U.S. Supreme Court Asked to Hear Two More South Carolina Sit-In Cases

    ft

In'the S upremetCourt
United States

Brenda Patterson.
:i~J>etition^)yi?r:

McLean Credit

Respondent,
? ' '  •■* :• *'.- ■ . - , .  . . .
On Writ of Certiorari for the United States 
’; Court of Appeal for the Tourth C ircuit^

ri '^ jy  -. BRIEF OF CAROL L. BISHARAT;
• ^ 1  CHINESE FOR AFFIRMATIVE ACTION; ®  

: EVERETTE M. C L E V E L A N D ;l;p& gJi 
- i  EQUAL RIGHTS AD VOCATES, INC;

. t h e  CHARLES HOUSTON BAR ASSOCIATION; 
%:?B V^: THE LEGAL AID SOCIETY OF 
SAN FRANCISCO/EMPLOYMENT LAW CENTER 

AS AMICI CURIAE SUPPORTING 
rPETITIONER-BRENDA PATTERSON “ i  ^

William C. McNeill, III* 
Employment Law Center 

1663 Mission Street 
>■“ San Francisco, CA 94103 
, (415) 864-8848 . ^'’y~--r:- 'r~: -<£̂ r~
Robert L. Harris " t  t: 
Charles Houston Bar ’ 
•;.'VT Association 

T7 Beale Street 
;P.O. Box 7442 '>■£
;San Francisco, CA 94120 
(415) 972-6651 :

Eva Jefferson Paterson 
301 Mission Street ' P j J  

' J-Eiiite 400
" ,San Francisco, CA 94105 
& 1415) 543-9444 *SjSj
^Nathaniel C oll^ .  
Western Region-NAACP. 

?- > lW 0 ^ S t r e e t '- « ^ f i^  
: 1 Sacramento, CA 95814 5: 
; JP>16) 446-7584 | g J |  v
•Counsel of Reconl ' V;

(Additional Counsel Listed on

■ ■ /



QUESTION PRESENTED

“Whether or not the interpretation of 42 U.S.C. section 1981 
adopted by this Court in Runyon v. McCrary, 427 U.S. 160 
(1976), should be reconsidered?”



II

QUESTION PRESENTED...................................................  «
CONSENT FOR FIL IN G .....................................................  1
INTEREST OF AMICI C U R IA E.......................................  1
SUMMARY OF THE A R G U M EN T.................................  3
ARGUMENT............................................................................ 4
IN TRO D U CTIO N .................................................................. 4

I.
THE NECESSARY HEAVY BURDEN IMPOSED FOR 

THE COURT TO DISAVOW ITS DECISION IN 
RUNYON V. McCRARY HAS NOT BEEN MET IN 
THIS CASE, AND THEREFORE RECONSIDERA­
TION OF THAT DECISION IS INAPPROPRIATE 
AND UNWARRANTED .................................................  5
A. The Decision In Runyon v. McCrary Did Not Consti­

tute A Departure From Recent Decisions Of This 
C o u rt..............................................................................  6

B. Congress Has Not Seen Fit To Change Or To Chal­
lenge This Court’s Interpretation Of 42 U.S.C. Sec­
tion 1981 In Runyon And Therefore, Any Rehearing
Of The Issue Is Unwarranted.....................................  ^

C. The Decisions In Question Have Not Misconstrued
the Meaning Of The Statute As Revealed In The 
Legislative H istory.......................................................  10

D. Overruling Runyon Would Frustrate The Considera­
ble Legitimate Reliance On R u n yo n ......................... 10

E. There Has Been No Indication That Runyon v.
McCrary Has Been Ineffective...................................  11

F. There Has Been No Showing That There Is Some
Necessity To Bring Runyon Into Agreement With 
Experience Or Newly Ascertained Facts................... 13

!

TABLE OF CONTENTS
Page

T able of C o n ten ts

II.
THE ERADICATION OF THE REMNANTS OF 

RACIAL DISCRIM INATION IS STILL A 
NATIONAL PRIORITY THAT MUST NOT BE 
STAYED BY RULINGS THAT OVERTURN LONG 
STANDING AUTHORITY THAT FURTHER THAT 
PRIO RITY ............................................................................ 14
A. The Possible Message That Would Be Received If

Runyon Were Overruled Would Be Damaging To 
The Civil Rights Aspirations Of Minorities............. 14

B. Overruling Runyon Would Truly Withdraw An 
Important Forum For The Vindication Of Civil
Rights.............................................................................. I?
1. Reconsideration Of Runyon Has Implications

Far Beyond Employment Discrimination..........  18
CONCLUSION.......................................................................  22

Page



IV

TABLE OF AUTHORITIES CITED

CASES Page

Alabama v. United States, 304 F.2d 583 (5th Cir. 1962),
af^d per curiam, 371 U.S. 37 (1962) ............................... 16

Alyeska Pipeline Service Co. v. Wilderness Society, 421
U.S. 240 (1975)...................................................................  9

Arizona v. Rumsey, 467 U.S. 203 (1984)................................  5
Bob Jones University v. United States, 461 U.S. 574

(1982)..................................................................................10, 14
Brandon v. Holt, 469 U.S. 464 (1985) ....................................... 20
Brown v. Dade Christian Schools, 556 F.2d 310 (5th Cir.), 

reh'g denied, 581 F.2d 472, cert, denied, 434 U.S. 1063
(1978)....................................................................................... 18

Brown v. General Services Administration, 425 U.S. 820 
(1976 )......................................................................................  20

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1931) . . .  7
Choudhury v. Polytechnic Institute of New York, 735 F.2d

38 (2nd Cir. 1984)................................................................ 20
City of Mobile v. Bolden, 446 U.S. 55 (1980)..................... 8
City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981) 21
Cottrell v. Commissioner of Internal Revenue, 628 F.2d

1127 (8th Cir. 1980)..............................................   7
Darensbourg v. Dufrene, 460 F.Supp. 662 (E.D. La. 1978) 18
Edelman v. Jordan, 415 U.S. 651 (1971 )............................. 7
Fiedler v. Marumsco Christian Children School, 631 F.2d

1144 (4th Cir. 1980)............................................................ 19
General Building Contractors Ass’n v. Pennsylvania, 458

U.S. 375 (1982)................................................................ H , 13
General Electric Co. v. Gilbert, 429 U.S. 125 (1976)........  7
Goodman v. Lukens Steel Co., 482 U.S. ------ , 107 S.Ct.

2617 (1987) ................................................................ 11,13,17
Gonzalez v. Southern Methodist University, 536 F.2d 1071 

(5th Cir.), reh’g denied, cert, denied, 430 U.S. 987
(1 9 7 7 )....................................................................................  19

Gore v. Turner, 563 F.2d 159 (5th Cir. 1977)..................... 19
Green v. County School Board, 391 U.S. 430 (1968)........  14
Grove City College v. Bell, 465 U.S. 555 (1984) ..............  7

Cases

T able of  A u th o r ities

Page

Hall v. Pennsylvania State Police, 570 F.2d 86 (3rd Cir.
1978)...................................................................................... 19

Howard Security Services, Inc. v. The Johns Hopkins Hospi­
tal, 516 F.Supp. 508 (D.Md. 1981)................................... 19

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)..............  5,7
Johnson v. Railway Express Agency, 421 U.S. 454 (1975)

........................................................................................ 9,11,12
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)

.................................................................................. 4 ,6 ,7 ,9 ,12
Louisiana v. United States, 380 U.S. 145 (1967) ..............  14
McDonald v. Santa Fe Trails Transportation Co., 427 U.S.

273 (1976) ...........................................................................  11
Mondell v. New York Dept, of Social Services, 436 U.S. 658

(1 9 7 8 )....................................................................................6, 13
Monroe v. Pape, 365 U.S. 167 (1961) ................................. 13
Nashville Gas Co. v. Satty, 434 U.S. 136 (1 9 7 7 )..............  7
Occidental Life Insurance Co. v. Equal Employment Oppor­

tunity Commission, 432 U.S. 355 (1977 )......................... 18
Oregon v. Mitchell, 400 U.S. 112 (1970)............................. 14
Patsy v. Florida Board of Regents, 457 U S. 496 ................ 8, 10
Piper v. Chris-Craft Industry, 430 U.S. 1 (1972) ..............  10
Riley v. Adirondack Southern School for Girls, 541 F.2d

1124 (5th Cir. 1976)...........................................................  18
Rodgers v. Fisher Body Division, General Motors Corp., 575

F.Supp. 12 (W.D. Mich. 1982) ........................................... 15
Runyon v. McCrary, 427 U.S. 160 (1976)....................  passim
Saint Francis College v. Al-Khazraji, 481 U.S. ------, 107

S.Ct. 2022 (1987) ...............................................  11, 13, 16, 17
Seaton v. Sky Realty Co., 491 F.2d 634 (7th Cir. 1974) ..  15
Shaare Tefila Congregation v. John William Cobb, 481 U.S.

____, 107 S.Ct. 2019 (1987) ......................................... 13,16
Square D. Co. v. Niagara Frontier Tariff Bureau, 106 S.Ct.

1922 (1986) .........................................................................  8
Sutton v. Bloom, 710 F.2d 1188 (6th Cir.), cert, denied, 464 

U.S. 1973 (1984).................................................................  20



VI

Cases

T able o f  A u th o r ities

Tillman v. Wheaton-Haven Recreational Association, 410
U.S. 431 (1973)...........................................................  9, 10,20

United States v. Eglin J.L.E. Ry. Co., 298 U.S. 492 (1936) 7
Vasquez v. Hillery, 474 U.S. 254 (1986) .............................5, 11
Waters v. Wisconsin Steel Works, etc., 427 F.2d 476 (7th

Cir. 1970)..............................................................................  12
Weaver v. Gross, 605 F.Supp. 210 (D.D.C. 1985) ............  19
Wilkey v. Pyramid Construction Co., 619 F.Supp. 1453

(D.Conn. 1985) .................................................................... 19
Wright v. The Salisbury Club, 632 F.2d 309 (4th Cir. 1980) 20

STATUTES
Age Discrimination Claim Assistance Act, P.L. 100-283 .. 18
Civil Rights Act of 1964, Title VII, 42 U.S.C. section 2000e-

2 ( a ) ........................................................................................  12
Civil Rights Restoration Act of 1967, P.L. 100-259.............  7
Pregnancy Discrimination Act, Pub. L. No. 95-555, section

l,9 2 S ta t. 2076......................................................................  7
42 U.S.C.

§ 1973......................................................................................  8
§ 1981...................................................................................passim
§ 1982......................................................................................  13
§1983......................................................................................  13
§1988......................................................................................  9
2000e-(k) ..............................................................................  7

118 Cong. Rec. 3371 (1972) .................................................  9
H R. Rep. No. 92-238, p. 19 (1971).....................................  9
H.R. Rep. 94-1558, 3-4 ............................................................ 9
H.R. Rep. No. 95-948, 95th Cong., 2d Sess. 6, reprinted in

U.S. Code, Cong. A Admin. News 4749 (1 9 7 8 )................. 7
U.S. Rep. 92-415, 92nd Cong., 1st Sess., 24 (1971 )............  9
S. Rep. 94-1011, at 3-4 reprinted in 1976 U.S. Code, Cong.

& Admin. News 5908 .........................................................  9

VII

Table of Authorities 

OTHER AUTHORITIES

Bernstein, 21 Years After the Kerner Report: Three Societies,
A ll Separate, New York Times, February 29, 1988, B-8
col. 2 ...................................................................................... 15

Connell, Minority Gains Lost, Panel Says, San Francisco
Examiner, May 23, 1988 A - l .............................................  15

Crenshaw, Race, Reform, Retrenchment: Tranformation and 
Legitimation in Antidiscrimination Law, 101 Harvard Law
Review 1331 (1988).............................................................  15

Kluegel,“/ /  There Isn't A Problem. You Don't Need A 
Solution": The Bases o f Contemporary Affirmative Action 
Attitudes, 28 AM. BEHAV. SCIENTIST 761, 766
(1 9 8 5 )..................................................    15

Julianne Malveaux, Lower Wage Black Women: Occupa­
tional Descriptions, Stategies for Change........................... 16

National Urban League, The State o f Black America 1986
15 (1986) .............................................................................. 16

New Republic, The Jeweler's Dilemma, pp. 18-28 (Nov. 10,
1986)...................................................................................... 20

Note, Combatting Racial Violence: A Legislative Proposal,
101 Harvard Law Review 1270 (1988)............................. 16

Population Bulletin: U.S. Hispanics: Changing the Face o f
America, pp. 35-36 (1 9 8 3 ).................................................  16

Reeves, America's Choice: What it Means, New York Times,
Nov. 4 1984, section 6 (Magazine) 36, cols. 4 -5 ............  15

Schlei and Grossman, Employment Discrimination Law 674
(1 9 8 3 ).................................................................................... 20

U.S. Commission On Civil Rights, Intimidation And Vio­
lence: Racial and Religious Bigotry In America (1983) 16

Page



No. 87-107

In the Supreme Court
OF THE

United States
October Term, 1987

Brenda Patterson,
Petitioner.

vs.
McLean Credit Union, 

Respondent.

On Writ of Certiorari for the United States 
Court of Appeal for the Fourth Circuit

BRIEF OF CAROL L, BISHARAT; 
CHINESE FOR AFFIRMATIVE ACTION; 

EVERETTE M. CLEVELAND;
EQUAL RIGHTS ADVOCATES, INC.;

THE CHARLES HOUSTON BAR ASSOCIATION;
THE LEGAL AID SOCIETY OF 

SAN FRANCISCO/EMPLOYMENT LAW CENTER 
AS AMICI CURIAE SUPPORTING 

PETITIONER-BRENDA PATTERSON

CONSENT FOR FILING

This brief is being submitted with the consent of the parties. 
Their letters of consent have been filed with the Clerk of the 
Court pursuant to Rule 36.2 of the Rules of this Court.

INTEREST OF AMICI CURIAE

Carol L. Bisharat is a Palestinian-American graduate of the 
Hastings College of the Law, University of California, who has 
worked on a number of employment discrimination actions for the



2

San Francisco Lawyers’ Committee for Urban Affair' as a law 
student. Ms. Bisharat is vitally interested in continuing her 
orientation toward civil rights advocacy, and she expects to 
continue that advocacy on behalf of minorities in general and 
Arab-Americans in particular.

Everette M. Cleveland is an Afro-American who was denied 
the opportunity to purchase jewelry for a Christmas present 
because the jeweler would not activate the electric lock mecha­
nism to allow Mr. Cleveland to gain entrance because 
Mr. Cleveland is an Afro-American. Mr. Cleveland has filed a 
suit alleging, inter alia, a violation of section 1981 based on this 
deprivation of his opportunity to purchase certain items.

Chinese for Affirmative Action is a voluntary, non-profit, mem­
bership supported civil rights organization that promotes equal 
employment, educational and economic opportunities for Asian 
Americans and other minorities. For the past 19 years, Chinese 
for Affirmative Action has dedicated itself to the eradication of 
racism for all people of color in the workplace, public life, 
educational institutions and in the media. In its efforts to combat 
racial discrimination, Chinese for Affirmative Action has de­
pended upon this nation’s commitment to equal justice through 
civil rights legislation and litigation to affirm the rights of all 
individuals in this country regardless of race, creed, sex or 
national origin.

Equal Rights Advocates, Inc. is a San Francisco based, public 
interest legal and educational corporation specializing in the area 
of sex discrimination. It has a special interest in eradicating the 
double burden of race and sex discrimination experienced by 
women of color. Equal Rights Advocates, Inc. has been particu­
larly concerned with gender equality in the work force because 
economic independence is fundamental to women of color s 
ability to gain equality in other aspects of society. This concern 
has been expressed through Equal Rights Advocates, Inc. s par­
ticipation, both as counsel and as amicus, in numerous employ­
ment discrimination cases.

The Charles Houston Bar Association is the San Francisco, 
Bay Area branch of the National Bar Association. It represents

over 500 black attorneys, judges and law students in Northern 
California. Its purposes included achieving equal opportunities for 
minorities in the legal profession and protecting the civil and 
political rights of all citizens. The Association has a particular 
interest in this case because of its belief that all remedies should 
be available to eradicate racial discrimination in America.

The Legal Aid Society of San Francisco/Employment Law 
Center is a private non-profit public interest law firm that special­
izes in the litigation of employment discrimination cases. 
Founded in 1916 to represent individuals unable to afford legal 
counsel, the Legal Aid Society/Employment Law Center is 
dedicated to the eradication of all forms of employment discrimi­
nation. The Legal Aid Society of San Francisco/Employment 
Law Center was counsel of record in Emporium Capwell Co. v. 
Western Addition Community Organization, 420 U.S. 50 (1975). 
It has recently filed amicus curiae briefs in this Court in Califor­
nia Federal Savings and Loan Association v. Guerra, 107 S.Ct. 
683 (1987); Johnson v. Transportation Agency. Santa Clara 
County, California, 107 S.Ct. 1442 (1987); Rotary Club o f 
Duarte v. Board o f Directors o f Rotary International, 107 S.Ct 
1940 (1987); Wygant v. Jackson Board o f Education, 476 U.S. 
267 (1986); and Vinson v. Meritor Savings Bank, 106 S.Ct. 2399 
(1986).

SUMMARY OF THE ARGUMENT

The doctrine of stare decisis is not a doctrine that should be 
lightly cast aside. Precedents of this Court have established 
factors to be considered for determining the appropriateness of 
overruling or reconsidering earlier decisions. This Court in 
April of this year has indicated that it desires the parties to 
address the continuing validity of Runyon v. McCrary, 427 U.S. 
160 (1976).

A review of the factors this Court has established as guideposts 
for establishing the propriety for reconsideration or overruling of 
previous decisions indicates that Runyon is well outside the 
standards embodied in the various factors, and therefore Runyon 
should not be overruled.



4

Runyon constituted no real departure from recent decisions of 
this Court in that it was predicated on Jones v. Alfred H. Mayer 
Co.. 392 U.S. 409 (1968). Additionally, Congress took no steps to 
indicate that Runyon evidenced a misapprehension of its intent 
concerning section 1981, and it has had a plethora of opportuni­
ties to do so. While the legislative history of this statute may not 
be crystal clear, there is no real indication that the Court has 
misconstrued the appropriate statutory meaning in its earlier 
decisions in Jones and Runyon. Likewise, a reversal of Runyon 
would certainly frustrate an incredible degree of reliance on the 
opinion including cases on remand from decisions of this Court 
only one term ago. Finally, there has been no indication that 
Runyon has been either an ineffective decision or one that is out 
of step with the times or relevant new information.

Indeed, the overruling of Runyon would have the disastrous 
effect of withdrawing a federal forum where one is still appropri­
ate and necessary. This withdrawal of such a forum would have a 
devastating impact on litigation of civil rights on behalf of racial 
minorities covering a variety of issues. Such a rending in the 
fabric of civil rights law should not be undertaken.

ARGUMENT

INTRODUCTION

On April 25, 1988, this Court issued an order restoring this 
case, Brenda Patterson v. McLean Credit Union, No. 87-107, to 
its calendar for reargument. Additionally, the Court requested 
that the parties brief and argue the following question:

Whether or not the interpretation of 42 U.S.C. section 1981 
adopted by this Court in Runyon v. McCrary, 427 U.S. 160
(1976), should be reconsidered?

In Runyon v. McCrary, 427 U.S. 160 (1976) this Court, relying 
on Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) held that 
section 1981 prohibits private schools—that were operated com­
mercially and open to the general white public in that they 
engaged in general advertising to attract their students from

refusing to accept blacks. The statute in question in both in­
stances, 42 U.S.C. section 1981, provides as follows:

§ 1981. Equal rights under the law
All persons within the jurisdiction of the United States 

shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give evidence, 
and to the full and equal benefit of all laws and proceedings 
for the security of persons and property as is enjoyed by 
white citizens, and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of every kind, and to 
no other.

This brief submitted by amici herein only addresses the addi­
tional question presented by the Court in its April 25, 1988, 
Order.

I.
THE NECESSARY HEAVY BURDEN IMPOSED FOR THE 

COURT TO DISAVOW ITS DECISION IN RUNYON V. 
McCRARY  HAS NOT BEEN MET IN THIS CASE, AND 
THEREFORE, RECONSIDERATION OF THAT DECI­
SION IS INAPPROPRIATE AND UNWARRANTED.

This Court has stated many times that the doctrine of stare 
decisis is one that should not be lightly cast aside. See. e.g., 
Arizona v. Rumsey, 467 U.S. 203, 212 (1984); Vasquez v. 
Hillery, 474 U.S. 254, 266 (1986); Illinois Brick Co. v. Illinois. 
431 U.S. 720, 736 (1977).

In fact, the doctrine of stare decisis was very recently defined 
by this Court in Vasquez v. Hillery. supra, at 266 as being “ [t]he 
means by which we ensure that the law will not merely change 
erratically, but will develop in a principled and intelligent man­
ner.” The Court went on to discuss what was meant by that 
definition by stating that the doctrine thereby allows society to 
rest assured that certain legal principles would be firmly estab­
lished and not subject to the changing whims of personal or 
popular trends. Id. Thus the Court reiterated the fact that legal 
precedent is controlling in the judicial sphere of this society rather



6

than people. Principle rather than personnel must be the control­
ling factor. These statements must be considered within the 
context of the present case.

In the case presently before the Court, there is nothing in 
constitutional or statutory jurisprudence that mandates a depar­
ture from this doctrine of stare decisis. Indeed, the new issue that 
has been placed in this case, sua sponte, by this Court is one that 
in no way fits the traditional standards that this Court has 
fashioned for the overruling of decisions.

In Monell v. New York Dept, o f Social Services, 436 U.S. 658, 
695-701 (1978), this Court articulated four factors to be consid­
ered for determining whether decisions should be overruled or 
reconsidered. The factors discussed in Monell are as follows: 
whether the decision constituted a departure from prior decisions, 
whether overruling these decisions would be inconsistent with 
more recent expressions of congressional intent, whether overrul­
ing these decisions would frustrate legitimate reliance on these 
holdings, and whether the decisions in question misconstrued the 
meaning of the statute as revealed in the legislative history. As 
will be shown below, a careful analysis of these factors compels 
the determination that reconsideration and overruling of Runyon 
is inappropriate and unwarranted. Additionally, other considera­
tions often considered by the Court also mandate that Runyon v. 
McCrary not be overruled.

A. The Decision In Runyon v. McCrary Did Not Constitute A 
Departure From Recent Decisions Of This Court.

Runyon was predicated on this Court s earlier opinion in Jones 
v. Alfred H. Mayer Co., 392 U.S. 409 (1968). While it might be 
argued that the outcome in Jones was incorrect at the time, it 
clearly had not been reconsidered at the time of the Court s 
consideration of Runyon, some eight years later. Amici herein are 
aware of the dissents in both cases, but this Court had before it 
full presentations of all issues. Thus, there was nothing in Jones or 
Runyon that would allow one to opine that the decision in either 
case was a casual or incidental holding. It is also important to 
note that Jones dealt with a statute that had lain dormant for over 
100 years so that there had been no recent cases construing the

'statute. Earlier precedents were distinguished rather than over­
ruled, and therefore it certainly cannot be said that there was a 
long line of recent precedent that allowed for straying.

Similarly, Jones was decided some eight years before Runyon, 
and the decision in Jones was made in a period that was verdant 
with civil rights cases. Thus, there was enormous opportunity to 
reject this consideration. Indeed, the situation was such that 
Jones could have been reconsidered virtually at any time, but 
instead it became a bedrock of civil rights law through the 
decision in Runyon.

B.. Congress Has Not Seen Fit To Change Or To Challenge 
This Court’s Interpretation of 42 U.S.C. Section 1981 In 
Runyon And Therefore Any Rehearing Of The Issue Is 
Unwarranted.

Considerations of stare decisis weigh heavily in the area of 
statutory construction, where Congress is free to change the 
Court’s interpretation of its legislation. Illinois Brick Co. v. 
Illinois. 431 U.S. 720, 736 (1977), citing Edelman v. Jordan, 415 
U.S. 651, 671 (1971); Burnet v. Coronado Oil & Gas Co., 285 
U.S. 393, 406 (1931) The decision of Runyon v. McCrary, supra, 
was decided over twelve years ago, and there has been no effort on 
the part of Congress to reverse the Court’s determination in that 
action. Compare the Congressional action leading to the adoption 
of Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 
legislatively overruling Grove City College v. Bell, 465 U.S. 555
(1984).

In an area as controversial as the Court’s interpretation of the 
statutory mandates of civil rights statutes, Congress has seen fit to 
remedy situations where this Court has rendered decisions that 
Congress felt perverted its intent. See Pregnancy Discrimination 
Act, Pub. L. No. 95-555, section 1, 92 Stat. 2076; 42 U.S.C. 
section 2000e-(k) passed in response to the Court’s narrow 
interpretation of Title VII in General Electric Co. v. Gilbert, 429 
U.S. 125 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136
(1977). See generally, H.R. Rep. No. 95-948, 95th Cong., 2d 
Sess. 6, reprinted in US. Code, Cong. & Admin. News 4749, 4751



8

(1978). See also 42 U.S.C. Section 1973, overturning City o f  
Mobile v. Bolden, 446 U.S. 55 (1980).

There has been no similar movement to alter the Court’s 
determination in Runyon. Thus, one must be left with the 
impression that the Court’s opinion in Runyon comported with 
Congressional interpretation of the reach of the statute. “The 
doctrine of stare decisis, weighty in any context, is especially so in 
matters of statutory construction. For in such cases Congress may 
cure any error made by the courts”. Cottrell v. Commissioner o f 
Internal Revenue, 628 F.2d 1127, 1131 (8th Cir. 1980).

Thus, had Congress made the determination that the Court was 
wrong in Runyon, it must have been expected to have done 
something to correct the Court’s erring ways. Congressional 
inaction in response to a decision must be taken as an indication 
“that the interpretation of the Act then accepted has legislative 
approval.” United States v. Eglin J.L.E. Ry. Co., 298 U.S. 492, 
500 (1936).

This is especially true in a situation where the Court’s decisions 
are in a controversial area and are rendered in a period of 
controversy. The statutes involved in these two cases are hardly in 
an obscure or arcane area of federal law. Furthermore, Jones was 
decided in the 1960s when the civil rights revolution was in its 
heyday. A look at the circumstances surrounding Congressional 
silence clearly evidences that Congress has knowingly embraced 
this Court’s interpretation of the statutes involved. And in such 
circumstances, the doctrine of stare decisis has special force. 
Square D. Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 
106 S.Ct. 1922, 1928-29 (1986); Patsy v. Board o f Regents, 457 
U.S. 496, 508-12 (1982)

Congress has clearly understood section 198 i to ban racial 
discrimination by private individuals. Congress considered 
amendments to Title VU of the Civil Rights Act of 1964 in 1971 
and 1972. An amendment was offered during its consideration of 
that statute that would make Title VII the exclusive remedy for 
employment discrimination. This proposal was rejected both in 
committee and on the floor of the Senate. Senator Williams who

9

was the floor manager of the bill for the Senate stated the 
following in objecting to that proposal:

It was recently stated by the Supreme Court in the case of 
Jones v. Mayer, that these acts [including the Civil Rights 
Act of 1866] protect fundamental constitutional guarantees. 
In any case, the courts have specially held that Title VII and 

» the Civil Rights Acts of 1866 and 1871 are not mutually 
exclusive, and must be read together to provide alternative 
means to redress individual grievances.

118 Cong. Rec. 3371, 3372 (1972); accord S. Rep. 92-415, 92nd 
Cong., 1st Sess., at 24 (1971) (Existing civil rights statutes will 
not be undercut by according to the Equal Employment Opportu­
nity Commission enforcement powers). See also, H.R. Rep. No. 
92-238, p. 19 (1971).

An additional indication that there has been an acceptance by 
Congress of the propriety of this Court’s decision in Runyon is 
evidenced by the inclusion of section 1981 as one of the statutes 
under which prevailing plaintiffs could receive attorneys’ fees 
pursuant to the Civil Rights Attorneys’ Fees Awards Act of 1976, 
42 U.S.C. section 1988. That legislation was in response to this 
Court’s decision in Alyeska Pipeline Service Co. v. Wilderness 
Society, 421 U.S. 240 (1975). When Congress enacted the Civil 
Rights Attorneys’ Fees Award Act of 1976, it specifically set out 
certain types of cases brought under section 1981 that would 
support fee awards under the statute. The legislative history cited 
to Johnson v. Railway Express Agency, 421 U.S. 454 (1975) and 
Tillman v. Wheaton-Haven Recreational Ass'n, 410 U.S. 431 
(1973) as two such cases.1 See H.R. Rep. 94-1558, at 3-4; S. Rep. 
94-1011, at 3-4, reprinted in 1976 U.S. Code, Cong. & Admin. 
News 5908, 5910.

1 Johnson concerned the issue of whether an action under Title VII 
against a private employer would toll the running of the statute of 
limitations for filing an action under section 1981. Tillman involved 
racially motivated refusals to admit blacks to private recreational 
facilities.



10

Congress had the perfect opportunity to express any dissatisfac­
tion with the holding in Runyon during the furor that surrounded 
the disputes over the denial of tax exempt status to private schools 
that were segregated on the basis of race. See Bob Jones Univer 
sity v. United Slates, 461 U.S. 574 (1982). This period would 
have certainly produced an indication from Congress that this 
Court’s determination in Runyon was incorrect had Congress had 
any such concerns. However, nothing was forthcoming from 
Congress which certainly must be read as ratification of this 
Court’s decision in Runyon.

C. The Decisions In Question Have Not Misconstrued The 
Meaning Of The Statute As Revealed In The Legislative
History.

Reconstructing legislative history is often a doubtful task even 
when dealing with recent legislation. See Piper v. Chris-Craft 
Industry, 430 U.S. 1, 26 (1972). It is beyond cavil that such a 
task is even more difficult in the search for the meaning of the 
legislature for a statute over one hundred years old. Relating this 
component of the factors to consider with regard to overruling 
cases, it seems clear that where there has been recent Congres­
sional activity in the area the doctrine of stare decisis has special 
force. See Patsy v. Florida Board o f Regents, 457 U.S. 496, 501, 
502. It is respectfully suggested that in the present case, as in 
Patsy, the possible alteration of the impact of an important piece 
of Civil Rights legislation would “usurp policy judgments that the 
national legislature has reserved for itself.” Id. at 508.

D. Overruling Runyon Would Frustrate The Considerable Le­
gitimate Reliance On Runyon.

In a virtual unbroken line of cases since Jones, this Court has 
determined that sections 1981 and 1982 addressed racially dis­
criminatory conduct by private parties or entities. In two cases 
that followed Jones, this Court determined that section 1981 
encompassed private discriminatory actions.

In Tillman v. Wheaton-Haven Recreation Ass n, supra, this 
Court held that the statute would be violated by the denial of 
visitors to a private swim club because of their race. The Court in 
that case determined that the operative language of both sections

1981 and 1982 was traceable to the first section of the Civil 
Rights Act of 1866, and therefore, there was no reason to construe 
them differently insofar as their applicability to private acts of 
discrimination. Id. at 439-40.

In Johnson v. Railway Express Agency, 421 U.S. 454 (1975), 
this Court considered the application of section 1981 to private 
discrimination in employment. After noting that there had been a 
plethSra of circuit court decisions holding that section 1981 
afforded a federal remedy against racial discrimination in private 
employment, the Court determined that section 1981 provides a 
remedy against employment discrimination on the basis of race 
that is independent of Title VII. Id. at 459, n.6.

One year later in McDonald v. Santa Fe Trails Transportation 
Co., 427 U.S. 273 (1976), the Court determined that whites were 
covered by section 1981 in private employment situations. Next, 
in General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 
375 (1982), this Court again sanctioned the application of section 
1981 to claims of private employment discrimination on the basis 
of race while reaffirming the decision in Runyon. Id. at 390, n. 17.

As recently as last term, this Court determined, without discus­
sion, that section 1981 applied to instances of private racial 
discrimination in employment. In Goodman v. Lukens Steel Co.,
482 U.S_____ , 107 S.Ct. 2617 (1987), the Court determined the
appropriate statute of limitations for a section 1981 cause of 
action against a private employer. In St. Francis College v. Al-
Khazraji. 481 U.S. ____ , 107 S.Ct. 2022 (1987), the Court
determined that the statute provided protection to Arabs in 
instances in which they had been exposed to racial discrimination 
by a private college.

Any cursory check of Shepard’s or the data bases of Lexis or 
Westlaw will disclose the incredible degree to which the lower 
courts have relied on this Court’s opinions as to the impact of 
section 1981 in their work and implicitly the work of the litigants 
before these courts. StaYe decisis protects such settled expecta­
tions. Vasquez v. Hillery, supra.

i



12

E. There Has Been No Indication That Runyon v. McCrary 
Has Been Ineffective.

Additionally, there has been no indication that Kurtyon * v 
McCrary has been an ineffective or troubling decision Indeed no 
such argument was made in the case at bar, rather the issue that 
was first brought to this Court was whether section 1981 would be 
extended to cover a situation involving allegations of racial harass­
ment in employment.2 The opinion of the Fourth Circuit in this 
case evidenced no dissatisfaction with the proposition that this 
statute reached private conduct. See Patterson v. McLean Credit 
Union. 805 F.2d 1143 (4th Cir. 1986). Instead the court deter 
mined that 1981 did not reach “ terms and conditions of employ­
ment” by finding that the reach of section 1981 was> not as 
inclusive as that of Title VII of the Civil Rights Act of 1964, 42 
U.S.C. section 2000e-2(a).

Furthermore, the use of 1981 as a major weapon in the context 
of employment discrimination had been accepted since even 
before this Court's decision in Johnson v. Radway Express 
Agency Inc., supra. See Waters v. Wisconsin Steel Works etc.. 
427 F 2d 476 (7th Cir. 1970). While there was some criticism 
initially to the Court’s seminal decision in Jones v. Alf red ̂ ayê  
Co 392 U S 409 (1968), there has been no widespread concern 
or opposition to K ^ o „ ;  indeed as pointed out by ^usUce 
Blackmun in Patterson v. McLean Credit Union, 56 USLW 3735 
(1988) (Blackmun, J. dissenting), over 100 decisions 0 ower 
courts have cited to Runyon with approval of the relevant lan- 
gUage determining that the reach of 1981 includes pnvate act,on.

Similarly, within the last two terms, this Court has rendered 
opinions that reinforced the validity of the Runyon holdtng. In

'The questions presented for review were: (I) Does 42 U S.C I98I 
encompass a claim of racial discrimination in terms and conditions 
employment, including claim that petitioner was ^
race'* (2) Did district court crT in instructing jury tha 
petitioner to prevail on her claims of discrimination in promotion she 
must prove that she was more qualified than white who received 
promotion? 56 U.S.L.W. 3204-05 (Oct. 5, 1987) The petition or 
Certiorari was granted on October 5, 1987.

Goodman v. Lukens Steel, 482 U.S. ------ , 107 S.Ct. 2617
(1987), this Court determined, inter alia, the appropriate statute 
of limitation for 1981 actions within the context of an action 
against a privately owned steel company. Likewise in Saint
Francis College v. Al-Khazraji, 481 U.S. ------ , 107 S.Ct. 2022
(1987), this Court determined that 1981 included certain ethnic 
Caucasians within its broad reach in an action against a private 
college.3 See also. General Building Contractors Ass’n Inc. v. 
Pennsylvania. 458 U.S. 375 (1982) where this Court determined 
that in order to prevail in a 1981 action, one had to prove 
intentional discrimination. This action also involved a situation 
that attacked racially discriminatory procedures in the context of 
private conduct.

Thus, it is beyond cavil that there had been no evidencing of a 
lack of effectiveness or troublesome areas in Runyon.

F. There Has Been No Showing That There Is Some Necessity 
To Bring Runyon Into Agreement With Experience Or 
Newly Ascertained Facts.

There has been no showing that the decision in Runyon is at 
odds with judicial or legislative experience. Indeed, the fact that 
the statute reaches private conduct has not been recently an area 
of contention. Rather the litigated issues have been more of the 
procedural type, e.g., what statute of limitations is appropriate for 
a section 1981 action, or covered substantive issues concerning 
questions of liability. As stated previously, there has been no 
carping as to the reach of section 1981 actions as to private versus 
state action. Compare with the experience of 42 U.S.C. section 
1983, Monroe v. Pape, 365 U.S. 167 (1961) with Monell. supra.

3 The Court reached a similar holding in Shaare Tefila Congregation
v. John William Cobb. 481 U.S--------- 107 S.Ct. 2019 (1987) that Jews
and Arabs were among the people considered to be distinct races and 
hence within the protection of the statute. In the lower court, the action 
was brought under both 1981 and 1982, but the issue determined by this 
court only addressed the applicability of 1982. The Court held Jewish 
congregation members have a cause of action under 42 U.S.C. section 
1982 for anti-semitic epithets painted on a synagogue and members cars 
by whites.



14

The focus of many of the decisions was on the types of recoveries 
available to those who had been subjected to the statutory 
prohibited behavior. Few, if any, courts questioned the explicit 
holding of Runyon.

II.

THE ERADICATION OF THE REMNANTS OF RACIAL 
DISCRIMINATION IS STILL A NATIONAL PRIORITY 
THAT MUST NOT BE STAYED BY RULINGS THAT 
OVERTURN LONG STANDING AUTHORITY THAT 
FURTHER THAT PRIORITY.
The Court’s Opinion in Runyon v. McCrary, supra, constitutes 

part of the very important fabric of this country’s laws stamping 
out racial discrimination. It has long been clear that discrimina­
tion is alive and well with regard to the behavior of private 
individuals. In the seminal case of Bob Jones University v. United 
States, 461 U.S. 574 (1983), this Court cited Runyon as evidence 
of a “ fundamental national public policy against racial discrimi­
nation in education” Ibid, at 593-94. That policy was but one of 
many that this Court has stood firm on to bring about the 
eradication of racial discrimination root and branch. Green v. 
County School Board, 391 U.S. 430, 438 (1968); Louisiana v. 
United States, 380 U.S. 145, 154 (1967). The Court’s firm stands 
against racial discrimination must be continued.

A. The Possible Message That Would Be Received If Runyon 
Were Overruled Would Be Damaging To The Civil Rights 
Aspirations Of Minorities.

The Court should be chary of withdrawing a federal forum 
from litigants in this most important area. Section 1981 was 
enacted on the force of the Thirteenth Amendment to the 
Constitution, one or the Civil War Amendments, and these 
amendments were described by this Court as [unquestionably 
designed to condemn and forbid every distinction, however tri­
lling, on account of race.” Oregon v. Mitchell, 400 U.S. 112, 128 
(1970). Racial discrimination is not something that should be 
considered odious solely when practiced by governments. The 
terrible impact of racial discrimination is not softened by the

15

labelling and knowledge that it has been practiced in a non­
governmental arena. Humiliation and racial indignity “ [i]s one of 
the relics of slavery which [42 U.S.C. section 1981 ] was enacted 
to eradicate.” Rodgers v. Fisher Body Division, General Motors 
Corp., 575 F. Supp. 12, 16 (W.D. Mich. 1982), citing Seaton v. 
Sky Realty Co., 491 F.2d 634, 636 (7th Cir. 1974), and Jones,
supra.*

The withdrawal of a federal forum would be most inauspicious 
at this particular time. Presently, most Americans believe that 
racial and ethnic discrimination is a relic of the past and not a 
significant factor for the inferior conditions in which minorities 
find themselves. See, eg.. Reeves, America's Choice: What It 
Means, New York Times, Nov. 4, 1984, section 6 (Magazine) at 
36, cols. 4-5 (quoting the editor of the Tennessean: “ I think white 
Americans have reached a consensus on black America. Look, 
we’ve done enough for them. If they can make it fine. If they 
can’t, that’s their problem.”; Kluegel, “I f  There Isn't A Problem, 
You Don't Need A Solution": The Bases o f Contemporary Affirm­
ative Action Attitudes. 28 AM. BEHAV. SCIENTIST 761, 766
(1985) (White racism can no longer be the explanation for the 
socioeconomic differences between blacks and whites). [Both 
references cited in Crenshaw, Race, Reform, Retrenchment: 
Transformation and Legitimation in Antidiscrimination Law, 101 
Harvard Law Review 1331, 1348 n.66 (1988).] By subjecting 
what had been considered to be binding precedent to reconsidera­
tion and overruling it, this Court could be interpreted as sending 
the signal that it too shares this sentiment. Certainly that would 
constitute a disastrous setback for the enforcement of civil rights, 
particularly when one is confronted with the harsh realities of the 
conditions of minorities in this country.

In 1986, 31 percent of blacks and 27 percent of Hispanics were 
living in poverty, nearly three times the rate of whites. Unemploy­
ment in April, 1988, was 12.2 percent for blacks and 9.3 percent 
for Hispanics as compared to 4.6 percent for whites. See One 
Third o f a Nation, report of Commission on Minority Participa­
tion in Education and American Life, reported in Connell, Minor­
ity Gains Lost, Panel Says, San Francisco Examiner, May 23, 
1988 at A-l. Black median income is 57 percent of whites, a



16

decline of about four percentage points since the early 1970s. 
Bernstein, 21 Years After the Kerner Report: Three Societies. All 
Separate, New York Times, February 29, 1988, B 8 col. 2. Black 
unemployment averaged 17 percent between 1981 and 1986, and 
the rate of white unemployment was 7.3 percent. National Urban 
League, The State o f Black America 1986 at 15 (1986)4

The statistics for females of color are equally bleak. Seventy- 
five percent of employed Hispanic women work in the three 
lowest paid service occupations. See Population Bulletin: US. 
Hispanics: Changing the Face o f America, pp. 35-36 (1983). 
Sixty-one percent of employed Black females were in jobs whose 
median weekly income place them right at the national poverty 
level. See Julianne Malveaux, Lower Wage Black Women: Occu­
pational Descriptions, Strategies for Change. Paper prepared for 
the NAACP Legal Defense Fund, Inc. p. 33 (January, 1984).

Statistics speak and courts normally listen particularly in dis­
crimination cases. Alabama v. United States, 304 F.2d 583, 586 
(5th Cir. 1962), ajfd  per curiam, 371 U.S. 37 (1962). While 
these statistics may not have direct relevance to the issue at bar, 
they do indicate that the battle for equality is not over. Thus, to 
withdraw as potent a weapon as section 1981 from the civil rights 
litigators’ arsenal would only serve to delay the final victory for 
racial equality. Furthermore, more than a limited legal message 
would be articulated by the overruling of Runyon. There would 
also be the signal that racial equality could be viewed as having 
much less importance than it once had as a national policy.

This would be especially true given the fact that the Court just 
last term clarified the law as to the extent of the coverage of 
section 1981 in Saint Francis College v. Al-Khazraji. supra, and 
Shaare Tefila Congregation v. Cobb, 481 U .S .------ , 107 S.Ct.

4 Similarly, there has been an increase in actual overt racial hostility 
recently. See U.S. Commission On Civil Rights, Intimidation And 
Violence: Racial and Religious Bigotry In America (1983). See also 
Note, Combatting Racial Violence: A Legislative Proposal, 101 Harvard 
Law Review 1270 (1988).

17

2019 (1987).5 To provide for the expansion of the remedy under 
the statute in one term, and then to immediately retract that 
remedy in the next term certainly does not posit a situation where 
minorities can feel that their grievances will be seriously 
considered.6

B. Overruling Runyon Would Truly Withdraw An Important 
Forum For The Vindication Of Civil Rights.

Section 1981 is one of the remedial statutes presently available 
for redressing employment discrimination. This statute and Title 
VII are the primary statutory vehicles for attacking employment 
discrimination. By withdrawing section 1981 from the available 
means of attacking private employment discrimination, the Court 
would leave certain employees without any redress for employ­
ment discrimination based on race. Title VII covers neither 
establishments with fewer than 15 employees nor employers not 
involved in interstate commerce. Also, persons who have lost their 
Title VII claims for procedural reasons would no longer have 
recourse to section 1981.7

Additionally, there would be a reduction in the remedies 
available to one who has suffered intentional racial discrimination 
in employment. The great weight of authority holds that one is

5 Relying on Al-Khazraji, the Court determined that Jews as well as 
Arabs fell within the protection of section 1982.

6 The irony of the situation is grasped when one considers the 
following language in Al-Khazraji: “If respondent on remand can prove 
that he was subjected to intentional discrimination based on the fact that 
he was bom an Arab, rather than solely on the place or nation of his 
origin, or his religion, he will have made out a case under section 1981.” 
Id. at 2028. The impression that would necessarily follow at the heels of 
that direction is the type that our system really can not afford to absorb.

7 There may be a longer statute of limitations period for section 1981 
actions, unlike the rather brief limitations period provided for in Title 
VII (Either 180 or 300 days depending on the particular state) because 
section 1981 derives its statute of limitations from the appropriate state 
tort statute of limitations. The appropriate tort statute of limitations is 
generally longer than those allowed in Title VII actions. See Goodman v. 
Lukens Steel Co., supra.



10

not entitled to compensatory or punitive damages under Title VII. 
See, Schlei and Grossman, Employment Discrimination Law 
1452, n.153, 154 (1983); this type of relief is available under 
section 1981. Id}

1. Reconsideration Of Runyon Has Implications Far Beyond 
Employment Discrimination.

Section 1981 is not limited to areas of employment discrimina­
tion. It encompasses other areas of contractual rights.

In the years since Runyon was decided courts have applied 42 
U.S.C. section 1981 not only to remedy employment discrimina­
tion, but to vindicate a panoply of civil rights. It is a sad comment 
indeed that in the years since 1976 a law enacted in 1866 has still 
so much vitality in remedying racial discrimination. The following 
cases lay testimony to just how compelling the need continues to 
be for a vigorous application of section 1981 in the struggle to 
provide equal rights for all.

In the battle for equal education, section 1981 has continued to 
provide an effective weapon. For example, section 1981 was held 
in several post-Runyon cases to prohibit the denial of admission 
to private schools because of a child s race. See Riley v. 
Adirondack Southern School for Girls, 541 F.2d 1124 (5th Cir. 
1976); Brown v. Dade Christian Schools, 556 F.2d 310 (5th Cir.), 
reh g denied, 581 F.2d 472, cert, denied. 434 U.S. 1063 (1978) 
(school’s policy on non-integration prohibited by section 1981); 
Darensbourg v. Dufrene, 460 F.Supp. 662 (E.D. La. 1978) 
(section 1981 bans selection of children in a nursery school based

1 Unlike Title VII, Section 1981 does not have any exhaustion 
requirements and therefore an aggrieved party presently can get into 
court very quickly. One need not wait for the processing of his or her 
charge by an agency that has been notoriously slow in processing 
charges See Occidental Life Insurance Co. v. Equal Employment 
Opportunity Commission. 432 U.S. 355, 359, 369 n.24 (1977). See also 
Selected Testimony of Chairman of U.S. Equal Employment Opportu­
nity Commission reported in Daily Labor Report D-l-D-3 (March 30, 
1988); Age Discrimination Claim Assistance Act, Pub. L. No. 100-283 
(extending the statute of limitations in cases not processed by the 
E.E.O.C. within the limitations period).

on racial criteria); cf. Gonzalez v. Southern Methodist University, 
536 F.2d 1071 (5th Cir.), reh'g denied, cert, denied, 430 U.S. 987 
(1977) (plaintiff stated but did not prove a cause of action under 
section where she alleged that she was denied admission to 
private law school because she is Mexican-American).

Section 1981 also requires commercial businesses to afford 
blacks the same treatment it affords whites. Therefore, 
photographing “suspicious” black customers of a bank as part of a 
surveillance program instituted at the behest of the police states a 
cause of action under section 1981. Hall v. Pennsylvania State 
Police, 570 F.2d 86 (3rd Cir. 1978). Similarly, allegations that a 
hospital refused to award a contract for security services to a 
company owned and operated by a black man fall within the 
ambit of section 1981. Howard Security Services, Inc. v. The 
Johns Hopkins Hospital, 516 F.Supp. 508 (D.Md. 1981). Credit 
companies are also prohibited from refusing credit for racially 
discriminatory reasons.

Indeed, the scope of section 1981 has been greatly expanded in 
recent years to bring many others within its protective fold. For 
example, section 1981 has jealously guarded rights of whites and 
blacks to associate with one another in private settings. In Weaver 
v. Gross, 605 F.Supp. 210 (D.D.C. 1985), the Court held that a 
white female bartender at an exclusive club who was allegedly 
discharged due to her association with a black man has standing 
to sue under section 1981. Similarly in Fiedler v. Marumsco 
Christian Children School, 631 F.2d 1144 (4th Cir. 1980), the 
expulsion of a white female student based on her relationship with 
a black male student was held to be remediable under section 
1981.

Racial barriers to equal housing have been increasingly elimi­
nated owing in large part to the vigorous interpretation given 
section 1981 in Runyon. Section 1981 has continued to be 
effective in outlawing discriminatory refusals to rent to black 
families. Gore v. Turner, 563 F.2d 159 (5th Cir. 1977). In one 
related case, the statute was applied to bar the dismissal of a 
rental secretary who refused to follow her employer’s policy of 
racial discrimination in showing and renting apartments. Wilkey 
v. Pyramid Construction Co., 619 F.Supp. 1453 (D.Conn. 1985).



In another case, section 1981 provided a vehicle to challenge an 
attempt by whites to purchase the home of a white neighbor in 
order to prevent the sale of the home to a black family. Sutton v. 
Bloom, 710 F.2d 1188 (6th Cir.), cert, denied, 464 U.S. 1973 
(1984).

Community facilities have been made more accessible to 
blacks due to the application of section 1981 to private discrimi­
nation. See Wright v. The Salisbury Club, 632 F.2d 309 (4th Cir. 
1980) (where race is the only selective criteria for membership in 
housing subdivision country club.)

Indeed, while the “availability of lawful means of vindicating 
the right to equal treatment has not eradicated discriminatory 
evils, . . .  it does reflect a social commitment to achieving that 
goal.” Choudhury v. Polytechnic Institute o f New York, 735 F.2d 
38, 39 (2nd Cir. 1984). That commitment is as crucial now as it 
was in 1976 and should not be abandoned by this Court. By 
overruling Runyon, there would be no adequate federal remedy 
for a large number of circumstances now covered by section 
1981.’ Minorities would be limited to possible vindication of these

* For example, amicus Cleveland was denied the opportunity to 
purchase jewelry at a particular jewelry store by the owner’s refusal to 
operate the electrical lock system so that he could enter the store to 
make a purchase. This practice has received some notoriety in the 
popular press. See New Republic, The Jeweler's Dilemma, pp. 18-28 
(Nov. 10, 1986). See also Tillman v. Wheaton-Home Recreation Ass n, 
supra.

Ironically even the remaining damage possibilities under section 1981 
would be curtailed in employment actions. This Court has determined 
that the Federal Government is not subject to employment actions under 
section 1981 in Brown v. General Services Administration, 425 U.S. 820 
(1976). The clear weight of authority in the lower courts that have 
addressed the issue have determined that the Eleventh Amendment 
would protect the states from damage awards including back pay 
awards. See, Schlei and Grossman, Employment Discrimination Law 
674 n.16 (1983)

Likewise, recovering a monetary award from the individual would be 
precluded under the logic of Brandon v. Holt, 469 U.S. 464 (1985). And 
the award of punitive damages against a municipality would be similarly

rights under common law theories or actions under state statutes. 
It is not the intent of this brief to suggest that state courts are not 
as able to protect the civil rights qf any particular litigant, but in 
all likelihood, there would not be a comparable body of law 
approaching that presently established in the federal court system 
under section 1981. In the area of civil rights law, making a 
“federal case” out of a lawsuit loses the pejorative connotations. 
The Federal Courts have, in recent history, been considered to be 
a fortress against racial discrimination. There is something to be 
lost by having that fortress subjected to judicial urban renewal.

precluded under City of Newport v. Fact Concerts, Inc., 453 U.S. 247 
(1981).



22

CONCLUSION

For the reasons stated above, this Court should affirm its 
holding in Runyon v. McCrary.

Respectfully submitted,

William C. McNeill, III* 
Employment Law Center 

1663 Mission Street 
San Francisco, CA 94103 
(415) 864-8848 

Nathaniel Colley 
Western Region-NAACP 

1810 “S" Street 
Sacramento, CA 95814 
(916) 446-7584

Robert L. Harris 
Charles Houston Bar 

Association 
77 Beale Street 
P.O. Box 7442 
San Francisco, CA 94120 
(415) 972-6651

Shauna Marshall 
Equal Rights Advocates 

1370 Mission Street 
4th Floor
San Francisco, CA 94103 
(415) 621-0505 

Eva Jefferson Paterson 
301 Mission Street 
Suite 400
San Francisco, CA 94105 
(415) 543-9444

Valerie D. Toohey 
Morrison & Fof.rster 

345 California Street 
35th Floor
San Francisco, CA 94104 
(415) 434-7486

’Counsel of Record
Counsel for Amici Curiae