Los Angeles County v. Davis Brief Amicus Curiae

    In  the

Glourt of tljo Hutted States
October Term, 1978 

No. 77-1553

County o e  L os A ngeles, et al.,

Petitioners,

v.

V an Davis, et al.

ON W R IT  OF CERTIORARI TO T H E  U N ITED  STATES 

COURT OF APPEALS FOR T H E  N IN T H  CIRCU IT

BRIEF AMICUS CURIAE FOR THE 
N.A.A.C.P. LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.

Jack Greenberg 
0 . P eter Sherwood 
E ric Schnapper.

Suite 2030
10 Columbus Circle
New York, New York 10019

Counsel for Amicus



1

I N D E X

PAGE

Interest of Amicus ..................... 1

Summary of Argument .................... 2

ARGUMENT ............................... 3
I. THE "RACIAL QUOTA HIRING
ORDER" HAS NOT IN FACT BEEN
APPLIED TO PETITIONERS AND QUESTION
TWO IS THUS NOT ACTUALLY PRESENTED
BY THIS CASE ................... 3

II. PETITIONERS' HIRING PRACTICES 
PERPETUATED THE EFFECT OF PAST 
DISCRIMINATION IN VIOLATION OF 
42 U.S.C. §1981 ................... 9

CONCLUSION ..............................  33



IX

TABLE OF AUTHORITIES

Cases

Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974) .................. 13

Alexander v. Holmes County Board of
Education, 396 U.S. 19 (1969) ........ 35

Brown v. Board of Education, 347
U.S. 483 (1954) ...................... 31,33,34,35

Crawford v. Board of Education, 17 Cal.
Rptr. 389 (1976) .....................  34

DeFunis v. Odegaard, 416 U.S 312 (1972) .... 7

Ex parte McCardle,. 7 Wall. 506
(1869) ............................ 20

Fletcher v. Peck, 6 Cranch 87 (1810).......  20

Gaston County v. United States,
395 U.S. 285 ( 1969) .............. ... 3,30, 31

Golden v. Zwickler, 394 U.S. 104
(1969) ..............................  8

Green v. School Board of New 
Kent County, 391 U.S.
430 (1968) ..................    29

Griggs v. Duke Power Co., 401 U.S.
158 ( 1971) ..........................  9

Guey Heung Lee v. Johnson, 404 U.S.
1215 (1971) ........................

PAGE

34



1 X 1

Hall v. Beals, 396 U.S. 45 (1969) .........  7,8

Hurd v. Hodge, 334 U.S. 24 (1948) .........  11

Jones v. Alfred H. Mayer Co.,
392 U.S 409 (1968) ................... 10,15

Kelsey v. Weinberger, 498 F .2d 701
(D.D.Cir. 1974) .....................  34

Keyes v. School District No. 1,
413 U.S. 189 (1973) .................. 30

Lane v. Wilson, 307 U.S 265 (1939) ........  30

McDonald v. Santa Fe Transportation
Co. , 427 U.S 273 (1976) ............. 14

Monell v. Department of Social
Services, 56 L.Ed.2d 611 (1978) .....  12

Moose Lodge No. 107 v. Irvis, 407
U.S 163 (1972) ..................... 30

New York v. United States, 419 U.S 888
(1974) ............................... 36

Palmer v. Thompson, 403 U.S. 217 (1971) .... 21

Regents of University of California 
v. Bakke, 57 L.Ed.2d 750
(1978) ............................... 12,32

Reyes v. Matthews, 428 F.Supp. 300
(D.D.C. 1976) ..................... 12

Runyon v. McGrary, 427 U.S 160
(1976) ............................... 10,13

Swann v. Charlotte-Mecklenburg
Board of Education, 402 U.S.
1 (1971)

PAGE

29



I V

Washington v. Davis, 426 U.S. 229
(1976) ...............................  21

Statutes

31 U.S.C. § 1242(a) ........................ 12

42 U.S.C. §1981 ............................ passim

42 U.S.C. §1983 ...........................  12

42 U.S.C. §2000e ..........................  13

Civil Rights Act of 1866 .................. passim

Civil Rights Act of 1964 . ................. 9,12

14 Stat. 27 ...............................  10, . 14

14 Stat. 177 .............................  14

1860 Cal. Stats, c.329 ...................  32

1863 Cal. Stats, c.159 ..................... 32

1885 Cal. Stats, c. 117 ...................  33

1893 Cal. Stats, c.193 .................... 33

1921 Cal. Stats, c. 685 ..................... 33

General School Law of California
§1662 (1880) ........................  32

PAGE



V  - PAGE

Legislative Materials

118 Cong. Rec.............................  13

110 Cong. Rec.............................. 13

Cong. Globe, 40th Cong., 2d Sess.  ...... 11

Cong. Globe, 39th Cong., 1st Sess.......... 10,15-27,
31,32,37

Governmental Reports

California Legislative Assembly
Permanent Subcommittee on Post
Secondary Education, Unequal
Access to College (1975) .............  35

i
Governor's Commissionon the Los Angeles 

Riots, Violence in the City 
(1965) ............................ 34

United States Bureau of the Census,
1970 Census of Population,
Series PC(2)-2A, State of
Birth ............................ 35

United States Commission on Civil 
Rights, Mexican-American
Education Study (1971-74) ............  35

Other Authorities

22 California Department of Justice,
Opinions of the Attorney General, 
Opinion 6735a (1920) ........... 33



IN THE
SUPREME COURT OF THE UNITED STATES 

October Term, 1978

No. 77-1553

COUNTY OF LOS ANGELES, et al., 

Petitioners,

v.

VAN DAVIS, et al.

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

Ninth Circuit

BRIEF AMICUS CURIAE FOR THE 
N.A.A.C.P. LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC.

INTEREST OF AMICUS

The N.A.A.C.P. Legal Defense and Educational 
Fund, Inc., is a non-profit corporation estab­
lished under the laws of the State of New York. 
It was formed to assist Negroes to secure their 
constitutional rights by the prosecution of 
lawsuits. Its charter declares that its purposes



2

include rendering legal services gratuitously to 
Negroes suffering injustice by reason of racial 
discrimination. For many years attorneys of the 
Legal Defense Fund have represented parties in 
employment discrimination litigation before this 
Court and the lower courts. The Legal Defense 
Fund believes that its experience in employment 
discrimination litigation may be of assistance to 
the Court

SUMMARY OF ARGUMENT
The "racial quota hiring order" that is the 

subject of Question 2 has never been implemented 
as such. Instead the petitioners, in compliance 
with an unchallenged portion of the district 
court's injunction, have deliberately interviewed 
large numbers of minority applicants. But the 
actual rating and hiring decisions are made 
without regard to race. Because this affirmative 
action in interviewing consistently results

_1/ Letters of consent to the filing of this 
brief have been filed with the Clerk.



- 3

in the hiring blacks and Mexican-Americans in 
numbers greater than the "racial quota hiring 
order", that order has never been, and is unlikely 
to become, operative.

The 1866 Civil Rights Act forbids racially 
neutral practices which perpetuate the effect 
of past discrimination. The relevant provisions 
of the Black Codes, which the Civil Rights Act was 
intended to annul, were generally neutral on 
their face, and penalized newly freed slaves by 
perpetuating past discrimination. Petitioners' 
written examinations perpetuate the effects of 
wide spread de_ jure discrimination in the Califor­
nia schools. Gaston County v. United States, 395 
U.S 285 (1969).

ARGUMENT

1. THE "RACIAL QUOTA HIRING ORDER" HAS 
NOT IN FACT BEEN APPLIED TO PETITIONERS, AND 
QUESTION TWO IS THUS NOT ACTUALLY PRESENTED BY 
THIS CASE.

The second Question Presented contained in 
the petition relates to whether the district 
court erred in imposing "a racial quota hiring 
order." Petitioners' statement of the case 
recites that after finding liability,



- 4 -

[a]s a remedy, the [district] court ordered 
that the County hire all future entry level 
firemen in accordance with a hiring quota of 
20% black and 20% Mexican-American until such 
time as the percentage representation of 
those minorities in the entire Fire Depart­
ment in all ranks equaled their representa­
tion in the County's general population. 
Brief for Petitioners, p.6.

Petitioners further state that after 1972,

[a]11 subsequent hiring has been pursuant to 
the trial court's 40% preferential minority 
hiring order of July, 1973. Brief for 
Petitioners, p. 9.

The clear implication of these assertions is that 
the "quota hiring order" was the sole injunction 
entered by the district court, that it was an 
unconditional order, and that petitioners complied 
with that order by establishing a rigid quota 
system, consciously hiring, regardless of ability, 
1 black and 1 Mexican-American for every 3 whites. 
The facts appear to be otherwise.

The district court's decision contains four 
primary substantive requirements, of which only 
the first two are unconditional. Paragraph one is 
a general injunction against discrimination. 
Paragraph two mandates in general language that 
petitioners take steps to increase minority 
employment, but contains no specific direction as 
to how this is to be done.



- 5

Defendants shall in good faith make 
all affirmative action efforts reasonably 
possible and necessary to increase the 
black and Mexican-American participation 
rates in the fireman workforce at the Los 
Angeles County Fire Department until such 
time as those participation rates are 
commensurate with the black and Mexican- 
American population percentages of Los 
Angeles County.

What is "reasonably possible and necessary" 
is left to the discretion of the petitioners; 
paragraph two does not itself mandate a quota or 
any form of race-conscious hiring. Certiorari was 
not sought as to the propriety of the injunctive 
provisions of paragraphs one and two. Paragraphs 
three and four state that "a minimum of twenty 
percent (20%) of all new employees . . . shall 
be blacks" and Chicanos. But paragraphs three and 
four are obviously of no operative significance if 
the actions taken to comply with paragraphs one 
and two result in minority hiring over the 40% 
floor. Thus paragraphs three and four are contin­
gent in nature; so long as compliance with para­
graphs one and two is resulting in substantial 
minority hiring, paragraphs three and four do not 
apply and impose no additional obligation on 
petitioners.



- 6 -

That is precisely what has occurred in this 
case. The hiring procedure adopted by petitioners 
to comply with paragraphs one and two is as 
follows. To fill each group of vacancies peti­
tioners interview 500 aplicants who passed their 
written examination, including the highest scoring 
300 whites, 100 blacks and 100 Mexican-Americans. 
The number of whites interviewed is several times 
the number of actual vacancies. The interviewers 
rate each of these applicants on his or her merits 
without regard to race or national origin. 
Thereafter applicants are hired solely on the basis 
of the score given by the interviewer, again 
without regard to race or national origin. The 
actual hires are not from separate lists, no 
quotas are used, and the same rating standards are 
applied to all applicants. The interviewers are 
not authorized to give extra points because 
of an applicant's race or national origin, but are 
directed only to be alert for talented minority 
applicants. This racially neutral procedure, 
adopted pursuant to paragraphs one and two, 
has resulted in every year since 1972 in a minor­
ity hiring level which consistently, though by 
varying amounts, exceeded 50%. Thus paragraphs 
three and four simply have never gone into effect.



7

Petitioners do not contend that their present 
hiring procedure is likely in the future to 
result in a lower level of minority hiring, and 
there is nothing in the record suggesting that 
this will to occur. Indeed, at the present 
rate of hiring, minority employment at the Los 
Angeles Fire Department is likely to reach popula­
tion levels by around 1981, at which time the 
entire injunction will become inoperative. Nor do 
petitioners assert that, even if they should 
prevail on the liability issue, they would 
alter their present procedures. Compare DeFunis 
v. Odegaard, 416 U.S. 312 (1974). It is thus 
unlikely that an advisory opinion by this Court 
with regard to the propriety of paragraphs three 
and four would ever have any impact on the outcome 
of this litigation or the conduct of the peti­
tioners .

Under these circumstances the dispute as to 
whether the district court order should have 
included paragraphs three and four seems moot. 
This aspect of "[t]he case has . . . lost its 
character as a present, live controversy of the 
kind that must exist if [the Court is] to avoid 
advisory opinions on abstract questions of law." 
Hall v. Beals, 396 U.S. 45, 48 (1969). There may



- 8 -

be a remote possibility that some peculiar turn of 
events might render operative the disputed para­
graphs prior to their expiration in two or three 
years, "[b]ut such speculative contingencies 
afford no basis for . . . passing on the substan­
tive issues" which petitioners would have the 
Court decide. _Id_. at 49. Even if these circum­
stances fall short of mootness, they are very 
different than those suggested by the Petition. 
We do not think certiorari would have been granted 
had it been clear that the relevance of this issue 
to the parties was at best "wholly conjectural." 
Golden v. Zwickler, 394 U.S. 103, 109 (1969). 
Accordingly we suggest that the grant of certio­
rari as to Question 2 appears to have been 
improvident.

Even if the district court had issued an 
unconditional order directing that firemen be 
hired on the basis of a quota, that relief would 
have been justified by the serious and long 
standing violation of 42 U.S.C. §1981 involved in 
this case.



9

II. PETITIONERS' HIRING PRACTICES PERPETUATED 
THE EFFECT OF PAST DISCRIMINATION IN VIOLATION OF 
42 U.S.C, §1981.

The parties urge the Court to decide whether 
section 1981 prohibits non-job related employment 
criteria with an adverse impact on minorities, a 
prohibition already contained in Title VII in 
light of Griggs v. Duke Power Co., 401 U.S. 
158 (1971). They assume that this difficult 
issue turns on whether section 1981 should be 
construed in_ pari materia with Title VII or with 
the Fourteenth Amendment. Amicus suggests that 
the Griggs issue need not be reached, since 
section 1981 clearly forbids practices which have 
the effect of perpetuating past intentional 
discrimination, and the hiring practices in this 
case had just that effect. We further suggest 
that questions regarding construction of section 
1981 cannot, in general, be resolved by simply 
seeking to analogize it to either the Fourteenth 
Amendment or Title VII.

Petitioners' assertion that Congress intended 
the substantive requirements of section 1981 
to be the same as those of section 1 of the 
Fourteenth Amendment is refuted by the very 
language and established construction of those 
provisions. In important areas the Amendment is



10

broader than section 1981. The equal protection
clause forbids discrimination generally; Congress
expressly considered and rejected proposals
to include such a provision in the 1866 Civil 

2 /Rights Act.—  The Fourteenth Amendment also 
guarantees due process of law and "the privileges 
and immunities of citizens of the United States," 
but section 1981 contains no such protections. On 
the other hand, section 1981 prohibits discrimina­
tion by private parties in a variety of specific 
areas, Runyon v. McCrary, 427 U.S. 160 (1976);
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), 
but the Fourteenth Amendment does not. Section 
1981 was originally enacted as part of section 1 
of the 1866 Civil Rights Act to enforce the 
Thirteenth Amendment. Although the 1866 Civil 
Rights Act was subsequently reenacted in 1870 
after the adoption of the Fourteenth Amendment, 
this was done, not to make the Fourteenth Amend­
ment the sole basis of the 1866 Act, but to expand
the group protected by the Act from "citizens of

3 /the United States"—  to "all persons within the

27 See Cong. Globe, 39th Cong., 1st Sess. , pp. 
1266 (remarks of Rep. Bingham), 1366 (remarks of 
Rep. Wilson).

3/ 14 Stat. 27.



11

jurisdiction of the United States" in order to
protect aliens, particularly Chinese in Cal-

- 4 /lfornia.—
The most important connection between the 

1866 Civil Rights Act and the Fourteenth Amendment 
is that they were enacted by the same Congress 
only two months apart, and that one of the primary 
purposes of the Amendment was to incorporate 
certain of the guarantees of the Act into the 
Constitution, Hurd v, Hodge, 334 U.S. 24, 32 
(1948). Because both enactments "were expressions 
of the same general congressional policy," id., 
section 1981 should be construed, as to the 
specific subjects to which it applies, at least as 
broadly as the Fourteenth Amendment. But since 
Congress clearly intended that in certain respects 
the statute would be broader than the Fourteenth 
Amendment, limitations as to the scope of the 
Amendment cannot automatically be read into 
section 1981 itself.

4j  Cong. Globe, 41st Cong., 2d Sess., p. 3658. 
Senator Stewart explained that under the bill "We 
will protect Chinese aliens or any other aliens 
whom we allow to come here, and give them a 
hearing in our court; let them sue and be sued; 
let them be protected by all the laws and the same 
laws that other men are." See also id. p. 3807, 
The proposal to reenact the 1866 Act was originally 
part of S. No. 865, id . p.  3409, which was 
referred to at the time as "The Chinese bill." 
Id. p. 3702 (remarks of Sen. Thurman).



12

On the other hand, the 1866 Act in many 
instances cannot be construed simply by referring 
to other civil rights legislation. First, there 
may be several other civil rights statutes cover­
ing the same subject matter which may not set 
identical substantive or procedural standards. In 
the instant case, although Title VII does not 
require proof of discriminatory intent, Title VI, 
which also applies to hiring under certain circum­
stances, may establish a different rule, see 
Regents of University of California v. Bakke, 57 
L .Ed.2d 750, 767-69, 795-803 (1978), and the
anti-discrimination provision of the Revenue 
Sharing Act, 31 U.S.C. §1242(a), could have even 
another meaning. Similarly, if a dispute arose as 
to whether the principle of respondeat superior 
should be applied in a section 1981 case, reference 
could be made to 42 U.S.C. §1983, which rejects 
that principle, Monell v. Department of Social 
Services, 56 L.Ed.2d 611, 636-38 (1978), or to
Title VII which applies it.— Second, it was the 
clear intent of Congress in adopting Title VII not 
to repeal any pre-existing rights under other 
statutes. Both in 1964 and in 1972 Congress 
rejected proposals to make Title VII the exclusive

5/ See, e.g., Reyes v. Matthews, 428 F.Supp. 
300, 301 (D.D.C. 1976).



13 -

prohibition against employment discrimination.— In 
1972 opponents of such a proposal expressly 
referred to the 1866 Civil Rights Act and argued 
that it was needed since "employees are not fully 
protected" by Title VII because of the restric­
tions written into Title VII to assure its pas­
sage.—  ̂ In 1964 a Justice Department memorandum 
placed in the Congressional Record by Senator 
Clark stated "[T]itle VII is not intended to and 
does not deny to any individual, rights and 
remedies which he may pursue under other Federal 
and State Statutes".—  Thus while the in pari 
materia rule may be used where it would have a 
possibly expansive impact on section 1981, that 
rule cannot be relied on to read into section 1981 
either the substant ive-^or procedural— ^limita­
tions of Title VII.

6/t

6. See 118 Cong. Rec. 3964-65 (1972) ; 110 Cong.
Rec. 13650-52 (1964); Runyon v. McCrary, 427 U.S.
at 174-75; Alexander v . Gardner-Denver Co. ,, 415
U.S. 36, 48, n.9 (1974).

7/ 118 Cong. Rec. 3372 (remarks of Sen.
Williams), 3962 (remarks of Sen. Javits).

8/ 110 Cong. Rec. 7207.

9/ See, e.g., 42 U.S.C. §§2000e(b), 2000e-l,
2000e-2(f), 2000e-2(h), 2000e-2(i), 2000e-2(j).

10/ See, e.g., 42 U.S.C. §§2000e-5(c), 2000e-
5(e), 2000e-5(f), 2000e-5(g).



- 14 -

The language of section 1 of the 1866 Civil 
Rights Act does not expressly limit its protec­
tions to cases of intentional discrimination. It 
provides that all "citizens, of every race and 
color, without regard to any previous condition 
of slavery or involuntary servitude ... shall have 
the same right ... to make and enforce contracts 
.... as is enjoyed by white citizens. Grammati­
cally the references to race and previous servi­
tude merely explain who is included within the 
protection of the statute, not what rights are 
conferred. Cf. McDonald v. ,Santa Fe Trail Trans­
portation Co. , 427 U.S. 273, 288 (1976). Section 
2 of the Act, which clearly did have a particular 
intent requirement, referred to penalties on any 
person "on account of such person having at any 
time been held in a condition of slavery" or "by 
reason of his race or color", but this terminology 
is not used in section 1. Similarly, the phrase 
"because of race or color" was used in section 14

11/ 14 Stat. 27.



- 15 -

of the Freedmen's Bureau Act of 1866^—  to indicate 
an intent requirement. The broader language of 
section 1 of the Civil Rights Act was not, we 
suggest, "a mere slip of the legislative pen." 
Jones v. Alfred Mayer Co., 392 U.S. 409, 427
(1968). The reference to the rights actually 
"enjoyed" by whites, instead of a mere requirement 
that there be no express difference in rights, 
contemplates on its face equality in the practical 
consequences of rights. This is consistent with
Senator Trumbull's assertion when introducing the
<bill that " [ t]here is very little importance m
the general declaration of abstract truths and
principles unless they can be carried into effect,
unless the persons who are to be affected by them
have some means of availing themselves of their 

13/benefits."—
The one undisputed goal of Congress in 

enacting the Civil Rights Act was "eliminating the 
infamous Black Codes." Jones v. Alfred Mayer Co., 
392 U.S. 409, 433 (1978). The codes were ex-

12/

12/ 14 Stat. 177.

13/ Cong. Globe, 39th Cong. 1st Sess . , 474.



16

pressly referred to by both the House-- and
Senate^- sponsors of the Act. In responding to
President Johnson's veto message, Senator Trumbull
insisted that it was these "oppressive" laws which

16/made legislation necessary.—  Congress was thor­
oughly familiar with the details of these Codes ; 
they were quoted on the floor and the status of 
legislation in each state was the subject of 
repeated discussions .— ^Congress clearly under­
stood that if the Civil Rights Acts were passed

18/those Codes would be "annulled".—  Accordingly 
the terms and nature of the Black Codes themselves 
are of substantial importance in determining the 
intent of Congress.

The Civil Rights Act guarantees blacks the 
right to "make ... contracts" and Congressman 
Thayer complained that the Black Codes "impair 
[freedmens'] ability to make contracts for labor

14/

14/ Id. pp. 39, 40, 41 (remarks of Rep. Wilson). 

15/ Id. pp. 474, 475 (remarks of Sen. Trumbull). 

16/ Id. p. 1759.

17/ See nn. 14-16, infra; see also id. pp.
1118-19, 1123-25, 1151-53, 1159-60, 1838, 1839.

18/ Id. pp. 39, 40, 41, 111 (remarks of Rep.
Wilson).



17

in such a manner as virtually to deprive them of
19/the power of making such contracts."—  None of

the Black Codes, however, literally forbade blacks
from making labor contracts; on the contrary, they
contemplated that such contracts would be made and

20/frequently required that they be in writing,—  a 
practice encouraged by the Freedmen's Bureau. The 
provisions of the Codes with which Congress was 
concerned affected freedom of contract in a dif­
ferent manner, and were generally racially neutral 
on their face, though not in their effect. The
provisions most repeatedly objected to by Congress

21/were the vagrancy laws.—  These statutes defined 
vagrants in such a broad way as to include vir­
tually any adult black who was not gainfully 
employed, and provided that any person convicted 
of vagrancy could be punished by being bound out

19/ Cong. Globe, 39th Cong, 1st Sess., p. 1151.

20/ W. Fleming, Documentary History of Reconstruc­
tion, v.l, pp. 288 (Mississippi), 299 (South 
Carolina); E. McPherson, Political History of the 
United States of America During The Period Of 
Reconstruction, p. 39 (Florida).

21/ See Cong. Globe, 39th Cong., 1st Sess., pp. 
504 (remarks of Sen. Howard), 1123, 1124 (remarks 
of Rep. Cook), 1151 (remarks of Rep. Thayer), 
1160 (remarks of Rep. Windom).



18

to any person for a period of up to one year.—  Of
the five such laws, however, four contained no
reference to race, and literally applied to whites
as well as blacks. In Mississippi the general
definition of vagrancy applied to everyone, but
the law also deemed as vagrants freedmen,
regardless of their employment, who were "found
unlawfully assembling together", but even in that
case whites assembling with the freedmen were also

23/considered vagrants.—
Second in importance to the vagrancy laws

were state laws regulating the terms* and condi-
24/ . .tions of employment.—  These provided, inter 

alia, that an employee's wages would be forfeited 
if he did not complete the term of his contract, 
that he could be fined by his employer for dis­
obedience, being "absent from home without leave", 
or for injuries to tools and animals. No visitors

22/

22/ McPherson, supra, pp. 30 (Mississippi), 33
(Georgia), 39 (Florida), 41 (Virginia), 43-44 
(Louisiana).

23/ Fleming, supra, p. 284. In addition only
black vagrants could be hired out to earn their
fines. Id_. p. 285.

24/ See Cong. Rec., 39th Cong., 1st Sess. , 39
(remarks of Rep. Wilson) (provisions of Georgia 
regulations condemned as "degrading and arbitrary")



19 -

could be received during working hours and no
livestock kept without the employer's permis- 

25 /sion.—  Disobedience by an employee was a
criminal offense, and the employer could have a
worker whipped for "want of respect and civility
to himself, his family, guests or agents".—  Most
states made it a crime to induce an employee away
from his job, thus effectively locking him into

2 7/working for his old master-- for at least the
term of each contract, and in South Carolina an
employee could not contract with a new employer
"without production of the discharge of his former

2 8/master."--' These onerous regulations, in the
case of South Carolina, Alabama, and Louisiana, 
literally applied to all laborers regardless of 
race; in Mississippi and Florida, on the other 
hand, they applied only to blacks.

25/ See, e.g., McPherson, supra, p. 39 (Florida).

26/ See, e.g., Fleming, supra, p. 301 (South 
Carolina).

27/ See, e.g., McPherson, supra, pp. 31 (Missis­
sippi), 34 (Alabama), 40 (Florida), 43 (Louisi­
ana); Fleming, supra, pp. 287-9 (Mississippi), 302 
(South Carolina).

28/ Fleming, supra, p. 30-2.



- 20

Third, South Carolina and Mississippi estab­
lished by statute apparently harsh rules 
regarding the relationship of masters and appren­
tices, but in general these provisions applied

29/regardless of race.—
Thus the provisions of the Black Codes which 

restricted the right of freedmen to contract did 
so in most instances in a racially neutral manner. 
Congress, however, had no doubt that adoption of 
the Civil Rights Act would be sufficient by itself 
to abrogate the Codes. Nothing in the legislative 
history suggests that Congress assumed the Codes 
would remain in effect unless and until it was 
proved at trial that they had been adopted to 
discriminate against blacks; indeed, under the 
then applicable decisions of this Court an 
inquiry into the motives of a legislature would 
impermissible. Fletcher v. Peck, 6 
Cranch. 87, 130 (1810); Ex parte McCardle, 7

29/ Id, pp. 282-83 (Mississippi), 297-99 (South 
Carolina). Mississippi, but not South Carolina, 
authorized local courts to apprentice out black 
children whose parents could not or would not 
support them. South Carolina, but not Missis­
sippi, required that an artisan who needed a 
license to practice his trade must also obtain a 
license for a black, but apparently not a white, 
apprent ice.



- 21

Wall. 506, 514 (1869). 3-^To the extent that the
Thirty-Ninth Congress discussed the purposes of 
southern legislatures, it was concerned with a 
continued spirit of insurrection and a desire to

31 /preserve slavery;— 'certainly proof of that sort of 
motivation is not required to establish a 
violation of section 1981.

The characteristic of the Black Codes which 
placed them squarely within the prohibitions of 
the Civil Rights Act, and which was the central 
reason for congressional action, was that "under 
other names and in other forms a system of involun­
tary servitude [was] perpetuated over this unfor- 

32/tunate race."—  The social conditions extant be-

30/ This rule was adhered to as recently as 
Palmer v. Thompson, 403 U.S. 217, 224-25 (1971). 
Although Palmer indicates, and Washington v . 
Davis, 426 U.S. 229 (1976), holds that an inquiry 
into legislative motive may be necessary, and 
hence permissible, under the Fourteenth Amendment, 
that Amendment was not ratified until two years 
after passage of the 1866 Civil Rights Act.

31/ Id., pp. 1839 (remarks of Sen. Clarke), 1785 
(remarks of Sen. Stewart).

32/ Id., p. 1124 (remarks of Rep. Cook).



- 22 -

fore the adoption of the Thirteenth Amendment 
were "perpetuated" in two senses. First, the 
restrictions in fact suffered by blacks were
similar if not identical to those imposed in an

33 /expressly racial manner by the old slave codes.—  
Second, the racially neutral provisions of the 
then Black Codes bore primarily on blacks because 
of the social and economic consequences of the 
recently ended discriminatory laws and economic 
system of the slave states. Thus Senator Clarke 
asserted the Codes would "virtually make serfs of 
the persons that the constitutional amendment 
made free".— Representative Thayer felt the 
Codes would "retain [freedmen] in a state of real

35 /servitude".--Representative Cook urged the
36/Codes would "virtually reenslave" the blacks,—  

and Representative Wilson felt that under them 
blacks were "practically slaves".— Since Congress

33/ Id. p. 474 (remarks of Sen. Trumbull).

34/ Id. P- 1839

35/ Id. P- 1151

36/ Id. P- 1124

37/ Id. P- 41.



- 23

was concerned with the practical consequences of 
the Black Codes, it naturally regarded the 
vagrancy and labor regulation laws, whose harsh 
impact fell primarily on former slaves, as depriv­
ing them of "the same right ... to make and 
enforce contracts ... as is enjoyed by white 
citizens."

The other rights with which the Civil Rights 
Act was concerned were generally dealt with by the 
southern states, if at all, in an expressly 
racial manner, but these provisions were less 
common and of less practical importance than the 
labor and vagrancy portions of the Black Codes. 
No example was cited during the debates of a Black 
Code which limited the right of freedmen to sue 
and be parties; this clause appears to have been 
added because there were such restrictions in the

O Q /
old Slave Codes,— 'but the Black Codes that 
mention the right to sue and be sued all expressly

38/ Senator Sherman urged that this right be 
protected because a man would not "be free without 
the right to sue and be sued, to plead and be 
impleaded." Cong. Globe, 39th Cong., 1st Sess. 
41.



- 24 -

39/ . .gave that right to blacks.—  No limitations 
appear to have existed with regard to personal 
property. The limitations on the ownership of 
real property were expressly racial, but so 
far as we have been able to ascertain these 
existed only in Mississippi— and certain local-

A- X /ities within Louisiana.—  In general state
laws provided for the same criminal penalties for 
blacks and whites,—  ̂ except that the rape of a 
white woman by a black man was often the subject 
of a heavier penalty^Those Codes dealing with 
testimony by freedmen either allowed it in all

39/ McPherson, supra pp. 29 (North Carolina), 31 
(Mississippi), 321 (Georgia), 33 (Alabama), 34 
(South Carolina), 42 (Tennessee), 43 (Texas); 
Fleming, supra, p. 274 (Arkansas).

40/ McPherson, supra, p. 31.

41/ McPherson, supra, p. 279 (parish of St. 
Landry); W. Fleming, Documents Relating to 
Reconstruction, p. 31 (town of Opelousas)(herein­
after cited as "Documents").

42/ McPherson, supra, p. 33 (Georgia); Fleming, 
"supra, pp. 289 (Mississippi), 293 (North Carolina)

43/ Fleming, supra, p. 293 (North Carolina); 
McPherson, supra, p. 34 (South Carolina).



- 25

cases—  or in any case where a black was a party
45/or had an interest.—  On the other hand, the

Black Codes contained numerous other forms of
expressly racial discrimination which were not dealt
with by the Civil Rights Act, including prohibi-

46/ . .tions against blacks owning guns,—  co-habiting
with whites,— ^attending white public schools,— ^

49/ 50/serving on juries—  and voting.—  Thus while 
the Civil Rights Act clearly prohibited inten­
tional racial discrimination in the areas with 
which it was concerned, the greatest practical 
impact of nullifying the Black Codes, as Congress

44/ Fleming, supra, pp. 274 (Arkansas), 275
(Alabama); McPherson, supra, p. 42 (Tennessee).

45/ McPherson, supra, p. 29 (North Carolina);
Fleming, supra, pp. 287 (Mississippi), 293 North 
Carolina), 311 (Texas).

46/ Fleming, supra, p. 289 (Mississippi).

47/ Id. pp. 273, 274 (Alabama), 288 (Mississippi)

48/ Id. pp. 275 (Arkansas), 277-78 (Florida), 311 
(Tennessee), 312 (Texas).

49/ Id. pp. 275 (Arkansas), 311 (Tennessee). 

50/ Id. p. 275 (Arkansas).



- 26 -

must have been aware, was the elimination of the 
provisions on labor and vagrancy, often racially 
neutral on their face, which had the effect of 
perpetuating the inferior stautes to which black 
workers had earlier been consigned because of 
their race.

This construction of the 1866 Act is con­
firmed by the responses to the Black Codes of 
the military officials in charge of the union 
forces then occupying the south. With the knowl­
edge and approval of the Thirty-Ninth Congress, 
commanding generals annulled provisions of the 
Black Codes in Mississippi, Virginia, Alabama, 
North Carolina and South Carolina. — 1' This action 
was not limited to the expressly racial provisions 
of those Codes; in South Carolina, for example, 
General Sickles' orders invalidated the racially 
neutral provisions of the state's laws which 
punished as vagrants people who could not find 
work, authorized corporal punishment for dis­
obedient employees, and precluded workers from 
taking a new job without the approval of their

51/ Cong. Globe, 39th Cong., 1st Sess., pp. 39, 
111, 603 (remarks of Rep. Wilson), 1123 (remarks 
of Rep. Cook).



27

52/ - . . . .former employer.—  In striking down the Virginia
vagrancy law, General Terry, in an explanation
quoted in part by Senator Trumbull during the

. . • 53/debates on the Civil Rights Act,—  made no 
reference to the motives of the legislature, but 
considered only the fact that "[t]he ultimate 
effect of the statute will be to reduce the 
freedmen to a condition of servitude worse than 
that from which they have been emancipated —  a 
condition which will be slavery in all but its

52/ McPherson, supra, pp. 36-37, HIV, XIII, XVII.

53/ Cong. Globe, 39th Cong., 1st Sess., p. 1759.

54/ This is the passage quoted by Senator 
Trumbull. The more detailed explanation which 
preceded was as follows: "In many counties of
this State meetings of employers have been held, 
and unjust and wrongful combinations have been 
entered into for the purpose of depressing the 
wages of the freedmen below the real value of 
their labor, far below the prices formerly paid by 
masters for labor performed by their slaves. By 
reason of these combinations wages utterly in­
adequate to the support of themselves and families 
have, in many places, become the usual and common 
wages of the freedmen. The effect of the statute 
in question will be, therefore, to compel the 
freedmen, under penalty of punishment as criminals, 
to accept and labor for the wages established by



- 28 -

It is thus clear that Congress did not intend 
that the prohibition of the 1866 Civil Rights Act 
be limited to instances where racial motive could 
be proven, but was concerned about whether the 
consequence of a particular law or practice was to 
render blacks significantly less able to enjoy the 
rights exercised by whites. This Court need not 
in this case decide all possible legal questions 
which might arise from this aspect of the Act. It 
is sufficient for the disposition of this case to 
hold that a practice which prevents such equal 
enjoyment by perpetuating past intentional dis­
crimination is forbidden by section 1981. That 
was clearly the impact of the Black Codes, for 
their readily perceived coercive effect on blacks, 
and relatively minor effect on whites, derived 
from the drastically different social, economic 
and educational status of black and white workers,

54/ Cont'd.

these combinations of employers. It places them 
wholly in the power of their employers, and it 
is easy to foresee that, even where no such combina­
tion now exists, the temptation to form them 
offered by the statute will be too strong to be 
resisted, and that such inadequate wages will 
become the common and usual wages throughout the 
State." McPherson, supra, p. 42.



29 -

which was in turn rooted in a century of slavery 
and discrimination.

This construction of section 1981 accords 
with the established construction of the Four­
teenth Amendment. This Court has repeatedly held 
that neutral state practices which perpetuate the 
effects of past intentional discrimination are 
themselves unlawful. A school board which 
earlier assigned students on the basis of race 
remains in violation of the Constitution if it 
adopts a policy of reassigning students each year 
to the school they attended previously, subject 
only to a transfer procedure whose burdens 
are so great as to lock students into their 
original school. Green v. School Board of
New Kent County, 391 U.S. 430 (1968). A geo­
graphic assignment plan that "appears to be 
neutral" is unlawful if it maintains in opera­
tion "the continuing effects of past school 
segregation." Swann v. Charlotte-Mecklenburg 
Board of Ed., 402 U.S 1, 28 (1971). So long as a 
past act of intentional discrimination caused the 
present assignment of a worker or student, 
the "remoteness in time" of the past inten­
tional conduct is irrelevant to the legality 
of present practices which perpetuate its impact.



- 30 -

Keyes v. School District No. 1, 413 U.S. 189, 
210-211 (1973). A state which in an earlier
period refused to permit blacks to register to 
vote cannot thereafter adopt a "neutral" policy of 
prohibiting registration now by persons who failed 
to register during that earlier time. Lane v ■ 
Wilson, 307 U.S. 265 (1939). See also Moose Lodge 
No. 107 v. Irvis, 407 U.S. 163, 178-79 (1972). So 
long as a state practice perpetuates the effect of 
past discrimination the state is in violation of 
the Constitution, regardless of whether that 
practice was adopted in good faith.

The application of written tests such as 
those administered by petitioners will operate to 
differentiate among applicants not primarily, if 
at all, on the basis of their innate ability, 
but also, and perhaps solely on the basis of the 
education which they have received. In Gaston 
County v. United States, 395 U.S. 285 (1969), this 
Court recognized that as a practical matter "among 
black children compelled to endure a segregated 
and inferior education, fewer will achieve any 
given degree of literacy than will their better 
educated white contemporaries." 395 U.S. at 295.



- 31

Gaston County drew that in ference where the 
examination involved tested mere literacy; the 
quality of an applicant's education is of far 
greater importance where, as here, the examination 
tests more complex verbal and mathematical skills. 
If black and Mexican-American applicants were 
denied equal educational opportunities while 
young, the "[iimpartial administration of the ... 
test today would serve only to perpetuate these 
inequities in a different form." 395 U.S. at 297. 
Practices which thus perpetuated the effect of 
past discrimination in education would have been 
particularly obnoxious to the Congress which 
enacted the Fourteenth Amendment and the 1866 
Civil Rights Act; that Congress was fully aware of 
the fact that prior to the Civil War the Slave 
Codes of most states forbade teaching slaves, and 
in some cases even freedmen, to read and write, 
and that similar prohibitions were still in effect 
in 1866. Brown v. Board of Education, 347 U.S 
483, 490 (1954).— /

55/ Cong. Globe, 39th Cong., 1st Sess., pp. 39 
(remarks of Rep. Wilson), 474 (remarks of Sen. 
Trumbull. Prior to the Civil War, teachers were 
actually jailed for instructing black children to 
read. H. Commager, Documents of American History, 
pp. 327-29 (7th Ed.). After the Civil War the Ku 
Klux Klan threatened and murdered northerners who



- 32 -

Petitioners' written examinations perpetuate 
the discriminatory effect of a century of purpose­
ful racial segregation of California public 
schools. See Regents of University of Califfornia 
v . Bakke, 57 L.Ed.2d 750, 822 (opinion of Justices 
Brennan, White, Marshall and B1ackmun)(1978). 
Soon after the first public "colored school" was 
opened in San Francisco for black children, 
California's education law was expressly amended 
in 1860 to authorize separate schools for "Negroes, 
Mongolians and Indians. This statute was
repealed in 1 8 8 0 , following the closing of
many of the separate black schools for reasons of 

5 8/economy,-- but was replaced in 1885 by a new

55/ Cont'd .

had the effrontery to teach southern blacks. See 
Cong. Globe, 39th Cong., 1st Sess. , p. 1834 
(remarks of Rep. Lawrence); H. Swint, The Northern 
Teacher in the South, 1862-1870, pp. 94-142; W. 
Fleming, Documentary History of Reconstruction, 
v.2, pp. 203-206.

56/ 1860 Cal. Stats., c.329, §8; see also 1863
Cal. Stats., c.159, §68.

57/ General School Law of California, §1662 at 
14 (1880).

58/ C. Wollenberg, All Deliberate Speed, Segrega­
tion and Exclusion in California Schools 1855-1975, 
pp. 24-26 (1976).



33 -

statute authorizing segregated schools for Chi­
nese, and later Japanese, Mongolian and Indian 

59/children.—  The state Attorney General subse­
quently issued an opinion that Mexican-Americans 
were Indians, and they were thus covered by this

(Lr\f
legislation—— ; despite the absence of express 
statutory authorization for excluding black 
children from white schools the systematic segre­
gation of blacks continued^ The state segre­
gation laws were not repealed until 1947, but 
despite that step, and notwithstanding this 
Court's decision in Brown v. Board of Educa­
tion, California authorities continued to inten­
tionally exclude black and Mexican-American chil­
dren from white public schools. Within the last 
decade 20 major school districts in California,

59/ 1885 Cal. Stats., c.117, §1602 (Chinese);
1893 Cal. Stats., c.193, §1662 (Indians); 1921 Cal. 
Stats., c.685, §1 (Japanese).

60/ 22 California Department of Justice, Opinions
of the Attorney General, Opinion 6735a (January 
23, 1930), 931-32 (1930). See also J. Hendrick, 
The Education of Non-Whites in California, 1849- 
1970, p. 87 (1977).

61/ See Hendrick, supra, at 78-80, 98-100.



- 34 -

including Los Angeles,--'have been found to
be in violation of federal or state prohibitions
against discrimination.--'About half of all
black and Mexican-American students attending 
public schools in California in 1970 were in 
districts operating such segregated schools^The 
deleterious impact on minority students of this 
dual system, which Justice Douglas properly 
characterized as a "classic case of [the] de 
jure segregation involved in Brown v. Board of 
Education,"— 'has been conceded by state offi­

6 2 /

cials . 66/

62/ See Kelsey v. Weinberger, 498 F.2d 701, 704, 
n.19 (D.C. Cir. 1974); Crawford v. Board of
Education, 17 Cal. 3d 280, 130 Cal. Rptr. 724, 551 
P. 2d 28 (1976).

63/ See Brief Amicus Curiae for the NAACP Legal 
Defense and Educational Fund, Inc., in No. 76- 
811, Regents of University of California v . 
Bakke, pp. 13a-15a.

64/ Id., p. 15a.

65/ Guey Heung Lee v. Johnson, 404 U.S 1215, 
1215-16 (1971).

66/ See, e.g., Governor's Commission on the Los 
Angeles Riots, Violence in the City, pp. 49 et



- 35 -

In addition, of black men in California
between the ages of 21 and 29, the age limits for
eligibility to take the disputed examination, 50%

6 7/was born in the south.—  The intransigent re­
fusal of southern school authorities to comply 
with Brown is well known; voluntary action was 
rare, and not until after Alexander v. Holmes 
County Board of Education, 396 U.S. 19 (1969), did 
the federal courts achieve meaningful desegrega­
tion in a substantial number of southern school 
systems. Black students assigned to black schools 
in the south suffered not only because of segrega­
tion as such, but also because black schools 
provided in other ways as well an education far 
inferior to that afforded whites in the same 
states or elsewhere in the country. In the black 
schools there was generally a higher pupil-teacher

66/ Cont1d.

seq. (1965); California Legislative Assembly 
Permanent Subcommittee on Post Secondary Educa­
tion, Unequal Access to College (1975). See also 
United States Commission on Civil Rights, Mexican- 
Ameriean Education Study, Reports I-VI (1971-74).

67/ U.S. Bureau of the Census, 1970 Census of 
Population, Series PC(2)-2A, State of Birth, p. 
156.



- 36

ratio and lower per capita expenditures, the 
teachers were less well trained and had lower 
salaries, the physical facilities were frequently 
inferior, and in some cases the academic year was 
shorter.—

We think it unlikely that in adopting the 
1866 Civil Rights Act forbidding state practices 
which perpetuate the effect of past discrimination 
Congress intended that the Act would not protect 
an ex-slave from Virginia if he moved to Georgia. 
Such a distinction would have had the incongruous 
effect of forbidding states to apply their vagrancy 
laws to their own natives, but permitting the 
states to apply those laws to former slaves from

68/ State by state statistics on each of these 
factors were set forth in the Intervenors' State­
ment Of Material Facts As To Which There Is No 
Genuine Issue in New York v. United States, No. 
2419-71, D.D.C.. Judgment in favor of the interve­
nors in that case, which involved the applica­
bility to certain New York counties of the Voting 
Rights Act of 1965, was affirmed by this Court. 
419 U.S. 888 (1974). Some of these statistics
are reproduced in the Motion of Plaintiffs-Inter- 
venors To Affirm, No. 73-1740, pp. la-31a.



- 37

other states.— 'It also would have tended to 
discourage ex-slaves from moving away from their 
former masters, one of the primary goals of the 
Black Codes which Congress deplored. We therefore 
suggest that the 1866 Civil Rights Act forbids Los 
Angeles from using a non job-related test which 
perpetuates the effect of past discrimination 
regardless of whether that discrimination occurred 
in California or some other state.

69/ General Terry's decision to annul the Virgi­
nia vagrancy laws was premised on the fact that it 
would have an adverse impact on freedmen due, not 
to any past discrimination by Virginia, but to 
"wrongful combinations" by private employers to 
reduce wages. See n.54, supra. Congressman Windom 
expressed a similar concern with such private 
conspiracies, arguing they provided a reason for 
adopting the Civil Rights Act and annuling the 
Black Codes. Cong. Globe., 39th Cong., 1st Sess.,
p. 1160.



38

CONCLUSION

For the foregoing reasons the judgment of the 
court of appeals should be affirmed.

JACK GREENBERG 
0. PETER SHERWOOD 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

Counsel for Amicus



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