Patterson v. McLean Credit Union Brief Amici Curiae in Support of Petitioner

    No. 87-107

In the

Supreme Court of tlie litmteft States
October Term, 1988

Brenda Patterson,
Petitioner,

McClean Credit Union,
Respondent.

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

BRIEF AM IC I CURIAE IN SUPPORT OF PETITIONER SUBMITTED 
BY THE CENTER FOR CONSTITUTIONAL RIGHTS, THE CENTER 
FOR LAW & SOCIAL JUSTICE, THE NATIONAL CONFERENCE OF 
BLACK LAWYERS, THE NATIONAL LAWYERS GUILD, TOWARD A 
MORE PERFECT UNION, THE NATIONAL RAINBOW COALITION, 

AND OTHER ORGANIZATIONS

Stephanie Y. Moore 
Arthur Kinoy*
Frank E. Deale
Center For Constitutional Rights 
666 Broadway, 7th Floor 
New York, New York 10012 
(212) 614-6437

Esmeralda Simmons
Wendy R. Brown
Center For Law & Social Justice
at Medger Evers College
1473 Fulton Street
Brooklyn, New York 11216

Additional Counsel continued on Inside Front Cover



Wilhelm Joseph
National Conference of Black Lawyers 
126 West 119th Street 
New York, New York 10027

Haywood Burns 
Steven Saltzman 
National Lawyers Guild 
55 Avenue of the Americas 
New York, New York 10013 *

Margery A. Greenberg 
Toward A More Perfect Union 
666 Broadway
New York, New York 10012

Jeanne Mallett 
National Rainbow Coalition 
Policy Committee 
1055-H Neil Avenue 
Columbus, Ohio 43201

Jeanne Mirer

* Counsel o f  Record



TABLE OF CONTENTS

TABLE OF AUTHORITIES................... iii
CONSENT OF THE PARTIES..............  1
INTEREST OF AMICI CURIAE ............  1
PRELIMINARY STATEMENT ..............  1
INTRODUCTION AND SUMMARY OF ARGUMENT . 2
ARGUMENT .............................  6
I. THE THIRTEENTH AMENDMENT TO THE

UNITED STATES CONSTITUTION 
PROSCRIBES PRIVATE
DISCRIMINATION ................  6
A. The Legislative History of

the Thirteenth Amendment 
Confirms Congress's 
Overarching Intent to 
Eradicate Slavery and its 
Incidents ................  6

B. The Precedents of This Court
Soundly Establish the Reach 
of the Thirteenth Amendment 
to Private Discriminatory 
Conduct..................... 17

II. Runvon v. McCrary WAS PROPERLY 
DECIDED AND A DECISION BY THIS 
COURT TO OVERRULE Runyon WOULD 
RETARD THE DEVELOPMENT OF THIS 
NATION'S STRUGGLING COMMITMENT 
TOWARDS A JUST AND EQUAL SOCIETY 29
A. Runvon IS CONSISTENT WITH THE 

CONSTITUTIONAL MANDATE OF THE



THIRTEENTH AMENDMENT AS CONSTRUED 
IN J o n e s ..................  29

B. RECONSIDERATION OF Runyon 
SIGNALS A RETREAT FROM THE 
FUNDAMENTAL PROTECTIONS AGAINST 
INVIDIOUS RACIAL DISCRIMINATION 
AND A REBURIAL OF THE WARTIME 
AMENDMENTS................  3 3

1. Section 1981 is
essential in providing 
necessary remedies for 
eliminating the 
remaining badges and 
indicia of slavery 
banned by the
Thirteenth Amendment . 33

2. Overruling Runvon would 
destroy the recent 
expansion of the 
protections of § 1981 
to other oppressed 
groups in American 
society................ 3 9

- ii -

CONCLUSION . 43



TABLE OF AUTHORITIES

Cases:
Brown v. Board of Education,
347 U.S. 483 (1954) ..........

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

Fullilove v. Klutznick,
448 U.S. 448 (1980) ..........

Goodman v. Lukens Steel Co., 
482 U.S. ,107 S. Ct. 2617 (1987).... ........ 36

Johnson v. Railway Express Agency, Inc^,
421 U.S. 454
(1975) ....................... 30' 31' 35

Jones v. Alfred H. Maver Co 
392 U.S. 409 (1968).............. passim

McCulloch v. Maryland.
17 U.S. (4 Wheat.) 316 (1819)........ 26

Patterson v. McClean Credit Union,
No. 87-107, slip op. (U.S. April 25, 1988) ....................... passim
Plessv v. Ferguson163 U.S. 537 (1896)..........  5, 21,
Regents of the Univ. of Calif._v_.— Bakke,
438 U.S. 265 (1978) ..................

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



iv

Saint Francis College v. Al-Khazraii
481 U.S. , 107 S. Ct. 2022 (1987)

39,
Shaare Tefila Congregation v. Cobb,
481 U.S. , 107 S. Ct. 2019 (1987)

39,
Scott v. Sandford
60 U.S. (19 How.) 393 (1856)

12,
Slaughterhouse Cases,
83 U.S. (16 Wall.) 36 (1873) . . .  11, 18

Sullivan v. Little Hunting Park.
396 U.S. 229 (1969)................... 30

Tillman v. Wheaton-Haven Recreation Ass'n. 
410 U.S. 431 (1973)................... 30

United States v. Cruikshank.
25 F.Cas. 707 (No. 14,897)
(C.C.D. La. 1874)..................... 13

United Steelworkers of America v. Weber.
443 U.S. 193 (1979)................... 29

Vietnamese Fishermen's Ass'n v, Knights of 
the Ku Klux Klan. 518 F. Supp. 993 
(S.D. Tx. 1981)........................ 36

Williams v. City of New Orleans.
729 F. 2d 1554 (5th Cir. 1984)........  28

Woods v. Miller Co.. 
333 U.S. 138 (1948) 32



v -

Constitutional Provisions:
U.S. Const., Amendment 13, § 1 (1865)................................... passim
Federal Statutes:
42 U.S.C. § 1 9 8 1 .................... passim
42 U.S.C. § 1982 .................... passjm

Congressional Documents:
Cong. Globe 38th Cong., 1st Sess. (1864) ......................................passim
Civil Rights Act of 1866 ............passim

Reports and Studies:
Kerner Commission Follow-Up Report, 
reported in 2 Decades of Decline Chronicled 
bv Kerner Follow-Up Report. N.Y. Times, 
March 1, 1988   38
Report of the Commission on Minority 
Participation in Education and American 
Life, "One-Third of A Nation"
(1988).................................. 37
Books
Douglass, Life and Times of Frederick 
Douglass 150 (1962)    34
Foner, Reconstruction: America's Unfinished
Revolution,1863-1877 (1988)............  4, 8, 37, 38



VI
Franklin, From Slavery to Freedom (1965) 
......................................... 9

Higginbotham, In the Matter of Color (1st ed. 1978) .............................3
Williams, Eyes On The Prize: America's 
Civil Rights Years, 1954-1965 (1987) . . 42
Articles
Buchanan, The Quest For Freedom: A Legal 
History of the Thirteenth Amendment. 12 
Hous. L. Rev. 1 (1974)
..................... 7, 17, 21, 26, 34
Comment, Developments in the Lav —  Section 
1981, 15 Harv. C.R.-C.L. L. Rev. 29,(1980)................................. ..
Larson, The Development of Section 1981 as 
a Remedy for Racial Discrimination in 
Private Employment. 7 Harv. C.R.-C.L. L. Rev. 56 (1972)...........................
Kennedy, Race and the Fourteenth Amendment 
: The Power of Interpretational Choice, in 
A Less Than Perfect Union 285 (J. Lobel ed. 1988)............................... 43
Kinoy, The Constitutional Right of Negro 
Freedom Revisited: Some First Thoughts on
Jones v. Alfred H. Mayer Company. 22 
Rutgers L. Rev. 537 (1969)............  24
Kinoy, Jones v. Alfred H. Maver Co.: An 
Historic Step Forward. 22 Vand. L. Rev. 475 (1969)................................... .



- vii

Kinoy, The Constitutional Right of Negro
Freedom. 21 Rutgers L. Rev. 387
(1967).............................  3, 11
Kohl, The Civil Rights Act of 1866. Its 
Hour Come Round At Last; Jones v. Alfred 
Mayer Co., 55 Va. L. Rev. 272 (1969) . . 36
Note, Jones v. Maver: The Thirteenth 
Amendment and the Federal Anti- 
Discrimination Laws. 69 Colum. L. Rev. 1019 
(1969).................................  24
tenBroeck, Thirteenth Amendment to the 
Constitution of the United States: 
Consummation to Abolition and Kev to the 
Fourteenth Amendment. 39 Calif. L. Rev. 171 
(1951).............................9, 15

Other Authorities
Brief Amicus Curiae of the American Civil 
Liberties Union Foundation and the North 
Carolina Civil Liberties Legal Foundation 
in Support of Petitioner, Patterson v. 
McClean Credit Union. No. 87-107 (U.S. 
October Term, 1987)..................  35





CONSENT OF THE PARTIES
Amici Curiae file this brief with the 

consent of both parties in support of the 
position advanced by the Petitioner.
Letters of consent have been filed with the 
Clerk of this Court.

INTEREST OF AMICI CURIAE
The thirty-nine organizations, groups, 

and individuals joining in this brief amici 
curiae (see appendix) represent many 
segments of American society with diverse 
interests. They share a mutual concern 
that the Court will use the instant case to 
reaffirm its and this nation's commitment 
to rid our society of the haunting spectres 
of racial discrimination and hatred.

PRELIMINARY STATEMENT
On April 25, 1988, this Court restored

to the calendar for reargument the case of
Patterson v. McClean Credit Union. No. 87-
107. The Court asked that the parties
consider and brief the following question:

"Whether or not the 
interpretation of 42 U.S.C. §
1981 adopted . . .  in Runvon v.
McCrary. 427 U.S. 160 (1976), 
should be reconsidered."
As originally briefed and argued,



2
Patterson involved the sole legal question 
whether § 1981 encompassed a claim of 
racial discrimination in the terms and 
conditions of employment, including a claim 
that the petitioner was harassed because of 
her race. The holding of this Court in 
Runvon —  that § 1981 "reaches private 
conduct," 427 U.S. at 173 —  undergirds the 
claim asserted in Patterson and is 
essential to the protection of the freedoms 
conferred by the thirteenth amendment and 
by Congress through the Civil Rights Act of 
1866. A decision to overrule that holding 
would constitute a grave step backward in 
the struggle for racial equality and would 
disrupt the stability of cherished rights 
long secured.

INTRODUCTION AND SUMMARY OF ARGUMENT 
From the original ratification of the 

United States Constitution in 1787, to the



3

enactment of the thirteenth amendment in 
1865, the "peculiar institution" of 
American slavery has remained undefined by 
the document that initially endorsed, or at 
least tolerated its existence, and that 
eventually eradicated it. Throughout 
history, the inability and, perhaps, 
unwillingness of those entrusted with the 
interpretation of the legal pronouncements 
abolishing that institution to honestly 
assess both the nature of American slavery 
and the meaning of its abolition have 
unnecessarily and unjustly retarded the 
growth of those fundamental freedoms 
essential to a civilized society.1

1 See Kinoy, The Constitutional Right 
of Negro Freedom. 21 Rutgers L. Rev. 387 
(1967) ; cf. A. L. Higginbotham, In the 
Matter of Color 6-7 (1st ed. 1978) ("[F]or
black Americans today . . . the early 
failure of the nation's founders and their 
constitutional heirs to share the legacy of 
freedom with black Americans is at least 
one factor in America's perpetual racial



4

Moreover, the mechanical interpretations in 
the post-Reconstruction era2 of the Civil 
War Amendments operated to undermine the 
concepts of dignity and justice that have 
been lauded as the true embodiment of the 
Constitution.

What follows is amici's attempt to 
persuade the Court not to recreate the 
obstacles that resulted in the virtual 
burial in the post-Reconstruction era of 
the Civil War Amendments and legislation 
enacted pursuant thereto. The central 
thrust of our argument is that the

tensions."); Kinoy, Jones v. Alfred H.
Mayer Co.; An Historic Step Forward. 22 
Vand. L. Rev. 475, 476-77 (1969) (same).

2 As noted historian, Eric Foner, 
recently explained, "Reconstruction was not 
merely a specific time period, but the 
beginning of an extended historical 
process: the adjustment of American society 
to the end of slavery." E. Foner, 
Reconstruction: America's Unfinished 
Revolution, 1863-1877, at xxvii (1988).



5

thirteenth amendment unequivocally 
authorizes Congressional regulation of 
private discriminatory conduct. Such is 
evidenced by the legislative debates on the 
Amendment and, more recently, by this 
Court's seminal decision in Jones v. Alfred 
H. Maver Co.3 Moreover, those debates, 
the reality of slavery and the national 
commitment to eradicate its vestiges, all 
indicate that the ground upon which members 
of this Court have based reconsideration of 
Runvon —  "the difficulties posed by 
petitioner's argument for a fundamental 
extension of liability under 42 U.S.C. §
1981"4 —  is infirm. Finally, lest we 
return to the post-Reconstruction Plessy v.

3 392 U.S. 409 (1968).
4 Patterson v. McClean Credit Union, 

No. 87-107, slip op. at 1 (U.S. April 25, 
1988) (per curiam) (emphasis added).



6

Ferguson5 and Civil Rights Cases of 18836 
era, amici urge this Court to reaffirm § 
1981's reach to private discrimination and 
to find that racial discrimination in the 
terms and conditions of employment, 
including racial harassment, states a 
cognizable claim under § 1981.

ARGUMENT
I. THE THIRTEENTH AMENDMENT TO THE UNITED 
STATES CONSTITUTION PROSCRIBES PRIVATE 
DISCRIMINATION.
A. The Legislative History of the 
Thirteenth Amendment Confirms Congress's 
Overarching Intent to Eradicate Slavery and
its Incidents___________________

The thirteenth amendment7 to the United

5 163 U.S. 537 (1896).
6 109 U.S. 3 (1883).
7 Section one of the Thirteenth 

Amendment provides that "[n]either slavery 
nor involuntary servitude . . . shall exist 
within the United States, or any place



7

States Constitution, abolishing slavery and 
securing universal freedom, was enacted in 
1865 amid sectional strife and socio­
political controversy.8 The issuance of 
the Emancipation Proclamation three years 
prior was deemed by many an inadequate 
measure to secure the freedom of the Black 
race.9 The geographical and political

subject to their jurisdiction." U.S. 
Const., Amendment 13, § 1 (1865). Section 
two confers upon Congress the "power to 
enforce this article by appropriate 
legislation." Id. at § 2.

8 Debates around the Thirteenth 
Amendment commenced in the spring of 1864 
just prior to the official end of the Civil 
War.

9 See. e.q.. Cong. Globe 38th Cong., 
1st Sess. 1314 (1864) (Remarks of Senator 
Trumbull [R., 111.]) (". . . any and all
these laws and proclamations, giving to 
each the largest effect claimed by its 
friends, are ineffectual to the destruction 
of slavery"); id. at 1324 (Remarks of 
Senator Wilson [R., Mass.]) (noting that 
notwithstanding the Emancipation 
Proclamation, the thirteenth amendment was 
necessary to "make impossible forevermore 
the reappearing of the discarded slave



8

limitations of President Lincoln's 
manumission fell far short of the needed 
destruction of the entire system of chattel 
slavery. Recognizing that "none of the 
acts hostile to slavery . . . [at the time 
of the debates] ha[d] gone beyond the fact 
of making men affected by them free; that 
no one of them . . . reached the root of 
slavery and prepared for the destruction of 
the system,"10 Representative Wilson, on 
the floor of the House of Representatives, 
implored his colleagues to "assert the 
ultimate triumph of liberty over slavery,

system, and the returning of the despotism 
of the slavemasters' domination."). See 
also Buchanan, The Quest For Freedom: A 
Legal History of the Thirteenth Amendment. 
12 Hous. L. Rev. 1, 7 (1974).

Indeed, well before 1863 it was 
generally conceded, even by proslavery 
forces, that "the disintegration of slavery 
had begun." E. Foner, supra note 2, at 3,
8.

10 Cong. Globe, 38th Cong., 1st Sess. 
1203 (1864).



9

democracy over aristocracy, free government 
over absolutism,"11 by passing the 
thirteenth amendment.

The concern for the plight of all 
Blacks —  whether slaves in the South or 
free in the North —  was paramount to 
antislavery forces within the Congress.
The horrors of the "hapless bondsman"12 
were universally known. Abolitionist 
Congressmen also knew, however, that the 
freedman of the North "was only less 
degraded, spurned, and restricted than his 
enslaved fellow. He bore all the burdens, 
badges and indicia of slavery save only the 
technical one."13 Thus, according to its

11 Id. at 1204.
12 Id. at 1324.
13 tenBroek, Thirteenth Amendment to 

the Constitution of the United States; 
Consummation to Abolition and Key to the 
Fourteenth Amendment. 39 Calif. L. Rev.
171, 179 (1951). For a discussion of the



10
strongest proponents, the thirteenth 
amendment was necessary to ensure enduring, 
universal freedom and to create a 
fundamental, national right to liberty, 
eguality, and dignity for all.

Congress did not confine its vision of 
universal freedom to members of the Black 
race; it was to extend to all of humanity 
within the jurisdiction of the United

status of Blacks in the antebellum North, 
see J. Franklin, From Slavery to Freedom 
151-64 (1965) . In addition to the concern 
for the liberties of the freedman, the 
relationship of the federal government to 
the states was a major theme discussed 
during the debates. See id. at 174-77. 
Opponents to the thirteenth amendment 
argued that the sovereignty of the states 
was sacrosanct and that the Amendment 
proposed "a revolutionary change in the 
Government" that "essentially repudiate[d] 
the principle upon which the Union was 
formed." Cong. Globe, 38th Cong., 1st Sess. 
2986 (1864) (Remarks of Representative Kelley [R., Pa]).



11
States.14 In an effort to define this new 
humanity for future generations, Congress 
turned to the inhumanity perpetrated 
against the slaves for over two hundred 
years and pledged that never again would 
any group or individual be subject to such 
inhumane treatment within the jurisdiction 
of the Constitution.

Central to the concept of freedom 
envisoned by antislavery members of the 
38th Congress was the "obliterat[ion of] 
the last lingering vestiges of the slave 
system." (Remarks of Representative Wilson,

14 See Kinoy, supra note 1, 21 Rutgers 
L. Rev. at 389-90. See also The Civil 
Rights Cases of 1883, 109 U.S. at 37 
(Harlan, J., dissenting) ("The terms of the 
thirteenth amendment are absolute and 
universal. They embrace every race which 
then was, or might thereafter be, within 
the United States."); Slaughterhouse Cases. 
83 U.S. (16 Wall.) 36, 72 (1873) 
("Undoubtedly while negro slavery alone was 
in the mind of the Congress which proposed 
the thirteenth article, it forbids any 
other kind of slavery, now or hereafter.").



12
[R. , 111.]). In turn, at the heart of the
obliteration of the vestiges of slavery
was, at a minimimum, the total renunciation
of the notorious opinion of Chief Justice
Roger Taney in Dred Scott v. Sandford15 in
which Taney declared:

at the time of the Declaration of 
Independence, and when the 
Constitution of the United States 
was framed and adopted . . . [the 
black race were] regarded as beings 
of an inferior order; and 
altogether unfit to associate with 
the white race, either in social or 
political relations; and so far 
inferior, thay they had no rights 
which the white man was bound to 
respect.16
The goal of Congress to overrule Dred

15 60 U.S. (19 How.) 393 (1856). For 
reference to the attempt of rebel states to 
"promulgate the Dred Scott decision," see, 
Cong. Globe, 38th Cong., 1st Sess. 1324
(1864) (Remarks of Senator Wilson [R., 
111.]). Senator Wilson challenged "anti­
slavery men of united America . . . [to] 
seize the first, the last, and every 
occasion to trample down and stamp out 
every vestige of slavery." Id. at 1324.

16 60 U.S. at 407.



13

Scott with the enactment of the thirteenth 
amendment is manifested both by specific 
reference to the decision and by forceful 
expressions to restore the authority and 
integrity of the Constitution.17 Senator 
Trumbull and Representative Wilson 
charitably described the framers of the 
Constitution as men of good will who 
uniformly deplored the horrors of slavery. 18

17 See also Civil Rights Cases of 
1883. 109 U.S. at 37 (Harlan, J. , 
dissenting) (noting that the Civil Rights 
Act of 1866, enacted pursuant to the 
thirteenth amendment and prior to the 
adoption of the fourteenth, conferred 
national citizenship upon the Black race); 
United States v. Cruikshank. 25 F.Cas. 707, 
711 (No. 14,897) (C.C.D. La. 1874)
(discussing the necessity of the 
legislative reversal of Dred Scott 
decision) (Bradley, J.), aff1d . 92 U.S. 542 
(1875) .

•̂8 Representative Wilson maintained 
that the framers "believed in the 
incompatibility of slavery with a free 
Government; but they regarded the latter to 
be the stronger, not yet having had the 
experience with slavery as a political 
power." Cong. Globe, 38th Cong., 1st Sess.



14

Under this view, the framers "looked 
forward to the not distant, nor as they 
supposed uncertain period when slavery 
should be abolished, and the Government 
become in fact, what they made it in name, 
one securing the blessings of liberty to 
all.Il19 Restoration of the mandates of the

1200 (1864). Similarly, Senator Trumbull 
declared:

Our fathers who made the 
Constitution regarded [slavery] . .
. as an evil, and looked forward 
to its early extinction. They felt 
the inconsistency of their 
position, while proclaiming the 
equal rights of all to life, 
liberty, and happiness, they denied 
liberty, happiness, and life itself 
to a whole race, except in 
subordination to them.

Id. at 1313. 19

19 Cong. Globe, 38th Cong., 1st Sess. 
1313 (1864) (Remarks of Senator Trumbull 
[R., 111.]) (emphasis added).



15

Constitution could be achieved only by 
extending its protections and guarantees as 
originally conceived to the Black race.20

Thus, the thirteenth amendment was 
intended to effect not only the immediate 
emancipation of the slaves, but the 
liberation of the nation. The passage of 
the Amendment conferred upon Congress a 
"constitutional mandate to enforce . . . 
not just the liberty of blacks but the 
liberty of the whites as well and included 
not just freedom from personal bondage but

20 As expressed by Senator Charles 
Sumner:

It is only necessary to carry the 
Republic back to its baptismal 
vows, and the declared sentiments 
of its origin. There is the 
Declaration of Independence: let 
its solemn promises be redeemed. 
There is the Constitution: let it 
speak, according to the promises of 
the Declaration.

Cong. Globe, 38th Cong., 1st Sess. 1482 
(1864) .



16

protection in a wide range of natural and
constitutional rights."21

That the intent of the thirteenth
amendment was to reach private conduct
cannot be denied. As poignantly stated by
Representative Wilson:

Slavery is defined to be "the state 
of entire subjugation of one person 
to the will of another." This is 
despotism, pure and simple. It is 
true that this definition concerns 
more the relations existing between 
master and slave than it does those 
between the system of slavery and 
the government. But we need not 
hope to find a system purely 
despotic acting in harmony with a 
Government wholly, or even 
partially, republican. An 
antagonism exists between the two 
which can never be reconciled.22
To be certain, support for broad 

legislative authority to effectuate the

21 tenBroek, supra note 12, at 183.
22 Cong. Globe, 38th Cong., 1st Sess. 

1200 (1864) (Remarks of Rep. Wilson [R., 
Iowa]) (emphasis added).



17

mandate of universal freedom was not 
unanimous.23 The 38th Congress, however, 
well aware of the various interpretations 
urged by opponents and proponents alike, 
nonetheless enacted the thirteenth 
amendment. Neither subsequent doubts, 
ambivalence, nor actual regret by a handful 
of Congressmen with respect to the 
potential breadth of the thirteenth 
amendment as enacted operates to eviscerate 
the freedoms embodied therein at its 
inception.
B. The Precedents of This Court Soundly 
Establish the Reach of the Thirteenth 
Amendment to Private Discriminatory Conduct

As early as 1873,24 judicial

23 Nor has any legislative measure, 
amici will venture to assert, ever garnered 
either the unanimous consent or 
understanding of its terms and effects from 
both Houses of Congress.

24 The first judicial encounters with 
the thirteenth amendment after its 
ratification in 1865 were generally by



18

interpretations of the thirteenth amendment 
in this Court reaffirmed the sentiment of 
the Reconstruction Congress by recognizing 
the amendment as a "grand yet simple 
declaration of personal freedom of all the 
human race within the jurisdiction of this 
government . . . ."25 Ten years iater, in 
the Civil Rights Cases of 1883. this Court 
noted that the scope of the thirteenth 
amendment was not restricted to the mere 
emancipation of the slaves. "By its own 
unaided force and effect it abolished

Supreme Court justices on circuit duty in 
the lower federal courts. At least one 
commentator has concluded that "most of the 
circuit decisions by Supreme Court justices 
gave expansive readings to the thirteenth 
amendment . . . ." Buchanan, supra note 9, 
12 Hous. L. Rev. at 358. Although none of 
those decisions were ever adopted by a 
majority of the Court, see id.. they 
provide some indication of a broader view 
of the amendment shortly after its 
ratification. 25

25 Slaughterhouse Cases. 83 U.S.(16 Wall.) 36, 69 (1873).



19

slavery, and established universal 
freedom."26 Under the thirteenth 
amendment, Congress was authorized to pass 
legislation "so far as necessary or proper 
to eradicate all forms and incidents of 
slavery and involuntary servitude . . . [; 
legislation that could] be direct and 
primary, operating upon the acts of 
individuals, whether sanctioned by state 
legislation or not."27

Thus, although the power of Congress to 
enact legislation to enforce the thirteenth 
amendment was clear, the historic debate in 
the Civil Rights Cases of 1883 concerned 
the scope of that power in terms of 
defining the badges and incidents of 
slavery. While Justice Bradley, for the 
majority, expressed a restrictive view of

26 109 U.S. at 20.
27 Id. (emphasis added).



20
Congress's power, the first Justice Harlan,
in dissent, urged a more expansive reading:

[S]ince slavery, as the court has 
repeatedly declared was the moving 
or principal cause of the adoption 
of [the thirteenth] amendment and 
since that institution rested 
wholly upon the inferiority, as a 
race, of those held in bondage, 
their freedom necessarily involved 
immunity from; and protection 
against, all discrimination against 
them because of their race; in 
respect of such civil rights as 
belong to freemen of other races.28

Against this background, Justice Harlan
concluded that discrimination against
Blacks solely on account of race imposed a
badge of servitude in conflict with the
universal freedom guaranteed by the
thirteenth amendment.29

After the decision in the Civil Rights

28 109 U.S. at 40 (Harlan, J., 
dissenting).

29 Id.



21
Cases of 188330. the thirteenth amendment 
was, in effect, abandoned as a 
constitutional mandate.31 Eighty-five

30 Although the Court in the Civil 
Rights Cases unanimously recognized the 
power of Congress to define and legislate 
against badges and incidents of slavery, 
see 109 U.S. at 35 (Harlan, J., 
dissenting), a majority rejected Congress's 
attempt to exercise its power through 
legislation proscribing racial 
discrimination in public accomodations and 
amusements. Thus, while the Court adopted 
a broad theoretical view of Congressional 
power under the amendment, it in fact 
undermined that power by narrowly 
interpreting "badges and incidents of 
slavery" to exclude racial discrimination 
and segregation. Id. at 22-24.

31 For a collection of cases in which 
the Thirteenth Amendment was narrowly 
construed, if applied at all, see Buchanan, 
supra note 9, 12 Hous. L. Rev. at 593-97.

The pinnacle of judicial repression of 
the Thirteenth Amendment and the attendant 
emasculation of the freedoms secured 
thereby came in the 1896 decision in Plessv 
v. Ferguson. 163 U.S. 537 (1896). Finding 
the inapplicability of the Thirteenth 
Amendment to segregation legislation "too 
clear for argument," the Plessv Court 
observed that while "[sjlavery implies 
involuntary servitude, —  a state of 
bondage[,] . . . [a] statute [requiring



22
years later, the first Justice Harlan's 
dissenting opinion in the Civil Rights 
Cases of 1883 was reasserted in force in 
this Court's opinion in Jones v. Alfred H. 
Maver Co.. supra. In Jones this Court 
resurrected the thirteenth amendment and 
reaffirmed Congressional power to enact 
legislation to enforce its goals. At issue 
in Jones was the refusal by private 
individuals to sell a home to the Joneses 
solely because they were Black. Writing 
for the Court,32 Justice Stewart found that 
the language of the statute "[o]n its face" 
prohibited all racial discrimination in the 
sale or rental of property.33 Examining

separate but equal accomodations] has no 
tendency to destroy the legal equality of 
the two races, or reestablish a state of 
involuntary servitude." Id. at 542.

32 Only two justices dissented from 
the decision in Jones.

33 392 U.S at 421.



23

the origins of 42 U.S.C. § 1982, which also 
grew out of the Civil Rights Act of 1866, 
the Court next conducted an exhaustive 
review of the legislative history and found 
clear confirmation of its reading of the 
statute.34 Rejecting the argument that 
Congress sought only to eliminate 
discriminatory laws, Justice Stewart 
concluded that Congress plainly intended 
"to secure . . . [the] right[s protected by 
§ 1982] against interference from any 
source whatever, whether governmental or 
private."35 Looking then to the 
constitutional authority for such 
legislation the Court held that "Congress 
has the power under the thirteenth 
amendment rationally to determine what are 
the badges and the incidents of slavery,

34 Id. at 422-37.
35 Id. at 424.



24

and the authority to translate that 
determination into effective 
legislation.1,36

The Jones Court's conclusions, both 
statutory and constitutional, were 
undoubtedly prudent, fair and right.37

36 Id. at 440.
37 The Civil Rights Cases of 1883 

unanimously and unambiguously established 
the authority of Congress under the 
thirteenth amendment to enact direct and 
primary legislation reaching the 
discriminatory conduct of private actors. 
See 109 U.S. at 30, 39. The Jones Court 
properly concluded that § 1982 was an 
appropriate exercise of that authority to 
eradicate the badges and incidents of slavery.

The magnitude of the Jones Court's 
resurrection of the thirteenth amendment 
cannot be diminished. One commentator has 
accurately described Jones as "[r]ivaling 
Brown [v. Board of Educ.. 347 U.S. 483 
(1954)] in historical import . . . ."
Note, Jones v. Mayer; The Thirteenth 
Amendment and the Federal Anti- 
Discrimination Laws. 69 Colum. L. Rev. 1019 
(1969). See generally Kinoy, The 
Constitutional Right of Nearo Freedom 
Revisited: Some First Thoughts on Jones v.
Alfred H. Mayer Company. 22 Rutgers L. Rev. 537, 539-43 (1968).



25

The dissent's recital of contrary- 
legislative intent38 suggests, at best, 
spirited debate around an important piece 
of legislation. Indeed, the second Justice 
Harlan's assertion that a reading of the 
legislative history of the Civil Rights Act 
of 1866 demonstrates that "a contrary 
conclusion may equally well be drawn,"39 is 
hardly a riveting indictment of the Court's 
reasoning. Even if one assumes that 
Congress's intent was hopelessly ambiguous, 
it does not follow that the Court's 
interpretation of § 1982 is either 
unsupported or insupportable.

The Jones Court legitimately construed

38 The central thrust of the Jones 
dissent is that the Civil Rights Act of 
1866, from which § 1982 emanates, was 
designed to remove only legal disabilities 
in the sale or rental of property. See 392 
U.S. at 452-54 (Harlan, J., dissenting).

39 Jones. 392 U.S. at 455 (Harlan, J., 
dissenting) (emphasis added).



26

§ 1982's provisions to reach "modern 
manifestations of racial discrimination,1,40 
and thus to effectuate the clear purposes 
of the Amendment under which it was 
promulgated. To have done otherwise would 
have deprived the statute "of all 
functional utility in today's society. 
Unless a statute's language and legislative 
history plainly require it, [however, it] .
. . should not be construed into practical 
impotence."40 41 The majority approach in 
Jones reflects the fundamental and historic 
understanding of this Court as expressed by 
Chief Justice John Marshall in McCulloch v. 
Maryland42. that "[the] constitution [is] 
intended to endure for ages to come, and,

40 Buchanan, supra note 9, 12 Hous. L. 
Rev. at 848.

41 Id.
42 17 U.S. (4 Wheat.) 316 (1819).



27

consequently, to be adapted to the various 
crises of human affairs."43

With respect to Jones's constitutional 
conclusion, it was both static and dynamic: 
Jones merely restates what even the 
majority of the Court in the Civil Rights 
Cases of 1883 was required to concede —  
that Congress was empowered by the 
thirteenth amendment to enact legislation 
to eradicate the lingering badges and 
incidents of slavery, whether publicly or 
privately imposed. But Jones also 
represents an approval of broad 
Congressional definitions of the badges and 
incidents of slavery.44

43 Id. at 415.
44 Under Jones the authority of 

Congress to define badges and incidents of 
slavery is not boundless. Congress is 
constrained to rationally link its 
definition to the concept of slavery. In 
Jones. the Court recognized the historical 
link to slavery in a long chain of racial



28

This Court must be guided in the 
instant case by the Jones majority's 
interpretation of Congressional power which 
is consistent with both a serious 
commitment to equality and with this 
Court's repeated acknowledgment that 
America remains "a Nation confronting a 
legacy of slavery and racial 
discrimination," seeking to overcome "a 
lengthy and tragic history" of societal, 
racial discrimination arising out of 
slavery.45

discrimination in the sale and rental of 
property: "Just as the Black Codes, enacted 
after the Civil War to restrict the free 
exercise of [the right to acquire 
property], were substitutes for the slave 
system, so the exclusion of Negroes from 
white communities became a substitute for 
the Black Codes." 392 U.S. at 441-42.

45 Regents of the Univ. of Calif, v. 
Bakke, 438 U.S. 265, 294, 303 (1978) 
(Opinion of Powell, J.). See also Williams 
v. City of New Orleans. 729 F.2d 1554, 
1570-80 (5th Cir. 1984) (Wisdom, J., 
concurring in part, dissenting in part)



29

II. Runyon v. McCrary WAS PROPERLY DECIDED 
AND A DECISION BY THIS COURT TO OVERRULE 
Runyon WOULD RETARD THE DEVELOPMENT OF THIS 
NATION'S STRUGGLING COMMITMENT TOWARDS A 
JUST AND EQUAL SOCIETY.
A. Runvon IS CONSISTENT WITH THE 
CONSTITUTIONAL MANDATE OF THE THIRTEENTH 
AMENDMENT AS CONSTRUED IN Jones_________

Just a little over a decade ago, this 
Court, in a decisive 7-2 opinion, held that 
42 U.S.C. § 1981 prohibits private 
discrimination in the making and 
enforcement of contracts. The legislative 
history of that Act, as powerfully and more

(chronicling the "effects of generations of 
past discrimination against blacks as a 
group" and the relationship of those 
effects to thirteenth amendment).

In addition, this Court's affirmative 
action decisions attest to the lingering 
effects in contemporary society of concepts 
of racial inferiority born and bred of 
slavery. See, e.g.. Fullilove v.
Klutznick. 448 U.S. 448, 463 (1980) (noting 
"ongoing efforts directed toward 
deliverance of the century-old promise of 
equality of economic opportunity"); United 
Steelworkers of America v. Weber. 443 U.S. 
193, 204 (1979) (recognizing the "centuries 
of racial injustice").



30

fully presented by petitioners herein,46 
demonstrates the soundness of the Runvon 
decision.

In addition, the interpretation of 
§ 1981 in Runvon "follows inexorably from 
the language of that statute, as construed 
in Jones. Tillman fv. Wheaton-Haven 
Recreation Ass'n. 410 U.S. 431 (1973)], and 
Johnson fv. Railway Express Agency, Inc. . 
421 U.S. 454 (1975)]."47 That Runvon was

46 See generally Brief of Petitioner 
on Reargument.

47 In Sullivan v. Little Hunting Park. 
396 U.S. 229 (1969), this Court extended 
the reasoning of Jones to sustain a claim 
of racial discrimination under § 1982 for 
the refusal of a nonstock corporation 
organized to provide various amenities to 
the Hunting Park community to recognize a 
lease assignment to a Black person.

Subsequently, in Tillman, the Court 
essentially reaffirmed Sullivan and 
rejected the argument that Wheaton-Haven 
was a "private club" and thus immune from 
suit under §§ 1981, 1982, and 2000a. In a 
note, the Court suggested that § 18 of the 
1870 Enforcement Act preserved the 
thirteenth amendment foundation of § 1981



31

properly decided is evidenced by the 
strength of Jones. the clarity of the 
intent of Congress in proposing and 
adopting the thirteenth amendment, and the 
legislative history of the Civil Rights Act 
of 1866.48

The dissent in Runyon. much like that 
in Jones. merely offers a competing 
interpretation of the congressional debates 
surrounding passage of Reconstruction 
legislation. To the extent that such 
interpretations are credible, they must be 
read in the context of the political,

after the statute was reenacted following 
the adoption of the fourteenth amendment. 
Id. at

In Johnson v. Railway Express Agency, 
the Court joined in the settled conviction 
among the Federal Courts of Appeal "that § 
1981 affords a federal remedy against 
discrimination in private employment on the 
basis of race." 421 U.S. at 460.

48 See generally Brief of Petitioner 
on Reargument.



32

social and economic disarray that generally 
characterized the period. Notwithstanding 
any resultant procedural infirmities or 
ambiguities in the passage of various 
legislation, the substantive intent of
Congress was clear --  to become a more
perfect union, the institution of slavery 
had to be eliminated, root and branch. 
Particularly under such circumstances, 
neither the constitutionality nor the 
purpose of legislative action taken by 
Congress should "depend [entirely] on 
recitals of the power under which it 
undertakes to exercise."49 A belated 
shift in emphasis on the various 
pronouncements in Congress will 
unnecessarily strip away "an important part

49 Woods v. Miller Co.. 144 (1948) . 333 U.S. 138,



33

of the fabric of our law."50 This Court
must not pervert the clear substantive
intent of the Reconstruction Congress by
minimizing the magnitude and
comprehensiveness of the evil it sought to
exorcise from this nation, and which
persists in society today.
B. RECONSIDERATION OF Runyon SIGNALS A 
RETREAT FROM THE FUNDAMENTAL PROTECTIONS 
AGAINST INVIDIOUS RACIAL DISCRIMINATION AND 
A REBURIAL OF THE WARTIME AMENDMENTS._____

1. Section 1981 is essential in 
providing necessary remedies for 
eliminating the remaining badges 
and indicia of slavery banned by 
the Thirteenth Amendment.
Overruling Runvon and thereby burying

§ 1981 would be simply disasterous,
particularly for Black Americans who were
specifically intended to benefit from the
statute. Despite the gains achieved during
the modern civil rights era, Black

50 Runvon. 427 U.S. at 190 (Stevens,
J., concurring).



34

Americans have never fully recovered from
the ordeal of slavery. The nexus between
slavery and contemporary racial
discrimination extends beyond tangible
injuries and cannot be denied:

Slavery brutalized human dignity.
In modern America, acts motivated 
by arbitrary prejudice continue to 
inflict the wounds that were 
institutionalized under slavery.
When arbitrary prejudice blocks a 
person's opportunity to discharge a 
function, human dignity suffers 
deeply and in a measure that 
escapes precise calculation. This 
human hurt was one of the tragic 
products of slavery; this same hurt 
remains a tragic product of 
arbitrary prejudice in today'ssociety.

Since the revitalization of the concept of 
badges and indicia of slavery less than 
twenty years ago in Jones. courts have 
continued to recognize that a deprivation 
based solely on the color of a person's 51

51 Buchanan, supra note 9, at 1073. 
Accord F. Douglass, Life and Times of 
Frederick Douglass 150 (1962).



35

skin causes a severe injury compensable by 
an award of damages.52

In the context of employment, § 1981 
offers a critically important remedy to 
victims of racial discrimination.53 The 
right of the newly emancipated slaves to 
obtain gainful employment and to be secure 
in the workplace were central ingredients 
of the freedom guaranteed by the thirteenth

52 See generally Comment, Developments 
in the Law —  Section 1981. 15 Harv. C.R.-
C.L. L. Rev. 29, 223 - 24 & n.29 (1980); E. 
R. Larson, The Development of Section 1981 
as a Remedy for Racial Discrimination in 
Private Employment. 7 Harv. C.R.-C.L. L. 
Rev. 56, 99 (1972).

53 In Johnson v. Railway Express 
Agency. 421 U.S. 454 (1975), this Court 
concluded that "the remedies available 
under Title VII and under § 1981, although 
related, and although directed to most of 
the same ends are separate, distinct, and 
independent." Id. at 461. See also Brief 
Amicus Curiae of the American Civil 
Liberties Union Foundation and the North 
Carolina Civil Liberties Legal Foundation 
In Support of Petitioner at 14-20,
Patterson v. McClean Credit Union. No. 87- 
107 (U.S. October Term, 1987).



36

amendment and protected by the Civil Rights 
Act of 1866.54

[F]reedom meant more than simply 
receiving wages. Freedmen wished 
to take control of the conditions 
under which they labored, free 
themselves from subordination to 
white authority, and carve out the 
greatest measure of economic

54 The Reconstruction Congress heard 
testimony that indicated that "the Black 
Codes told only part of the story, and a 
very small part at that. At the same time 
that the South was removing the Negro's 
legal disabilities from its statute books, 
it was covertly attempting to reintroduce a 
new, privately enforced slave system."
Kohl, The Civil Rights Act of 1866. Its 
Hour Come Round At Last; Jones v. Alfred 
Mayer Co.. 55 Va. L. Rev. 272, 279-80 
(1969). See also Goodman v. Lukens Steel
Co-. 482 U.S. ___, 107 S. Ct. 2617, 2627-28
("the legislature's central concerns in 
1866 revolved around actions taken by the 
States and by private parties which 
consigned black Americans to lives of 
perpetual economic subservience to their 
former masters") (second emphasis 
supplied); Vietnamese Fishermen's Ass'n v. 
Knights of the Ku Klux Klan. 518 F. Supp. 
993, 1008 (S.D. Tx. 1981) ("Section 1981 
protects a panoply of individual rights the 
primary one being the right to contract to earn a living.").



37

autonomy.55
The historical interference with the 

right of Black Americans to work for wages 
is a long and well documented one. The 
continuing impact of such interference 
cannot be understated. A recent report by 
the Commission on Minority Participation in 
Education and American Life, "One-Third of 
a Nation," concluded that "America is 
moving backward —  not forward —  in its 
efforts to achieve the full participation 
of minority citizens in the life and 
prosperity of the nation." Noting steady 
and widening gaps between the minority and 
majority populations in "education, 
employment, income, health, and other basic 
measures of individual and social well­
being," the report predicts grave 
consequences with respect to the social

55 E. Foner, supra note 2, at 102-03.



38

harmony and security of this nation.56
Thus, now, as during the post-
Reconstruction period as recognized by
noted historian Eric Foner:

the fulfillment of blacks'
"noneconomic" aspirations, from 
family autonomy to the creation of 
schools and churches, all depend[ ] 
in considerable measure on success 
in winning control of their working 
lives and gaining access to . . . 
economic resources . . . . 57
Remedies for interferences with the

right to contract for employment must be as
varied and comprehensive as the injuries.
Section 1981 entitles a successful claimant
to both equitable and legal relief,
including compensatory and, under certain

56 Cf. Kerner Commission Report; 2 
Decades of Decline Chronicled by Kerner 
Follow-Up Report. N.Y. Times, March 1, 
1988, National News page (noting a 
'persistent, large and growing American 
economic underclass').

57 E. Foner, supra note 2, at 110.



39

circumstances, punitive damages.58 Both as
a compensatory and deterrent measure in the
struggle for racial equality, § 1981 is an
indispensible remedy and is necessary if
the "badges and indicia of slavery" are
ever to be eradicated from this society.

2. Overruling Runvon would destroy 
the recent expansion of the 
protections of § 1981 to other 
oppressed groups in American 
society.
Just last term, in Saint Francis 

College v. Al-Khazraii59. this Court 
unanimously broadened the scope of § 1981 
by extending its protections against racial 
discrimination to persons of Arabian 
ancestry.60 There, after announcing the

58 See Johnson. 421 U.S. at 453.
59 481 U.S. ___ , 107 S. Ct. 2022 (1987)
60 In a related case, the Court 

similarly held that 42 U.S.C. § 1982 
encompasses a claim of racial discrimation 
by Jews. Shaare Tefila Congregation v.
Cobb. 481 U.S.___ , 107 S. Ct. 2019 (1987).



40

applicability of the fundamental 
propositions set forth in Runvon. the Court 
noted that "[t]here is no disagreement 
among the parties on these propositions," 
107 S. Ct. at 2026, and proceeded to 
address the issue presented. It is indeed 
ironic that after such explicit 
acknowledgment of the vitality of the 
Runvon holding in Al-Khazraii. and with 
similar acquiescence, if not consent, to 
the Runvon holding by the parties in 
Patterson, that some members of the Court 
find its application troublesome. The 
clear effect of a decision now to undercut 
the very basis of not only the Court's 
decisions last term, but the many judicial 
decisions which squarely rely upon Runvon. 
would be to wind the clock backward, 
permitting widespread discrimination to
fester.



41

Only thirty-four years ago, this Court 
rendered its most significant decision in 
the area of race relations. Brown v . Board 
of Educ..61 marked the beginning of a 
national committment to genuinely address 
the issue of racism, its origins and 
effects. By rejecting the notion, first 
endorsed by this Court in Plessv v. 
Ferguson62, that the doctrine of 'separate 
but equal' was a desirable and 
constitutional model of conduct, Brown 
began a revolution in American racial 
thinking. Post-Brown years witnessed the 
intense, and oft-times turbulent, struggle 
of American citizens —  Black and white —  
to overcome historically entrenched 
stereotypical, racial attitudes that

61 347 U.S. 483 (1954).
62 163 U.S.537 (1896). See also supra 

note 31 (discussing the implications of 
Plessv^.



42

continue to plague us today.63 During 
those years, the concerted efforts of the 
national government —  legislative, 
executive, and judicial —  aided 
significantly to the transitional efforts 
of the era.

As evidenced by the Court's decisions 
in Shaare Teflia and Al-Khazrai i. rather 
than evolving into a more tolerant society, 
we have become a nation rife with 
prejudices. The proliferation of new hate 
groups —  e.g., the Skinheads, the Dot- 
Bashers —  and the cancerous persistence of 
the old —  e.g., the Ku Klux Klan, further
signifies a nation in perpetual turmoil.64

63 For a detailed account of the post- 
Brown struggles, see, J. Williams, Eyes On 
The Prize: America's Civil Rights Years, 1954-1965 (1987).

64 Non-violent acts of racism, such as 
those inflicted upon petitioner, Brenda 
Patterson, are no less indicative of a 
nation in which racism is unwilling to die.



43

Section 1981 is a key legislative mandate 
designed to deter and inevitably eliminate 
racial discord.

Runyon v . McCrary represents sage 
social policy and sound legal judgment.
Its underlying propositions must not be 
disturbed. " [Protection against racial 
abuse by the state is significantly 
diminished if the same results can be 
accomplished by private parties."65 Thus, 
if the intent of the Reconstruction 
Congress in adopting the Wartime Amendments 
and in enacting legislation thereto is not 
to be reduced to a 'mere paper

Indeed, they are probably more common of 
the discriminations that reinforce the need 
for a strong, national commitment towards 
their elimination.

65 Kennedy, Race and the Fourteenth 
Amendment : The Power of Interpretational 
Choice. in A Less Than Perfect Union 285 
(J. Lobel ed. 1988).



44

guarantee,'66 remedies against private 
discriminatory conduct must be preserved.

CONCLUSION
Just as the Constitution by its silence 

swept the ugly existence of African slavery 
under the rug, a decision to overrule 
Runyon may be similarly perceived as an 
inability to confront reality coupled with 
an unwillingness to care. For those 
private individuals drunk with racial 
hatred, such a decision will constitute a 
green light to execute comfortably their 
prejudices. For those historical and 
contemporary targets of private 
discrimination, —  Blacks, Latinos, Jews, 
Asians, Arabs, Native Americans, women, 
homosexuals —  such a decision may well 
create a blow so great that their faith and

66 Jones, 392 U.S. at 443 (citations omitted).



45

respect in the integrity of the judiciary 
will be forever lost.

Accordingly, and for the reasons set 
forth above, and those expressed in 
petitioner Patterson's brief, this Court 
should not overrule Runyon; rather, it 
should reaffirm § 1981's reach to private 
discrimination as set forth in Runvon and 
affirmatively determine that it encompasses 
a claim of racially motivated harassment in 
the workplace as destructive of the right 
to make and enforce contracts free from 
prohibited discrimination.

Respectfully submitted,

STEPHANIE Y. MOORE 
ARTHUR KINOY *
FRANK E. DEALE 
Center for Constitutional 
Rights

666 Broadway, 7th Floor 
New York, New York 10012 
(212) 614-6437



46

ESMERALDA SIMMONS 
WENDY BROWN
Center for Law & Social 
Justice

1473 Fulton Street 
Brooklyn, New York 11216
WILHELM JOSEPH
National Conference of Black 

Lawyers
126 West 119th Street 
New York, New York 10027
HAYWOOD BURNS 
STEVEN SALTZMAN 
National Lawyers Guild 
55 Avenue of the Americas 
New York, New York 10013
MARGERY GREENBERG
Toward A More Perfect Union
666 Broadway
New York, New York 10012

JEANNE MAT,LETT 
National Rainbow Coalition 
Policy Committee 
1055-H Neil Avenue 
Columbus, Ohio 43201
JEANNE MIRER
3310 Cadillac Tower
Detroit, Michigan 48226 *

* Counsel of Record



47

Counsel would like to express their 
appreciation for the assistance provided by 
Paul Heinzel and H. Susan Nadler in the 
preparation of this brief.



APPEN DIX



INDEX TO APPENDIX

Statements of Interest
Association of Latino

Attorneys (ALA).................... ...
Association for

Neighborhood and Housing
Development (ANHD).................. ..

Blacks In Government -
Region I I ............................

Boston Committee for a
Just Supreme Court ................  3

Capital District Coalition 
Against Apartheid
and Racism ...................... ...

Center for Constitutional
Rights ............................. 6

Center for Law and Social
Justice ........................... 7

Clergy and Laity Concerned
(CALC) ............................. 8

Cleveland-Marshall Chapter 
of the National Bar 
Association, Law Student 
Division...........................10

Coalition of Black
Trade Unionists, Pittsburgh
Chapter (CBTU) ..................  11

Coalition for Community 
Empowerment . . 13



Community Action for Legal 
Services/Legal Support
Unit (CALS/LSU)..................... 14

Committee of Interns and
Residents......................... 16

Congressman Major Owens ..........  18
Franklin Pierce Law Center

Civil Practice Clinic.............. 19
Fund for Open Information 

and Accountability,
Inc. (FOIA Inc.)...................19

Gay and Lesbian 
Advocates and
Defenders (GLAD) ................  22

Guardians Police
Association.........................23

Institute of Jewish Law 
of Touro College,
Jacob D. Fuchsberg
Law Center.................. .. 24

Jewish Council on Urban
Affairs (JCUA).....................24

La Raza Lawyers' Association
of San Francisco...................25

Lambda Legal Defense 
and Education Fund,
Inc................................. 2 6

Metro-Chicago Clergy and 
Laity Concerned (CALC) 28



Mid-West Community Council —
Chicago, Illinois ................  28

Mound City Bar
Association (MCBA).................29

Mountain State Bar
Association, Inc....................31

The Nation Institute.................32
National Conference of

Black Lawyers.................... 3 2
National Lawyers Guild -

National Executive Committee . . . .33
National Lawyers Guild -

Southern Arizona Chapter........... 3 4
National Lawyers Guild - 
University of Miami
C h a p t e r ...........................3 6

National Rainbow Coalition,
Inc................................. 38

Plaintiff Employment Lawyers'
Association (PELA)................. 39

Southern California Chinese 
Lawyers Association,
(SCCLA)...........................41

Spater, Gittes & Terzian,
et a l .............................43

Student Association 
of the State 
University of New York, 
Inc.................. 44



Toward A More Perfect
U n i o n .............................45

United Automobile Workers
of America Local 2 59 .............. 4 6

United Electrical,
Radio and Machine 
Workers of America (UE) 47



1

The ASSOCIATION OF LATINO ATTORNEYS 
(ALA) is an association of activist 
lawyers, law students, and other legal 
workers committed to the political, social 
and economic empowerment of the Latino 
community in the United States. ALA 
recognizes that Latinos have and continue 
to suffer discrimination in this society. 
Therefore, ALA's work focuses on the 
protection of human and civil rights of all 
Latinos under the law. ALA believes that a 
reconsideration of the applicability of 42 
U.S.C. Section 1981 to private entities 
threatens established precedent which has 
advanced the cause for civil rights. ALA, 
as amici to this brief, seeks to urge the 
Supreme Court to maintain the precedent set 
regarding Section 1981 as integral to the 
protection of victims of discrimination.

*  *  *



2
The ASSOCIATION FOR NEIGHBORHOOD AND 

HOUSING DEVELOPMENT (ANHD) is a federation 
of over forty non-profit housing groups 
whose mission is to advocate and seek to 
implement policies and programs that create 
and preserve permanent affordable 
economical and racially integrated housing 
for low and moderate income New Yorkers. 
Overruling Runvon v. McCrary would deprive 
ANHD's member groups of their ability to 
achieve their organizational mission.

*  *  *

BLACKS IN GOVERNMENT - REGION II (BIG) 
is a non-profit organization concerned with 
professional and cultural development of 
Blacks in government employment. The 
membership includes both currently employed 
and retired persons from Federal, State and 
Local governments. BIG-Region II is the 
coordinating body for local chapters of BIG



3

in New York, New Jersey, Puerto Rico and 
U.S. Virgin Islands. The Region II Council 
of BIG coordinates the activities of local 
chapters and serves as a liaison between 
local chapters and the National Office.

Blacks in Government has been in the 
vanguard of lobbying efforts for civil 
rights statutes, and takes the position 
that the reversal of Runyon v. McCrary. 427 
U.S. 160 (1976) would be a major setback 
for the civil rights gains made since the 
reconstruction era.

Therefore, we urge the Court to 
reaffirm the holding of Runyon v. McCrary. 
427 U.S. 160 (1976).

* * *

The BOSTON COMMITTEE FOR A JUST 
SUPREME COURT is a coalition of diverse 
organizations that share a common concern 
that the present Supreme Court is eroding



4

our fundamental freedoms, especially 
through undermining our Constitutional 
protections against racial and sexual 
discrimination and reproductive freedom.
We believe that overruling Runyon v.
McCrary will set a dangerous precedent 
where the Supreme Court will reach out 
gratuitously and overturn hard fought civil 
rights gains.

* * *

The CAPITAL DISTRICT COALITION AGAINST 
APARTHEID AND RACISM (Albany, New York) was 
formed in 1981 to organize opposition to a 
planned visit to Albany, New York of a 
rugby team from the Republic of South 
Africa. The COALITION consists of 
representatives of more than a dozen 
organizations, including local affiliates 
of the NAACP, the National Lawyers Guild, 
Black Social Workers, YWCA and several



5

local organizations. The COALITION is an 
activist grass roots organization dedicated 
to ending United States complicity with the 
apartheid government of South Africa, 
supporting the liberation movement in South 
Africa and Namibia, and eradicating racism 
in the United States. Towards these ends, 
the COALITION has presented educational 
forums, has lobbied in the New York State 
Legislature and the United States Congress 
and has organized demonstrations and 
petition campaigns. Since May, 1986 the 
COALITION has also participated as a member 
organization of the City of Albany's 
Community/Police Relations Board.

The COALITION believes that progress 
towards eradicating racism depends, in 
part, on the existence of a clear mandate 
from the United States Supreme Court that 
civil rights of minorities are protected



6
and that victims of racism have effective 
real avenues of redress. The COALITION is 
concerned that if the Court's decision in 
Runyon v. McCrary. 427 U.S. 160 (1976), is 
overturned, it will create substantial 
obstacles for victims of discrimination and 
will provide an impetus to those who would 
like to see a return to the blatant and 
pervasive racism of the period before this 
Court's unanimous and historic decision in 
Brown v. Board of Education. 347 U.S. 483 
(1954), which signaled the end of the legal 
system's complicity in racial 
discrimination. We urge this Court to re­
affirm the holding of Runyon v. McCrary.
427 U.S. 160 (1976).

* * *

The CENTER FOR CONSTITUTIONAL RIGHTS 
(CCR) was born of the civil rights movement 
and the struggles of Black people in the



7

United States for true equality. CCR 
attorneys have been active in cases 
involving voting rights, jury composition, 
community control of schools, fair housing 
and employment discrimination. Through 
litigation and public education, CCR has 
worked to protect and make meaningful the 
constitutional and statutory rights of 
women, Blacks, Puerto Ricans, Native 
Americans and Chicanos.

* * *
The CENTER FOR LAW AND SOCIAL JUSTICE 

at MEDGAR EVERS COLLEGE (CLSJ) is a 
research and advocacy institution, created 
in 1985 by a special appropriation of the 
New York State Legislature, to meet an 
existing need within the City of New York 
for a civil rights, social justice and 
legally oriented institution. The CLSJ 
litigation and projects deal with matters



8
of pressing civil and human rights nature 
such as employment, education, voting 
rights, and housing. Discrimination in 
these areas has historically impacted 
adversely on the communities we serve which 
primarily consist of people of African 
descent. CLSJ joins with amici in urging 
this Court to reaffirm the reach of Section 
1981 to private discrimination and 
affirmatively determine that it encompasses 
a claim of racially motivated harassment in 
the workplace. The continued effectiveness 
of our efforts to help reach the goal of a 
society free of race discrimination 
requires such a ruling by this Court.

*  *  *

CLERGY AND LAITY CONCERNED (CALC) is a 
nationwide multi-racial network of people 
of faith and conscience from all walks of 
life. CALC represents fifty chapters with



9

35,000 members in the United States and 
West Germany. CALC exists to help build a 
movement of justice and peace which will 
include people of different races, 
religions, ages, ethnic and economic 
backgrounds. Through education, political 
involvement, and the power of truth and 
love in action, CALC works for fundamental 
social change. CALC brings moral, ethical 
and religious values to bear on issues of 
human rights, racial and gender justice, 
militarism and economic justice at home and 
abroad. CALC challenges its members as 
well as religious communities and others to 
be actively engaged in doing justice and 
making peace as taught by all the world's 
religious traditions. Founded in 1965,
CALC is an organization committed to 
building "the beloved community" called for 
by one of CALC's first co-chairs , the



10

Reverend Dr. Martin Luther King, Jr. This 
community is inspired by a liberating 
spirituality grounded in the sacredness, 
harmony and balance of all creation.

*  *  *

The CLEVELAND-MARSHALL CHAPTER OF THE 
NATIONAL BAR ASSOCIATION, LAW STUDENT 
DIVISION (NBA,LSD) is an organization that 
advances the Science of Jurisprudence, 
upholds the honor of the legal profession, 
promotes social intercourse among the 
members of the bar and Protect the Civil 
and Political Rights of All Citizens.

The minority law students at Cleveland 
State University chose to take advantage of 
the networking and mentorship possibilities 
and founded the Cleveland-Marshall Chapter 
of the NBA,LSD.

The NBA,LSD focuses upon the concerns 
of non-white law students in an effort to



11

promote social intercourse among members of 
the bar and Protect the Civil and Political 
Rights of All Citizens. The organization 
is dedicated to effectuating change by 
eradicating racism and discriminatory 
policies and attitudes and sensitizing law 
schools and the legal profession to the 
needs of the Black Community.

Our parent organization, The National 
Bar Association, was founded in 1925 and 
now represents a network of over 10,000 
lawyers, judges, law faculty, 
administrators and students. In 1987, the 
NBA expressed its commitment to reactivate 
its law student division through the 
passing of resolutions for that purpose.

* * *
The COALITION OF BLACK TRADE UNIONISTS 

- PITTSBURGH CHAPTER (CBTU) is a local 
component of a national trade union



12

organization which was established in 1972.
As an organization of Black trade 

unionists, we have been concerned and 
involved in societal issues which affect 
and concern Black people in particular and 
the American Labor Movement in general. Of 
utmost concern, we have been and continue 
to be involved in activities designed to 
eliminate racial discrimination and 
harassment in the workplace and in the 
community at large.

For example, we have fought against 
racial exclusion and discrimination of 
minorities and women from certain 
industries in our community and country, 
e.g. construction. We have coalesced with 
other concerned organizations to protest 
against racially-motivated violence against 
minorities. We have provided support to 
our members who have sought to use existing



13

laws to provide adequate remedies for acts 
of racial discrimination and harassment 
committed by private parties and others.

Our belief, interest and concern as 
demonstrated by our history is that all 
heretofore enacted federal civil rights 
laws be vigorously enforced and broadly 
applied to prohibit public as well as 
private acts of racial discrimination and 
harassment. For the foregoing reasons, we 
join herein.

*  *  *

The COALITION FOR COMMUNITY 
EMPOWERMENT ("CCE") consists of public 
elected officials and private citizens and 
is chaired by Congressmen Major Owens. CCE 
was formed to mobilize and maximize 
participation of black and hispanic 
communities in the electorial process. CCE 
believes that the denial to blacks and



14

hispanics of the right to vote is 
inexplicably linked with the perpetuation 
of private discriminatory conduct 
throughout our society. Therefore, CCE 
joins with amici in support of its position 
that private discrimination is prohibited 
by the thirteenth amendment and Section 
1981. We urge this Court to reaffirm this 
principle, and in doing so, the principle 
that race discrimination has no place in 
this society.

* * *

The COMMUNITY ACTION FOR LEGAL 
SERVICES/LEGAL SUPPORT UNIT (CALS/LSU) is a 
legal services office that provides support 
to casehandlers in neighborhood legal 
services offices throughout New York City. 
The CALS/LSU has coordinators in 
substantive areas of legal practice that 
affect poor people's lives and provides



15

training, advice, coordination and co­
counselling assistance to attorneys and 
paralegals in local legal services offices. 
Along with local offices, the CALS-LSU is 
involved in a variety of appeals and class 
actions involving issues of substantial 
impact on the lives of the low-income 
client community. The low-income client 
population in New York City is composed 
overwhelmingly of members of racial 
minority groups. The CALS/LSU is 
interested in the outcome of the Patterson 
case because among the legal rights that 
the CALS-LSU defends on behalf of its 
client community is the right to be free 
from public and private racial 
discrimination, and because access to 
federal courts to pursue discrimination 
claims is critical for our clients.

*  *  *



16

The COMMITTEE OF INTERNS AND RESIDENTS 
(CIR) is a labor organization within the 
meaning of the laws of the United States 
and the states of New York and New Jersey. 
CIR was formed and is perpetuated for the 
purpose of representing house staff 
officers, (which includes interns, 
residents and fellows) in hospitals and 
health care facilities, with respect to 
compensation, benefits, hours of work, 
working conditions, education and the 
quality of health care services, delivery 
and programs.

CIR has signed collective bargaining 
agreements governing the interests of about 
5000 house staff officers employed by 
voluntary and public hospitals in New York, 
New Jersey and Washington, D.C. All of 
these contracts contain clauses prohibiting 
discrimination by the employers. Typical



17

is the provision in the current contract 
between CIR and Catholic Medical Center of 
Brooklyn: "The CMC shall not discriminate 
against any House Staff Officer on account 
of race, color, creed, national origin, 
handicap, place of medical education, sex 
or age."

With ample justification both parties 
to the agreements perceived —  irrespective 
of whether the hospital was public or 
private —  that the asserted national 
policy, rooted in the Constitution of the 
United States, was to remove invidious 
discrimination from the life of this 
country. This perception had a major 
impact on the securing of these non­
discrimination clauses.

CIR has a specific interest in the 
prevention of invidious discrimination 
against those it represents and against







20

ACCOUNTABILITY, INC. (FOIA, Inc.) is an 
educational and activist organization 
dedicated to fighting for an open and 
accountable government. Founded in 1977 to 
correct the public record and expose the 
injustices suffered by Julius and Ethel 
Rosenberg who were executed in 1953 during 
a wave of anti-communist hysteria, FOIA,
Inc. has since devoted its activities to 
exposing and interpreting a range of 
governmental initiatives.

Most recently, in conjunction with the 
Center for Constitutional Rights, FOIA,
Inc. obtained enough documentation (through 
the Freedom of Information Act) from the 
Federal Bureau of Investigation to 
convincingly inform the public that the 
days of witchhunts are not over. These 
documents revealed the FBI's systematic and 
thorough program of intimidation,



21

harassment and surveillance of individuals 
who dissent from U.S. government policy in 
Central America. The issue is one of civil 
rights and constitutional protection. It 
appears that political activists, when 
attempting to reverse the government's 
Central American foreign policy, run the 
risk of losing their rights to 
constitutional protection.

FOIA,Inc. is firmly committed to 
affirmative action and to the 1976 Supreme 
Court decision in Runyon v. McCrary. While 
some defenders of the Constitution prefer 
to interpret it as the protector of elite, 
white, male slaveholders' interests that it 
once was, we understand that the 
improvements made to it, particularly in 
the Thirteenth and Fourteenth Amendments, 
were necessary if our society were ever to 
live up to the ideals expressed when this



22

Union was formed.
If the decision of Runvon v. McCrary 

is successfully challenged, just as if the 
intimidation of political activists 
continues, we surely run the risk of 
restoring the Constitution to its original 
document, devoid of the Bill of Rights.

* *  *

GAY AND LESBIAN ADVOCATES AND 
DEFENDERS (GLAD), incorporated in 
Massachusetts as Park Sguare Advocates, 
Inc., a non-profit, tax-exempt corporation, 
was founded in 1978 to litigate and educate 
on behalf of lesbian and gay civil rights. 
GLAD's commitment to broad based civil 
rights protections and to the federal 
government's important role in eradicating 
bigotry and combatting discrimination cause 
us to be deeply concerned about the impact 
this case will have on civil rights in the



23

United States.
*  *  *

The GUARDIANS POLICE ASSOCIATION is an 
organization of black police and law 
enforcement officers in Michigan dedicated 
to combatting racial discrimination. In 
1980, the Guardians, along with the Detroit 
Branch of the NAACP and several individuals 
sued the union which represents the Detroit 
police officers alleging racial 
discrimination by the union in the 
negotiations which resulted in the lay offs 
of approximately 800 black officers. The 
District Court initially ruled that the 
union's conduct violated the duty of fair 
representation. Although the Sixth Circuit 
reversed on the duty of fair representation 
issue, the case was remanded for findings 
under 42 USC 1981. We, therefore, have a 
very direct interest in the outcome of the



24

claim since according to the Sixth Circuit 
the only avenue we have for redressing this 
discrimination is under 42 USC 1981.

* *  *

The INSTITUTE OF JEWISH LAW OF TOURO 
COLLEGE, JACOB D. FUCHSBERG LAW CENTER 
concentrates on research and scholarship in 
the field of Jewish legal studies. The 
Institute is concerned that the gains 
recently won by victims of anti-semitism 
and other forms of ethnic, racial and 
ancestral discrimination will be largely 
lost should this court overrule Runvon v. 
McCrary and restrict the Civil Rights Act 
of 1866 to state imposed discrimination.

*  *  *

The JEWISH COUNCIL ON URBAN AFFAIRS 
(JCUA) is a non-profit organization 
dedicated to addressing the problems of 
racism, anti-semitism and poverty in



25

Chicago, Illinois. Founded in 1964, JCUA 
provides staff, volunteers and other 
resources to organizations based in 
minority communities to help those groups 
identify and confront issues, and achieve 
self-empowerment. The JCUA believes that 
the federal courts must continue to 
guarantee the full and equal rights of all 
citizens. Section 1981 should continue to 
protect minorities from discrimination by 
private parties. JCUA is concerned that 
without such federal protection, the 
progress of minority communities will be 
significantly hindered.

*  *  *

LA RAZA LAWYERS' ASSOCIATION OF 
SAN FRANCISCO is an unincorporated 
professional organization made up of latino 
lawyers practicing in the city and county 
of San Francisco, California.



26
The LA RAZA LAWYERS' ASSOCIATION OF 

SAN FRANCISCO, at its general membership 
meeting held on June 16, 1988 passed a 
motion supporting the listing of the 
association as an amicus on the matter of 
Patterson v. McClean Credit Union. The 
membership unanimously opposed any 
reconsideration of civil rights precedents 
which have provided ethnic and racial 
minorities in the United States, with the 
legal remedies essential to building a more 
integrated and just society.

* * *

LAMBDA LEGAL DEFENSE AND EDUCATION 
FUND, INC. is a New York non-profit civil 
rights organization dedicated specifically 
to test case litigation affecting the 
rights of lesbians and gay men. Founded in 
1972, Lambda is the country's oldest and 
largest national legal organization devoted



27

to these concerns. Lambda has appeared as 
counsel or amicus curiae in numerous cases 
in both state and federal courts on behalf 
of lesbians and gay men who have suffered 
discrimination and civil rights violations 
because of their sexual orientation. As an 
organization which represents a community 
with very few legal protections or rights, 
Lambda is acutely aware of the harm to all 
people represented by any threat to 
undermine or retrench on civil rights and 
legal protections against the evils of 
discrimination. As an organization which 
represents a diverse community, consisting 
of all people of ethnic and racial groups, 
age, gender and backgrounds, Lambda takes a 
particular interest in a threat to the 
civil rights of any faction of our 
community.

* * *



28

METRO-CHICAGO CLERGY AND LAITY 
CONCERNED (CALC) is the Chicago chapter of 
a nationwide, multi-racial network of 
people of faith and conscience from all 
walks of life. CALC exists to help build a 
movement of justice and peace which will 
include people of different races, 
religions, ages, ethnic and economic 
backgrounds. CALC brings moral, ethical 
and religious values to bear on issues of 
human rights, racial and gender justice, 
militarism, and economic justice at home 
and abroad.

CALC's participation as amicus curiae 
to a brief which seeks to preserve 
important civil rights remedies is 
consistent with CALC's social justice 
ministry.

* *  *

The MID-WEST COMMUNITY COUNCIL —



29

CHICAGO, ILLINOIS (MCC) is a forty-two 
year-old community service organization 
based on the west side of Chicago,
Illinois. It is the oldest community 
organization of its kind in Chicago. It 
provides a range of social services to 
approximately 100,000 Westside residents, 
98% of whom are black. Its advisory 
council is made up of representatives of 
resident block clubs and other community 
leaders. MCC's aim is to make sure that 
residents have a voice in all decisions 
that effect them. MCC has an interest in 
seeing that 42 USC 1981 remains a devise by 
which its members and the residents which 
it serves can continue to combat private 
acts of racial discrimination and violence.

* * *

The MOUND CITY BAR ASSOCIATION (MCBA) 
is an organization comprised primarily of



30

black attorneys which includes as its 
purposes to improve the administration of 
justice, to uphold the honor of the legal 
profession, to promote the professional 
advancement of black attorneys, and to 
provide service to the community. Since 
its establishment in 1922, members of the 
MCBA have been actively involved in 
landmark civil rights litigation, including 
those cases which promote the principles of 
affirmative action. We are deeply 
concerned about the Supreme Court's 
initiative to reconsider its decision of 
twelve years ago in Runvon v. McCrary.
There remain considerable injustices in the 
employment arena with blacks and other 
minorities still struggling for equal 
application of employment practices. 
Therefore, we urge this Court to reaffirm 
the holding in Runvon v . McCrary which



31

prohibits discrimination within private 
educational institutions and to apply 42 
USC 1981 to the private sector.

*  *  *

The MOUNTAIN STATE BAR ASSOCIATION, 
INC., is the only minority Bar association 
in the State of West Virginia.

Although originally founded in the 
earlier part of the 20th century, its 
current vitality dates from 1974.

The Association's work involves itself 
in the daily struggle to promote and 
maintain equal opportunity, in all facets 
of life, for all of our State's citizens.

Aside from these distinctly legal 
undertakings, the Association is greatly 
involved in raising funds to provide 
Fellowships for minority and needy students 
in the State of West Virginia. Since this 
component was added to our work in 1974,



32

nearly one hundred young women and men have 
been assisted in their legal education, as 
well as their legal careers, as a result of 
this program.

* * *
The NATION INSTITUTE is a non-profit 

tax-exempt organization that has a 
particular inreresr in the areas of First 
Amendment, social justice, and peace and

r _ ' _ _ One cc

sm s:

*c_nr n- . ns

m i  2C#3SSSC«C£ IF FIFOS



33

LAWYERS (NCBL) is an activist legal 
organization of Black lawyers, law 
professors, judges, law students and legal 
workers dedicated to serving as the legal 
arm of the Black community. Since its 
inception in 1968, NCBL has been actively 
involved in the continuing struggle for 
egual employment opportunity. Over the 
past twenty years, NCBL has led the 
struggle for the full implementation of the 
principles of affirmative action that have 
been affirmed by the Congress and the 
Courts. We are deeply concerned about the 
prospect that the Court will limit the 
access cf civil rights petitioners to 
redress grievances of racial discriminant'

*  * *

The iTZfJi'- aL UJKTZSrS <SC11D - f f-TZOt - - 
vxmrfrrrvm COFSETTEE we* f o m e c  ~r. 25C' a*



34

a multi-racial and progressive alternative 
to the racially restrictive and 
conservative American Bar Association. Its 
commitment to civil rights dates back to 
efforts to eliminate the poll tax and white 
primaries. In 1962, the Guild dedicated 
its full resources to the legal support of 
the civil rights movement. In support of 
affirmative action, the Guild filed briefs 
as amicus curiae throughout the course of 
the Bakke litigation and in 1977, joined 
with the NCBL to co-sponsor a Bakke amici 
roundtable attended by forty organizations. 
The rehearing of Runvon v . McCrary strikes 
at the foundation of these on-going efforts 
to end racism of public and private 
institutions.

*  * *

The NATIONAL LAWYERS GUILD - 
SOUTHERN ARIZONA CHAPTER is a local



35

affiliate of the National Lawyers Guild. 
Such local affiliates comprise the 
nationwide network of lawyers, law 
students, and legal workers who make up 
this organization. The SOUTHERN ARIZONA 
CHAPTER was founded on the same principles 
as the national organization. Among these 
principles are a commitment to social, 
economic, and political justice. Included 
here is a firm belief in racial equality.

In light of these principles, we are 
opposed to the possibility that the Supreme 
Court might overrule its decision in the 
case of Runvon v. McCrary. Past Supreme 
Court decisions reflect a recognition that 
the Thirteenth Amendment to the 
Constitution empowers Congress to eradicate 
all "historical badges and incidents" of 
slavery. Such "badges and incidents" occur 
both in the public and private sector. The



36

Court must not abandon these past advances. 
Despite recent gains, the position of 
racial minorities in our society is still 
tenuous at best. Without constant 
diligence their position will surely 
worsen. As such the SOUTHERN ARIZONA 
CHAPTER OF THE NATIONAL LAWYERS GUILD joins 
in the amicus brief. We further urge the 
Court to let stand their decision in Runyon 
v. McCrary, and to reaffirm that racism in 
any form will not be tolerated.

*  *  *

The NATIONAL LAWYERS GUILD-UNIVERSITY 
OF MIAMI CHAPTER is an organization of 
progressive law students dedicated to the 
principles of freedom, equality and 
opportunity for all. As an organization we 
take a zero tolerance approach to 
discrimination wherever it occurs.

It is our strong belief that



37

affirmative action programs are the only- 
effective tools in the effort to integrate 
the workplace. Discrimination can be and 
often is more overt in the private sector. 
If we are to continue the path of total 
integration in both public and private 
sectors, we must adopt the instrument which 
affords the most effective results and 
gives us concrete indicators of good faith, 
not just promises.

The reconsideration of Runvon v. 
McCrary could result in the 
institutionalization of private 
discrimination and the creation of a new 
apartheid via the public/private dichotomy.

The people of this country have given 
our legislators and life-tenured judiciary 
the mandate to create a society that lives 
up to the egalitarian ideals embodied in 
our Constitution. There can be no retreat



38

from this ideal.

The NATIONAL RAINBOW COALITION, INC. 
is a national membership organization 
founded to further the progressive movement 
in this country. Its membership includes 
persons of every race, color and creed.
One of the essential founding principles of 
the organization is that all members of 
American society must have egual rights and 
opportunities if this society is to begin 
to live up to the democratic and moral 
principles underlying its creation and 
progress. Over the past two centuries, the 
work of the National Rainbow Coalition has 
been geared toward expanding opportunity to 
all the people of the country and 
consequently fighting to eliminate all 
discriminatory barriers which still exist. 
It is in this context that the National

*  *  *



39

Rainbow Coalition is deeply concerned that 
this Court not overrule its interpretation 
of 42 USC 1981 adopted in Runvon v. McCrary 
which held that Section 1981 reaches out to 
private conduct. The overruling of Runvon 
would constitute a disastrous step 
backwards undermining the constitutional 
foundations of equality of opportunity 
fought for by so many of our people over 
the past years.

*  *  *

PLAINTIFF EMPLOYMENT LAWYERS' 
ASSOCIATION (PELA) is a non-profit tax 
exempt organization consisting of over six- 
hundred thirty lawyers in all fifty states 
and the District of Columbia. Its members 
specialize in representing individual 
employees concerning employment and labor 
matters. Many of PELA members' clients are 
employees or ex-employees with claims of



40

racial discrimination against private 
employers under 42 USC 1981. PELA members 
have found Section 1981 to be an effective 
means of securing full relief for the 
clients and of deterring future civil 
rights violations. Amicus is deeply 
concerned about the practical and symbolic 
effects of a decision of this Court 
overruling Runvon v. McCrary. On the 
practical level, many private employers 
will lessen their safeguards against and/or 
will be tempted to engage in racial 
discrimination, if they need not fear 
liability for compensatory and punitive 
damages under Section 1981. On a symbolic 
level, amicus is concerned that such a 
decision will be viewed as a major retreat 
from the national goals of equal 
opportunity and fair treatment for all 
employees.



41

The SOUTHERN CALIFORNIA CHINESE 
LAWYERS ASSOCIATION (SCCLA) serves as a 
mutual support network for the Chinese- 
American legal community in Southern 
California and provides a forum for the 
unified expression of views on issues which 
effect and concern the Chinese-American and 
broader Asian-Pacific American communities. 
With a membership of more than two-hundred 
legal professionals, SCCLA has developed 
extensive ties to the community, providing 
it with not only much needed legal services 
and advocacy skills but also a 
representative voice on civil rights and 
other significant public policy issues.

The Supreme Court decision in 
Patterson v. McClean Credit Union to 
reconsider the holding in Runvon v. McCrary 
is a source of grave concern to SCCLA, as

*  *  *



42

well as other members of the Asian-Pacific 
American legal community and the Asian- 
Pacific American community at large. What 
was previously well-established law that 42 
USC 1981 prohibits racial discrimination in 
the making and enforcement of private 
contracts is suddenly in danger of being 
undermined and discredited. As Americans 
of Asian ancestry who have experienced the 
insidious effects of both public and 
private discrimination in this country, we 
join with other concerned individuals and 
organizations as amici to urge the Court to 
uphold the rule of law which was enunciated 
more than twelve years ago in the Runyon 
decision. A contrary result will send a 
clear message to the American people that 
the right to be free from racial 
discrimination is as feeble as the doctrine
of stare decisis.



43

SPATER, GITTES & TEREZIAN, HANDLEMAN & 
KILROY, and three solo practitioners, JOHN 
MARSHALL, GORDON HOBSON and JAMES MCNAMARA 
practice law in the state of Ohio. We have 
represented hundreds of victims of private 
race discrimination and private racially 
motivated violence in claims brought 
pursuant to 42 USC 1981, and have at 
present several such cases pending in state 
and federal courts.

We submit that it is essential to 
our ability to competently and adequately 
represent the interests of plaintiffs who 
have been the victims of private race 
discrimination and racially motivated 
violence, that 42 USC 1981 provide a cause 
of action against such private 
discrimination and violence. No other 
federal or state laws extend the rights and

*  *  *



44

protections available pursuant to 42 USC 
1981.

*  *  *

The STUDENT ASSOCIATION OF THE STATE 
UNIVERSITY OF NEW YORK, INC. (SASU) was 
founded in 1970 and represents the 380,000 
students of the State University system. 
SASU represents, advocates and furthers the 
interests and welfare of the students of 
the State University of New York. SASU 
engages in lobbying activity in the NYS 
Legislature, as well as the United States 
Congress, on issues relevant to college 
students, such as voting rights, financial 
aid and civil rights. SASU has also 
actively litigated issues of student rights 
and has developed programs benefiting the 
students of the State University of New 
York in regard to issues of human and civil 
rights in society at large.



45

We recognize the detrimental impact on 
the civil rights gains of recent years that 
would result if this Court reversed the 
holding in Runyon v. McCrary. 427 U.S. 160 
(1976) . We urge this Court to reaffirm 
Runvon v. McCrary in order to assure us, as 
young people, a future of greater civil 
rights rather than a return to legally 
enforced discrimination and repression.

*  *  *

TOWARD A MORE PERFECT UNION is a 
national coalition of a spectrum of 
progressive organizations and individuals, 
including legal groups, academics, and 
labor unions, who are interested in 
participating in a unified forum to express 
concerns over the present Constitutional 
crisis and develop a broad educational 
campaign for a progressive celebration of 
our constitutional legacy during the



46

Bicentennial period, 1987 through 1991.
The coalition is committed to organizing 
widespread citizen involvement in 
recognizing and acting upon the dangers 
facing civil liberties today in the hope 
that such acknowledgment and action will 
strengthen and enhance our Constitution and 
Bill of Rights. As a coalition concerned 
with protecting, advancing and enhancing 
our Constitution and Bill of Rights, we 
believe that a reversal of the decision in 
Runvon v. McCrary would be a serious 
retrenchment of civil rights gains. We 
therefore urge the Supreme Court to 
reaffirm the holding in Runvon.

*  *  *

UNITED AUTOMOBILE WORKERS OF AMERICA 
(UAW) LOCAL 259 represents 4,000 mechanics, 
parts and assembly workers employed by 
automobile dealers and plants in the tri-



47

state area.
Our Union, since its inception fifty 

years ago, has fought to protect its 
members against race and employment 
discrimination. We are, therefore, deeply 
concerned about the Supreme Court's 
reconsideration of the 1976 Runyon v . 
McCrary decision.

Should this decision be reversed, it 
would have a devastating effect on our 
members and their families and reverse 
decades of civil rights advancement.

We, therefore, join as AMICI in this 
brief and urge the Court to uphold the 
Runvon decision.

*  *  *

The UNITED ELECTRICAL, RADIO AND 
MACHINE WORKERS OF AMERICA (UE) is a 
national labor organization whose essence 
of existence is the demonstrated commitment



48

towards equality and against discrimination 
in all of its forms, whether in the 
workplace or society at large, regardless 
of whether such discrimination is caused by 
government, public or private entities and 
individuals.

From its inception in 1936, the UE has 
made clear its sincere concern and 
commitment not only to improve the "working 
and living conditions" of its members (UE 
National Constitution), but to support 
those efforts and laws which seek to 
eliminate racial inequality in our nation. 
For example, UE unequivocally declared at 
its founding convention that it opposes 
"all forms of discrimination of foreign 
born or Negro workers." Since that time,
UE has repeatedly expressed in convention 
resolutions its opposition to racial 
discrimination, has successfully included



49

protective language in all of its 
collective bargaining agreements, and has 
fought discrimination against its members 
on the shop floor,and pursued remedies 
through legal proceedings.

Moreover, UE has supported and 
participated in the Civil Rights Movement 
and supports the Civil Rights Act of 1866 
and those laws, regulations and court 
interpretations which give it full and wide 
applicability in dealing with acts of 
racial discrimination and racial harassment 
by public bodies, government officials, 
private entities and individuals.

Thus, any official "review", 
"reconsideration" or similar initiative 
taken regarding the Civil Rights Act of 
1866 or any other civil rights law is of 
deep concern and interest to the UE and its
members.



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