McCrary v Runyon Brief Amicus Curiae

    IN THE

P m hd m (ttmtrt of JVppeals
FOR THE FOURTH CIRCUIT

No. 73-2348

MICHAEL C. McCRARY, etc., et al., Plaintiff-Appellees,

v.

RUSSELL L. RUNYON, et al., Defendants, 

and

SOUTHERN INDEPENDENT SCHOOL ASS’N, Intervenor-Appellant.

No. 73-2349

MICHAEL C. McCRARY, etc., et al., Plaintiff-Appellees,

v.

RUSSELL L. RUNYON, et al., Defendant-Appellants, 

and

SOUTHERN INDEPENDENT SCHOOL ASS’N, Intervenor.

No. 73-2351

COLIN M. GONZALES, etc., et al., Plaintiff-Appellees,

v.

FAIRFAX-BREWSTER SCHOOL, INC., Defendant-Appellant.

Appeals from the United States District Court 
for the Eastern District of Virginia at Alexandria

BRIEF FO R  COUNCIL FO R  AMERICAN PRIVATE EDUCATION, 
NATIONAL ASSOCIATION OF INDEPENDENT SCHOOLS A N D  
SOUTHERN ASSOCIATION OF INDEPENDENT SCHOOLS AS 
AMICUS CURIAE

THOMAS J. SCHWAB

616 Investment Building 
Washington, D. C. 20005 
783-8730

Attorney fo r  amici curiae

THE CASILLAS PRESS, INC.-1717 K Street, N. W.-Washington, D. C.-223-1220



TABLE OF CONTENTS

Page

THE INTEREST OF AMICI CURIAE. ....................................±

INTRODUCTION......................................................3

ARGUMENT................................... ..................... 6

Application of 42 U.S.C., Sec. 1981 so as to 
Prohibit Rejection by Appellant Schools of 
Appellees because Appellees were Black Does 
Not Violate any Constitutional Rights of 
Appellant Schools or of Parents of Children 
who Attend them or of Private Schools Generally

CONCLUSION. . . . . . . . . . . . . . . . . . .  ................. 20

TABLE OF GASES

Bolling v. Sharpe, 347 U.S. 497 (1954)........................... 16

Bond v. Floyd, 385 U.S. 116 (1966)............................... 10

Brown v. Gaston County Dyeing Machine Company, 457 F. 2d 1377
(4th Cir. 1972) . . 5

District of Columbia v. Thompson Co., 346 U.S. 100 (1953) • • • • 19

Elfbrandt v. Russell, 3&4 U.S. 11 (1966)..........   10

Farrington v. Tokushige, 11 F. 2d 719 (9th Cir. 1926),
aff'd 273 U.S. 284 (1927).............. 7

Green v. Connally, 330 F. Supp. 1150 (D.B.C. 1971) f
aff'd sub. nom. Coit v. Green, 404 U.S. 997 18, 19

(1971) •

Grier v. Specialized Skills, Inc., 326 F. Supp. 856
(W.D.N.C. 1971) ..............  5

Griffin v. Breckenridge, 403 U.S. 88 (1971).....................  19

Griggs v. Duke Power Co., 401 U.S. 424 (1971)................... 20

Griswold v. Connecticut, 381 U.S. 479 (1965)........ * ..........  11

Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964). . . 19 
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) .............. 5 , 19



Meyer v. Nebraska, 262 U.S. 390 (1923)• . . . . . . . . . . . . . .  7

Meyerkorth v. State, 173 Neb. 889, 115 N.W. 2d 585 (1962) ........ 7

Murray v. Jamison, 333 F. Supp. 1379 (W.D.N.C. 1971). . . . . . . .  10

N.A.A.C.P. v. Alabama, 357 U.S. 449 (1958).........................  10, 11

N.A.A.C.P. v. Alabama, 377 U.S. 288 (1964). .........................n

Norwood v. Harrison, 413 U.S. 455 (1973)...........................  6, 17, 18, 19

Pierce v. Society of Sisters, 268 U.S. 510 (1925)............ • • 6, 14

Schneider v. Irvington, 308 U.S. 147....................... . . . .  10

Schneider v. Smith, 390 U.S. 17 (1968). . . . . . . . . .  ........  10

Schneidenaan v. United States, 320 U.S. 118 (1943). . . . . . . . .  10

Scott v. Young, 421 F. 2d 143 (4th Cir. 1970) . . . . . . . . . . .  5

Sims v. Order of United Commercial Travelers of America,
343 F. Supp. 112 (D. Mass. 1972). . . . . .  5

State v. Superior Court, 55 W. 2d 177, 3^6 P. 2d 999 (1959) . . . .  7

State v. Williams, 253 N.C. 337, 117 S.E. 2d 444 (i960) .......... 7

Tillman v. Wheaton Haven Recreational Association, Inc.,
410 U.S. 431 (1973)...............5, 7 , 19

United States v. Hunter, 459 F. 2d 205 (4th Cir. 1972),
cert. den. 409 U.S. 931* (1972).......... 20

United States v. Korner, 56 F. Supp. 242 (S.D. Cal. 1944)........ 10

United States v. Medical Society of South Carolina,
298 F. Supp. 145 (D.S.C. 1969) ..........  5

United States v. Robel, 389 U.S. 258 (1967) ....................... 10

West Coast Hotel v. Parrish, 3°0 U.S. 379 (1937). . . . . . . . . .  16

Wisconsin v. Yoder, 406 U.S. 205 (1972) ...........................  6

Wold v. Shoreline School District, 363 U.S. 8l4 . . . . . . . . . .  7

Zucht v. King, 260 U.S. 174 (1922)................................. 7



TABLE OF STATUTES
Page

28 U.S.C., Section 1981. . . . .  ...............................  3

k2 U.S.C., Section 2000a . .......................   19

k2 U.S.C., Section 2000e . .................  19

k2 U.S.C., Section 36OI. . . .  ....................... . . . . .  19



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 73-231*8

MICHAEL C. McCRAHY, etc., et al.,
Plaintiff-Appellees, 

v.

RUSSELL L. RUNYON, et al.,
Defendants, 

and
SOUTHERN INDEPENDENT SCHOOL ASS'N,

Intervenor- Appellant.

No. 73-23^9

MICHAEL C. McCRARY, etc., et al.,
Plaintiff“Appellees,

v .

RUSSELL L. RUNYON, et al.,
Defendant-Appellants,

and
SOUTHERN INDEPENDENT SCHOOL ASS'N 

Intervenor.

No. 73“2351

COLIN M. GONZALES, etc., et al.,
Plaintiff-Appellees,

v.

FAIRFAX-BREWSTER SCHOOL, INC.,
Defendant-Appellant.

Appeals from the United States District Court 
for the Eastern District of Virginia at Alexandria



BRIEF FOR COUNCIL FOR AMERICAN PRIVATE EDUCATION, 
NATIONAL ASSOCIATION OF INDEPENDENT SCHOOLS AND 
SOUTHER! ASSOCIATION OF INDEPENDENT SCHOOLS AS 
AMICI CURIAE

THE INTEREST OF AMICI CURIAE

This brief is submitted by three organizations, each of which is, 

directly or indirectly, an association of private schools. The Council for 

American Private Education is an association of ten groups, each of which is 

itself an association of private schools. The Council’s member groups are tin 

following:

American Lutheran Church, Division of Parish Education 
Friends Council on Education
Lutheran Church - Missouri Synod, Board of Parish Education
National Association of Christian Schools
National Association of Episcopal Schools
National Association of Independent Schools
National Catholic Educational Association
National Society for Hebrew Day Schools
National Union of Christian Schools
U. S. Catholic Conference.

The National Association of Independent Schools, the second of amic: 

curiae, has been in existence in its present form since 1962, when it result© 

from a merger of two independent schools associations dating back to 1924 and 

1942 respectively. Its membership consists of 734 elementary and secondary 

schools of various kinds throughout the U. S.; there are 53 Affiliate member 

independent schools outside the U. S.; and there are 52 Association members, 

made up of 28 state and regional associations of independent schools; four d 

nominational associations; 9 special purpose associations; and seven admini; 

trators’ and teachers’ associations. Almost all of the state and regional as' 

sociations of schools are made up of schools which themselves are NAlS member 

The third amici curiae is the Southern Association of Independent 

Schools (not to be confused with the Southern Independent School Association,



2.

Intervenor below), the membership of which includes one hundred thirty-eight 

private schools.

Allowing for some overlapping in membership among the three associa­

tions, amici curiae as a group include within their membership some twelve to 

fifteen thousand private schools, accounting for well over ninety percent of 

the non-public school enrollment in the United States.

This litigation presented for decision by the Court below the issue 

of whether racial discrimination against black persons by defendant private 

schools constituted a violation of the Civil Rights Act of 1866, k2 U.S.C., 

Sec. 1981. As appears from the decision of the Court below, Southern Inde­

pendent School Association intervened as a party defendant, asserting that it 

represented "non profit, private white schools in seven states and the class 

of all similarly situated schools and their associated students and parents". 

The Court below held that racial discrimination against black persons by de­

fendant private schools was a violation of k2 U.S.C., Sec. 1981.

Intervenor, Southern Independent School Association, argued below 

and has argued in its brief in this Court that k2 U.S.C., Sec. 1981, properly 

construed, does not prohibit discrimination by private schools, and that the 

contrary construction would constitute a violation of rights of private 

schools, their students and parents, under the United States Constitution. 

Implicit in Intervenor*s position, particularly in light of the assertions in 

its Motion to Intervene, is that Intervenor speaks for and expresses the 

views of a significant segment of private schools.

Amici curiae do not purport to speak for all of the private schools 

which are affiliated with them. They do, however, express the views of their 

associations, and of a very sizeable number of private schools which, in af­



3

filiating with, one or sore of amici curiae, have placed themselves on record 

as being unalterably opposed to the practice of racial discrimination against 

black persons in private education. Ihey submit this brief in order that 

their views be known to this Court and in order that this Court understand 

that the associations representing the overwhelming percentage of private 

schools in this country believe that the decision of the Court below was cor* 

rect and that it should be affirmed by this Court, that the application of 

42 U.S.C., Sec. 1981 to private schools as determined by the Court below does 

not constitute an unwanted or unreasonable interference with what they con­

sider to be the legitimate operations of private schools, and, further, that 

they welcome the decision of the Court below as an added means by which the 

stain of racial discrimination in American education ceua be the sooner re­

moved, and the opportunity of a private education be available to those blacl 

persons as well as those white persons who seek it and can qualify for it.

INTRODUCTION

The purpose of this brief is to bring before the Court the point ol 

view of amici curiae only on those issues in the case which are particularly 

within their purview and concerning which their first hand knowledge and ex­

perience may be helpful to the Court. Amici curiae will therefore address 

themselves in this brief only to the issue of whether 42 U.S.C., Sec. 198l#

A/ "All persons within the jurisdiction of the United States shall have the 

same right in every State and Territory to make and enforce contracts . . . 

as is enjoyed by white citizens . . (42 U.S.C., Sec. 1981)



4.

as applied by the Court below, constitutes a violation of any constitutional
S J

rights of private schools or of the parents of children who attend them.

As to the other principal legal issue in the case, which is whether Section 

1981 was properly construed by the Court below as prohibiting discrimination 

against black persons in admission to appellant private schools, amici curiae 

will limit themselves to submitting that the decision of the Court below was

£/ The designation "private schools" as used throughout this brief refers to 

schools which, though they render a public service recognised by governments, 

are private in the sense that they are not operated by governments. In that 

sense, appellant schools, those affiliated with Intervener and those affilia­

ted with amici curiae are all "private schools". In using the ter® in this 

way, however, it must be kept in mind that appellant schools are not "private" 

as that term is used in another sense to refer to the essentially personal 

relationship involved when a group of persons, usually small in number and 

having some common element of interest, gather together for a social or simi­

lar common purpose. The record before the Court below makes clear that both 

appellant schools solicited applicants for membership through the mails and 

through telephone directory advertising. Though not part of the record, 

there can be little doubt that the majority of schools affiliated with Inter- 

venor and with amici curiae are not private in this latter sense.



5.

not only correct but was required in view of the prior decisions of the United 

States Supreme Court and of this and other Courts of Appeal, which make clear 

that Section 1981 bars discrimination against black persons in contractural 

relationships, or in the words of the Supreme Court describing the Act of Con­

gress in which Section 1981 first appeared, that it "meant exactly what it 

said". Jones v, 392 U.S. 409, 422 (1968); m t e S J h

Wheaton Haven Recreational^s^ociatlQiLLJ^g^.^ 410 U.S. 4 31 (1973); y,fc
3/

Young. 421 F. 2d 143 (4th Cir. 1970); «... IBS 1 >
326 F. Supp. 856 (W.D.N.C. 1971); Brown v. Gaston County Pyeiflg MacMne_SQEE 

Twnvj 457 F. 2d 1377 (4th Cir. 1972); United Sta&UL.£> H^ctjcal gQQls&y. ,.o£ 

South Carolina. 298 F. Supp. 145 (D.S.C. 1969);  QS fiHC

mercial Travelers of __ America > 343 F. Supp. 112 (D. Mass. 1972).

3/ This Court determined the applicability of Section 1981 in the Sgfijdi case 

upon the basis that the right of admission to the facility there involved was 

bestowed in return for a fee. Precisely the same can be said with respect to 

the case at bar. The conclusion in Scott, that the opportunity to enter into 

this contract of admission could not be denied on the ground that plaintiff 

was black, applies equally to the facts of the case at bar and thus requires

the same result.



6.

ARGUMENT

APPLICATION OF k2 U.S.C., SEC. 19&L SO AS TO PROHIBIT REJECTION BY APPELLANT 

SCHOOLS OF APPELLEES BECAUSE APPELLEES WERE BLACK DOES NOT VIOLATE ANY CON­

STITUTIONAL RIGHTS OF APPELLANT SCHOOLS OR OF PARENTS OF CHILDREN WHO ATTEND 

THEM OR OF PRIVATE SCHOOLS GENERALLY.

The constitutional right of private schools to exist, and of par­

ents to send their children to attend them rather than attending public 

schools, was clearly decided by the United States Supreme Court almost fifty 

years ago, in , 268 U.S. 510 (1925), and reaf­

firmed frequently since then and as recently as two years ago in Wisconsin 

v. Yoder. 4o6 U.S. 205 (1972). As associations of private schools, amici 

curiae look upon Pierce and its progeny as establishing a sort of "bill of 

rights" for private schools and rightfully recognizing the unique and impor­

tant role of private schools in our system and the contribution which they 

make to American education. Accordingly, amici curiae would be the last to 

question the validity or the vitality of these cases. But, as pointed out 

by the Chief Justice in Norwood v. Harrison. ^13 U.S. ^55 (1973)> the case 

upon which Intervenor relies so heavily in its brief in this Court, "the 

Court's holding in Pierce is not without limits", and, quoting from Mr. 

Justice White in Yoder. Pierce "held simply that while a State may posit 

(educational) standards, it may not pre-empt the educational process by 

requiring children to attend public schools", *̂13 U.S. at 46l. In short, 

while Pierce and Yoder establish very clearly the right of private schools 

to exist, they do not establish the right of private schools to be free 

from reasonable legislative regulation.



7.

Private schools have been held subject to regulations concerning 

their educational adequacy, failing which attendance at the private school is 

held not a defense to an action under a state compulsory attendance law.

See, for example, St&t.gLy, 55 W. 2d 177, 3^6 P. 2d 999 (1959),

cert. den. sub. nom. Wpld,. y t. ShQrslips Sfltegl...Pls1<riQ.t, 363 U.S. 8l4; Meyeg- 

korth v. State. 173 Neb. 889, 115 N.W. 2d 585 (19 6 2). And private schools, 

like many other private institutions, are subject to reasonable regulation by 

state or federal government in furtherance of legitimate legislative purposes 

and provided that constitutional rights are not violated. Meyer v. Nebraska. 

262 U.S. 390 (1923); Farrlnaton y, Tokushige. 11 F 2d 710 (9th Gir. 1926), 

aff’d 273 U.S. 20k (1927); Z a s h UjJOag, 260 U.S. Yfk (1922); Sj&le.v. 

Williaias. 253 N.C. 337, 117 S.E. 2d kkk (i960).
There being no doubt that Section 1981 was validly enacted by Con­

gress under authority of the Thirteenth Amendment, Tillman y. Wheaton Haven 

Recreational Association. Inc.. ^10 U.S. ^31 (1973), there is no question in 

this case as to the legitimate legislative purpose of this statute. Accord­

ingly, the only question remaining is whether the statute as applied by the 

Court below violates a recognized constitutional right.

In order for this Court to consider this issue, it must first con­

sider the way in which Section 1981 affects appellant schools, which is, of 

course, the same way in which it affects all of the schools affiliated with 

amici curiae. And in view of some of the extravagant assertions of appel­

lants concerning the impact of the law, it will be helpful to approach this 

problem in terms of what Section 1981 does not do, as well as in terms of 

what it does. Since the effect upon appellants is also the effect upon our



8

affiliates, amici curiae have a particular Interest in a clear understanding 

of the limitations of this law.

In the first place, it is clear that Hie statute in no way prohibits 

the right to teach unpopular theories concerning race, concerning the value or 

harm of racial segregation, or concerning anything else. Any indication to 

the contrary is wholly false. Amici curiae, numbering among their affiliated 

schools representatives of groups which have historically been considered 

minorities in one country or another and in one time or smother, are as sensi­

tive as anyone, and perhaps more than most, to the importance of free thinking 

and free teaching, particularly where the education of young people is involved. 

Amici curiae would resist any effort on the part of government to control 

thought processes and teaching in their schools and elsewhere, and would be 

among the first to challenge any law which had such an effect, whether the 

limitation was directed to a belief which they found compatible, or, as would 

be the case with the beliefs espoused by Intervenor in its brief in this Court, 

one with which they are in sharp disagreement. But amici curiae support the 

decision of the Court below without reservation because it is clear from the 

wording of Section 1981 and from the holding of the Court below that the free­

dom to teach or speak about ideas or theories, any ideas or theories, is in no 

way limited by this statute as applied by Hie Court below.

Secondly, the statute as applied by the Court below in this case 

places no limitation on the simple right to associate in private for educa­

tional or other purposes. The only issue at stake in these cases is the ap­

plicability of Section 1981 to schools which are concededly open to all quali­

fied whites but are closed to all blacks, no matter how highly qualified.



9

W M l e  some Court may have to decide some day the constitutional bounds of Sec
k /

tion 19 8 1 if it is ever applied to strictly private activity, that issue is 
not before the Court in this case.

Thirdly, while Section 19 8 1 places a limitation on one criterion 

for admission to a private school, namely the criterion of whether the appli­

cant is white or black, it places no limitation on any other criteria which a 

private school may choose to use, whether of a kind generally used by many 

private schools, such as test performance, geographic location, ability to 

pay, willingness to abide by rules and regulations, etc., or whether, for 

that natter, of a kind not generally used by private schools, or even whether 

it would be considered arbitrary or unrelated to the purpose of private 

schools generally.

Fourthly, Section 19 8 1 places no limitation on the right of a pri­

vate school to concentrate its curriculum in such a way as to appeal to a 

particular religious or national group, or any other group, nor the right to 

seek applications from a particular segment of the population which might be 

expected to wish to avail itself of that kind of particularized education.

If schools which belong to the Intervenor Association, for example, wished 

to concentrate their curriculum on studies in white supremacy or wished to 

appeal for applicants among those groups which might have an interest in 

such an education, Section 19SI would not restrict such activity so long as 

the contract of admission was not denied to a black person who might, not­

withstanding this concentration of studies, wish to attend.

k j See Footnote 2 supra.



10.

In short, the single effect of Section 1981 upon appellant schools 

or upon any private school is to prohibit a refusal to admit a student because 

he or she is black. With -amt in mind, we turn to appellants' contention that 

this single limitation on their freedom of action is in violation of the Con­

stitution.

The process by which a Court evaluates an attack upon a legislative 

act on the ground that it violates an asserted constitutional right involves 

a consideration of the precise effect of the legislation upon the asserted 

right and of the substantiality of the reasons advanced in support of the 

legislation. Schneider v ... Igylagfeoa» 308 U.S. 147, l6l; see .Y.i

Alabama. 357 u.s. 449, ^63 (1958) wad 389 u.s. 258,

264 (1967).

As indicated above, Section 1981 places no limitations whatever 

upon the rights of appellants, or of the parents whose children attend their 

schools, to free speech and free expression, which at the outset distinguishes 

this case from most of those upon which appellants rely. Application of Sec­

tion 1981 so as to prohibit racial discrimination b y  & private school does not 

involve a state enforced punishment because of one's beliefs or associations, 

as was the case in United. atfttgfi-K*̂ BBfeBl» .SMSm* M liZXaXJL^Jm iG m , 333 F. 

Supp. 1379 (W.D.N.C. 1971), and Elfbran&fc. v» Russell. 384 U.S. 11 (1966) 

(denial of employment), Schneideraan v. Unitfid.-StaAfiS. 320 U.S. Il8 (1943) 

and United States v. K h m e r . 56 F. Supp. 242 (S.D. Cal. 19^0 (revocation of 

naturalization), Schneider Xx...Smith. 390 U.S. 17 (1968) (denial of a license) 

or pond V. Flovd- 385 U.S. Il6 (1966)(denial of right of elected official to 

take seat in state legislature to which he was elected).



11.

Nor Is this a case in which the legislative act, by reason of its 

broad scope, could be found by a court to have the effect of depriving a pro­

tected relationship from the very essence of its being. In Griswold v. Conn­

ecticut. 38 1 U.S. *4-79 (1965) the Supreme Court held that Connecticut's law 

which forbade the use of contraceptives, "rather than regulating their manu­

facture or sale" had a "maximum destructive impact" upon the marriage rela­

tionship, 38 1 U.S. at *4-8 5. It is clear from the majority opinion that the 

Court was impressed by the personal and private nature of the relationship 

affected by the statute, and, as appears from the Court's quotation of lan­

guage from N.A.A.C.P. v- Alabama. 377 U.S. 288, 307 (1964), that Connecticut's 

governmental purpose had been achieved "by means which sweep unnecessarily 

broadly and thereby invade the area of protected freedoms", 381 U.S. at 485. 

And in N.A.A.C.P. v. Alabama. 357 U.S. 449 (1958), which is the other case 

principally relied upon by appellants, the Court found that the effort of the 

state to compel disclosure of membership in the association was "likely to 

affect adversely the ability of (the association) and its members to pursue 

their collective effort to foster beliefs which they admittedly have a right 

to advocate", 357 U.S. at 462-3.
The right to associate for purposes of free speech or political 

activity, and the very private association of the marriage relationship, are 

clearly distinguishable from the right to associate for the purpose of opera­

ting a school which seeks applicants through direct mail and through tele­

phone directory advertising. Indeed, there is nothing in the record to indi­

cate that appellant schools involve any kind of act of "association" at all, 

at least as that term is normally understood, but are rather more properly



12

viewed as institutions established not by the parents of children now attend­

ing the schools but by others, and which, as the record discloses, solicit 

their membership rather than having been formed by their membership. More­

over, even if such a school is considered to be an association entitled to 

constitutional protection, there is surely a difference between a limitation 

which affects the right to operate the school so formed in but one respect, 

prohibiting the exclusion of one class of citizens, and limitations such as 

those found by the Supreme Court in Griswold and N.A.A.C.P.. which for all 

practical purposes, destroyed the association or the relationship found to 

be entitled to constitutional protection.

Amici curiae submit to this Court that the prohibition of the 

"right" to discriminate against blacks because of their race cannot be con­

sidered a fundamental deprivation of the right to associate as a private 

school. Amici curiae, and the schools affiliated with than, have demonstra­

ted by their own actions that they do not consider the right to discriminate 

against blacks, or, for that matter, the right to discriminate against any 

particular group, as essential to any legitimate rights of private schools. 

Indeed, they consider that discrimination in schools, both private and pub­

lic, has been detrimental, rather than supportive, to the proper goals of 

private education in America. Thus, the principle of non-discrimination on 

the grounds of race is not only one to which the organizations affiliated 

with amici curiae subscribe, but it is a stated principle adopted by all 

members of the Council for American Private Education; it is a stated 

principle which is a requirement for all members of the Southern Associa­

tion of Independent Schools, notwithstanding the location of such schools



13

in the same area of the country as the schools which are affiliated with In­

tervener; and it is a stated principle which is a requirement for a n  schools 

affiliated with the National Association of Independent Schools. Moreover, a 

number of affiliates of amici curiae, recognizing the legacy of slavery and of 

the discrimination practiced against blacks in this country since slavery, in 

the field of education, both public and private, as well as in other areas, 

have adopted or supported various programs seeking not only the implementation 

of policies of non-discrimination, but affirmative action programs designed tc 

create educational opportunities for minority students, particularly black
l l

students. Amici curiae make these representations to the Court not for the

For example, an applicant for admission to the National Association of In­

dependent Schools must submit a statement "that the school’s policies provide 

for admission of students & employment of personnel without regard to race or 

color (if not contained in the school catalogue)"; the NAIS or its affiliates 

have supported such outreach programs as A Better Chance, Inc., Broad Jump, 

Inc., the Independent Schools Opportunity Project, the Negro Student Fund, the 

Supplementary Program of Hartford in Education Reinforcement and Enrichment, 

the Minority Teacher Recruitment Program; a policy of admission policies 

without regard to race or color was urged upon its affiliates by the Southern 

Association of Independent Schools in 19^9, and became a requirement for ad­

mission to the Association in 1971; the constitution of the National Asso­

ciation of Episcopal Schools, Inc. states, paragraph 2, that a school eligible 

for voting membership in the Association shall be one "whose admission policic 

do not exclude any candidate on the basis of race or color".



purpose of exhibiting a "holier than thou" attitude, and not in order to flaunt 

obedience to what the Court below has held to be the law of the land, but, 

rather, to demonstrate that the application of Section 1981 to private schools 

is in harmony with, not in opposition to, the views on the subject of discrim­

ination of a very large number of private schools and that depriving private 

schools of the "right" to discriminate against black persons does not deprive 

them of a right which this group considers essential to their operations or to 

the principles of their independence which they hold dear*

'The brief submitted by Intervener suggests (page 32) that the exis­

tence of private schools identified with particular religions or nationalities 

supports its views as to the importance of a right to discriminate against 

blacks in admission to its members* schools. Nothing could be further from 

the truth. Intervener fails to perceive a critical distinction between the 

desire to provide a specialized education, or one with particular meaning and 

importance to a particular group, on the ©ne hand, and a desire to exclude 

from the benefits of that particularized education those who may seek it but 

who do not belong to the group who would normally be most attracted to that 

education® Among the schools affiliated with amici curiae are many which are 

operated and maintained by a particular religious, or, in some cases national, 

group. Their right to maintain such schools, and the right of parents who so 

desire to send their children to such schools is established in Pierce v. 

Society of Sisters. supra, and is a valued right. But Intervenor's assertion 

would have validity if and only if these schools claimed not only the right 

to exist and to educate those children whose parents wish them to attend,

but also the absolute right to exclude other children solely because they do



15.

not belong to the group which operates the school. This is a right which 

the schools associated with amici curiae do not claim and which they find 

repugnant to their concepts of education, whether public or private, in a 

free society. As a matter of fact, the enrollments of whose schools affili­

ated with amici curiae which are identified with a particular religion or 

nationality frequently include persons who are not members of the particular 
religious faith or nationality.

Ifor is the foregoing argument nullified by the fact that those 

schools affiliated with amici curiae which offer an education directed 

towards a particular religious or national group do not fit into the cate­

gory represented by the schools affiliated with Intervenor, namely, schools 

directed towards a particular group (i.e., white persons) which, by defini­

tion, does not include the class of persons whose rights are specifically



16.

y
protected by Section 1981 (i.e., black persons). If, acting under sppropri- 

ate Constitutional authority, and finding that past discrimination against a 

Minority has had such detrimental effects, and threatens future detrimental 

effects, Congress were to determine that legislative protection is needed,

6/ Intervener1s argument on page 33 of Its brief, that race in Section 1901 

is an unsupportable classification for equal protection purposes is hardly 

worthy of reply, in view of the fact of slavery and the historic discrimina­

tion against blacks, and in view of the fact that it is the benefit of the 

statute, not its burden or its impact, which falls upon the particular group. 

In West Coast Bate! y^J&rzi£h, 300 U.S. 379, ^00 (1937), the Supreme Court 

upheld legislation protecting only women, saying "This Court has frequently 

held that the legislative authority, acting within its proper field, is not 

bound to extend its regulation to all cases which it might properly reach. 

The Legislature is free to recognize degrees of harm and it may confine its 

restrictions to those classes of cases where the need is deemed to be clear­

est". It is strange logic indeed which holds that because Congress cannot 

discriminate on the grounds of race (Bolling—Yjl Shaipe, 3^7 U.S. 497 (195*0, 

it cannot legislate to prohibit racial discrimination. The cases upholding 

Congressional enactments against racial discrimination sake clear the ab­

surdity of the suggestion. See cases cited on page 19 below.



17

and were to enact a law, similar to Section 19 8 1, safeguarding the rights of 

some other minority, amici curiae would argue just as strenuously in support 

of that legislation as they now argue in support of Section 19 8 1. For the 

crucial point here is not which minority is protected hut that the right of 

a private school to emphasize and concentrate on the thoughts, philosophies 

or practices of a particular group does not depend for its vitality upon the 

right to refuse the benefits of that education to one not a member of that 

group.

Appellants® asserted constitutional right, therefore, comes down 

in the final analysis to the right to practice racial discrimination. Amici 

curiae submit that the language of the Supreme Court in Norwood v. Harrison. 

surra. rather than supporting this claim, demonstrates its invalidity:

"In contrast, although the Constitution does not 
proscribe private bias, it places no value on 
discrimination as it does on the values inherent 
in the Free Exercise Clause. Invidious private 
discrimination may be characterized as a form of 
exercising freedom of association protected by 
the First Amendment, hut it has never been accorded



18

affirmative constitutional protection". 4-13 U.S. at 
hQ9* I/

The constitutional importance of anti-discrimination laws was characterized 

hy the Court in Green v. Connallv. 330 F. Supp. 1150 (D.D.C. 1971)> aff'd 

sub. nom. Colt v. Green, U.S. 997 (1971)# in the following language:

2/ Intervenor suggests in its brief (pp. 12-16) that the issue of the 

applicability of Section 1981 to private schools has already been decided 

contrary to the holding of the Court below, by reason of Norwood, v. Harrison. 

supra, and Green v. Connallv. 330 F. Supp. 1150 (D.D.C. 1971)# aff'd sub. 
nom. Colt v. Green. kOk U.S. 997 (1971). Bit in neither of these cases did 

the Court have before it a claim based upon Section 1981 by a person claim­

ing to be one protected by this statute, nor would a holding in either case 

that Section 1981 did or did not prohibit a refusal to admit a black student 

decide the issue presented for decision in each case, namely, the constitu­

tionality of making a state textbook program available to schools which dis­

criminated against blacks, in Norwood, and the allowance of federal tax de­

ductions for contributions to discriminating schools in Green. In Green, 

the Court, after referring to the interest of a state in preventing racial 

discrimination, indicated that "whether such a state interest is sufficiently 

compelling to justify outright prohibition of racial discrimination in edu­

cation by private or public schools . . .  is a matter we are not called upon 

to determine in this case". 330 F. Supp. at 1168.



19.

"There is a compelling as well as a reasonable govern­
ment interest in the interdiction of racial discrimin­
ation which stands on highest constitutional ground, 
taking into account the provisions and penumbra of 
the Amendments passed in the wake of the Civil War.
That governmental interest is dominant over other con­
stitutional interests to the extent that there is com­
plete and unavoidable conflict". 330 F. Supp at 116 7.

Even if it were to be assumed, arguendo, that Section 1981 involved 

a constitutionally recognizable limitation on appellants8 right to associate, 

this Court would nevertheless have to weigh that limitation against the sub­

stantiality of the reasons advanced in support of the law. And here again, 

the way is suggested by the Chief Justice in Moavo&d:

"And even some private discrimination is subject to 
special remedial legislation in certain circumstances 
under Sec. 2 of the Thirteenth Amendment. Congress 
has made such discrimination unlawful in other signi­
ficant contexts". 413 U.S. at 469.

The Chief Justice, in a footnote to the above quotation, cites as examples 

Griffin v. Breekenridge. 4-03 U.S. 88 (1971)> Y,t Alfred IfeyM.-Sfit,

supra, and the federal public accommodations law (42 U.S.C., Sec. 2000a et. 

seq.), the federal law against discrimination in employment (42 U.S.C., Sec. 

2000e et. seq.) and the federal fair housing law (42 U.S.C., Sec. 3601 e_fc* 

seq.). When the federal legislative enactments designed to protect the 

rights of blacks against private racial discrimination have been contested 

in the Courts, frequently in the face of arguments similar to appellants', 

that they impinge impermissibly upon the rights of those charged with dis­

crimination, they have been uniformly upheld, in the cases cited by the 

Chief Justice and in others such as TflJbman v. Wheaton-HayeiLiigcr,dati 

Association. I n c . . supia>  jfeMt.--.Qf. A tla n ta  M dtel Y» UfUldd 379 U.S.

241 (1964), District of Columbia v. ThMPgQB 346 U.S. 100 (1953),



20

Griggs v. Duke Power Co.. 401 U.S. 424 (1971) and.

459 F. 2d 205 (4th Cir. 1972), cert. den. 409 U.S. 934 (1972). In short, 

while the Courts have interpreted the Constitution as providing the maximum 

possible freedom from unnecessary or unreasonable governmental limitations 

on private activity, they have come to view the freedom to discriminate 

against black persons as a practice which must give way to the public policy 

reflected in anti-discriminati.on laws, and they have done so because the 

minimal limitations of these laws are clearly justified by the legislatively- 

recognized need to take steps against the persistent and devastating dis­

crimination against blacks by white people and white institutions which has 

plagued America for so long.

CONCLUSION

For the reasons set forth above, in addition to the reasons set 

forth in appellees' brief, amici curiae ask that the decision of the Court 

helow be affirmed.

Respectfully submitted,

Thomas J. Sdhwab

6l6 Investment Building 
Washington, D. C. 20005

783-8730

Attorney for amici curiae

January 25, 1974