Motion Picture Co. v.
Universal Film Co.. 243 U.S. 502, 518 (1917),
overruling Henry v. Dick Co.. 224 U.S. 1 (1912)
(conflicting doctrines).
18. Rosen v. United States. 245 U.S. 467, 470
(1918), overruling United States v. Reid. 12
How. (53 U.S.) 361 (1851) (authority of Reid
"seriously shaken" by subsequent decisions).
19. Kountze v. Omaha Hotel Co.. 107 U.S. 378,
387 (1883), overruling Stafford v. The Union
Bank of Louisiana. 16 How. (57 U.S. 135 (1853)
( " [ subsequen t decisions have undoubtedly
modified the rule followed in [Stafford! and,
indeed, have overruled it").
20. Gordon v. Ogden. 3 Pet. (28 U.S.) 33, 34
- C8 -
(1830), overruling Wilson v. Daniel. 3 Dali. (3
U.S.) 401 (1798) ("contrary practice [has] since
prevailed").
Statutory Precedent Overruled Where
Neither Harm Nor Change in Law or
Circumstances Explicitly Given as Reason
1. Copperweld Corp. v. Independence Tube Co..
467 U.S. 752, 760, 766 (1984), overruling United
States v. Yellow Cab Co.. 332 U.S. 218 (1947)
(doctrine had never been analyzed in depth and
was unnecessary to result in prior cases).
2. Girouard v. United States. 328 U.S. 61, 64
(1946), overruling United States v. Macintosh.
283 U.S. 605 (1931).
3. Toucev v. N.Y. Life Ins. Co.. 314 U.S. 118,
139 (1941), overruling Supreme Tribe of Ben-Hur
v. Cauble. 255 U.S. 356 (1921) ("Loose language
and a sporadic, ill-considered decision").
4. Nve v. United States. 313 U.S. 33, 51
(1941), overruling Toledo Newspaper Co. v.
United States. 247 U.S. 402 (1918).
5. United States v. Phelps. 107 U.S. 320, 323
(1883), overruling Shelton v. The Collector. 5
Wall (72 U.S.) 113 (1867).
6. Hornbuckle v. Toombs. 85 U.S. 648, 653,
656-657 (1873), overruling Noonan v. Lee. 2 Bl.
(67 U.S.) 499 (1863) and Orchard v. Hughes. 1
Wall. (68 U.S.) 73, 77 (1864) and Dunphv v.
Kleinsmith. 11 Wall. (78 U.S.) 610 (1871).
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