LDF Asks Court of Appeals to Act in Behalf of Youth Interrogated by GA Police
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October 10, 1967

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Brief Collection, LDF Court Filings. Patterson v. McLean Credit Union Brief on Reargument Amicus Curiae, 1988. 41ad63b2-c09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/2e627abb-d36a-4bd2-9e28-6ef1b480dbf4/patterson-v-mclean-credit-union-brief-on-reargument-amicus-curiae. Accessed August 19, 2025.
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* TABLE OF CONTENTS Page Table Of Au t h o r it ie s ....................................... u Consent Of Parties ........................................... 2 Interest Of Amicus Curiae ............................. 2 Summary Of Ar g u m e n t .................................... 3 Argument ............................................................. 5 I. Runyon v. McCrary Should Not Be Overruled .................................................. 5 II. Petitioner’s Racial Discrimination Claim Does Not Call for A Fun damental Extension of Liability Under Section 1981 18 Co n c l u sio n ............................................................. 20 TABLE OF AUTHORITIES Page Cases: Ahrens v. dork, 335 U.S. 188 (1948) .............. 17 Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975) ............................ 15 Andrews v. Louisville & Nashville R.R.,Co., 406 U.S. 3 2 0 (1 9 7 2 ).................................. ... . 18 Arizona v. Rumsey, 467 U.S. 203 (1984) . . . . 3, 10 Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1 9 8 5 ) ........................................................... 10 Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 2 3 5 (1 9 7 0 ) ................................................ 11,17 Braden v. 30th Judicial Circuit Court o f Ken tucky, 410 U.S. 484 (1 9 7 3 )............................... 17 Brown v. Board o f Educ., 347 U.S. 483 (1954) 4 Chapman v. Houston Welfare Rights Org., 441 U.S. 6 0 0 (1 9 7 9 ) ................................................ 9 City o f Mobile v. Bolden, 446 U.S. 55 (1980) . . 12 Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36(1977) ......................................... 10,17 Firefighters Inst, for Racial Equality v. City of St. Louis, 549 F.2d 506 (8th Cir.), cert, denied sub nom. Bant a v. United States, 434 U.S. 8 1 9 (1 9 7 7 ) ................................................ 18 Florida Dep’t o f Health & Rehabilitative Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147(1981) . . .................................................... 7 Garcia v. San Antonio Metro. Transit Autho., 469 U.S. 528 (1985) ...................................... 4 -ii- P«ge General Bldg. Contractors Ass’n, Inc. v. Penn sylvania, 45* U.S. 315 ( m i ) . . . . . . . . 8 ,9 General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) .............................................................. 12, 13 Goodman v. Lukens Steel Co., 107 S. Ct. 2617 (1 9 8 7 ) ..................................................... 8, 19 Gordon v. Ogden, 28 U.S. (3 Pet.) 32 (1830) . . 10 Gray v. Greyhound Lines, East, 545 F.2d 169 (D.C. Cir. 1 9 7 8 ) ........................................ 19 Griggs v. Duke Power Co., 401 U.S. 424 (1971) .............................................................. 9 Grove City College v. Bell, 465 U.S. 555 (1 9 8 4 ) ......................................................... 12 Guardians Ass’n v. Civil Serv. Comm'nofNew York , 463 U.S. 582 (1983) ............................ 11 Illinois Brick Co. v. Illinois, 431 U.S. 720 (1 9 7 7 ) ................................................................ 10 International Union, Local 232 v. Wisconsin Employment Relations Bd., 336 U.S. 245 (1 9 4 9 ) ................................................................. 17 Johnson v. Railway Express Agency, Inc., 421 U.S. 454 ( 1 9 7 5 ) ................................................ passim Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) .............................................................. 13, 16 Lodge 76, International Ass'n o f Machinists v. Wisconsin Employment Relations Comm’n, 427 U.S. 132 (1976) ...................................... 17 Martinez v. Oakland Scavenger Co., 680 F. Supp. 1377 (N.D. Cal. 1987) ........................ 19 McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 ( 1 9 7 6 ) ................................................ 9, 15 -iii- McNally v. Hill, 293 U.S. 131 (1 9 3 4 )................. 15 Meritor Savings Bank v. Vinson, 106 S. Ct. 2399 ( 1 9 8 6 ) ....................................................... 19 Monell v. Department o f Social Servs. o f New York, 436 U.S. 658 (1 9 7 8 ) ............................... 4, 11, 16 Monroe v. Pape, 365 U.S. 167 (1961) .............. 16 Moore v. Illinois Central R.R. Co., 312 U.S. 630(1941) ....................................................... 18 Moragne v. State Marine Lines, 398 U.S. 375 (1970) ................................................................. 6 Oklahoma City v. Tuttle, 471 U.S. 808 (1985) 10 Papasan v. Allain, 478 U.S. 265 (1986) . . . . 10 Patterson v. McLean Credit Union, 108 S. Ct. 1419 ( 1 9 8 8 ) ....................................................... 3, 16,18 Peyton v. Rowe, 391 U.S. 54 (1968) ................. 18 Runyon v. McCrary, 427 U.S. 160 (1976) . . . . passim Saint Francis College v. Al-Khazcaji, 107 S. Ct. 2022 (1987) .......................................... 8, 9 Sears, Roebuck A Co. v. San Diego County Disl. Council o f Carpenters, 436 U.S. 180 (1978) ................................................................. 3 Sinclair Refining Co. v. Atkinson, 370 U.S. 195 (1962) 17 Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409 (1986) ........................ 5,11 Tillman v. Wheaton-Haven Recreation Ass'n, Inc., 410 U.S. 431 (1973) .............................. 15, 16 United States v. Arnold, Schwinn A Co., 388 U.S. 365 ( 1 9 6 7 ) ................................................ I7 P«ge -IV Page United States v. South Buffalo R.R. Co., 333 U.S. 771 ( 1 9 4 8 ) ............................................. '• 10 Welch v. Texas Dep’t o f Highways A Pub. Transp., 107 S. Ct. 2941 ( 1 9 8 7 ) ..................... 10 Young v. l.T. A T. Co., 438 F.2d 757 (3d Cir. 1971) .................................................................. I9 STATUTES: Civil Rights Act of 1866, 42 U.S.C. § 1981 (1 9 8 2 ) .................................................................... passim Civil Rights Act of 1964, Title VII, 42 U.S.C. § 2000e et seq. ( 1 9 8 2 ) ....................................... passim Civil Rights Attorney’s Fees Award Act of 1976, Pub. L. No. 94-559, 90 Stat. 2641 (1976), codified as amended at 42 U.S.C. § 1988(1982) I4. 15 Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988) .................. 12 Education Amendments of 1972, Pub. L. No. 92-310, 86 Stat. 235 (1972), codified at 20 U.S.C. § 1681 (1982) 12 Pregnancy Discrimination Act, Pub. L. No. 95- 555, 92 Stat. 2076 (1978), codified as amended at 42 U.S.C. § 2000e-2(k) (1982) 12 Voting Rights Act of 1965, § 2, 42 U.S.C. § 1973(1982) I2 Voting Rights Act Amendment of 1982, Pub. L. No. 97-205, 96 Stat. 131 (1982), codified as amended at 42 U.S.C. § 1973 (1982) . . . 12 LEGISLATIVE MATERIALS: 118 Cong. Rec. 3368-71 (1972) 13 -v- Page Civil Rights Attorney’s Fees Award Act o f1976, S. Rep. No. 1011, 94th Cong., 2d Sess., reprinted in 1976 U.S. Code Cong. & Admin. News 5900 15 Civil Rights Attorney's Fees Award Act o f1976, H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976) 15 Equal Employment Opportunities Enforcement Act o f 1971, H.R. Rep. No. 238, 92d Cong., 2d Sess., reprinted in 1972 U.S. Code Cong. A Admin. News 2137 14 Pregnancy Discrimination Act o f 1978, H.R. Rep. No. 948, 95th Cong., 2d Sess., reprinted in 1978 U.S. Code Cong. A Admin. News 4749 13 Voting Rights Act Amendments o f1982, S. Rep. No. 417, 97th Cong., 2d Sess., reprinted in 1982 U.S. Code Cong. A Admin. News 177 12 Other Authorities: B. Cardozo, The Nature o f the Judicial Process (1921) .................................................................. 6 A. Cox, The Court and the Constitution (1987) 7 A. Cox, The Role o f the Supreme Court in American Government (1976) 7 A. Goldberg, Equal Justice: The Warren Era of the Supreme Court (1971) 6 C. Hughes, The Supreme Court o f the United States (1 9 2 8 )....................................................... 7 Levy, Posner Portrays Judges as Decoders, Harv. L. Rec., Nov. 21, 1986, at 5 ................. 7 -vi- Page Maltz, Some Thoughts on the Death o f Stare Decisis in Constitutional Law, 1980 Wis. L. Rev. 467 .............................................................. 8 Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colum. L. Rev. 723 (1988) 6, 8, 9 Note, Is Section 1981 Modified by Title VII o f the Civil Rights Act o f1964?, 1970 Duke L.J. 1223 ..................................................................... 9 Pound, What o f Stare Decisis?, 10 Fordham L. Rev. 1(1941) 3 ,4 ,8 - v i l - No. 87-107 IN THE Supreme Court of the United States October term 1987 BRENDA PATTERSON, V. McLean Credit Union, Petitioner, Respondent. On Writ of Certiorari to the United States Court of Appeals for the fourth Circuit BRIEF ON REARGUMENT FOR THE LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW AS AMICUS CURIAE IN SUPPORT OF PETITIONER 2 CONSENT OF PARTIES Petitioner and respondent have consented to the filing of this brief, and their letters of consent are being filed separate ly herewith. INTEREST OF AMICUS CURIAE The Lawyers’ Committee for Civil Rights Under Law (“Lawyers’ Committee”) is a nationwide civil rights organ ization that was formed in 1963 by leaders of the American Bar, at the request of President Kennedy, to provide legal repre sentation to Blacks who were being deprived of their civil rights. The national office of the Lawyers’ Committee and its local offices have represented the interests of Blacks, Hispanics and women in hundreds of class actions relating to employment discrimination, voting rights, equalization of municipal ser vices and school desegregation. Over one thousand members of the private bar, including former Attorneys General, former presidents of the American Bar Association and other leading lawyers, have assisted the Lawyers’ Committee in such efforts. Amicus has a direct interest in the law governing the con struction and application of the civil rights statutes. Amicus and its clients litigate under these statutes regularly and thus have a substantial incentive to prevent diminution of the statutes’ powers as sources of redress for civil rights violations. The Lawyers’ Committee has a particularly strong inter est in preserving the section 1981 anti-discrimination rights recognized by this Court in Runyon v. McCrary, 427 U.S. 160 (1976). The Washington Lawyers’ Committee represented Mc Crary in that case and urged the result reached by the Court. Since that time, the Lawyers’ Committee has been involved in many section 1981 cases and views that statute, as interpreted in Runyon, as essential in the battle against discrimination. Amicus submits this brief to emphasize the view that, even if a majority of this Court were now to conclude that Runyon was incorrectly decided, it should not be overruled under es tablished principles of stare decisis. That is so especially consi dering “congressional agreement” with the result, Runyon, 427 U.S. at 175, and its complete consistency with the anti-dis crimination “mores of [tojday”, /</. at 191 (Stevens, J.,concur 3 ring) (citing Justice Cardozo). Consideration must also be given to the serious harm overruling Runyon would cause to many pending cases in the lower courts and to the future enforcement of civil rights under law. SUMMARY OF ARGUMENT twelve years ago this Court held in Runyon v. McCrary that 42 U.S.C. § 1981 prohibits private, commercially operated, non-sectarian schools from discriminating on the basis of race, and therefore that section 1981 “reaches purely private acts of racial discrimination”. 427 U.S. at 170. This Court now asks “(wjhether or not the interpretation of 42 U.S.C. § 1981 adopted by this Court in Runyon v. Mc Crary should be reconsidered?” Patterson v. McLean Credit Union, 108 S. Ct. 1419, 1420 (1988) (citation omitted). The answer is no. For the reasons set forth by the majority and concurring opinions in Runyon, and those set forth in the 1976 Lawyers’ Committee Brief for Respondent McCrary, the Lawyers’ Com mittee believes that the legislative history of the 1866 Civil Rights Act and the doctrine of stare decisis overwhelmingly support the result reached in Runyon. There is, therefore, in the Lawyers’ Committee’s view, no cause or reason to recon sider the interpretation of section 1981 adopted by the Court in Runyon. Moreover, stare decisis, itself a fundamental basis for the majority and concurring opinions in Runyon, counsels even more strongly now than it did in 1976 against overruling this important statutory precedent. Unless a prior decision is “‘flatly’ unjust”1 or “disserves important interests”,2 stare decisis constrains this Court from reconsidering statutory precedent. For stare decisis not to apply, there must be “special justification”,3 for “[o]nly the 1 Pound, What of Stare Decisis?, 10 Fordham L. Rev. 1,6(1941). 2 Sears, Roebuck A Co. v. San Diego County Dist. Council of Car penters, 436 U.S. 180, 216 (1978) (Brennan, J., dissenting). * 3 Arizona v. Rumsey, 467 U.S. 203, 212 (1984). 4 most compelling circumstances can justify this Court’s abandonment o f . . . firmly established statutory precedent!]”. Dean Pound expressed his view on this point a half cen tury ago: “[N]othing less than an overriding conviction that a precept fixed by a prior decision was contrary to the prin ciples of the law so that it had an ill effect upon the process of determining new questions by analogical reasoning and was, as Blackstone puts it, ‘flatly’ unjust in its results, could justify judicial rejection of it.” Whether or not Runyon was correctly decided twelve years ago, it is not so “contrary to the principles of the law so that it [has] had an ill effect upon the process of determining new questions by analogical reasoning”. Nor could anyone seriously argue today that the decision in Runyon is “‘flatly’ unjust in its results” . Runyon’s recognition of an unquestionably consti tutional statutory right to be free from private racial discrimina tion cannot be deemed a “‘flatly’ unjust” result. Other fundamental stare decisis considerations also weigh heavily against overruling Runyon. First, this Court has repeatedly and recently reaffirmed the Runyon holding, there by directly implicating the purposes of stare decisis—consis tency, predictability and stability—values central to the very concept of the rule of law. Second, Runyon is statutory prece dent. This Court has long recognized that it is most bound by stare decisis when reconsidering statutory precedent, especial ly in a case such as Runyon, where Congress explicitly endorsed that precedent only four months after it was handed down by passage of the Civil Rights Attorney’s Fees Award Act of 1976. See infra at 14-16. This is not a case where the Court is called upon to ad dress asserted error of constitutional dimension as in Brown v. Board o f Education, 347 U.S. 483 (1954), and Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), 4 5 4 MoneU v. Department of Social Servs. of New York, 436 U.S. 658, 715 (1978) (Rehnquist, J., dissenting). 5 Pound, supra note 1, at 6 (emphasis added). 5 where effective congressional action may be difficult or impos sible. Rather, this Court’s interpretation of the federal civil rights laws, and section 1981 in particular, is “an area that has seen careful, intense, and sustained congressional attention”. Square D Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 424 (1986). «Lastly, nothing in the circumstances of the petitioner’s claim in this case could in any event justify overruling Runyon. Petitioner’s racial harassment claim states a cause of action under section 1981. ARGUMENT I. RUNYON v. McCRARY SHOULD NOT BE OVER RULED Twelve years ago, our local affiliate, the Washington Lawyers’ Committee for Civil Rights Under Law, represented Michael McCrary before this Court. In our brief to this Court in February 1976, we argued that “[t]he court of appeals was plainly correct in holding that plaintiffs’ rights guaranteed by 42 U.S.C. Sec. 1981 were violated as a result of the racially discriminatory admission policies of the defendant schools”. Twelve years ago seven members of this Court agreed that section 1981 barred private acts of discrimination, expressing the view that the result in Runyon itself followed from “well- settled principles of stare decisis applicable to this Court’s con struction of federal statutes”. Runyon, 427 U.S. at 175; see also id. at 186-89 (Powell, J., concurring); id. at 189-92 (Stevens, J., concurring). In the interim, has anything happened which could or should change the Court’s result on solely the stare decisis issue, fully litigated in Runyon itself? Since 1976, has there been a change in the anti-discrimination “mores of [the] day” that Justice Stevens found to support the result in RunyonT Has 6 7 * 6 Brief for the Respondents, Runyon v. McCrary, Nos. 75-62, 75- 66 and 75-278, p. 13. 7 Runyon, A ll U.S. at 191 (Stevens, J., concurring) (citing Justice Cardozo). 6 there been any indication from Congress which would change what Justice Stewart concluded, writing for the Court in Runyon: “There could hardly be a clearer indication of congres sional agreement with the view that 5 1981 does reach private acts of racial discrimination”? Id. at 174t75. Each of these questions must be answered flatly and une quivocally no. This Court correctly decided Runyon in 1976 and it remains correct today. Runyon has become an important part of the fabric of civil rights law enforcement in this country. For Runyon to be overruled at this point, it would necessarily be true that “stare decisis seemingly operates with the random ness of a lightning bolt: on occasion it may strike, but when and where can be known only after the fact”. That would be a deplorable result. As Justice Cardozo recognized over a half-century ago: “One of the most fundamental social interests is that law shall be uniform and impartial. There must be nothing in its action that savors of prejudice or favor or even ar bitrary whim or fitfullness. . . . [T)here shall be adherence to precedent.”9 Similarly, Justice Harlan, writing for the Court in Moragne v. Slate Marine Lines, 398 U.S. 375 (1970), em phasized the importance of stare decisis10 to an ordered society: “Very weighty considerations underlie the principle that courts should not lightly overrule past decisions. Among these [is] the desirability that the law furnish a clear guide for the conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise Id. at 403. 8 Monaghan, Stare Decisis and Constitutional Adjudication, 88 Colura. L. Rev. 723.743 (1988). 9 B. Cardozo, The Nature of the Judicial Process 112(1921). 10 Stare decisis is derived from the Latin phrase stare decisis el non quielo movere, which means “let the decision stand and do not disturb things which have been settled". A. Goldberg, Equal Justice: The Warren Era of the Supreme Court 74 (1971) Overruling precedent, especially recent precedent, Professor Archibald Cox wrote, “undermine[sj the belief that judges are not unrestrainedly asserting their individual or col lective wills, but following a law which binds them as well as the litigants”.11 More recently, Professor Cox concluded: “The future of judicial review probably depends in good jmeasure on whether the view that law is only policy made by courts carries the day in the legal profession, or whether room is left for the older belief that judges are truly bound by law both as a confining force and as an ideal search for reasoned justice . . . . 2 13 Justice Stevens, declining to argue for overruling a prior decision which he believed may have been erroneously decid ed, summarized: “Of even greater importance, however, is my concern about the potential damage to the legal system that may be caused by frequent or sudden reversals of direction that may appear to have been occasioned by nothing more significant than a change in the identity of this Court’s personnel.” Florida Dep’t o f Health & Rehabilitative Servs. v. Florida Nursing Home Ass’n, 450 U.S. 147, 153 (1981) (concurring opinion) (footnotes omitted). Recently, Judge Posner observed that failure to follow precedent undermined the legitimacy of the federal judiciary by weakening popular acceptance of the force of judicial decisions. Chief Justice Hughes expressed the same view sixty years ago, stating: “Stability injudicial opinions is of no little importance in maintaining respect for the Court’s work”.14 11 A. Cox, The Role of the Supreme Court in American Government 50(1976). 12 A. Cox, The Court and the Constitution 377 (1987). 13 Levy, Posner Portrays Judges as Decoders, Harv. L. Rec., Nov. 21, 1986, at 5, 13. 14 C. Hughes, The Supreme Court of the United Slates 53 (1928). 8 For these reasons, even if a majority of this Court should now conclude that Runyon was incorrectly decided, it should not be overruled. As Professor Monaghan wrote: “Even an ‘overriding conviction’ of prior error is not enough; the precedent must have some palpable adverse consequences beyond its existence.”15 16 This basic principle of stare decisis should control the result here. First, Runyon is not so “contrary to the principles of the law” that it has had “an ill effect upon the process of determining new questions by analogical reasoning”. Since Runyon, this Court has held repeatedly that section 1981 reaches private conduct, see Goodman v. Lukens Steel Co., 107 S. Ct. 2617 (1987); Saint Francis College v. Al-Khazraji, 107 S. Ct. 2022 (1987); General Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375 (1982); and in no decision since Runyon has any member of this Court suggested that the “precept fixed” by that decision is somehow “contrary to prin ciples of law” or that it has “had an ill effect” upon determin ing new questions. Nor, moreover, could this Court reasonably conclude that Runyon was “‘flatly’ unjust in its results”,17 for Runyon is neither inconsistent with related laws nor has it led to unforesee able, unjust results.18 The Runyon decision upheld “the mores of (its] day". Id. at 191 (Stevens, J., concurring) (quoting Jus ts Monaghan, supra note 6, at 758 (quoting Pound, supra note 1, at 6). Similarly, Professor Maltz noted: “|R]eaching . . . a conclusion that a prior case is erroneous is only the first step in deciding to override that case. In making the decision, the justice must be sensitive to the tangible and intangible problems involved when a precedent is abandoned. Only if these problems are outweighed by the benefits to be derived from the new doctrine to be adopted should the Court abandon stare decisis in a particular case." Maltz, Some Thoughts on the Death of Stare Decisis in Constitutional Law, 1980 Wis. L. Rev. 467, 493 (footnote omitted). 16 Pound, supra note 1, at 6. 17 Id. 18 For example, section 1981 overlaps largely with Title VII of the Civil Rights Act of 1964, 42 U.S.C. } 2000e et seq. (“Tide VII"), although the two statutes differ in both scope and application. Tide VII prohibits y tice Cardozo). Runyon remains completely consistent with the mores of the present day which find racial discrimination ab horrent. When presented with the issue, every Justice on this Court has joined opinions affirming Runyon's holding that sec tion 1981 affords a remedy against private acts of racially motivated discrimination.19 For example, writing for a unan imous Court in Saint Francis College, Justice White stated: « “[T]he Court has construed [section 1981] to forbid all ‘racial’ discrimination in the making of private as well as public contracts. The petitioner college, although a private institution, was therefore subject to this statutory command.” Id. at 2026 (citation omitted). A “‘flatly’ unjust” result is not merely one which a majority of the Court now may believe is “clearly wrong” or that it “very much dislikes”. The majority and dissent in Runyon disagreed strongly over the legislative history of sec tion 1981. However, whether the majority was correct in its employment discrimination based on race, color, religion, sex or nadonal origin, 42 U.S.C. § 2000e-2, while secdon 1981 prohibits only discrimina tion based on race or color, Saint Francis College, 107 S. Ct. at 2028. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460-61 (1975)^ (comparing section 1981 and title VII); Note, Is Section 1981 Modified by • Title VII of the Civil Rights Act of 19647, 1970 Duke L.J. 1223, 1230-31 (same). Compare Griggs v. Duke Power Co., 401 U.S. 424 (1971) (Title VII liability may be predicated upon disproportionate impact) with General Bldg. Contractors Ass'n, 458 U.S. 375 (section 1981 liability requires proof of discriminatory intent). 19 See Goodman, 107 S. Ct. at 2622-23, 2625 (employer’s inten tional racially discriminatory treatment of employees violated section 1981; union’s refusal to file grievances for victims of racial harassment violated section 1981); Saint Francis College, 107 S. Ct. at 2026-28 (section 1981 protects against intentional discrimination motivated by ethnic characteris tics or ancestry; Arab has remedy against employer); General Bldg. Con tractors Ass’n, 458 U.S. at 391 (proof of intentional discrimination required to impose section 1981 liability); Chapman v. Houston Welfare Rights Org., 441 U.S. 600,653 (1979) (White, J.,concurring)(“[sections 1981 and 1982] remained a declaration of rights that all citizens in the country were to have against each other, as well as against their Government"); McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 286-87 (1976) (section 1981 ap plies to racial discrimination in private employment against while persons). 20 Monaghan, supra note 6, at 760, 762. 10 historical interpretation twelve years ago does not determine this Court’s decision today, especially given this Court’s clear line of subsequent decisions affirming Runyon’s interpretation of section 1981.21 In sum, the “exceptional action of overrul ing”22 cannot be predicated on incorrectness.23 24 Beyond the general considerations weighing against over ruling precedent, special considerations have guided this Court when it has reconsidered statutory interpretation. These spe cial considerations are premised upon Congress’ ability to cor rect interpretations it considers in error. Chief Justice Rehnquist, writing for the Court in Oklahoma City v. Tuttle, 471 U.S. 808, 818-19 n.5 (1985), observed that where this Court’s “decision is subject to correction by Congress, we do a great disservice when we subvert these concerns [of stare decisis] and maintain the law in a state of flux”. 21 Even in constitutional cases, where this Court has suggested the constraints of stare decisis are more easily overcome, ambiguous historical evidence has not been sufficient to provide the “special justification re quired for a departure from stare decisis. See Welch v. Texas Dep I of High ways and Pub. Transp., 107 S. Cl. 2941, 2956-57 (1987) (discussing the force of Justice Brennan's historical arguments for a re-interpretation of the Eleventh Amendment cases); Papasan v. Attain, 478 U.S. 265 (1986); Atas cadero State Hosp. v. Scanlon, 473 U.S. 234, 243 n.3 (1985). A fortiori, where the constraints of stare decisis are more severe, such as with statutory precedent, historical evidence of contrary intent alone cannot suffice as “spe cial justification". 22 Rumsey, 467 U.S. at 212. 23 Chief Justice Marshall acknowledged this principle when he noted that only the combination of several factors warranted overruling: “Al though (the prior) case was decided by a divided court, and although we think, that upon the true construction of the . . . act [the prior case was wrongly decidedl, we should be much inclined to adhere to the decision . had not a contrary practice since prevailed." Gordon v. Ogden, 28 U.S. (3 Pet.) 32, 34 (1830). 24 See also Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 (1977) (White. J., writing for the Court) (“(W)e must bear in mind that considera tions of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legisla tion"); United States v. South BufffaloR.R. Co., 333 U.S. 771,774-75 (1948) (Jackson, J., writing for the Court) (“[WJhen the questions are of statutory construction, . . . Congress can rectify our mistake . . . and in these cir cumstances reversal is not readily to be made") (citation omitted); Continen tal T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 60 (1977) (White, 11 This Court recently reviewed a Second Circuit decision in which Judge Friendly suggested that a 60 year-old Supreme Court precedent, upon which he based the Second Circuit’s decision, might be overruled in light of subsequent developments. Justice Stevens, writing for the Court, declined to do so: “We conclude, however, that the developments in the six * decades since Keogh was decided are insufficient to over come the strong presumption of continued validity that ad heres in the judicial interpretation of a statute. As Justice firandeis himself observed, a decade after his Keogh decision, in commenting on the presumption of stability in statutory interpretation: ‘Stare decisis is usually the wise policy because in most matters, it is more important that the applicable rule of law be settled than that it be set tled right. . . . This is commonly true, even where the error is a matter of serious concern, provided correction can be had by legislation.’ We are especially reluctant to reject this presumption in an area that has seen careful, intense, and sustained congressional attention. If there is to be an overruling of the Keogh rule, it must come from Congress, rather than from this Court.” Square D, 476 U.S. at 424 (footnotes omitted) (emphasis added). Over the past two decades, this Court's interpretation of the federal civil rights laws generally, and this Court’s inter pretation of section 1981 specifically, is “an area that has seen J., concurring in judgment) (“(Considerations of stare decisis are to be given particularly strong weight in the area of statutory construction"); Guardians Ass’n v. Civil Serv. Comm'n of New York, 463 U.S. 582, 641 (1983) (Stevens, J., dissenting) (“If a statute is to be amended after it has been authoritatively construed by this Court, that task should almost always be performed by Congress”); Monell, 436 U.S. at 714-15 (Rehnquist, J., dissenting) (“In all cases, private parties shape their conduct according to this Court’s settled construction of the law, but the Congress is at liberty to correct our mistakes of statutory construction, unlike our constitutional in terpretations, whenever it sees fit"); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 257-58 (1970) (Black, J., dissenting) (“IA)ny sub sequent ‘reinterpretation’ . . . is gratuitous and neither more nor less than an amendment: it is no different in effect from a judicial alteration of lan guage that Congress itself placed in the statute”). 12 careful, intense, and sustained congressional attention” . Id. Congress’ recent passage of the Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28 (1988), was in direct response to this Court’s interpretation of Title IX of the Educa tion Amendments of 1972 in Grove City College v. Bell, 465 U.S. 555 (1984).25 Similarly, in 1982 Congress amended sec tion 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, to restore the legal standard that had governed voting dis crimination cases prior to this Court’s holding in City o f Mobile v. Bolden, 446 U.S. 55 (1980) (plurality opinion).26 27 * * And in 1978 Congress enacted the Pregnancy Discrimination Act, Pub. L. No. 95-555,92 Stat. 2076(1978), responding to this Court’s interpretation of Title VII of the Civil Rights Act of 1964 in General Electric Company v. Gilbert, 429 U.S. 125 (1976). 25 In Grove City, this Court held that the non-discrimination provisions of Title IX could be applied only to the particular program or ac tivity actually receiving federal financial assistance, not to the recipient in stitution as a whole. Given the similarity of the language and legislative history of other statutes barring discrimination in federal financial assis tance. Id. at 566, Congress acted to correct the Court’s interpretation as it might apply to each of these statutes. The Civil Rights Restoration Act stated that “recent decisions and opinions of the Supreme Court have unduly nar rowed or cast doubt upon the broad application of title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, and title VI of the Civil Rights Act of 1964” and that “legislative action is necessary to restore the prior consistent and long standing executive branch interpretation and broad, institution-wide applica tion of those laws as previously administered". Pub. L. No. 100-259, § 2, 102 Stat. 28 (1988) 26 In Bolden, this Court held that a challenge to an electoral system under section 2 of the Voting Rights Act must demonstrate purposeful racial discrimination. 446 U.S. at 62-65. Congress'amendment to the statute cor rected this interpretation. Voting Rights Act Amendment of 1982, Pub. L. No 97-205, 96 Stat. 131 (1982), codified as amended ai 42 U.S.C. $ 1973 (1982). The Senate Judiciary Committee explicitly rejected this Court’s reading, stating it found no persuasive evidence to support the Court’s ar gurnent that the 15th Amendment and the 1965 Voting Rights Act made proof of discriminatory purpose an essential requirement of section 2 when it was first enacted. Voting Rights Acl Amendments of 1982, S. Rep. No. 417, 97th Cong , 2d Sess. 15-16, reprinted in 1982 U.S. Code Cong. & Admin. News 192 93 27 Finding that an employer’s disability plan which excluded sick ness and accident benefits connected with disabilities arising from pregnan cy did not violate Title VII, this Court held “gender-based discrimination In each case, when Congress considered this Court’s inter pretation of a federal civil right statute to be incorrect, it acted to change that interpretation. In sharp contrast, Congress has repeatedly acknowledged the correctness of the Runyon result. Prior to Runyon, Congress specifically affirmed the vitality of section 1981 as applied to private acts of discrimination. As noted in Runyon, this Court had acknowledged as early as 1968 that section 1981 applied to private acts of discrimination. 427 U.S. at 168 (citing Jones v. AlfredH. Mayer Co., 392 U.S. 409, 441-43 (1968)). It was in light of this interpretation that Con gress, in 1972, specifically rejected an amendment offered by Senator Hruska to the Equal Employment Opportunities Act that would have consolidated all anti-discrimination remedies under Title VII. 118 Cong. Rec. 3368-70 (1972). Opposing this amendment, Senator Williams stated that the proposed improve ments in the enforcement machinery and coverage of Title VII were “premised on the continued existence and vitality of other remedies for employment discrimination”. Id. at 3371. Senator Williams also observed that: “[The] right of individuals to bring suits in Federal courts to redress individual acts of discrimination . . . was first provided by the Civil Rights Acts of 1866 and 1871, 42 U.S.C. sections 1981, 1983. It was recently stated by the Supreme Court in the case of Jones v. Mayer, that these acts provide fundamental constitutional guarantees. In any case, the courts have specifically held that title VII and the Civil Rights Act of 1866 and 1871 are not mutual ly exclusive and must be read together to provide alterna tive means to redress individual grievances.” 13 Id. does not result simply because an employer’s disability-benefits plan is less than all-inclusive". General Electric, 429 U.S. at 138-39. In 1978, Con gress rejected this interpretation, and amended Title VII “to clarify Congress’ intent to include discrimination based on pregnancy, childbirth or related medical conditions in the prohibition against sex discrimination in employment". Pregnancy Discrimination Act of 1978, H.R. Rep. No. 948, 95th Cong., 1st Sess. 2, reprinted in 1978 U.S. Code Cong. & Admin. News 4749, 4750. Concerned that the “Supreme Court’s narrow interpretations of Title VII [would) tend to erode our national policy of nondiscrimination in employment", id. at 4751, Congress clarified its objective through statutory amendment. 14 Additionally in the House Education and Labor Committee s°report on the Equal Employment O p p o r tu n e Act the Committee explicitly affirmed the resu lt of recent ^,r cuit court decisions which had held that “remedies available to an individual under Title VII are . coef™ .? 'V£ - d l«* mutually exclusive1̂. c S e Cong A Admin. News 2137, 2154. Congress’ rejection of the proposal to consolidate anli-discrim.nat.on remedies under Title VII was unanimously relied upon b>[/g* 4 5 4 459 Johnson v Railway Express Agency, Inc., 421 U.S. (1975); id. at 468 (Marshall, Douglas, and Brennan, JJ., c curring on this point); and also in Runyon: “There could hardly be a clearer indication of con gressional agreement with the view that § 1981 does reac private acts of racial discrimination. 427 U.S. at 174-75.28 Congress has taken no action to correct this Court’s mter- f cAr»inn 1981 in R unyon. Instead, Congress has Runyon result isclearly evidenced by ing the award of attorney’s fees in section 1981 cases eg.s a? ion enacted just four months after Runyon was decided. Acknowledging that civil rights laws “depend heavtly upon 28 Section 1981 complement,1 other sUlutory cause, o f« tio " .p « - ticularly Title VII of the Civil Rights cl ° employment discrimination, w a n e “ to£ is; s tints of discrimination to recover corapen *01? . 460 6 i. ln «m e ends, .re separate, disUnct. and mdependent. Id. 29 Runyon was decided on June 25, ,92^ ’^ 1C Attorney’s Fee, Award Act of 1976 was enacted on October 19. • I J private enforcement” and fee awards are “an essential remedy” to allow private citizens “a meaningful opportunity to vindicate the important Congressional policies which these laws con tain”, Civil Rights Attorney's Fees Award Act o f 1976, S. Rep. No 1011,94th Cong., 2d Sess. 2, reprinted in 1976 U.S. Code Cong. & Admin. News 5900, 5910, Congress specifically amended the Civil Rights Act of 1866 to include a provision for fee awards. Civil Rights Attorney’s Fees Awards Act of 1976, Pub. L. No. 94-559, 42 U.S.C. § 1988.30 In passing the Act, Congress explicitly relied upon the fact that section 1981 is frequently used to challenge employment discrimination based on race or color” . Civil Rights Attorney's Fees Award Act of 1976, H.R. Rep. No. 1558, 94th Cong., 2d Sess. 4 (1976) (citing Johnson and McDonald v. Santa Fe Trail Transporta tion Co., 427 U.S. 273 (1976)). Congress also relied upon the use of section 1981 as a remedy against racially exclusionary policies in recreational facilities, as this Court had earlier recognized in Tillman v. Wheaton-Haven Recreation Associa tion, Inc., 410 U.S. 431 (1973). H.R. Rep. No. 1558, 94th Cong., 2d Sess. 4. The Senate Report, noting the inter relationship between promoting civil rights and granting fee awards, flatly stated that “li]n the civil rights area, Congress has instructed the courts to use the broadest and most effective remedies available to achieve the (law’s) goals” . S. Rep. 30 The Act was passed in response to this Court’s holding in Alyes- ka Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975), that federal courts had no discretion to award attorney’s fees to prevailing plain tiffs absent statutory authorization. Congress acted quickly to eliminate the inconsistent situation that allowed an award of attorney’s fees in an employ^ ment discrimination suit brought under Title VII, but denied such an award in a similar suit brought under section 1981 As the Senate Report pointed out: “Alyeska . . . created anomalous gaps in our civil rights laws whereby awards of fees are, according to Alyeska, suddenly unavailable in the most fundamental civil rights case. For instance, fees are; now authorized in an employment discrimination suit under Title• Vll . ■ • but not in the same suit brought under 42 U.S.C. } 1981, which protects similar rights but involves fewer technical prerequisites to the Filing of an action." Civil Rights Attorney's Fees Award Act of 1976, S. Rep. No. 1011, 94th Cong.. 2d Sess. 4, reprinted in 1976 U.S. Code Cong. & Admin. New, 5900, 5910. 16 No. 1011,94th Cong., 2d Sess. 3, reprinted in 1976 U.S. Code Cong .&. Admin. News at 5910. The foregoing provides the context for assessing the state ment in the Court’s per curiam opinion in this case that “we have explicitly overruled statutory precedents in a host of cases”. Patterson, 108 S. Ct. at 1420. Certainly there are cases where stare decisis has not been given effect, even with respect to statutory precedent. However, a review of each of the cases cited in the Court’s per curiam opinion on this point strongly suggests that they rest on very different footing from this case: in each case cited, there was “special justification” for departure from precedent; there was not the congressional attention to, agreement with, and support of, the precedent as is so demonstrably present here; those cases did not involve sharp departure from the mores of their day; they did not produce “flatly unjust” results; none overruled recent precedent which itself was explicitly based upon stare decisis; none in volved overruling precedent recognizing or affirming a sub stantive statutory right; and none carried the tremendous threat of harm to many pending cases and to the future enforcement of civil rights under law. (i) By overruling Monroe v. Pape, 365 U.S. 167(1961), in Monell v. Department o f Social Services o f New York, 436 U.S. 658 (1978), this Court returned consistency to the law regarding the liability of local governments for civil rights violations. The immunity from section 1983 liability that Monroe had granted municipal corporations conflicted with decisions imposing section 1983 liability on school boards.31 Unlike Monroe, Runyon is consistent both with prior and sub sequent decisions. In Jones, 392 U.S. at 441-43 n.78, this Court had interpreted section 1981 as barring racial dis crimination in the making and enforcement of contracts. Sub sequently, the Court banned racial exclusivity in the membership and guest policy of a private neighborhood swim ming club under sections 1981 and 1982, Tillman, 410 U.S. at 439-40, and the Court unanimously concluded in Johnson that “[section] 1981 affords a federal remedy against discrimination in private employment on the basis of race”, 31 Ste Monell, 436 U.S. at 663 o.3 (citing school board cases). 1/ 421 U.S. at 459-60; id. at 468 (Marshall, Douglas, and Bren nan, JJ., concurring on this point). Furthermore, as Justice Stevens noted, concurring in Runyon, Congress had formu lated a policy of “eliminating racial segregation in all sectors of society”, and “[tjhis Court has given a sympathetic and liberal construction” to the legislation directed at racial dis crimination. 427 U.S. at 191. It would have been inconsis tent, Justice Stevens concluded, for the Court to have decided Runyon differently in light of congressional policy and Supreme Court precedent. Id. at 191-92. (ii) In Lodge 76, International Association o f Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132 (1976), this Court overruled International Union, Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245 (1949), recognizing that its previous interpretation of the Wagner Act and Taft-Hartley Act had been undermined by subsequent decisions and now operated to frustrate national labor policy. Similarly, this Court overruled Sinclair Refining Co. v. Atkin son, 370 U.S. 195 (1962), in Boys Markets, Inc. v. Retail Clerks Union, 398 U.S 235, 254-55 (1970), on the grounds that Sinclair's holding frustrated the peaceful settlement of labor disputes and constituted a significant departure from the con sistent emphasis on arbitration. Runyon, however, does not frustrate but rather furthers congressional policy against racial discrimination, and its holding has not been weakened but rather bolstered by subsequent decisions. (iii) In Continental T. V., Inc. v. GTESylvania, Inc., 433 U.S. 36 (1977), this Court overruled its earlier interpretation of section 1 of the Sherman Act in United States v. Arnold, Schwinn & Co., 388 U.S. 365 (1967). The Court in Continen tal T.V. overruled precedent which was “itself . . . an abrupt and largely unexplained departure” from the law in the antitrust area, which the lower courts had “sought to limit” . Id. at 47- 48. Runyon, in contrast, is consistent with other anti-dis crimination laws. (iv) This Court overruled Ahrens v. Clark, 335 U.S. 188 (1948), in Braden v. 30th Judicial Circuit Court o f Kentucky, 410 U.S. 484 (1973), because the strict territorial limit Ahrens imposed on the filing of habeas corpus petitions had been un 18 dermined both by congressional amendments to the habeas cor pus statute and by subsequent decisions of this Court. (v)ln Peyton v. Rowe, 391 U.S. 54 (1968), the Court over ruled the prematurity rule of McNally v. Hill, 293 U.S. 131 (1934), and held that a prisoner serving consecutive sentences may challenge sentences he had not yet begun to serve. The Peyton Court concluded that the holding in McNally under- mineld] the character of the writ of habeas corpus”, and that the reasoning in McNally was “ inconsistent” with subsequent decisions of the Court. 391 U.S. at 63-64. Similarly, this Court overruled Moore v. Illinois Central Railroad Co., 312 U.S. 630(1941), in Andrews v. Louisville & Nashville Railroad Co., 406 U.S. 320(1972), because congressional modifications to the arbitration procedures of the Railway Labor Act and subsequent decisions of this Court making arbitration a compul sory remedy contradicted Moore's holding. In sum, by overruling precedent in these cases this Court enhanced the consistency and fairness of the law. That con clusion could not follow from a decision to overrule Runyon. II P E T IT IO N E R ’S RA CIA L D ISC R IM IN A TIO N CLAIM DOES NOT CALL FOR A FUNDAMENTAL EXTENSION OF LIABILITY UNDER SECTION 1981 The Court’s per curiam opinion stated that the decision to reconsider Runyon was based on “the difficulties posed by petitioner’s argument for a fundamental extension of liability under 42 U.S.C. § 1981” . Patterson, 108 S. Ct. at 1420. Respectfully, petitioner’s argument does not call for a funda mental extension” of section 1981 liability. The nghttobe free from racial harassment in the performance of an employment contract is an essential element of the right to make and enforce contracts free from racial discrimination. Racial harassment has long been recognized as a cause of action under Title VII of the Civil Rights Act of 1964, 42 U S C. § 2000e et seq. (“Title VII”). See, e.g., Firefighters Inst, for Racial Equality v. City of St. Louis, 549 F .2d 506 514- 15 (8th Cir.), cert, denied sub nom. Banta v. United States, 434 U.S. 819(1977); Grayv. Greyhound Lines, East, 545 F.2d 169, 176 (D.C. Cir. 1976).32 Victims of racial harassment, however, derive little prac tical benefit under Title VII. Unlike section 1981, Title VII remedies are limited to back pay, 42 U.S.C. § 2000e-5(g); this is an illusory remedy for a plaintiff who has not been fired or denied promotion. Section 1981, in contrast, provides real relief for victims of racial harassment33 in the form of compen satory and punitive damages.34 32 Citing these cases, this Court in Meritor Savings Bank v. Vinson, 106 S. Ct. 2399, 2405 (1986), unanimously relied upon Title VH’s prohibi tion against racial harassment in recognizing similar protections against sexual harassment. 33 See, e.g.. Young v. I.T.SlT. Co., 438 F.2d 757, 758 (3d Cir. 1971) (recognizing section 1981 claim where p lain tiff was “harassed . . both maliciously and wantonly”); Martinez v. Oakland Scavenger Co., 680 F. Supp. 1377, 1385 (N.D. Cal. 1987) (allowing damages under section 1981'upon a finding, inter alia, of a “racially dis criminatory atmosphere within the company"). 34 Johnson, 421 U.S. at 460(“An individual who establishes acause of action under 5 1981 is entitled to both equitable and legal relief, includ ing compensatory and, under certain circumstances, punitive damages. ). In both Johnson, 421 U.S. at 455, and Goodman. 107 S. Ct. at 2620, plain tiffs raised claims including racial harassment and discrimination in the terms and conditions of employment. In neither case did this Court suggest that such claims were beyond the scope of section 1981. 20 CONCLUSION For all these reasons, the Court’s decision in Runyon v. McCrary should not be overruled. June 24, 1988 Respectfully submitted, Conrad K. Harper Stuart J. Land Co-Chairmen Norman Redlich Trustee WILLIAM L ROBINSON JUDITH A. WINSTON Richard T. Seymour Stephen L. Spitz Lawyers' Committee For Civil Rights Under Law 1400 Eye Street, N.W. (Suite 1400) Washington, D.C. 20005 (202)371-1212 Albert E. Arent 1050 Connecticut Avenue, N.W. Washington, D.C. 20036 THOMAS I. ATKINS 135 Eastern Parkway Brooklyn, New York 11238 St. John Barrett 1819 H Street, N.W. W ashington, D.C. 20006 G D’ANDELOT BELIN 53 State Street Boston, Massachusetts 02109 BROOKS LEY BORN 1200 New Hampshire Avenue, N.W. Washington, D.C. 20036 Wiley A. branton, Sr. 1722 Eye Street, N.W. Washington, D.C. 20006 Thomas D. Barr ROBERT F. MULLEN Counsel o f Record Pa u l M. O’Connor ill CRAVATH, SWAINE & MOORE One Chase Manhattan Plaza New York, New York 10005 (212) 428-1000 Paul A. Brest Stanford University Law School Stanford, California 94305 D avid R. Brink 2200 First Bank Place East Minneapolis, Minnesota 55402 William H. Brown, III 1600 Market Street Philadelphia, Pennsylvania 19103 GOLER TEAL BUTCHER 1608 Crittenden Street, N.W. 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