Patterson v. McLean Credit Union Brief of New York and Other States Amici Curiae

    Supreme CCnurt of the United States

BRENDA PATTERSON
Petitioner

McLEAN CREDIT UNION
Respondent

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF .APPEALS FOR THE FOURTH CIRCUIT

BRIEF OF THE STATES OF NEW YORK, MASSACHUSETTS, 
MINNESOTA. NEBRASKA. OREGON. SOUTH CAROLINA. 

TENNESSEE. ALABAMA. .ALASKA. ARKANSAS. C.AITFORNTA. 
COLORADO. CONNECTICUT. DELAWARE. FLORIDA. 

GEORGLA. HAWAII. IDAHO. ILLIN O IS END LANA. IOWA. 
KANSAS KENTUCKY. LOUISIANA. MAINE. MARYLAND. 

MICHIGAN. MISSISSIPPI. MISSOURI. MONTANA. NEVADA. 
NEW HAMPSHIRE. NEW JERSEY. NORTH CAROLINA. 
NORTH DAKOTA. OHIO. OKLAHOMA. PENNSYLVANIA. 
RHODE ISLAND. SOUTH DAKOTA. TEXAS VERMONT 

VIRGINIA. WASHINGTON. WEST VIRGINIA. WISCONSIN and 
WTO MENG and the COMMONWEALTH OF PUERTO RICO.

THE DISTRICT OF COLUMBIA. GUAM and the VIRGIN 
ISLANDS .AS AMICI CURIAE IN SUPPORT OF PETITIONER

J ames M. Shannon 
Attorney General of the 

Commonieealth of 
Massachusetts 

One .Ashburton Place 
Boston. Massachusetts 02108

Robert .Abrams 
Attorney General of the 

State of Seu• York 
120 Broadway 
New York. New York 10271 
(212) 341-2249

O. Peter Sherwood 
Solicitor GeneralBarbara B. D ickey 

Douglas T. Shwarz 
.Assistant Attorney General S u za n n e  Nl. L ynn 

Sanford M. C ohen 
.Assistant Attorneys General

Counsel of Record 
(.additional Counsel on Inside Cover)_________



>

H ubert H. H umphrey, III 
Attorney General oj Minnesota 
102 State Capitol 
St. Paul, Minnesota 55155 
(612) 296-6196

Robert M. S pire 
Attorney General oj Nebraska 
2115 State Capitol 
Lincoln, Nebraska 68509 
(402) 471-2682

D ave FIroiinmayer 
Attorney General oj Oregon 
100 Justice Building 
Salem, Oregon 97310 
(503) 378-6(X)2

T. TViavis M edlock 
Attorney General oj 

South Carolina
Rernbert Dennis Office Building 
1000 Assembly State 
Columbia, Smith Carolina 29211 
(803) 743-3970

W.J. M ic iia ei. C ody 
Attorney General of Tennessee 
450 James Robertson Parkway 
Nashville, Tennessee 37219 
(615) 741-3491

D o n  S ie g e l m a n  
Attorney General oj Alabama 
State House 
11 South Union Street 
Montgomery, Alabama 36130 
(205) 201-7300

G race Berc Sch aible  
Attomn/ General of Alaska 
Pooch K, State Capitol 
tnneau, Alaska 99811 
19071 465-3600

J ohn  Steven C lark 
Attorney General oj Arkansas 
201 East Markham,
Heritage West Bldg.
Little Rock, Arkansas 72201 
(501) 371-2007

J ohn Van de R am p 
Attorney General oj California 
1515 K Street, Suite 511 
Sacramento, California 95814 
(916) 445-9555

D u a n e  Woodard  
Attorney General oj Colorado' 
1525 Sherman Street - 
Second Floor 
Denver, Colorado 80203 
(303) 866-5005

J oseph L iebekman  
Attorney General of Conneetieut 
Capitol Annex, 30 Trinity Street 
Hartford, Connecticut 06106 
(203) 566-2026

C harles M. O iierly 
Attorney General of Delaware 
820 North French Street,
8th Floor
Wilmington, Delaware 19801 
(302) 571-3838

Robert Butterwoiiti i 
Attorney General of Florida 
State Capitol
Tallahassee, Florida 32399-1050 
(904) 487-1963

M ic h a e l  J. B o w ers 
Attorney General of Georgia 
132 Stale Judicial Building 
Atlanta, Georgia 30334 
(404 ) 656-4585

Warren Price, III 
Attorney General oj Hawaii 
State Capitol, Room 405 
Honolulu, Hawaii 96813 
(808) 548-4740

J im J ones

Attorney General oj Idaho 
State House ,
Boise, Idaho 83720 
(208) 334-2400

N eil F. Haiitigan 
Attorney General of Illinois 
100 W. Randolph Street, 12 Floor 
Chicago, Illinois 60601 
(312) 917-3000

L inley  K. Pearson 
Attorney General oj Indiana 
219 State House 
Indianapolis, Indiana 46204 
(317) 232-6201

TIiomas J. M iller  
Attorney General of Iowa 
Hoover Building - Second Floor 
Des Moines, Iowa 50319 
(515) 281-5164

Robert T. Steph an  
Attorney General oj Kansas 
Judicial Center - Second Floor 
Topeka, Kansas 66612 
(913) 296-2215

Frederick J. C owan 
Attorney General of Kentucky 
State Capitol, Room 116 
Frankfort, Kentucky 40601 
(502) 564-7600

Willia m  J. C u ste , J r.
Attorney General of Louisiana 
2-3-4 Loyola Building 
New Orleans, Louisiana 70112 
(504) 568-5575

J am es E. TIerney 
Attorney General o j Maine 
State House 
Augusta, Maine 04330 
(207) 289-3661

J. J oseph  C urran , J r.
Attorney General oj Maryland 
Munsey Building 
Calvert and Fayette Streets 
Baltimore, Maryland 21202-190 
(301) 576-6300

Frank J. Kelley

Attorney General o j Michigan
Law Building
Lansing, Michigan 48913
(517) 373-1110

M ich a el C. Moore 
Attorney General of Mississippi 
P.O. Box 220 
Jackson, Mississippi 
(601) 359-3680

Willia m  L. Webster  
Attorney General of Missouri 
Supreme Court Bldg.
101 High Street
Jefferson City, Missouri 65102
(314) 751-3321

M ike G ref.ly

Attorney General oj Montana 
Justice Building 
215 North Sanders 
Helena, Montana 59620 
(406) 444-2026



B rian Mc K ay

Attorney General oj Nevada 
Heroes Memorial Building 
Capitol Complex 
Carson City, Nevada 89710 
(702) 885-4170

Stephen  E. M errill 
Attorney General oj 

New Hampshire 
208 State House Annex 
Concord, New Hampshire 03301 
(603) 271-3658

C ary E dwards

Attoniey General of New Jersey 
Richard J. Hughes Justice 
Complex, CN080 
Trenton, New Jersey 08625 
(609) 292-4925

L acy 11. 'R iornduru 
Attorney General of 

North Carolina 
Department of Justice,
2 East Morgan Street 
Raleigh, North Carolina 27602 
(919) 733-3377

N ich o las S paeth 
Attorney General oj 

North Dakota 
Department of Justice 
2115 State Capitol 
Bismarck, North Dakota 58505 
(701) 224-2210

Anthony  J. C elerrezzi;, J r. 
Attorney General oj Ohio 
State Office Tower 
30 East Broad Street 
Columbus, Ohio 43266-0410 
(614) 466-3376

Robert H enry

Attorney General oj Oklahoma 
112 State Capitol 
Oklahoma City-, Oklahoma 73105 
(405) 521-3921

L eRoy S. Z im m erm an  
Attorney General oj Pennsylvania 
Strawberry Square - 16th Floor 
Harrisburg, Pennsylvania 17120 
(717) 787-3391

J ames E . O ’N eil 
Attorney General oj 

Rhode Island 
72 Piiie Street
Providence, Rhode Island 02903 
(401) 274-4400

ROCERT A. 'Ikl-UNCHUISEN 
Attorney General oj 

South Dakota 
Stale Capitol Building 
Pierre, South Dakota 57501 
(605) 773-3215

J im M attox

Attornnj General of Texas 
Capitol Station, P.O. Box 12548 
Austin, 'Iexas 78711 
(512) 463-2100

J effrey A mestoy 
Attorney General oj Vermont 
Pavilion Office Building 
Montpelier, Vermont 005602 
(802) 828-3171

M ary S ue 'IknitY 
Attorney General oj Virginia 
101 N. 8th Street - 5th Floor 
Richmond, Virginia 23219 
(804) 786-2071

Ke n n et h  O. E ikenberky 
Attorney General oj Washington 
Highways-Licenses Building, PB71 
Olympia, Washington 98504 
(206) 753-6200

C h arles G . B rown 
Attorney General of 

West Virginia 
State Capitol
Charleston, West Virginia 25305 
(304) 348-2021

D o n  I I anaway

Attornnj General oj Wisconsin 
114 East, State Capitol,
P.O. Box 7857
Madison, Wisconsin 53707-7857 
(608) 266-1221

J o se ph  B. M et h i 
Attorney General oj Wyoming 
123 State Capitol 
Cheyenne, Wyoming 82002 
(307) 777-7841

G odfrey R. deC asfro  
Acting Attornnj General oj 

the Virgin Islands 
Department of Law 
Norre Gade
U S. Post Office Building,
2nd Floor
St. Thomas, Virgin Islands 00801 
(809) 774-5666

Frederick  D. C ooke 
Corporation Counsel o j the 

District o j Columbia 
The District Building 
1350 Pennsylvania Avenue, N.W 
Washington, D.C. 20004 
(202) 727-6252

Hector Rivera-C ruz 
Attorney General of Puerto Rict 
Department of Justice 
P.O. Box 192’
San Juan, Puerto Rico 00902 
(809) 721-2900

E liza beth  Barrett-Anderson  
Attorney General of Guam 
Department of Law 
238 O’Hara Street 
Agana, Guam 96910 
(671) 472-6841



TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES......................................  iii

INTEREST OF AMICI CU RIA E .............................. 1

SUMMARY OF ARGUMENT....................................  2

ARGUMENT:
PRINCIPLES OF STARE DECISIS COUNSEL 
THAT THE INTERPRETATION OF 42 
U.S.C. § 1981 ADOPTED BY THIS COURT 
IN RUNYON V. McCRARY SHOULD NOT 
BE RECO N SID ERED ............................................  3

A. Only the Most Compelling Circumstances 
Justify This Court’s Abandonment of Firmly 
Established Statutory Precedents Since 
Congress is Free to Correct Precedents That
Are Wrong : .....................................................  3

B. Section 1981 Has Become Part of the Fabric 
of Legal Protections Afforded Racial and 
Ethnic Minorities Through Its Interpretation 
by the Courts, Congress’ Ratification of 
That Construction, and Reliance By
Individuals and States ......................................  8

1. This Court's Decision in Runyon and its 
Progeny Have Encouraged a Broad Usage
of Section 1981............................................... 8

2. Congress Has Ratified and Relied Upon 
Runyon's Decision That Section 1981
Prohibits Private Racial Discrimination 13



ii

3. Individuals and States Have Relied Upon 
Section 1981 to Secure Redress for 
Invidious Race Discrimination in its 
Myriad Form s.................................................

C. The Considerations Which Allow An
Overruling of Statutory Precedent Do Not
Call For a Reexamination of Runyon 22

1. The Court's Construction of Section 1981
in Runyon is Consistent With a National 
Consensus Favoring The Elimination of 
Racial Discrimination From All Sectors of 
Society .............................................................  22

2. No Intervening Events Since Runyon 
Undermine Its Validity or Make It
Difficult to Apply 24

3. This is Not a Situation in Which the 
Court Must Reexamine a Prior 
Construction Because Its Application
Works to Deny Substantial Rights 27

Page

CONCLUSION 30

TABLE OF AUTHORITIES

Albermarle Paper Co. o. Moody, 422 U.S. 407
(1975) ..........................................................................  7

Aleyeska Pipeline Co. v. Wilderness Society, 421
U.S. 420 (1975) i 15

Allen t>. Amalgamated Transit Union Local, 788,
554 F.2d 876 (8th C ir), cert, denied, 434 U.S.
891 (1977) .................................................................. 16

Andrews t>. Louisville and Nashville R. Co., 406
U.S. 320 (1972).........................................................  22, 25

Arizona v. Rumsey, 467 U.S. 202 (1984) 4

Avco Corp. t>. Aero Lodge, 735, 390 U.S. 537
(1968)..........................................................................  24

Reauford o. Sisters of Mercy-Province of Detroit,
816 F.2d 1104 (6th Cir. 1987), cert, denied,
108 S. Ct. 259 (1988)................................................. 16

Bendetson t>. Pay son, 534 F. Supp. 539 (D. Mass.
1982)........... ................................................................  18

Bob Jones University v. United States, 461 U.S.
574 (1983) ........ ........................................................12, 22, 24

Boys Market Inc. v. Clerks Union, 398 U.S. 235
(1970).......................................................................... 6» 22,

24, 28

Braden o. 30th Judicial Circuit Court of
Kentucky, 410 U.S. 484 (1973) 22, 28

Cases: Pa8e



IV

Brant Const. Co. v. Lumen Const. Co., 515
N.E.2d 868 (Ind. App. 3 Dist. 1987) ..........................  19

Brown o. Superior Court, 691 P.2d 272 (Cal.
1984) ..........................................................................  23

Burnet v. Coronado Oil ir Gas, 285 U.S. 393
(1932)..................................................................................  4

Calhoun v. Lang, 694 S.W.2d 740 (Mo. App.
1985) ..........................................................................  20

Campbell v. Gadsden School Dust., 534 F.2d 650
(5th Cir. 1976) ...................................................................  16

City of Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416 (1983).......................  3

City of Minn. v. Richardson, 239 N.W.2d 197
(Minn. 1976).............................................................  23

Civil Rights Cases, 109 U.S. 3 (1883 ).....................  29

Clairborne u. Illinois Cent. R.R., 583 F.2d 143 
(5th Cir. 1978), cert, denied, 442 U.S. 934 
(1979)..........................................................................  16

Cody v. Union Electric, 518 F.2d 978 (8th Cir.
1975)............................................................................  16

Continental T.V. t>. GTE Sylvania, 433 U.S. 36
(1977)..........................................................................22, 25, 26

Cooper v. Aaron, 358 U.S. 1 (1958) 5

Davis o. County of Los Angeles, 566 F.2d 1334 
(9th Cir. 1977), vacated as moot, 440 U.S. 625 
(1979) ........................................................................

Page

16

V

Page

Durham o. Red Lake Fishing <b Hunting Club,
666 F. Supp. 954 (W.D. Tex. 1987)...................  17

Easley o. Anheuser-Busch, Inc., 572 F. Supp. 420 
(E.D. Mo. 1983), a ff ’d in part and rev'd in 
part, 758 F.2d 251 (8th Cir. 1985) .....................  16

Eastman Kodak u. Fair Empl. Prac. Com'n., 426
N.E .2d 877 (111. 1981)............................................  23

Edwards v. Boeing Vertol, 717 F.2d 761 (3d Cir.
1983), vacated on other grounds, 468 U.S. 1201 
(1984).................................   17

Evening Sentinel v. NOW, 357 A.2d 498, 503
(Conn. 1975).............................................................  23

Florida Dept, of Health v. Florida Nursing
Homes Association, 450 U.S. 147 (1981) 4

Fraser v. Doubleday & Co., Inc., 587 F. Supp.
1284 (S.D.N.Y. 1984)............................................... 18

Fullilove t>. Klutznick, 448 U.S. 448 (1980)............  12

General Building Contractors Assn. u.
Pennsylvania, 458 U.S. 100 (1981).......................  8, 10, 11,

18, 27

Goodman u. Lukens Steel Company, 482 U.S.
____ 107 S. Ct. 2617 (1987)....................................  8 ,1 2 ,

17, 27

Gore o. Turner, 563 F.2d 159 (5th Cir. 1977). 16

Hall v. Bio-Medical Application, Inc., 671 F.2d
300 (8th Cir. 1982)..................................................  18



VI

Hall v. Pennsylvania State Police, 570 F.2d 86
(3d Cir. 1978)...........................................................  18

Hawthrone v. Realty Syndicate, Inc., 259 S.E.2d
591 (N.C. App. 1979) ...........................................  20

Hernandez o. Erlenhush, 368 F. Supp. 752 (D.
Ore. (1973) ...............................................................  17

Hishon v. King <ir Spaulding, 467 U.S. 69 (1984) . 13

Hodges v. United States, 203 U.S. 1 (1906)..........  29

Howard Sec. Serv. v. Johns Hopkins Hospital,
516 F. Supp. 508 (D. Md. 1981).........................  18

Hunter v. Allis-Chalmers Corjj., Engine Div., 797
F.2d 1417 (7th Cir. 1986)..............   16

Hyatt Corj). v. Honolulu Liquor Corn'll, 738 P.2d
1205 (Hawaii 1987) ................................................. 23

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) . 4

Jackson v. Concord Co., 253 A.2d 793 (N.J.
1968)............................................................................  23

Jennings o. Patterson, 488 F.2d 436 (5th Cir.
1974 ............................................................................  18

Jiminez v. Southridge Co-op, Section I, 626 F.
Supp. 732 (E.D.N.Y. 1985)....................................  18

Johnson v. Railway Express Agency, Inc., 421
U.S. 459 (1975)...................  ..................................10, 11, 16

Jones o. Alfred II. Mayer, Co., 392 U.S. 409
(1968).......................................................................... passim

Page

Kelly v. Robinson, 479 U.S. ___ , 107 S. Ct. 353
(1987) ..........................................................................  9

Kentucky Com’n on Human Rights a. Fraser, 625
S.W.2d 852 (Ky. 1982) ..........................................  23

Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972) . 15

Lee v. Southern Home Sites Corp., 444 F.2d 143
(5th Cir. 1971) .........................................................  15

Lindahl v. OPM, 470 U.S. 748 (1985) ...................  15

Machinists o. Wisconsin Employment Relations
Commission, 427 U.S. 365 (1976) .......................  22, 25

Mackey e. Nationwide Ins. Companies, 724 F.2d
419 (4th Cir. 1984)................................................... 18

Madison v. Cinema /, 454 N.Y.S.2d 226 (Civil
Court of City of New York, N.Y. Co. 1982) . . .  20

Maine Human Rts. Com’n v. Canadian Pacific,
458 A.2d 1225 (Me. 1983)................................................  23

Marable v. H. Walker ir Associates, 644 F.2d 390
(5th Cir. 1981) .........................................................  18

McDonald v. Santa Fe Trial Transportation Co.,
427 U.S. 273 (1976)................................................. 8, 10, 11

McKnight v. General Motors Corp., 420 N.W.2d
370 (Wis. App. 1987)...................................................... 20

McNulty o. Hill, 293 U.S. 131 (1934)..................... 27, 28

vii

Page



VIII

Mdscaro u. Wokocha, 489 So.2d 274 (La. App.
4th Cir. 1986)...........................................................  20

Memphis o. Greene, 451 U.S. 100 (1981)............... 8, 18

Miller v. C.A. Muer Corp., 362 N.W.2d 650
(Mich. 1984) .............................................................  23

Monell v. Department of Social Services, 436 U.S.
658 (1978) .................................................................. passim

Monroe v. Pape, 365 U.S. 167 (1961).....................  4, 9, 26

Moore v. Sun Oil Co., 636 F.2d 154 (6th Cir.
1980)............................................................................  17

Moraine v. State Marine Lines, Inc., 398 U.S.
375(1970) .................................................................. 25

NLRB v. Longshoreman, 473 U.S. 61 (1985)..........  4

Oklahoma City v. Tuttle, 471 U.S. 808 (1984) . . .  7

Olzman t>. Lake Hills Swim Club, Inc., 495 F.2d
1333 (2d Cir. 1974) ................................................. 17

Patterson v. McLean Credit Union, ____U.S.
_________ S.C t_____ ., (April 25, 1988) ............. 7, 28

Penn. Human Bel Com’n v. Chester School Dust.,
233 A.2d 290 (Pa. 1967) ........................................  23

People of the State of New York v. Data- 
ButterficlJ Inc., Civ. Action No. CV-80-365 
{E.D.N.Y )

Page

19

Page

People of the State of New York o. LaBosa 
Realty, Inc., Civ. Action No. CV-85-4459 
(E .D .N .Y .).................................................................. 19

People of the State of New York v. Mahler
Realty, Civ. Action No. CV-85-4460 19

People of the State of New York v. Merlino, 88
Civ. 3133 (S .D .N .Y .)..............................................  I9

Peyton v. Rowe, 391 U.S. 54 (1968)....................... 22, 27, 28

Phelps n. Washburn University of Topeka, 632 F.
Supp. 455 (D. Kansas 1986) 17

Phonetele v. ATT, 664 F.2d 716 (9th Cir. 1981),
cert, denied, 459 U.S. 1145 (1983) 3

Plessy o. Ferguson, 163 U.S. 537 (1896) 23

Quarles v. GMC (Motor Holding Div.), 758 F.2d
839 (2d Cir. 1985) ...................................................  18

Quinones v. Nescie, 110 F.R.D. 346 (E.D.N.Y.
1986)............................................................................  I8

Reitman v. Mulkey, 387 U.S. 369 (1967)............... 7

Riley v. Adirondack Sch. for Girls, 541 F.2d 1124
(5th Cir. 1976) .........................................................  17

Roberts v. United States Jaycees, 468 U.S. 609
(1984).......................................................................... I2

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



X

St. Francis College o. Al-Khazraji, 481 U .S .----- ,
107 S.Ct. 2022 (1987) ............................................  8, 10,

12, 27

Saunders v. General Services Corp., 659 F. Supp.
1042 (E.D. Va. 1986)............................................... 18

Scott v. Young, 421 F.2d 143 (4th Cir.), cert.
denied, 398 U.S. 929 (1970)..................................  17

Setser v. Novack Inv. Co., 638 F.2d 1137 (8th
Cir.), cert, denied, 454 U.S. 1064 (1981) 17

Shaare Tefila Congregation v. Cobb, 481 U.S.
___ , 107 S. Ct. 2019 (1987).................................. . 8

Page

Sims v. Order of United Commercials Travelers of
America, 343 F. Supp. 112 (D. Mass. 1972) 18

Sinclair Refining Company u. Atkinson, 370 U.S.
195 (1962) .................................................................. 24, 25

Smith t>. United Technologies, Essex Group, 731
P.2d 871 (Kan. 1987) » ..................................  19

Solem v. Helm, 467 U.S. 277 (1983).......................  3

Spann v. Colonial Village Inc., 662 F. Supp. 541
(D.D.C. 1987)...........................................................  18

Spencer v. McCarley Moving b  Storage, 330
S.E.2d 753 (Ga. App. 1985).................................. 20

Square D. Company and Rig D Building Supply 
Corf), v. Niagara Frontier Tariff Bureau, 106 
S. Ct. 1922 (1986) .............................................. 4

xi

Stallworth o. Shuler, 111 F.2d 1431 (11th Cir.
1985)............................................................................  16

Sud v. Import Motors Limited, Inc., 379 F.
Supp. 1064 (W.D. Mich. 1974) ...........................  18

Sullivan v. Little Hunting Park, Inc., 396 U.S.
229 (1969) .................................................................. 6, 8,

17, 19

Taylor v. Flint Osteopathic Hosp. Inc., 561 F.
Supp. 1152 (E.D. Mich. 1983)........................................ 18

Tillman v. Wheaton-Haven Recreation Assn., 410
U.S. 431 (1973).........................................................  6, 8, 10

United States v. Arnold, Schwinn b  Co., 388
U.S. 265 (1967)................................................................  26

United States v. United Mine Workers, 330 U.S.
258 (1947) ................................   5

Vasques v. Hillery, 474 U.S. 254 (1986).................  7

Vietnamese, Etc. v. Knights of K .K.K., 518 F.
Supp. 993 (S.D. Tex. 1981).............................................. 18

Williams u. Trans World Airlines, 660 F.2d 1267
(8th Cir. 1981) ................................................................  16

Wright u. Salisbury Club, LTD, 432 F.2d 309 
(4th Cir. 1980) ................................................................  17

Wyatt v. Security Inn Food b  Beverage, Inc.,
819 F.2d 69 (4th Cir. 1987)

Page

17



XII

United States Constitution:

Amend. XIII .................................................................. 10’ 11

Amend. XIV .................................................................. 10

Federal Statutes:

Civil Rights Act of 1866 6, 9,
13, 20

Civil Rights Act of 1964, Title VII passim

Civil Rights Attorney's Fees Awards Act of 1976. 14

Civil Rights Restoration Act of 1987, P.L.
100-255, 102 Stat. 28 (March 22, 1988) 24

Equal Credit Opportunity Act of 1974 13, 14

15 U.S.C. § 1691 (e)(i) ................................................. 14

28 U.S.C. § 453 ...........................................................  29

28 U.S.C. § 2241(c)(3)................................................. 27

42 U.S.C. § 1981 .........................................................  Passim

42 U.S.C. 5 1982 .........................................................  6’ l,)’ 15

42 U.S.C. § 1983 . ........................................................ 26

42 U.S.C. § 1988 14

42 U.S.C. 1) 2000a 3 17

Ul U S C. \ 20O0e-5tei * '

4^ i p .n v. ;j 3t 10-

Page
State Statutes, Regulations and Executive Orders:

Ariz. Rev. Stat. Ann. § 41-1461 (1982)...................  20

Cal. Civil Code § 52.1 (West 1988) 19

Cal. Covt. Code 5 12926 (West 1986) 21

Conn. Gen. Stat. Ann. § 46a-51 (West 1986) 21

Del. Code Ann. till. 19, § 710 (1985) 21

Fla. Stat. Ann. § 760.02 (West 1985) 20

Idaho Code § 67-5902 (Supp. 1987) 21

111. Ann. Stat. ch. 68, para. 2-101 (Smith-Hurd
1987)............................................................................  20

Kan. Stat. Ann. § 44-111 (1986) 21

Ky. Rev. Stat. Ann. § 344.030 (Michie 1983) 21

La. Rev. Stat. Ann. § 23:1006 (West 1985) 2C

Md. Ann. Code art. 49B, § 15 (1986) 21

Mass. Exec. Order No. 237, Mass. Admin. Reg.
509 (1984) .................................................................  1£

Mass. Gen. Laws Ann. Ch. 12 § 11H, 111, 11J . • H

Mass Gen Lau Ann Cb 23A f 39-44 West 
S^pp i >8: J f

Mass. Gen. L. ch. 151B § 1 (1986).........................  21

Page



XIV

Page

Mo. Ann. Stat. § 213.010 (Vernon 1980)............... 21

Neb. Rev. Stat. Ann. § 48-1101 (1984)...................  23

Neb. Rev. Stat. Ann. § 48-1102 (1984)...................  21

Nev. Rev. Stat. § 613.30 (Michie 1986) .................  21

N.H. Rev. Stat. Ann. § 354-Ai3 (1984)...................  21

N.M. Stat. Ann. (j 38 1-2 (Supp. 1986)...................  21

N.Y. Exec. Law § 290 (McKinney 1982) ............... 23

N.Y. Exec. Law § 292 (McKinney 1982) ............... 21

N.Y. Exec. Order 21 (1983) ......................................  19

N.Y. Pub. Auth. Law § 1766-c 14(a)(1)
(McKinney 1986).......................................................  19

N.Y. Transp. Law tj 428(2) (McKinney 1983) . . . .  19

N.Y. Unconsol. Laws § 6267 (McKinney 1983) . . .  19

N.C. Gen. Stat. § 143-422.1 (19831.........................  20

N D Cent Co*4e chapt. 14-02.4 21

Ohio Ke\ C .vie Ann t, 4112 o l a  2 Anaersor.
v v  -

XV

Page

S.C. Code Ann. § 1-13-20 (Law Co-op 1986) . . . .  23

S.C. Code Ann. § 1-13-30 (Law Co-op 1986) . . . .  21

Tenn. Code Ann. § 4-21-101 (1985) .......................  23

Tenn. Code Ann. § 4-21-102 (1985) .......................  21

Texas Rev. Civ. Stat. Ann. art. 5221K (Vernon
1987)............................................................................  21

Utah Code Ann. § 34-35-2 (1988) ...........................  21

Va. Code Ann. § 2.1-714 (1987) .............................. 20

Wash. Rev. Code Ann. § 49.60.040 (1967) ..........  21

W. Va. Code § 5-1 l-3(d) (1987) ............................. 21

Other Authorities:

B. Cardozo, The Nature of the Judicial Process
149 (1921) .................................................................. 22

Comment, Development in the Law —Section 
1981, 15 Harv. Civ. Rights —Civ. Lib. L. Rev. 
29 (1980) .................................................................... 27

Douglas, Stare Decisis, 49 Colum. L. Rev. 735 
(1949) ..........................................................................

3 Employ. Prac. Guide (CCH) 11 20,098, 20,698 
21.898. 24.698



XVI

Page

Pound, The Future of the Law, 47 Yale L. J. 1 ,
(1937) ..................................................................................  5

S. Rep. No. 94-1011, 94th Cong., 2d Sess. 
reprinted at 1976 U.S. Code Cong. & Admin.
News 5908 .................................................................. 15

Wachtler, Stare Decisis and a Changing New 
York Court of Appeals, 59 St. John’s L. Rev.
445 (1985) ..........................................................................  5

INTEREST OF AMICI CURIAE

Amici respectfully submit this brief in support of petitioner 
Patterson. Amici urge this Court to decline to re-examine Ru­
nyon v. McCrary, and thus reaffirm that § 1981 reaches private 
discriminatory conduct.

The eradication of racial discrimination remains a national 
goal of the highest order. Amici are the Attorneys General of forty- 
seven states and of Puerto Rico, Guam, and the Virgin Islands, 
and the highest legal officer of the District of Columbia. As chief 
law enforcement officers and representatives of government, amici 
have a strong interest in encouraging the perception of all their 
citizens that the laws will lie administered with even-handedness, 
and particularly their minority citizens’ belief that they can obtain 
meaningful redress under the law for discriminatory conduct. 
Moreover, States have an interest in the confidence of their citizens 
that once a rule of law is in place it will not be taken away ab­
sent compelling justification. This interest applies with particular 
force to the civil rights laws, which are properly characterized 
as conferring on minority citizens fundamental equality under 
law which was previously available only to white citizens. Over­
ruling Runyon would remove substantial protections, thereby 
undermining public confidence that government — particular­
ly the courts — will vigilantly enforce legal guarantees of equality.

The substantial progress made in overcoming this Nation’s legacy 
of slavery has l>een achieved in large part because of the aggressive 
use by victims of discrimination of federal and state laws gviaranteeing 
equality. Removing § 1981, the Nation’s first civil rights law, from 
the array of available legal remedies for private discrimination could 
undermine this progress since state laws depend for their full effec­
tiveness on their interaction with, and complementing of, federal 
law. The gap in available remedies which would be created by over­
ruling Runyon would have to be filled by over forty individual States, 
and while ultimately it could be achieved, confusion and chaos would 
be the likely immediate result.

The citizens of this country have come to agree that no place 
exists for racism in the American marketplace Private discrimina­
tion, unredressable by law, corrodes the body politic just as surely



2

as did publicly sanctioned discrimination in decades past. Amici 
submit that no compelling reason exists for overruling Runyon 
and that such a reversal would conflict with the prevailing sense 
of justice in this nation.

The States of New York and Massachusetts, by Attorneys 
General Robert Abrams and James M. Shannon, joined by Min­
nesota, Nebraska, Oregon, South Carolina, Tennessee, Alabama, 
Alaska, Arkaasas, California, Colorado, Connecticut, Delaware, 
Florida, Georgia, Hawaii, Idaho, Illinois, Indiana, Iowa, Kan­
sas, Kentucky, Louisiana, Maine, Maryland, Michigan, Mississip­
pi, Missouri, Montana, Nevada, New Hampshire, New Jersey, 
North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, 
Rhode Island, South Dakota, Texas, Vermont, Virginia, 
Washington, West Virginia, Wisconsin, Wyoming, Puerto Rico, 
the District of Columbia, Guam and the Virgin Islands as amici 
submit this brief pursuant to Supreme Court Rule 36.4.

SUMMARY OF ARGUMENT

For two decades it has been clear that 42 U.S.C. § 1981 pro­
hibits private discrimination on the basis of race in the making 
of contracts. Runyon v. McCrary, 427 U.S. 160 (1976), reaffirm­
ed the considered views of thisand other courts that Congress 
intended tj 1981 to reach private acts of discrimination.

1 hough neither the parties to this action nor the Solicitor 
General bad urged a reexaminination of Runyon, this Court sua 
sponte has suggested that the protections against racial, ethnic 
and religions discrimination that <j 1981 affords might be discard­
ed. Embarking on this course could cause substantial institutional 
and societal injury Ixx.ause, until now, the law of § 1981 has been 
settled to the satisfaction of the people as expressed by their elected 
officials and no compelling reason has appeared to upset it.

Section 1981 provides an array of remedies not available under 
other federal laws that bolster the efforts by governments and 
individuals to eradicate racial discrimination in wide ranging cir­
cumstances. Encouraged by the Court’s broad reading of § 1981, 
ami Congresss endorsement of the Court’s construction, in­
dividuals and States have so frequently relied upon its protec­
tions that it is now a part of our legal fabric.

3

Adherence to the settled interpretation of the statute conforms 
with the national commitment to the eradication of invidious 
discrimination. Overruling it would cause unnecessary chaos and 
frustrate justified expectations. None of the considerations which 
have compelled the Court in prior cases to depart from a settled 
statutory interpretation suggests that Runyon needs reexamina­
tion. In order to conserve efforts dedicated to thwarting racial 
discrimination and to preserve the citizens’ confidence that this 
is a nation of laws, this Court should not reconsider Runyon.

ARGUMENT

PRINCIPLES OF STARE DECISIS COUNSEL THAI 
THE INTERPRETATION OF 42 U.S.C. § 1981 
ADOPTED RY THIS COURT IN RUNYON V. 
McCIbKRY SHOULD NOr BE RECONSIDERED

A. Only the Most Compelling Circumstances Justify Thus 
Court’s Abandonment of Firmly Established Statutory 
Precedents Since Congress Is Free to Correct Precedents 
That Are Wrong

Prompted neither by the arguments of any party to this case 
nor by any pressing doctrinal or social exigency, this Court has 
asked whether a settled construction of a civil rights statute should 
be re-examined and jettisoned. Although amici are satisfied that 
a fresh look at the plain words of the act and at the historical 
context and legislative debates surrounding its adoption would 
compel the conclusion that § 1981 reaches private discriminatory 
conduct, we urge that the injury to society and the judicial system 
that are likely to attend a reconsideration counsel that this Court 
should not entertain the inquiry.

“[I ]n a society governed by the rule of law,” the doctrine of 
stare decisis “demands respect.” Salem t>. Helm, 467 U.S. 277, 311 
(1983) (Burger, C.J., dissenting), quoting City of Akron v. Akron 
Center for Rejnvductive Health, Inc., 462 U.S. 416, 419-20 (1983)^ 
See also Phonetele o. ATT, 664 F.2d 716, 753 (9th Cir. 1981), cert, 
denied, 459 U.S. 1145 (1983) (Kennedy, J., dissenting) (“[W]e are 
first and foremost a nation of laws and the principle of stare decisis 
is the single most important key to the cohesiveness of our socie­
ty.”) Even as to constitutional questions, “any departure from the



4

doctrine of stare decisis demands special justification.” Arizona 
v. Iiuinsey, 467 U.S. 202, 212 (1984) (per O'Connor, J.)

Moreover, the Court has repeatedly recognized that “considera­
tions of stare decisis are at their strongest when tills Court con­
fronts its previous construction of legislation.” Monell v. Depart­
ment of Social Sendees, 436 U.S. 658, 714 (1978) (Rehnquist, J., 
dissenting). Indeed, “in most matters it is more important that 
the applicable rule of law be settled than that it be settled right.” 
Unmet v. Coronado Oil <b Gas, 285 U.S. 393, 406 (1932) (Brandels, 
J., dissenting). And considerations of stare decisis weigh most 
“heavily in the area of statutory construction, where Congress is 
free to change this Court’s interpretation of its legislation.” Illinois 
Brick Co. v. Illinois, 431 U.S. 720, 7.36 (1977) (per White, J.). Thus, 
only recently this Court reiterated that there Is a “strong presump­
tion of continued validity that adheres in the judicial interpreta­
tion of a statute” Square D Company and Big D Building Supp­
ly Corj). v. Niagara Frontier Tariff Bureau, 106 S. Ct. 1922, 1930 
(1986). See also NLRB v. Longshoreman, 473 U.S. 61, 84 (198,5). 
In order to overcome the presumption, it must “appear beyond 
doubt that the Court s earlier interpretations “misapprehended 
the meaning of the controlling provision, before a departure from 
what was decided in those cases would be justified.” Monroe v. 
Tape, 365 U.S. 167, 192 (1961) (Harlan, J., concurring). See also 
Monell v. Dej)t. of Social Services, 436 U.S. at 715 (Rehnquist, 
J., dissenting) ( adopting Justice Harlan’s standard as “the best 
exposition of the projwr burden of persuasion" and stating “[ojnly 
the most compelling circumstances can justify this Court’s aban­
donment of ... firmly established statutory precedents”)

These guideposts serve important institutional and societal im­
peratives. Adhering to stare decisis makes it possible for “citizens 
[to] have confidence that the rules on which they rely in order­
ing their affairs ..., are rules of law and not merely the opinions 
of a small group of men who temporarily occupy high office.” 
blorula Department of Health v. Florida Nursing Homes Associa­
tion, 450 U.S. 147, 154 (1981) (Stevens, J., concurring). Projjer 
resjtect for this Court s judgments depends as much upon the ap- 
[)earance that they are rooted in impartial decisionmaking as ujxm 
a conviction that they are correct in an abstract sense. Giving

5

consideration to reversing the construction of a frequendy invok­
ed civil rights statute in circumstances where the personnel of the 
Court, and little else, has changed can undermine the esteem in 
which the public holds the judiciary.1 The need for careful preser­
vation of the confidence of citizens in the functions and processes 
of the Court can never be underestimated. Recent history teaches 
us that when Uiose outside die Court seek to undermine that con­
fidence, constitutional confrontations and social chaos will beset 
us. See e.g. Cooper v. Aaron, 358 U.S. 1 (1958).2

Continued devotion to a settled statutory construction also en­
sures that the Court acts properly within its sphere of powers. 
When the Court considers overruling its coastruction of a statute, 
it deals with a coordinate and majoritarian branch of govern­
ment. That it mast when called upon interpret a statute is beyond 
question. But once it so acts, it should lie cautious not to encroach 
upon legislative functions vested in Congress by Article I of the

1 Because the five member majority voting to reconsider Runyon is comprised 
of Runyon's dissenters and the three members to join the Court since then, the 
decision in this case is especially noteworthy. The principles of stare decisis are 
therefore particularly com|>elling here See generally Wachtler, Stare Decisis 
and a Changing New York Court of Appeals, 59 St. John's L. Rev. 445 (1985).

’ The rule of law, and not of men, is the very foundation of our constitutional 
government and it is to the judiciary that its preservation has been entrusted.

[T]he Founders knew that law alone saves a society from being rent 
by internecine strife or ruled by mere brute power however disguis­
ed. “Civilization involves subjection of force to reason and the agen­
cy of this subjection is law." (Round, The Future of the Law  (1937)
47 Yale L. J. 1, 13.) The conception of a government by laws 
dominated the thoughts of those who founded this nation and 
designed its Constitution ... To that end, they set apart a body of 
men, who were to l)e the depositories of law, who by their disciplin­
ed training and character and by withdrawal from the usual temp­
tations of private interest may reasonably be expected to be “as free, 
impartial, and inde|>endent as the lot of humanity will admit.” So 
strongly were the framers of the Constitution bent on securing a 
reign of law that they endowed the judicial office with extraor­
dinary safeguard and prestige.

Cooper v. Aaron, 358 U.S. at 23-24 (Frankfurter, J., concurring) quoting United 
Stair’s v. United Aline Workers, 330 U.S. 258, 307-309 (1947) (concurring opinion).



6

Constitution.3 When, as here, the Congress has ratified the in­
terpretation this Court has placed upon a statute (See Part (B) 
(2) post), the Court, rather than challenging Congress to act 
again, should adhere to precedent. Boys Market v. Clerks Union, 
398 U.S. at 258-259; Monell u. Dept, of Social Services, 436 U.S. 
at 716-17 (Ilehnquist, J., dissenting).

Finally, abjuring the opjxjrtunity to recoasider long held views 
about the reach of a statute removes doubts about the continued 
vitality of other decisions construing similar statutory commands. 
Certainly, a reversal of the Court’s views in Runyon v. McCrary, 
given the analysis the Court there employed in eoastruing § 1981/ 
could cast doubt on the continued validity of its interpretation 
of <j 1982 in Jones v. Alfred //. Mayer, Co., 392 U.S. 409 (1968), 
and Tillman v. Wheaton-Haven Recreation Awn., 410 U.S 431 
(1973).

Interpreting and determining the reach of a civil rights statute, 
like adjudication of rights secured by the Constitution, often re­
quires the Court to undertake difficult redefinitions and line 
drawing, tasks that certainly confront the Court in this case as 
it first appeared here. But, settled rights cannot be jettisoned 
merely because their vindication in varying factual settings may * I

’ As Justice Black observed in his dissenting opinion in Roys Markets v. Clerks 
Union, 308 U.S. 235, 258 (1070):

[l]t is Congress, not this Court that is elected by the people. This 
Court should ... interject itself as little as [rossible into the law­
making and law-changing process. Having given our view on the 
meaning of a statute, our task is concluded, absent extraordinary 
circumstances. When the Court changes its mind years later, simply
I recause the judges have changed, in my judgment it takes upon 
itself the function of the legislature

* In Runyon, the Court observed that the view that § 1081 does not reach private 
acts of discrimination “is wholly inconsistent with Jones’ interpretation of the 
legislative history of § 1 of the Civil Rights Act of I8(i<), an interpretation that 
was reaffirmed in Sullivan v. I Mile lluntin g I’ark, Inc., 3! Mi U.S. 220, and again 
in Tillman v. Wheaton-llaven Recreation Assn., supra. And this consistent in­
terpretation of the law necessarily requires that tj 1081, like tj 1082, reaches 
private conduct.” 427 U.S. at 173.

7

be difficult/ Were this Court to retract its decisions in every case 
involving difficult statutory construction, it would introduce in­
tolerable uncertainty not only into civil rights law, but into all 
our affairs. Oklahoma City v. Tuttle, 471 U.S. 808, 819 n.5 (1984) 
(“The principle of stare decisis gives rise to and supports ... 
legitimate expectations, and where our decision is subject to cor­
rection by Congress, we do a great disservice when we subvert 
these concerns and maintain the law in a state of flux.")/ In a 
nation founded on the institutions of slavery and dedicated only 
in the last generation to a policy that would “eliminate so far 
as possible the last vestiges of an unfortunate and ignominious 
page in this country’s history,” Albemarle Paper Co. v. Moody, 
422 U.S. 405, 418 (1975), a retreat from settled practices could 
be a particularly significant signal for new disorder.

Nothing in this Court’s April 25, 1988 order suggests that the 
Court will be unmindful of the interests served by stare decisis.
Patterson v. McLean Credit'Union, ____ U.S. ____(April 25,
1988) (per curium). Thus, those who would propose a detour 
“from the straight path of stare decisis” in this case bear the “heavy 
burden” of demonstrating “that changes in society or in the laws 
dictate that the values served by stare decisis yield in favor of 
a greater objective” Vasques v. Hillery, 474 U.S. 254, 266 (1986). 
While there are circumstances where the need for consistency 
in the application of the law and stability in society call for a * *

* Indeed, in another context this Court endorsed the view that the withdrawal 
of protection accorded by statute against private discriminatory conduct was 
an encouragement to discriminate that violated rights secured by the equal pro­
tection clause of the Fourteenth Amendment. Reitman o. Mulkey, 387 U.S. 369 
(1967).

* See also, Douglas, Stare Decisis, 49 Coluin. L. Rev. 735-36 (1949):

Uniformity and continuity in law are necessary to many activities.
If they are not present, the integrity of contracts, wills, conveyances 
and securities will be impaired. And there will Ire no equal justice 
under law if a negligence rule is applied in the morning but not 
in the afternoon. Stare decisis provides some moorings so that men 
may trade and arrange their affairs with confidence Stare decisis 
serves to take the capricious element out of law and to give stabili­
ty to a society. It is a strong tie which the future has to the past.



8

departure from stare decisis, careful observation leads amici to 
the conclusion that the application of § 1981 to private 
discriminatory conduct neither conflicts with national policies 
nor injects any irreconcilable doctrinal conflicts into the law sug­
gesting that Runyon v. McCrary needs reexamination.

B. Section 1981 Has Become Part of the Fabric of Legal Pro­
tections Afforded Racial and Ethnic Minorities Through Its 
Interjnetation by the Courts, Congress’ Ratification of that 
Construction, and Reliance By Individuals and States

1. Thus Court’s Decisions in Runyon and its Progeny Have 
Encouraged a Broad Usage of Section 1981.

On at least five occasions’ in the last twelve years, this Court 
has been called upon to give meaning to section 1981." None of 
those cases has signalled a retreat from the determination in Ru­
nyon that (j 1981 reaches all intentional racial discrimination, 
public and private, that interferes with the right to contract. 
Rather, the Court has consistently stood by that decision and, 
by applying it in varying circumstances, underscored its broad 
applicability.”

The Court’s opinions in Jones v. Alfred 11. Mayer Co., 392 U.S. 
409 (1968) and Runyon v. McCrary, All U.S. 160 (1976) *

’ Goodman v. L uketis Steel Company, 482 U.S. ___ , 107 S. Cl. 2617 (1987);
St. Fmtuis Collete v. Al-Khazruji, 481 U.S_____ 107 S. Cl. 2022 (1987); General
Building Contractors Assn. o. Pennsylvania, 458 U.S. 100 (1981); McDonald v. 
Santa Fe 7bail Thinsportation Co., 427 U.S. 273 (1976); linn yon v. McCrary, 
427 U.S. 160 (1976).

' 42 U.S.C. 5 1981 stales, inter alia:

All persons within the jurisdiction of the United States shall have 
the same right in every State and Territory to make and enforce 
contracts, ... as is enjoyed by white citizens ...

* At the same time, the Court has never departed from its determination reach­
ed in Jones v. Alfred It. Mayer Co., 392 U.S. 409 (1968), that § 1982, the statutory 
twin of § 1981, reaches private discriminatory interferences with property rights. 
Shaare Tefila Congregation v. Cobb, 481 U.S.___ , 107 S. Ct. 2019 (1987); Mem­
phis o. Greene, 451 U.S. 100 (1981); Tillman v. Wheaton-Haven llecreation Assn., 
410 U.S. 431 (1973); Sullivan v. tattle //anting Park, 396 U.S. 229 (1969).

9

demonstrate, based upon the language of 42 U.S.C. § 1981 and 
its legislative history, that the statute prohibits private discrimina­
tion in the making of contracts. While the States leave the full 
exposition of that argument to the Petitioner, we urge the Court 
to stand by that conclusion. Indeed, each of the questions 
necessary to the holding that § 1981 reaches private conduct has 
been “ ‘considered maturely and recently’ by this Court,” Monell 
t>. Dept, of Social Services, 436 U.S. at 714 (Rehnquist, J., dissen­
ting) quoting Runyon v. McCrary, 427 U.S. at 186 (Powell, ]., 
concurring).10

First, the Court in recent times has never intimated that the 
language of § 1981 indicates a congressional intent to allow private 
discrimination. The touchstone of statutory interpretation has 
always been the statute itself. E.g., Kelly v. Robinson, 479 U.S.
___ , ____, 107 S. Ct. 353, 358 (1987). In discussing the statute
from which section 1981 is derived, the Court has twice stated 
“that the ‘[1866] Act was designed to do just what its terms sug­
gest: to prohibit all racial discrimination, whether or not under 
color of law ...’ ” Runyon v. McCrary, 427 U.S. at 170 quoting 
Jones u. Alfred II. Mayer Co., 392 U.S. at 436 (emphasis add­
ed). A fresh look at the statute does not alter the conclusion that 
its plain terms do not limit its reach to state action."

“ In Monell, an important reason for the Court's holding that the high burden 
for overruling statutory precedent had been met was that in no prior case had 
there been a “full airing of all the relevant considerations." Id. at 709 n.6 (Pbwell, 
J. concurring). While Justice Rehmpiist argued that stare decisis indicated that 
the Court should follow Monroe v. Pape, he did not dispute that the issue had 
never been fully canvassed. Rather, he contended that other concerns of stare 
decisis predominated. Id. at 718. In contrast, tire history of both the Act of 1866, 
as reenacted in 1870 and codified in 1874, and its constitutional girders, received 
extensive treatment by the majorities and dissenters in Jones and Bunyon in­
formed not only by the analysis of the parties but also by sixteen amici briefs, 
including the United States'.

“ Justice White's dissent in Bunyon obviously reads the statute differently. While 
he provides support for much of his opinion, his assertion about the language 
of section 1981 that “what it says'' does "no more" than "outlaw[] any legal rule 
disabling any person from making or enforcing a contract, but does not pro­
hibit private racially motivated refusals to contract,” Bunyon v. McCrary, 427

(footnote continued)



10

Second, the Court has concluded that it was the intent of the 
Congress that <j 1981 reach both private and public racial 
discrimination in the making of contracts. Runyon v. McCrary, 
427 U.S. at 169-171; Johnson v. Railway Express Agency, Inc., 
421 U.S. 459, 460-61; 465-66 (1975); Tilhnan v. Wheaton-Haven 
Recreation Assn, 410 U.S. at 439-40 and n.ll. The legislative in­
tent holding has been based upon the plenary review of the 
historical materials by the Court in Jones v. Alfred //. Mayer 
Co., 392 U.S. at 422-37. See, e.g., Runyon o. McCrary, 427 U.S. 
at 170-72. The Court’s reliance on Jones’ careful consideration 
of the legislative history is appropriate, once the origin of 5 1981 
in the 1866 Act is accepted, since §<j 1981 and 1982 were section 
1 of the very same Civil Rights Act of 1866. It is therefore clear­
ly not “beyond doubt” based on the legislative history that prior 
decisions have been wrong about section 1981. Runyon o. 
McCrary, 427 U.S. at 168-70 and n.8; McDonald v. Santa Fe Trial 
Transportation Co., 427 U.S. at 286; Tillman v. Wheaton-Haven 
Recreation Assn, 410 U.S. at 439; Jones v. Alfred H. Mayer Co., 
392 U.S. at 422 n.28, 441 n.78; see St. Francis College v. Al- 
Khazraji, 107 S. Ct. at 2027; General Rldg. Contractors Ass n 
v. Pennsylvania, 458 U.S. at 390 n.17.

Third, the Court has carefully considered whether § 1981 was 
enacted pursuant to the Thirteenth or the Fourteenth Amend­
ment and concluded “that section 1981, because it is derived in 
part from the 1866 Act, has roots in the Thirteenth as well as 
the Fourteenth Amendment.” General Rldg. Contractors A.ss’n 
v. Pennsylvania, 458 U.S. 375, 390 n.17 (1982); Runyon v. 
McCrary, 427 U.S. at 168 n.8; Id. at 190 (Stevens, J., concurr­
ing); Jones v. Alfred H. Mayer Co., 392 U.S. at 441 n.78; see 
Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. at 
439-40. I hat conclusion has been based on a comprehensive

U.S. at l!)5 (White, J., dissenting), is conclusionary and, at most, points only 
to an ambiguity in that language. See Jones v. Alfred II Mayer Co., 392 U.S. 
at 421-425. Surely the Hecoastruction era Congress that enacted § 1981, at least, 
intended to thwart any attempt to reimpose slavery in any guise. It would have 
c*[*x;ted this broadly worded statute to reach refusals to employ any of the newly 
freed slaws unless they agrt*d to conditions of employment that mirrored their 
prior condition of servitude.

11

review of the relevant historical materials regarding the origins 
of tj 1981. B

Fourth, the Court has been clear, at least since Jones, “ ‘that 
the power vested in Congress to enforce [the Thirteenth Amend­
ment] by appropriate legislation'... includes the power to enact 
laws ‘direct and primary, operating upon the acts of individuals, 
whether sanctioned by state legislation or not.’ ” Runyon v. 
McCrary, 427 U.S. at 179 quoting Jones v. Alfred H. Mayer Co., 
392 U.S. at 438 (citation omitted).

In the course of examining the legislative and constitutional 
underpinnings of § 1981, the Court has applied it expansively 
to permit its use as a remedy for private discrimination in a wide 
array of circumstances. Even before the Court decided in Ru­
nyon that tj 1981 can be invoked to redress a race-based denial 
of admission by a private, commercial, non-sectarian school, all 
nine members then on the Court agreed that the statute reaches 
private refusals to enter into employment contracts. Johnson u. 
Railway Express Agency, 421 U.S. at 459 (per Blackmun, J., joined 
by Burger, C. J. and Stewart, White, Powell and Rehnquist, J.J.) 
( “(1 Jt is well settled among the Federal Courts of Appeals -  and 
we now join them -  that § 1981 affords a federal remedy against 
discrimination in private employment on the basis of race”); 
468-76 (Marshall, ]. joined by Douglas and Brennan, J. J., con­
curring in part and dissenting in part). In McDonald v. Santa 
Fe Trails Transj). Co., the Court embraced the conclusion that 
white persons, like blacks, can invoke its protections because “the 
Act was meant ... to proscribe discrimination in the making or 
enforcement of contracts against, or in favor of, any race.” 427 
U.S. at 295. Four years later, every member of the Court con­
sidering whether a claim under § 1981 requires a demonstration 
of discriminatory intent agreed that the prohibitions of § 1981 
encompass private as well as governmental action" motivated 

by race General Building Contractors Assn. v. Pennsylvania, 458 
U.S. at 387-88 (per Rehnquist, ]., joined by Burger, C. J., and 
White, Blackmun, Powell, O'Connor and Stevens, J.J.); 403-05 
(O’Connor, J., concurring); 405-06 (Stevens, J., concurring); 
407-418 (Marshall, J., joined by Brennan, J., dissenting).



12

Only last term, the Court was unanimous that § 1981 forbids 
all racial discrimination in the making of private contracts when 
“[b]ased on the history of § 1981” it had “little trouble in con­
cluding that Congress intended to protect from discrimination 
identifiable classes of persons who are subjected to intentional 
discrimination solely because of their ancestry or ethnic 
characteristics.” St. Francis College v. Al-Khazraji, 481 U.S. at
____, 107 S. Ct. at 2028. And again, several weeks later, no Justice
disagreed with the conclusion of the plurality in a union member­
ship case that “a collective bargaining agent could not, without 
violating ... § 1981, follow a policy of refusing to file grievable 
racial discrimination claims however strong they might be and 
however sure the agent was that the employer was discriminating
against blacks.” Goodman o. Lukens Steel Co., 482 U.S. a t ____,
107 S. Ct. at 2625.u

In addition to giving § 1981 an extensive substantive reach, 
the Court has woven Runyon into other, related areas of law. 
Thus, when the Court held that a private college that engages 
in racial discrimination cannot claim a charitable exemption from 
tax laws because “racial discrimination in education violates a 
most fundamental national policy”, it relied on Runyon and other 
cases. Bob Jones University v. United States, 461 U.S. 574, 594 
(1983). Similarly, Justices relied on Runyon's recognition that Con­
gress enacted tj 1981 pursuant to its powers under the Thirteenth 
Amendment when sustaining congressional action requiring set- 
asides for minority business enterprises in federally funded con­
struction programs. See Fullilove v. Klutznick, 448 U.S. 448, 500 
(1980) (Powell, J., concurring). And, Runyon's holding that Con­
gress has prohibited private discrimination supports the Court’s 
decisions that those who would discriminate in private relations 
can find no refuge in the Constitution from other legislation for­
bidding such conduct. F.g. Roberts v. United States Jaycees, 468

u Those Justices who dissented from the Court’s judgment in Goodman holding 
the union liable for racial refusals to process grievances did so not because of 
any expressed doubt that § l!)81 encompasses such a claim but lrecau.se on the 
record presented they could not conclude that the union intended to discriminate
against black mernlters. Id., 182 U.S. a t ___ , 107 S. Ct. at 2633-34 (Powell,
J., joined try Scalia and O’Connor, J.J., concurring in part and dissenting in part).

13

U.S. 609, 628 (1984); Hishon d. King tr Spaulding, 467 U.S. 69, 
78 (1984). Embarking on an effort to discern anew the intent 
of Congress 120 years ago would call into question the legitimacy 
of rights and remedies recently upheld by this Court in some of 
its most significant decisions.

2. Congress Has Ratified And Relied Upon Runyon’s Deci­
sion That Section 1981 Prohibits Private Racial 
Discrimination.

It Is now familiar history, chronicled at length in Runyon, that 
Congress has considered and rejected legislation “that would have 
repealed the Civil Rights Act of 1866 ... insofar as it affords private 
sector employees a right of action based on racial discrimina­
tion in employment.” Runyon v. McCrary, 427 U.S. at 174 and 
n.ll. The Court was moved by the Senate’s rejection of the pro­
posal to observe that [tjhere can hardly be a clearer indication 
of congressional agreement with the view that § 1981 does reach 
private acts of racial discrimination.” Id. (emphasis in original).

Similar ratifications have occurred with other civil rights 
legislation in subsequent years. In considering legislation to 
amend the Equal Credit Opportunity Act of 1974, 15 U.S.C. § 
1691, to prohibit discrimination on the basis of race and other 
grounds in the granting of credit, the House heard testimony that 
$ 1981 already accorded protection against racial refusals to ex­
tend credit.” Although specifically advised that § 1981 reaches * I

11 As explained by the Court, Senator Williams, the floor manager of the bill 
that was enacted as the E(|ual Employment Opportunity Act of 1972, describ­
ed Senator Hruskas’ amendment to make Title VII and the Equal Pay Act the 
exclusive federal sources of relief for employment discrimination as an effort 
to " strip from (the) individual his rights that have been established going back 
to the first Civil Mights Act of 1866.' " Id., quoting 118 Cong. Rec. 3371 3372 
(1972).

'* In hearings on the bill Irefore the Subcommittee on Consumer Affairs of the
I louse Committee on Ranking, Currency and Money, Arthur S. Flemming, 
Chairman of the United States Civil Rights Commission, testified:

Minority groups citizens theoretically would seem to be afforded 
protection against credit discrimination by the Civil Rights Act of

(footnote continued)



14

private discriminatory refusals to contract,15 when the amend­
ments to the Equal Credit Opportunity Act were enacted in 1976, 
Congress chose not to repeal or modify the judicial construction 
this and other courts had given § 1981.'"

In 1976, after Runyon, Congress again endorsed this Court’s 
construction of § 1981 when it enacted the Civil Rights Attorney’s 
Fees Awards Act of 1976, 42 U.S.C. § 1988. In explaining the pur­
pose of the amendment as giving the federal courts discretion 
to award attorneys’ fees in suits brought to enforce the civil rights 
acts which Congress has passed since 1866, Congress specifical­
ly observed that the Act of 1866 covered the same ground as later

1866 which forbids discrimination in contractual traasactioas and 
declares that all citizens have equal rights to “ inherit, purchase, 
lease, sell, hold, and convey real and personal pn>[)erty.” Experience 
of more than a century however, amply demonstrates that the broad 
protections of the Civil Rights Act of 1866 are insufficient to effec­
tively guarantee minority citizens equal credit opportunities.

Hearings Before the Subcommittee on Consumer Affairs of the Committee on 
Hanking, Currency and Money, House of Representatives, 94th Congress, 1st 
Sess., on H.R. 3386, p. 41 (C.P.O. 1975). In addition. Dr. Flemming testified 
that the prohibitions proposed in the amendments would overlap with those 
contained in section 805 of the Fair Housing Act of 1968, 42 U.S.C. 5 3605, 
against racial discrimination in mortgage financing, Id. at p. 46 (“ Unlike Title 
VIII of the Civil Rights Act of 1968, H R. 3386 forbids discrimination based 
on race ... in all areas of credit, not just mortgage finance.")

“ At the time Chuirman Hemming testified, April, 1975, at least seven circuit 
courts of ap|>eals had held that § 1981 reaches private race discrimination, see 
Johnson v. Railway Express Agency, 421 U.S. at 459 n.6, anti Jones o. Alfred 
II. Mayer Co., was settled law in this Court.

“ Congress did, however, require [versons aggrieved by housing related credit 
discrimination to choose I vet ween the remedies afforded Ivy the credit amend­
ments and the Fair Housing Act. See 15 U.S.C. tj 1691e(i):

No |verson aggrieved by a violation of this subchapter ami by a viola­
tion of section .3605 of Title 42 shall recover under this sulvchaptcr 
anti section 3612 of Title 42, il such violation is lvast*l on the same 
transaction.

15

enacted civil rights statutes and, by making attorneys’ fees 
available, acted to strengthen its protections.17

Congress time and again has ratified the judicial determina­
tion that the 39th Congress intended § 1981 to reach private 
discrimination. Cj. Lindahl v. OPM, 470 U.S. 748, 782 n.15 (1985) 
(“ Congress is presumed to be aware of [a] ... judicial interpreta­
tion of a statute and to adopt that interpretation when it re-enacts 
a statute without change ....’ ”). Indeed, it is apparent that Con­
gress has relied and built on Jones, Runyon and their progeny 
in enacting other statutes. If Congress had any inclination to over­
rule Runyon, it has had ample opportunity to do so. Moreover, 
it has foregone countless opportunities to pass legislation con­
taining protections of the kind tj 1981 is understood to contain 
based on its view that (here was no need to enact such a law. 
Proper deference to congressional endorsements of judicial in- 
terpretations of its acts requires this Court to abstain from 
challenging Congress to act once more.

” See s  ReP No 94-1011, 94th Cong., 2d Sess., 4 reprinted at 1976 U.S. Code 
Cong. & Admin. News 5908, 5911:

(F)ees are ... suddenly unavailable in the most fundamental civil 
rights cases. For instance, fees are now authorized in an employ­
ment 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 discrimina­
tion 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.

The Senate Report demonstrates Congress’ determination to make attorneys’ 
fees available to prevailing plaintiffs in actions under the Civil Rights Act of 
1866 to redress private discrimination, and its express approval of the construc­
tion (vf that act to reach private conduct. The Report specifies that the Fees 
Act would overrule the Court's disapproval of fee awards in cases of private 
discrimination cited in Aleyeska Pipeline Co. v. Wilderness Society, 421 U.S. 
240, 270 n.46 (1975) (disapproving fee awards inter alia in Knight v. Auciello,
45.3 F2d 852 (1st Cir. 1972) and Lee o. Southern Home Sites Corp., 444 F.2d
14.3 (5th Cir. 1971) which IhiIIi permitted fees in actioas under § 1982 to redress 
private housing discrimination). Id., at 5911-12 and n.3.



16

3. Individuals and States Have Relied Upon Section 1981 to 
Secure Redress For Invidious Race Discrimination in Its 
Myriad Forms.

Suits under § 1981 to redress racial discrimination are now com­
monplace; their sheer numbers reflect the centrality of the statute 
to our legal fabric. The lower courts have developed a body of 
law interpreting § 1981 that enables individuals to obtain 
remedies not available under Tide VII. That such a development 
would occur was foretold by the Court’s recognition in Johnson 
v. Railway Express Agency, 421 U.S. at 461 that the “ remedies 
available under Title VII and under § 1981, although related, 
... are separate, distinct and independent.”

While courts fashioning equitable remedies under § 1981 can 
require relief similar to that available under Title VII, such as 
hiring, promotion, reinstatement, retroactive seniority and af­
firmative action,"* * § 1981 covers all employers, not just those with 
fifteen or more employees. A § 1981 plaintiff can obtain legal 
remedies not available under Title VII. “An individual who 
establishes a cause of action under § 1981 is entitled to ... legal 
relief, including compeasatory, and under certain circumstances, 
punitive damages.” Id., 421 U.S. at 460. Thas, individuals prevail­
ing under § 1981, unlike those pursuing Title VII claims, may 
recover for the mental distress that results from the racial 
discrimination.” Courts may award punitive damages for serious 
violatioas of § 1981.2" A backpay award under fj 1981 Ls not limited

"See eg. Davis v. County of Las Angeles, 566 F.2d 1334 (9th Cir. 1977), vacated 
as moot, 440 U.S. (125 (1979); Campbell v. Gadsden School Oust., .534 F.2d 650 
(5th Cir. 1976); Easley v. Anheuser-Busch, Inc., 572 F  Supp. 402 (E.D. Mo. 
1983), affd in part and revd in part, 758 F.2d 251 (8th Cir. 1985).

•  E g ,  Williams tx Thins World Airlines, 660 F.2d 1267, 1272-73 (8th Cir. 1981); 
Gore v. 71 inter, 563 F.2d 159, 164 (5th Cir. 1977).

”  E g ., Beaujord v. Sisters of Mercy-Province of Detroit, 816 F.2d 1104, 1108-09 
(6th Cir. 1987), cert, denied, 108 S. Ct. 259 (1988); Hunter v. Allis-Chalmers 
Coift., Engine Div., 797 F2d 1417, 1425 (7th Cir. 1986); Stallworth v. Shuler, 
111 F.2d 1431, 1435 (Uth Cir. 1985); Clairbome v. Illinois Cent. B.B., 583 F.2d 
143 (5th Cir. 1978), cert, denied, 442 U.S. 934 (1979); Allen ix Amalgamated 
Transit Union Local 7HH, 5.54 F.2d 876 (8th Cir ), cert, denied, 431 U.S. 891 
(1977).

17

to the two year limitation specified for Title VII, id., but rather 
is governed by the analogous personal injury limitation period 
provided by the law of the state where the action is commenc­
ed. Goodman v. Lukens Steel Co., 107 S. Ct. at 2621.” Moreover 
because a § 1981 plaintiff, unlike one pursuing only Title VII 
relief, may be entitled to legal relief, he can demand a jury trial.”

The statute has been employed to redress racial discrimina­
tion relating to contracts in numerous contexts other than employ­
ment. Runyon approved its applicability to private schools and 
it has since been employed by those seeking to redress discrimina­
tion in education.”  Individuals have invoked it to vindicate the 
right to non-discriminatory access to restaurants,”  clubs,”  and 
recreational facilities”  where the other applicable federal law 
does not provide for monetary damages. See 42 U.S.C. § 
2000a- 3 .  It has been utilized to challenge racial denials of

’  ,,owever- there individuals who have foregone Title VII actions which

U S C  T o ! inr C,T ,0, V 300- ^  admin*‘ ra“ ve filing period,’ see 42 

is o v e r r l l^  C ’ °" * ‘° d '° federal relief is lost if Runy°n

"  EdUT LZ  f , ? " *  VerU>1' 717 F2d 761 763 <3d Cir vacated on other
gmunris, 468 U.S. 1201 (1984); Setser v. Novack Inv. Co., 638 F.2d 1137 (8th

S h  c T i iS !  ’ 454 us 1064 (1981); Moore u- Sun C)il Co■ 636 F2d 154

” SZ  U y iW M  Sch Jor G,rfe’ 541 F2d 1124 (5th Cir. 1976); Phelps 
ix Washburn University of Topeka, 632 F. Supp. 4.55 (D. Kansas 1986).

See Wyatt v. Security Inn Eood b  Beverage, Inc., 819 F.2d 69 (4th Cir 1987)

r ^ " ^ T d* ot m'£m  ,n ’— ** *"-*■ * *1

r  ........ * *  c“ ' « »

"  See ()l* man v- hake Hills Swim Club, Inc., 495 F.2d 1333 (2d Cir. 1974). 
Scotttx Young, 421 F.2d 143 (4th Cir), cert, denied, 398 U.S. 929 (1970)- Durham 
v. lied Lake Pishing b  Hunting Club, 666 F. Supp. 9.54 (WD Tex 1987)



18

housing opportunities,”  utility services,”  and access to roads.”  
Others have sought remedies for racial discrimination in access 
to insurance coverage”  and medical treatment.5' And it has been 
used by those seeking relief from racial discrimination in com­
mercial ventures,52 franchise relationships,55 and banking 
transactions.”

States, like individuals, have invoked § 1981 to redress private 
racial discrimination. In fact, one of the cases under $ 1981 to 
reach this Court, General Building Contractors Assn. o. Pa., was 
an effort by a state, acting as parens patriae, to seek redress for 
racial discrimination in private employment. Likewise, New York 
frequently has proceeded under <) 1981 as parens patriae for relief *

17 See Movable v. It. Walker 0  Associates, 644 F.2d 390 (5th Cir. 1981); Quinones 
v. Nescie, 111) F.R.D. 346 (E.D.N.Y. 1986); Jiminez v. Southridge Co-op, Sec-, 
lion I, 626 F. Supp 732 (E.D.N.Y. 1985); Bendetson o. Patjson, 534 F. Supp 539 
(D. Mass. 1982). But see Spann v. Colonial Village Inc., 662 F. Supp. 541, 547 
(D. DC. 1987) (§ 1981 not available to redress racially discriminatory real estate 
advertising); Saunders v. General Services Corf)., 659 F. Supp. 1042, 1062-63 
(E.D. Va. 1986) (same).

“  See Cody i>. Union Electric, 518 F.2d 978 (8th Cir. 1975).

*  Compare Jennings v. I’atterson, 488 F.2d 436 (5th Cir. 1974) with Memphis 
v. Greene, 451 U S. 100 (1981).

"  See Sims v. Order of United Commercial Drivelers of America, 343 F. Supp. 
112 (D. Mass 1972). But see Mackey v. Nationwide Ins. Companies, 724 F.2d 
419 (4th Cir. 1984).

u llall v. Bio-Medical Application, Inc., 671 F.2d 300 (8th Cir. 1982); Taylor 
v. Flint Osteopathic Hasp. Inc., 561 F. Supp. 1152 (E.D. Mich. 198;!).

"  See Fraser v. Doubleday O Co. Inc., 587 F. Supp. 1284 (S.D.N.Y. 1984); Viet­
namese, Etc. i>. K nights of K.K.K., 518 F. Supp. 993 (S.D. Tex. 1981); Howard 
Sec. Serv. v. Johns Hopkins Hospital, 516 F. Supp. 508, 513 (D. Md. 1981).

11 See Quarles v. CMC (Motor Holding Div), 758 F.2d 839 (2d Cir. 1985); Sud 
v. Import Motors Limited, Inc., 379 F. Supp. I0(>4 (W.D. Mich. 1974).

14 See llall v. Pennsylvania State Police, 570 F.2d 86, 92 (3d Cir. 1978).

19

from a pattern and practice of private housing discrimination.55 
In addition, both Massachusetts and California provide civil 
causes of action under state statute”  for conduct violating § 1981 
and have sued under the statutes to redress acts of racial harass­
ment. The applicability of § 1981 to private conduct has 
strengthened state anti-discrimination efforts.57

State courts have widely received § 1981 as a means for redress­
ing racial discrimination in private contracts.”  Recently, in Smith 
v. United Technologies, Essex Group, 731 P.2d 871 (Kan. 1987), 
the Kansas Supreme Court affirmed a jury award of $55,000 in 
compensatory and punitive damages to a black employee who 
sued under § 1981 for his discharge from employment in retalia­
tion for having filed a discrimination charge with the Kansas 
Commission on Civil Rights. In Brant Const. Co. v. Lumen 
Const. Co., 515 N.E.2d 868 (Ind. App. 3 Dist. 1987). the court 
affirmed a determination under § 1981 that a prime contractor, 
because of race, had interfered with and rendered insolvent a 
subeontractors business by wrongfully exercising control over the

See e g., People of the State of New York v. Merlino, 88 Civ. 3133 (S D N Y )• 
People of the State of New York v. LaRosa Realty, Inc., Civ. Action No’ 
CV-85-4459 (E.D.N.Y.) (Judgment for $15,000 in damages for racial steering); 
People of the State of New York v. Mahler Realty, Civ. Action Na CV-85-4460 
(Judgment for $14,000 for racial steering); People of the State of New York v 
Data-Butterfield Inc., Civ Action Na 80-365 (E.D.N.Y.) (judgment for $142,000 
for racial steering).

"  See Mavi Cen Law5 Ann Ch. 12 §§ UH, 111, 11J; Cal Civil Code § 52 1 
(West 1988).

17 In addition, guided in part by Runyons teaching that discrimination in private 
contracts is proscril>ed hy § 1981, states have initiated race-conscious set-aside 
programs to create opjiortunities for minority business enterprises. See e g., N.Y. 
Exec. Order 21 (1983); N.Y. Pub. Auth. Law § 1766-c 14(a)(i) (McKinney 1986)- 
N.Y. Iransp. Law § 428(2) (McKinney 1983); N.Y. Unconsol. Laws § 6267 
(McKinney 1983); Mass. Cen. Laws Ann. Ch. 23A § 39-44 (West Supp. 1988) 
and Mass. Exec. Order No. 237, Mass. Admin. Reg. 509 (1984).

U, T,' IS C" Urt ,las observed that state courts may entertain claims under the 
Civil Rights Act of 1866. Sullivan v. Little Hunting Park, 396 US. at 238.



2 0

subcontractor’s finances and intimidating the subcontractor’s 
employees into leaving the job site The subcontractor was award­
ed compensatory damages for lost profits, punitive damages and 
attorneys’ fees. In McKnight t>. General Motors Corp., 420 N.W.2d 
370 (Wis. App. 1987), the court set forth standards for the deter­
mination under § 1981 of employment discrimination suits in 
Wiscoasin courts. Courts in other states have likewise entertain­
ed § 1981 employment discrimination claims.3’ And state courts 
have recognized the special role the Civil Rights Act of 1866 plays 
in assuring equal access to private housing and places of public 
accommodatioas.40 Section 1981 thus has become in the state 
courts, as in the federal courts, an important tool for eliminating 
the badges and incidents of slavery.

Removing § 1981 from the arsenal of civil rights enforcement 
weapons could, in fact, create gaps in the availability of remedies 
to redress private discrimination and thereby undermine efforts 
to eliminate private racial discrimination. Not all of the states 
have enacted laws prohibiting racial discrimination.41 In addi­
tion, most state fair employment laws, like Title VII, do not cover 
all employers. The fair employment statutes of twelve states are 
essentially coextensive with Tide VII insofar as diey prohibit racial 
discrimination only by those employers with fifteen or more 
employees.41 Most other state statutes have jurisdictional limits * *•

*  See e.g. Spencer u. McCarley Moving l? Storage, 330 S.E.2d 753 (Ga. App. 
1985); Calhoun u. Lang, 694 S.W.2d 740 (Mo. App. 1985).

*• See Mascara v. Wokocha, 489 So. 2d 274 (La. App. 4 Cir. 1986); Hawthrvne
0. Ilealty Syndicate, Inc., 259 S.E.2d 591 (N.C. App. 1979); Madison v. Cinema
1, 454 N.Y.S.2d 226 (Civil Court of City of New York, N.Y. Co. 1982).

* Statutory provisions of general application concerning equal employment op­
portunities are absent in four states. See 3 Empl. Prac. Guide (CCfl) 11 20,098 
(Alabama), 20,698 (Arkansas), 21,898 (Georgia), 24,(i98 (Mississippi). Employers 
not protected by Title VII in these states may have no remedy for racial 
discrimination in private employment. Additionally, North Carolina anti 
Virginia statutes provide for conciliation of charges of private employment 
discrimination, but create no causes of action. See N.C. Cen. Stat. 5 143-422.1 
et sey. (1983); Va. Code Ann. § 2.1-714 et sey. (1987).

“  See Ariz. Rev. Stat. Ann. § 41-1461 (1982); Fla. Stat. Ann. § 760.02 (West 
1985); 111. Ann. Stat. ch. 68, para. 2-101 (Sniilh-Hurd 1987); La. Rev. Stat. Ann.

(footnote continued)

21

that approach those contained in the federal law.43 Not all such 
statutes provide the comprehensive set of remedies available under 
§ 1981. An overruling of Runyon could therefore create a gap 
in the availability of remedies for racial discrimination in private 
employment -  where none has existed for nearly two decades 
-  that could be filled only by the action of nearly forty state 
legislatures or Congress. It could without similar legislative reform 
also leave unredressable racial refusals to contract in many other 
contexts. See pp. 17-20, ante.

While there is no doubt about the power of the states to enact 
legislation modeled after § 1981 as construed in Runyon, the 
period during which legislatures were acting to do so and ad­
ministrative agencies were re tooling to entertain new kinds of 
charges would certainly be one of confusion or chaos. Overrul­
ing Runyon would disable an important legal means for obtain­
ing effective relief from discrimination in numerous areas of life; 
Such a withdrawal of rights would frustrate widely held expec­
tations about the courts' role in redressing racial injustice

S 23:1006 (West 1985); Md. Ann. Code art. 49B, § 15 (1986)- Neb Rev Stat 
48-1102 (.984); Nev. Rev. Stat. 5 613.30 (Michie 1986,' N.M Stat. An".

1-2 (Supp. 1986); Okla. Stat. Ann. tit. 25 § 1301 (West 1987); S.C. Code Ann.

M I f  r °  iLT  C° ' OP' l9W’); TeX Rev Civ Stat Ann- art. 5221k (Vernon 1987)- Utah Code Ann. § 34-35-2 (1988).

« See Cal. Govt. Code § 12926 (West. 1986) (five or more employees); Conn

k vwwuL  T  4f>U~51 (WeS‘ ,9Hfi) (,hree or more>; Del Code A "" UL '9. 
§ 710 (1385) (four or more); Idaho Code § 67-5902 (Supp. 1987) (ten or more)-
Kan. Stat. Ann. § 44-111 (1986) (four or more); Ky. Rev. Stat. Ann. § 344 030 
Michie 1983) (eight or more); Mass. Cen. L. ch. 151B § 1 (1986) (six or more)- 

Mo. Ann. Stat. § 213.010 (Vernon 1986) (six or more); N.H. Rev. Stat. Ann § 
J54-A:3 (1984) (six or more); N.Y. Exec. Law § 292 (McKinney 1982) (four or

n S n w  Chap* 14 02 4 (,en or more); Ohio Rev. Code Ann.
Nl4.1 2 ^ ,de.rS° "  l980) (fouror ,nore>; Pa- Stat. Ann. till. Labor-Legal

otice § 954(b) (I union 1988) (four or more); Tbnn. Code Ann. § 4-21-102 (1985) 
(eight or more); Wash. Rev Code Ann. § 49.60.040 (1967) (eight or more)- W. 
Va. Code § 5-ll-3(d) (1987) (twelve or more).



22

C. The Considerations Which Allow An Overruling of 
Statutory Precedent Do Not Call For A Reexamination of- 
Runyon

A review of the decisions in which the Court has overruled 
prior statutory interpretations reveals that the Court has done 
so only in those rare circumstances in which adherence to prece­
dent serves to undermine the values of fairness, predictability, 
stability and efficiency. Historically, the Court has reversed a 
statutory construction only where changes in society dictate such 
a departure, where intervening events undermine a precedent s 
validity or make it difficult to apply, or where application of a 
prior construction works to deny substantial rights. These cir­
cumstances do not apply to the Court’s decision in Runyon.

1. The Courts Construction of Section 1981 in Runyon is Con­
sistent With a National Consensus Favoring the Elimina­
tion of Racial Discrimination From All Sectors of Society.

It is well recognized that “when a rule after it has been duly 
tested by experience has been found to be inconsistent with the 
sease of justice or with the social welfare, there should be less 
hesitation in frank avowal and full abandonment...” B. Cardozo, 
The Nature of the Judicial Process 149 (1921). Application of that 
policy in this case, however, requires adherence to precedent, since 
the Court’s interpretation in Runyon now, more than ever, is con­
sistent with the national policy to eradicate both private and 
public discrimination.

In Rob Jones University v. United States, 461 U.S. 574 (1983), 
this Court recognized that race discrimination violates “deeply 
and wisely accepted views of elementary justice and fundamen­
tal public policy.” Id. at 592-93. There the Court unequivocally 
held that that public policy applies with special force to educa­
tional institutions, even in the private sector:

-  See e g  Monell v. New York City Dejmrtmenl of Social Service. 436 U.S. 
658 (1978); Continental TV. v. GTE Sylvania, 433 U.S. 36 (1977); Machinists 
v. Wi.vcon.rin Employment Relations Commission, 127 U.S. 365 (1976); Braden 
v 30th Judicial Cirtuit Court of Kentucky, 410 U.S. 484 (1973); Andrews v. 
iMuiwille and Nashville /I. Co., 406 U.S. 320 (1972); Boys Market Inc. v. Retail 
Clerics, 398 U.S. 235 (1970); Peyton v. Rowe, 391 U.S. 54 (1968).

Few social or political issues in our history have been 
more vigorously debated and more extensively ven­
tilated than the issue of racial discrimination, par­
ticularly in education. Given the stress and anguish of 
the history of efforts to escape from the shackles of the 
separate but equal” doctrine of Plessy u. Ferguson,

163 U.S. 537 (1896), it cannot be said that educational 
institutions that, for whatever reasons, practice racial 
discrimination, are institutions exercising “beneficial 
and stabilizing influences in community life”....

Whatever may be the rationale for such private 
schools’ policies, and however sincere the rationale may 
be, racial discrimination is contrary to public policy.

Id. at 595 (citation omitted). Without question, an integral step 
in the development of this national policy was the Court’s inter­
pretation in Runyon that nothing less than non-discrimination 
in private education would fulfill congressional efforts to effec­
tuate the Thirteenth and Fourteenth Amendments. By overrul­
ing Runyon, the Court would remove the principal federal rule 
of law that affords a remedy for discrimination in private educa­
tion, a result which cannot be reconciled with the Court’s historic 
role in forging a national consensus that racial equality requires 
equal access to education.

Indeed, in less than two generations, virtually every state has 
adopted a public policy recognized in judicial or legislative ac­
tion disfavoring private racial discrimination.*1 Like the extensive

"  See e g. Hyatt Corjj. v. Honolulu Liquor Com'n, 738 P.2d 1205, 1208-09 
(Hawaii 1987); Brown v. Superior Court, 691 P.2d 272, 277 (Cal. 1984); Miller 
v. C.A. Muer Corp., 362 N.W.2d 650, 653 (Mich. 1984); Maine Human Rts. 
Com’n v. Canadian Pacific, 458 A.2d 1225, 1229-30 (Me 1983); Kentticky Com'n 
on Human Rights v. Fraser, 625 S.W.2d 852, 855 (Ky. 1982); Eastman Kodak 
u. Fair Empl. Prac. Com’n, 426 N.E.2d 877, 879 (III. 1981); City of Minn. v. 
Richardson, 239 N.W.2d 197, 205 (Minn. 1976); Evening Sentinel v. NOW, 357 
A.2d 498, 503 (Conn. 1975); Jackson o. Concord Co., 253 A.2d 793, 798-99 
(N.J. 1968); Penn. Human Rel. Com'n v. Chester School Dist., 233 A.2d 290, 
296 (Pa. 1967); Neb. Rev. Slat. Ann. § 48-1101 (1984); N.Y. Exec. Law § 290 
(McKinney 1982); Or. Rev. Stat. Ann. 5 659.020; Tenn. Code Ann. § 4-21-101 
(1985); S.C. Code Ann. (j 1-13-20 (Law Co-op 1986).



24

array of federal judicial, legislative and executive action taken 
in the last forty years to eradicate racial discrimination,4* these 
policies testify that the country has come to agTee that racial 
discrimination is intolerable Overruling Runyon’s construction 
of § 1981 would therefore conflict with the prevailing sense of 
justice in this nation.

2. No Intervening Events Since Runyon Undermine Its 
Validity or Make it Difficult to Apply.

The Court has declined to follow a prior statutory interpreta­
tion when subsequent decisions or events have undermined the 
interpretation’s authority to such an extent that its application 
serves to frustrate important congressional policies. For exam­
ple, in Boys Market o. Clerks Union, 398 U.S. 235 (1970), the 
Court felt an “urgent need to reconsider its holding in Sinclair 
Refining Company v. Atkinson, 370 U.S. 195 (1962) to resolve 
a serious problem created by the Court’s intervening decision in 
Avco Corf), v. Aero Lodge, 735, 390 U.S. 537 (1968).

Sinclair held that the anti-injunction provision of the Norris- 
LaGuardia Act precluded a federal court from enjoining a strike 
prohibited under a collective bargaining agreement despite pro­
visions in the agreement, enforceable under § 301(a) of the Labor 
Management Relations Act of 1947, calling for binding arbitra­
tion of the underlying grievance 398 U.S. at 237-38. The Court 
subsequently held in Avco “that section 301(a) suits initially 
brought in state courts may be removed to the designated federal 
forum under the federal question removal jurisdiction in 28 U.S.C. 
section 1441." Id., 398 U.S. at 244. The practical effect of these 
two holdings was to deprive state courts of jurisdiction in sec­
tion 301(a) suits because unions, as a matter of course, would 
remove cases from state court to avoid injunctions against them, 
a result the Court found to be incompatible with existing case 
law and congressional purpose. Id., 398 U.S. at 245 (“We are not

-  See Bob Jones University v. United States, 461 U.S. at 592-96 (cataloguing 
decisions of this Court, congressional legislation and executive orders in civil 
rights area). See also. Civil (lights Restoration Act of 1987, P.L. 100-255, 102 
Slat. 28 (March 22, 1988).

25

at liberty thus to depart from the clearly expressed congressional 
policy to the contrary.”).

The Court also considered the intervening societal and Con­
gressional shifts that had taken place since enactment of the anti­
injunction section of the Norris-LaGuardia Act in its decision to 
overrule Sinclair. It noted that “congressional emphasis had shifted 
from protection of the nascent labor movement to the encourage­
ment of collective bargaining and to administrative techniques 
for the peaceful resolution of industrial disputes” through arbitra­
tion. Id. Only the Court's assessment that the unavailability of 
injunctive relief undermined the effectiveness of arbitration and 
impeded the core purpose of the Norris-LaGuardia Act compelled 
it to overrule its prior reading of the Act in Sinclair.*1

In other instances where the court has departed from prece­
dent, it has done so because experience or passage of time has 
proved the decision fundamentally flawed or unworkable The 
Court has declined to adhere to precedent which thwarts, rather 
than fosters, predictability and efficiency. See Monell v. Depart­
ment of Social Services, 436 U.S. 658 (1978); Continental TV. 
Inc. v. G.T.E. Sylvania Inc., 433 U.S. 36 (1977); Moragne v. States 
Marine Lines, Inc., 398 U.S. 375 (1970). This principle was cited 
by Justice Harlan speaking for a unanimous court in Moragne, 
398 U.S. at 404-05, in which the Court overruled its holdings 
in The Harrisburg and The Tungus which barred recovery for 
wrongful deaths at sea:

*’ There have ,>ee"  ^ e r  instances where the Court has overruled a precedent 
because subsequent developments have placed it at odds with important con­
gressional policies. See, e g., Machinists v. Wisconsin Employment Relations 
Commission, 427 U.S. 365 (1976) (Court's decision in Brigg's-Stanton permit­
ting state regulation of partial strike activities held to be"inconsistent with federal 
statutory scheme in which the use of economic pressure by the parties to a labor 
agreement is part and parcel of the process of collective bargaining); Andrews 
v. Louisville C  Nashville R. Co., 406 U.S. 320 (1972) (Court's decision in Moore 
v. Illinois Central R. R. that railroad employees may elect state remedy rather 
than dispute resolution procedures under the Railway Labor Act frustrates con­
gressional intent that resort to Arbitration Board lie considered compulsory) 
CJ„ Moragne v. States Marine Lines, 398 U.S. 375 (1970) (Court's decision in 
I he Harrisburg, barring recovery for wrongful deaths at sea, sharply out of 
keeping with modern maritime law in light of intervening abandonment of 
the rule in most areas where it once had validity).



26

[T]he Harrisburg ... has become an increasing un­
justifiable anamoly as the law over the years has left 
it behind, and, in conjunction with its corollary, The 
Tungus, has produced litigation spawning confusion 
in an area that should be easily susceptible of more 
workable solutions. The rule has had a long opportuni­
ty to prove its acceptability, and instead has suffered 
universal criticism and wide repudiation. To supplant 
the present disarray in this area with a rule both 
simpler and more just will further, not impede, effi­
ciency in adjudication.

Justice Powell relied upon the same principle in Continental
T.V Inc 433 U.S. at 47-48 to overrule the holding in United 
States v. Arnold, Schwinn & Co., 388 U.S. 265 (1967), that ver­
tical restrictions by manufacturers on areas or persoas with whom 
a product may be traded are per se violations of the Sherman Act:

Since its announcement, Schwinn has been the sub­
ject of continuing controversy and confusion, both in 
the scholarly journals and in the federal courts. The 
greater weight of scholarly opinion has been critical 
of the decision, and a number of the federal courts con­
fronted with analogous vertical restrictions have sought 
to limit its reach.

Most recently, in Monell v. Department of Social Services, the 
Court overruled its holding in Monroe v. Pape that a local govern­
ment may not be sued under 42 U.S.C § 1983 for injuries inflicted 
solely by its employees, in part, because of the inconsistency of 
its application. The Court noted: “[t]he principle of a blanket 
immunity established in Monroe cannot lie cabined short of school 
boards. Yet such an extension would itself be inconsistent with 
recent expressions of congressional intent ” Id., 436 U.S. at 65)6.

None of the considerations compelling reexamination in the 
above cases is applicable to the Court’s reconsideration of Ru­
nyon. No shift in congressional policy or other intervening events 
have undermined the validity of its holding that § 1981 prohibits 
discrimination in the private sector. Indeed, the Court in each 
decision since Runyon has reaffirmed, if not expanded, the broad

scope of § 1981. See, pp. 9 to 12, ante. And, the workability of 
the Courts interpretation in Runyon and its progeny has been 
duly tested by over a hundred applications in the lower courts. 
See pp. 16-20, ante; Comment, Development in the Law-Section 
1981, 15 Harv. Civ. Rights-Civ. Lib. L. Rev. 29 (1980).

The issues of statutory construction raised by litigants since 
Runyon have been resolved consistent with the spirit of the Act. 
St. Francis College v. Al-Khazraji, 107 S. Ct. 2023 (1987) (defini­
tion of race discrimintion); Goodman o. Lukens Steel Co., 107 
S. Ct. 2617 (1987) (Section 1981 actions subject to state statutes 
of limitation for personal injury); General Bldg. Contractors Assn, 
v. Pennsylvania, 458 U.S. 100 (1982) (proof of intent required); 
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273 (1976) 
(white persons can invoke statute). Experience has proven the 
interpretation in Runyon to be “so consistent with the warp and 
woof of civil rights law as to be beyond question.” Monell 436
U.S. at 697.

3. Thus is Not a Situation in Which the Court Must Reex­
amine a Prior Construction Because its Application 
Works to Deny Substantial Rights.

The Court s role as the final arbiter of justice confers upon 
it a special obligation to maintain fairness in the application of 
a rule of law. Thus, the Court has overruled precedent when its 
application works to deny substantial rights.

In Peyton v. Rowe, 391 U.S. 54 (1968), for example, the Court 
reconsidered a prior interpretation of 28 U.S.C. § 2241(c)(3) which 
specifies that a district court may issue writs of habeas corpus 
on behalf of prisoners who are “in custody” in violation of the 
Constitution. The issue was whether a federal court can enter­
tain a petition from a prisoner incarcerated under consecutive 
sentences who claims one or more of the future sentences is a 
deprivation of constitutional rights. A prior decision, McNully 
v. Hill, 293 U.S. 131 (1934), held that it could not.

In analyzing whether the Court should reconsider McNully, 
Chief Justice Warren, writing for a unanimous court, emphasized 
the importance of the writ of habeas corpus as a symbol of the



28

right to individual liberty. The Court found that McNully under­
mined the purposes of the writ because it postponed plenary con­
sideration of Issues by the district court and extended, without 
practical justification, the time a prisoner entitled to release must 
remain in confinement. The Court concluded that it must over­
rule McNully, inter alia, because its holding “... represents an 
indefensible barrier to prompt adjudication of constitutional 
claims in the courts.” Id. 391 U.S. at 55; see also, Braden v. 30th 
Judicial Circuit Court of Kentucky, 410 U.S. 484 (1973).

Similarly in Boys Market, Inc. o. Clerk’s Union, 398 U.S. at 
245, the Court overruled precedent where its application had 
the unintended result of depriving parties of existing rights under 
state law since “[i]t would be ironic indeed if the very provision 
that Congress clearly intended to provide additional remedies 
for breach of collective-bargaining agreements has been employed 
to displace previously existing state remedies.” Id.

The circumstances surrounding the Court’s reconsideration of 
Runyon bear no resemblance to the circumstances which have 
compelled the Court to reexamine a prior construction because 
its application works to deny rights. Overruling Runyon would 
deprive citizens of existing protections and remedies which are 
not otherwise available See pp. 16-21, ante. Moreover, the in­
justice that would result to victims of discrimination is not balanc­
ed by any legitimate claims by institutions in the private sector 
to be free from laws that restrain such discrimination. It is now 
clear that private institutions “simply cannot ‘arrange their af­
fairs’ on an assumption” that they can deprive citizens of equal 
opixirtunities or benefits solely because of their race Monell, 436 
U.S. at 700.

We acknowledge the Court’s admonition that in its reconsidera­
tion of this matter, civil rights litigants are subject to the same 
principles of stare decisis as other litigants and that the Court 
“should not be influenced by the worthiness of the litigant in terms
of extra legal criteria.” Patterson o. McLean Credit Union,-----
U .S.___ , ____S. Ct. ____ , (April 25, 1988) (per curiam). In­
deed, as the Court observed, each Justice of the Court takes a 
solemn oath to "administer justice without respect to persons,

and to do equal right to the poor and to the rich ...” 28 U.S.C.
§ 453. Id.

Yet, it cannot be seriously questioned that in recent decades 
the citizens of the states have come to view this Court as playing 
a special role in protecting the rights of members of minority 
groups. This prevailing view is based in no small part upon the 
Court’s decisions in Jones and Runyon which gave new life to 
the efforts of the 39th Congress to turn the promise of equality 
into reality for recently freed slaves. However radical those deci­
sions may have been when viewed against the backdrop of the 
society of 1866, it cannot be doubted that they capture the con­
sensus of a majority of Americans today.

To be sure, the national commitment to the eradication of racial 
discrimination has also been advanced by legislatures and ex­
ecutives, both state and federal. But the path to that consensus 
has never been straight and has sometimes been attended by con­
duct dedicated to obstructing it. It would therefore be unfor­
tunate were this Court to signal a new direction for civil rights 
by restoring § 1981 through a statutory reinterpretation to a status 
it occupied when the views of another generation held that Con­
gress lacked power to enact such legislation.4* Though the 
availability of legislative reform of Runyon’s reversal gives reason 
for confidence that the commitment to civil rights will continue, 
no practical wisdom suggests that the commitment needs testing. 
Accordingly, we urge the Court to let stand its decision in Ru­
nyon v. McCrary.

- See H ad e * v. United States. 203 U.S. 1 (1906), overruled, Jones v. MJred II. 
Mayer Co., 392 U.S. at 111 n.78; Civil Rights Cases, 109 U.S. 3 (1883).



30M

CONCLUSION

For the foregoing reasoas, the Court should decline to recon 
sider the decision in Runyon v. McCrary.

Dated: New York, New York 
June 24, 1988

Respectfully submitted,

J am es M. S h an no n  
Attorney General of the 

Commonwealth of 
Massachusetts 

One Ashburton Place 
Boston, Massachusetts 02108

B arbara B. D ickey 
D o uclas T. S hwarz 
Assistant Attorneys General

Robert Abram s 
Attorney General of the 

State of New York 
120 Broadway 
New York, New York 10271

O. Peter S herwood 
Solicitor General

S u za n n e  M. L ynn  
* Sanford M. C ohen  

Assistant Attorneys General

Counsel of Record