Patterson v. McLean Credit Union Brief Amici Curiae of the Assocation of the Bar of the City of New York et al.

    No. 87-107

In the

(Eourt nf tlj£ BnitEii States
October term, 1988

Brenda Patterson,
Petitioner,

—v.—

McLean Credit Union,
Respondent.

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

BRIEF AMICI CURIAE OF THE ASSOCIATION OF 
THE BAR OF THE CITY OF NEW YORK AND THE 
NEW YORK COUNTY LAWYERS’ ASSOCIATION ON 

BEHALF OF PETITIONER PATTERSON

Sheldon Oliensis, President 
Jonathan Lang*
Howard J. Aibel 
The Association O f The Bar 

O f The City O f New York 
42 West 44th Street 
New York, New York 10036-6690 
(212) 307-6262

•Counsel o f  Record

O f Counsel: 
Charles S. Sims

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TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ............................................ iii
INTEREST OF AMICI CURIAE ................................................. 1
INTRODUCTION AND SUMMARY OF ARGUMENT .........  3

I. RUNYON v. MCCRARY IS AN INTEGRAL PART 
OF FEDERAL LAW, AND HAS BEEN EXPRESSLY 
APPROVED AND BUILT UPON BY CONGRESS . . .  5
A. Runyon follows prior settled law .............  5
B. This Court has repeatedly adhered 

to Runyon’s interpretation of
Section 1981 ...............................................  6

C. Congress approved of and built 
upon Runyon’s interpretation of 
Section 1981 even prior to the
decision in that case ..................................  8

D. Congress subsequently approved of
and built upon R u n y o n ..............................  9

E. The principle that racial discrimination 
in the private sector is unlawful and 
should be actionable is not uniaue to 
Runyon, but has been widely adopted 
and implemented by the executive 
and legislative branches and by state 
and local governments ............................  12

II. PAST STATUTORY CONSTRUCTION MUST BE
ADHERED TO WHERE OVERRULING WOULD 
CONTRAVENE RECENTLY EXPRESSED 
CONGRESSIONAL INTENT EMBODIED IN 
LEGISLATION, OR ABSENT A SHOWING 
THAT THE DECISION TO BE OVERRULED 
IS INCONSISTENT WITH SUBSEQUENT 
DECISIONS OR REPUDIATED BY SUBSEQUENT
CONGRESSIONAL ACTION ................................  15
A. Recent indications of congressional 

intent require adherence to Runyon’s 
interpretation of Section 1981 ...............  16



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Page

B. This Court’s interpretation of 
Section 1981 in Runyon should 
be adhered to because it is not 
inconsistent with related precedent 
and has not been repudiated by 
subsequent legislative action ............

UI. THE POLICIES UNDERLYING STARE DECISIS 
COUNSEL AGAINST OVERRULING RUNYON 
V. McCRARY ........................................................

CONCLUSION

25
29

Kill/

TABLE OF AUTHORITIES

Cases Page(s)

Alexander v. Gardner-Denver Co., 415
U.S. 36 (1974 )...............................................  15

Atyeska Pipeline Service Co. v. Wilderness
Society, 421 U.S. 240 (1974) ....................... 28
Amerson v. Jones Law School, Civil Action
3343-N (M.D. Ala., Aug 10,1972) .............  7
Andrews v. Louisville & Nashville R.R.
Co., 406 U.S. 320 (1972) ..............................  3

Blum v. Stenson, 465 U.S. 886 (1984) ........ 9
Bob Jones University v. United States,
461 U.S. 574 (1983) ......................................  6,9,11,12,

13,20,24

Boys Markets, Inc. v. Retail Clerks Union,
Local 770,398 U.S. 235 (1970) ...................  22
Braden v. 30th Judicial Circuit, 410 U.S.
484(1973) .....................................................  23

Brown v.GSA, 425 U.S. 820 (1976) ............ 18,20

Burnet v. Coronado Oil & Gas Co., 285
U.S. 393 (1932 ).............................................. 15
California Fed. Sav. & Loan Ass’n v.
Guerra, 107 S. Ct. 683 (1987) .....................  14

Cannon v. University o f Chicago, 441
U.S. 677 (1979 ).............................................. 18
Continental T.V., Inc. v. GTE Sylvania
Inc., 433 U.S. 36 (1977) ............................... 23



(IU)

Erie Railroad Co. v. Tompkins, 304 U.S.
64(1938) ....................................................... 24
Flood v. Kuhn, 407 U.S. 258 (1972) ...........  20
Fullilove v. Klutznick, 448 U.S.
448(1980) ..................................................... 13
Gen. Bldg. Contractors Ass’n, Inc. v.
Pennsylvania, 458 U.S. 375 (1982) ...........  7
General Electric Co. v. Gilbert,
429 U.S. 125(1976) ...................................... 28
Goodman v. Lukens Steel Co., 107 S. Ct.
2617(1987) ...................................................  6
Grier v. Specialized Skills, Inc., 326
F. Supp. 856 (W.D.N.C. 1971)................... 7
Griffin v. Breckenridge, 403 U.S. 88
(1971) ............................................................  28
Grove City College v. Bell, 465 U.S.
555(1984) .....................................................  13,28
Guardians Ass’n v. Civil Service Comm’n,
463 U.S. 582 (1983) ...................................... 20
Gulfstream Aerospace Corp. v. Mayacamas
Corp., 108 S.Ct. 1133(1988)....................... 24
Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241 (1964) ......................... 14
Hensley v. Eckerhart, 461 U.S. 424
(1983) ............................................................  9
Hernandez v. Erlenbusch, 368 F. Supp.
752 (D. Ore. 1973) ........................................ 7

Cases (cont’d) Page(s)

Howard Security Service, Inc. v. Johns
Hopkins Hospital, 516 F. Supp. 508
(D. Md. 1981) ..........................  7

Hutto v. Finney, 437 U.S. 678 (1 9 7 8 ).......... 9

Illinois Brick Co. v. Illinois, 431 U.S.
720(1977) ..................................................... 15

Johnson v. Transportation Agency, 107
S.Ct. 1442(1987) ........................................ 20,27
Jones v. Alfred H. Mayer Co., 392 U.S.
409(1968) .....................................................  6,27
Jones v. Local 520, Int’l. Union of 
Operating Engineers, 603 F.2 d 664 
(7th Cir. 1979), cert, denied, 444 U.S.
1017(1980) ...................................................  7

Laird v. Nelms, 406 U.S. 797 (1972) .........  16
Lodge 76, Int’l Ass’n of Machinists &
Aerospace Workers v. Wisconsin Employee 
Relations Comm’n, 427 U.S. 132 (1976) . . .  22

Maine v. Thiboutot, 448 U.S. 1 (1 9 8 0 )........ 16
McDonald v. Santa Fe Trail Transp. Co.,
427 U.S. 273 (1976) ......................................  7

Memphis v. Greene, 451 U.S. 100 (1981) . . .  7

Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Curran, 456 U.S. 353 (1982) ...........  17

Miller v. Fenton, 474 U.S. 104 (1985) ........ 17

Mobile v. Bolden, 446 U.S. 55 (1 9 8 0 ).......... 28

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Cases (cont’d) Page(s)



(in)

Monell v. Dep’t o f Social Services, 436
U.S. 658 (1978).............................................  3,16,23,27

Monroe v. Pape, 365 U.S. 167 (1961) .......... 5,16
Moragne v. States Marine Lines, Inc.,
398 U.S. 375 (1970) ...................................... 25,27

Newport News Shipbuilding & Dry Dock
Co. v. EEOC, 462 U.S. 669 (1983) .............  28
New York Gaslight Club, Inc. v. Carey,
447 U.S. 54 (1980) ........................................ 18
Olzman v. Lake Hills Swim Club, Inc.,
495 F.2d 1333 (2d Cir. 1974) ....................... 7
Patsy v. Board of Regents, 457 U.S. 496
(1982) .......................................................................  3,15,

17,26

Peyton v. Rowe, 391 U.S. 54 (1968) ...........  3,22

Pollack v. Farmers’ Loan & Trust Co.,
157 U.S. 429 (1895) ......................................  27

Pulliam v. Allen, 466 U.S. 522 (1984) . . . . .  9
Riverside v. Rivera, 477 U.S. 561 (1986) . . .  9
Roadway Express, Inc. v. Piper, 447 U.S.
752(1980) .....................................................  9
Runyon v. McCrary, 427 U.S. 160 (1976) .. 2,6,8,12,

16, 27

Saint Francis College v. Al-Khazraji,
107 S.Ct. 2022 (1 9 8 7 )..................................  6
Scott v. Young, 421 F.2d 143 (4th Cir.
1970), cert, denied, 398 U.S. 929 (1970) . . .  7

Cases (cont’d) Page(9)

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Shaw v. Delta Air Lines, Inc., 463 U.S.
85(1983) ....................................................... 15

Sims v. Order o f United Commercial
Travelers o f America, 343 F. Supp. 112
(D. Mass. 1972) ...........................................  7
Sinclair Refining Co. v. Atkinson, 370
U.S. 195(1962).............................................  22
Smith v. Robinson, 468 U.S. 992 (1984) . . .  28
Square D Co. v. Niagara Frontier Tarriff
Bureau, Inc., 476 U.S. 409(1986)...............  15,21

Sud v. Import Motors Limited, Inc., 379
F. Supp. 1064 (W.D. Mich. 1974) ...............  7

Townsend v. Sain, 359 U.S. 64 (1 9 5 9 )........ 17

Trafficante v. Metropolitan Life Ins. Co.,
409 U.S. 205 (1972) ...................................... 13

United States v. Medical Soc’y of 
S. Carolina, 298 F. Supp. 145 (D.S.C.
1969) ............................................................. 7%
United States v. Rabinowitz, 339 U.S.
56(1950) .......................................................  27

United States v. Rutherford, 442 U.S.
554(1979) .....................................................  16

United Steelworkers v. Weber, 443 U.S.
193(1979) .....................................................  13

Vasquez v. Hillery, 474 U.S. 254 (1986) . . .  21,27

Vietnamese Fisherman’s Ass’n v.
Knights ofKu Klux Klan, 518 F. Supp.
993 (S.D. Tex. 1981) ....................................  7

Cases (cont’d) Page(s)



(viii)

Vyatt v. Security Inn Food & Beverage, Inc.,
19 F.2d 69 (4th Cir. 1987) .........................  7
Vygant v. Bd. ofEduc., 106 S. Ct.
842(1986) ...................................................  26

tatutes
'he Handicaped Children’s 
’rotection Act of 1986, 20 U.S.C.
1415(e)(4)(B)-(G)........................................  28
3 U.S.C. § 2254(d) ..........................   17
oting Rights Act of 1965,
2 U.S.C. § 1973 ............................................ 28
2 U.S.C. § 1 9 8 1 ............................................ passim
2 U.S.C. § 1982 ............................................ passim
2 U.S.C. § 1983 ............................................ 16
'ivil Rights Attorneys’ Fees Awards
tct of 1976,42 U.S.C. § 1988 .....................  9,19,28
2 U.S.C. § 1997(e) ......................................  16
'ivil Rights Restoration Act of 1987,
2 U.S.C. § 2000(d) ......................................  14,28
]qual Employment Opportunity Act 
f  1972,42 U.S.C. § 2000(e).........................  13,19

'ases (cont’d) Page(s)

( « )

H.R. Rep., No. 94-1558, 94th Cong.,
2d Sess. (1976) .............................................  9>i0
S. Rep., No. 94-1011,94th Cong.,
2d Sess. (1976) .............................................  9,10 ,19

Administration’s Changes in Federal 
Policy Regarding the Tax Status of 
Racially Discriminatory Private 
Schools, Hearings Before the House 
Committee on Ways and Means,
97th Cong., 2d Sess. (1982) ......................  11

Legislation to Deny Tax Exemption 
to Racially Discriminatory Private 
Schools, Hearings Before the Senate 
Committee on Finance, 97th Cong.,
2d Sess. (1982) .............................................  n
Brief for the United States As 
Amicus Curiae, Runyon v. McCrary,
427 U.S. 160 (1976) ....................................  5.6 ,8,9

Miscellaneous Page(s)



No. 87-107

In t h e

S u p r e m e  C o u r t  o f  t h e  U n it e d  St a t e s

O c t o b e r  T e r m , 1988

B r e n d a  Pa t t e r s o n ,

V.

Petitioner,

M clean  C r e d it  U n io n ,

Respondent.

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

BRIEF AMICI CURIAE OFTHE ASSOCIATION OFTHE 
BAR OFTHE CITY OF NEW YORK AND THE NEW YORK 

COUNTY LAWYERS’ ASSOCIATION ON BEHALF OF 
PETITIONER PATTERSON

INTEREST OF AMICI CURIAE
The Association of the Bar of the City of New York 

("the Association”), chartered by the State of New York 
in 1871, is an organization of over 18,000 attorneys, 
most of whom are practicing or resident principally in 
the New York City metropolitan area. The 
Constitution of the Association provides as two of its 
purposes "promoting reforms in the law” and 
"facilitating and improving the administration of 
justice.” The Association has accordingly devoted itself



2

vigorously for many years to supporting remedial civil 
rights legislation in Congress and before this Court.

The New York County Lawyers’ Association 
'"NYCLA”), one of the largest county bar associations 
in the United States, is a New York not-for-profit 
corporation whose membership is composed of more 
than 10,000 attorneys practicing in all fields of law. 
Since its founding, NYCLA has been an active force in 
the promulgation of laws ensuring civil rights, political 
equality and equal justice. NYCLA has engaged in 
numerous activities aimed at eliminating discrimina­
tion against minorities, including preparing reports, 
drafting and testifying in support of legislation, and 
appearing as amicus curiae in litigation in both federal 
and state court.

The Court’s direction to the parties to brief whether 
Runyon v. McCrary, 427 U.S. 160 (1976) should be 
reconsidered threatens one of the principal missions of 
bar associations such as amici: the promotion of respect 
for law. In New York, achieving and maintaining the 
confidence of racial minorities in legal institutions is an 
ongoing and critically difficult task. Overruling 
Runyon would cause tremendous damage to the Bars 
ability to accomplish that task.

Amici believe that the remedy 42 U.S.C. § 1981 
provides to redress racially-based refusals to contract is 
essential to make the national commitment to eradi­
cating discrimination more than a paper promise. To 
ensure that that promise is not broken by an unjustified 
retreat from advances made and repeatedly ratified by 
the people’s representatives in Congress, we submit 
this brief amici curiae, with the consent of both parties 
indicated by letters lodged with the Clerk, urging the 
Court to adhere to Runyon v. McCrary.

3

INTRODUCTION AND SUMMARY OF ARGUMENT
For at least three powerfully persuasive reasons — 

because the Court’s work would otherwise be multiplied 
beyond reason, because the arrangements of private 
and governmental actors in this free society (particu­
larly in the field of civil rights) depend in great measure 
on the security and stability of settled law, and because 
reconsideration of settled questions involving funda­
mental rights would imperil the public’s perception of 
the judicial system as a dependable mechanism for re­
dressing racial discrimination — the doctrine of stare 
decisis has commanded the unquestioning and uncon- 
troversial allegiance of every justice of this Court. The 
Court may be divided in a given case about whether the 
doctrine requires adherence to prior decisions, but there 
is no dispute about the general outlines of the doctrine, 
and in particular no serious dispute about two proposi­
tions, both of which foreclose overruling Runyon a. 
McCrary’s holding that Section 1981 reaches private 
acts of discrimination.

First, while a decision construing a statute should 
not be overruled unless a majority is persuaded that the 
prior construction was clearly wrong,1 here much 
historical evidence plainly supports the interpretation

' Patsy v. Board of Regents, 457 U .S. 496, 501 (1982) (refusing to 
overrule earlier decision, in part because previous interpreta­
tion oflegislative intent was not clearly wrong); id. at 517 ( in 
a statutory case a particularly Strong showing is required that 
we have reread the relevant statute and its history. ) (White, 
J., concurring); Monell v. Dep't of Social Seruices, 436 U.S. 658, 
664 65 (1978) (finding that earlier decision misread history 
"beyond doubt”); Andrews o. Louisville & Nashville R.R. Co., 
406 U.S. 320, 322 (1972) (prior interpretation overruled 
because holding "was never good history”); Peyton v. Rowe, 
391 U.S. 54, 67 (1967) (prior statutory interpretation 
overruled because it rested on common law notion which 
"finds no support in the statute and has been rejected”).



4

of Runyon and its predecessors. It cannot be said of 
Justice Stewart’s opinion for the Court in Runyon that 
it clearly and unmistakably misread the legislative 
language and history.

Second, a decision should not be overruled unless 
its reasoning has been repudiated by or is inconsistent 
with later decisions or has been undercut by subsequent 
congressional activity. This Court has uniformly ad­
hered to its precedents when, as here, Congress has af­
firmatively relied on and built upon a ruling and has 
thereby presented the Court with a solid basis for con­
cluding that its decision is consistent with the legisla­
tive will.

These considerations foreclose overruling Runyon. 
Far from having been undercut or repudiated by subse­
quent decisions, Runyon has served as the foundation 
for a series of further, uncontroversial decisions in this 
Court, and additional legislation by Congress predi­
cated on Runyon’s interpretation of Section 1981.

Adherence to Runyon is also supported by the three 
policies principally underlying stare decisis: the neces­
sity for clear guidelines and protecting reliance inter­
ests, eliminating the burdens that relitigation imposes, 
and the need to maintain public faith in the courts as a 
source of impersonal and reasoned judgment.

We will not revisit here the evidence surrounding 
the 19th century history of Section 1981. In light of 
Runyons consistency with prior decisions of this Court 
and of every court of appeals considering the issue, and 
particularly in light of consistent congressional 
approval of and reliance on judicial decisions constru­
ing Section 1981 as reaching private discrimination, 
Runyon’s holding that Section 1981 proscribes refusals 
to enter contracts on account of race must be re­
affirmed.

5

I
RUNYON V. MCCRARY IS AN INTEGRAL PART 

OF FEDERAL LAW, AND HAS BEEN EXPRESSLY
APPROVED AND BUILT UPON BY CONGRESS
The holding in Runyon v. McCrary that Section 

1981 proscribes not only statutes depriving black 
persons of the right to contract with white persons but 
also racially discriminatory refusals by white persons 
to enter into contracts with black persons is not — as 
statutory decisions subject to reconsideration and over­
ruling must be — "a sport in the law and inconsistent 
with what preceded and what followed.” Monroe v. 
Pape, 365 U.S. 167, 185 (1961). It is not "the product of 
hasty action or inadvertence . . .  out of line with the 
cases that preceded.” Id. To the contrary, it is solidly 
based on prior, considered holdings, reached after full 
and mature consideration of the historical record; is 
consistent with the contemporaneous policy judgments 
of the political branches; and has been relied on and 
built upon by Congress. A survey of the inter­
dependence and consistency of the R unyon holding with 
other aspects of modern American civil rights law is the 
indispensable backdrop for assessing whether prin­
ciples of stare decisis warrant even its reconsideration, 
much less its overruling.

A. R u n y o n  fo l lo w s  p r io r  se ttled  la w

Runyon’s interpretation of Section 1981 made no 
new law. As then-Solicitor General Robert Bork’s brief 
for the United States in support of the parents in 
Runyon succinctly advised this Court,

it is now settled that Section 1981 prohibits all 
racial discrimination, private as well as public, 
interfering with the making and enforcement 
of contracts. This Court so held in Tillman v. 
Wheaton-Haven Recreation Assn., supra, and



6

again more recently in Johnson v. Railway 
Express Agency, Inc., 421 U.S. 454.

Brief for the United States as Amicus Curiae in Runyon 
at 13. Solicitor General Bork’s brief also noted that all 
eight courts of appeals that had been presented with the 
question prior to Johnson v. Railway Express Agency 
had concluded that "Section 1981 prohibits racial 
discrimination in private employment.” Id. at 14.

Nor can Runyon and the holdings on which it was 
based be disregarded as carelessly or hastily consid­
ered. The Court’s opinion in Jones v. Alfred. H. Mayer 
Co., 392 U.S. 409 (1968), on which Runyon’s interpreta­
tion of Section 1981 is based, contains a thorough exam­
ination of the historical record, and the parties briefs in 
Runyon exhaustively re-marshalled most of that his­
tory. Runyon itself was issued against a lengthy but 
ultimately unpersuasive dissent which included a 
detailed analysis of the historical evidence. Justice 
Powell, concurring, expressly noted that ample prece­
dents supported Runyon, and that the Court had exam­
ined the history of Section 1981 "maturely and 
recently.” 427 U.S. at 186.

B. This Court has repeatedly adhered to 
Runyon’s interpretation o f Section 1981

No doubt because Runyon followed settled prece­
dent holding that Section 1981 proscribes racial dis­
crimination in private contracts, it has been repeatedly 
adhered to by this Court. See Bob Jones University v. 
United States, 461 U.S. 574, 594 (1983) (Runyon cited to 
support view that a national policy disapproving racial 
discrimination in nonpublic education exists); Good­
man v. Lukens Steel Co., 107 S. Ct. 2617 (1987) (union 
intentionally avoiding assertion of employee discrimi­
nation claims violates Section 1981); Saint Francis 
College v. Al-Khazraji, 107 S. Ct. 2022 (1987) (holding

7

in private employment discrimination case that 
Congress intended to protect identifiable classes of per­
sons subjected to intentional discrimination on the 
basis of ancestry); Gen. Bldg. Contractors Ass'n, Inc. v. 
Pennsylvania, 458 U.S. 375 (1982) (finding that action 
under Section 1981 requires proof of intent to discrimi­
nate); Memphis v. Greene, 451 U.S. 100, 120 (1981) 
(Runyon cited to support proposition that 1866 Civil 
Rights Act is applicable to private parties); and 
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 
285 (1976) (holding that Section 1981 prohibits racial 
discrimination in private employment against whites 
as well as blacks).2 * * * &

2 Both before and after Runyon v McCrary, lower courts have
applied Section 1981 to remedy racial discrimination in a
variety of contexts, including many that might not be remedi­
able under other statutes. See, e g., Wyatt u. Security Inn Food
& Beverage, Inc., 819 F 2d 69 (4th Cir. 1987) (hotel lounge 
policy of ejecting patrons for not drinking); Jones v. Local 520, 
Int’l Union of Operating Engineers, 603 F.2d 664 (7th Cir. 
1979), cert, denied, 444 U.S. 1017 (1980) (deprivation of 
union’s beneficiary rights policy); Scott v. Young, 421 F.2d 143 
(4th Cir. 1970), cert, denied, 398 U.S. 929 (1970) (admission 
ticket to an amusement park); Olzman v. Lake Hills Swim 
Club, Inc., 495 F.2d 1333, 1339 (2d Cir. 1974) (guest privileges 
in a swimming club); Vietnamese Fishermans Assn v. 
Knights of Ku Klux Klan, 518 F. Supp. 993 (S.D. Tex 1981) 
(interfering with right to earn a living); Howard Sec. Ser., Inc. 
v. Johns Hopkins Hospital, 516 F. Supp. 508 (D. Md. 1981) 
(failure to award service contract to close corporation owned 
by black); Sud v. Import Motors Limited, Inc., 379 F Supp. 
1064 (W.D. Mich. 1974) (automobile franchise denied by auto­
mobile wholesaler); Hernandez u. Erlenbusch, 368 F. Supp. 
752 (D. Ore. 1973) (admission to a tavern); Grier v. Specialized 
Skills, Inc., 326 F. Supp. 856 (W.D.N.C. 1971) (admission to a 
privately owned barber trade school); Amerson u. Jones Law 
School, Civil Action 3343-N (M.D. Ala., Aug 10, 1972) (ad 
mission to a privately owned school); Sims v. Order of United 
Commercial Travelers of America, 343 F. Supp 112 (D. Mass. 
1972) (purchase of an insurance policy); United States v. 
Medical Soc’y of S. Carolina, 298 F. Supp. 145, 152 (D.S.C. 
1969) (admission of patients to a privately owned hospital).



8

A decision overruling Runyon would also neces­
sarily overrule Goodman, Saint Francis College, and 
McDonald, and might call Jones and its progeny into 
question.

C. Congress approved o f and built upon 
Runyon’s interpretation o f Section 1981 
even prior to the decision in that case

When it reaffirmed Section 1981’s applicability to 
discriminatory refusals by segregated private schools to 
contract with black parents for the admission of their 
children in Runyon, the Court examined not only the 
original legislative history of Section 1981 but also the 
congressional response to this Court’s interpretation of 
Section 1981 in Johnson and Tillman. Congressional 
debate and action in connection with the Equal 
Employment Opportunity Act of 1972 clearly evidenced 
Congress’ understanding that Section 1981 reached 
private discrimination, and its intention that it con­
tinue to do so.

In response to an amendment by Senator Hruska 
that would have rendered Title VII of the Civil Rights 
Act of 1964 an exclusive remedy for employment 
discrimination, Senator Williams stated on the floor 
that Section 1981 already reached private employment 
discrimination, and implored his colleagues not to 
"repeal existing civil rights laws” and thereby "severely 
weaken our overall effort to combat the presence of 
employment discrimination.” See Runyon, 427 U.S. at 
174 n .ll; Brief for the United States amicus curiae in 
Runyon at 18 and authorities there cited. Congress 
rejected the Hruska amendment, clearly indicating its 
intention that there be a system of overlapping parallel 
remedies. The defeat of the Hruska amendment is 
therefore far more than the congressional inaction that, 
in far different circumstances, the Court has viewed as

unpersuasive.3 As Solicitor General Bork urged the 
Court:

Had Congress disapproved of this Court’s in­
terpretation of the scope of Sections 1981 and 
1982, it could have amended the Civil Rights 
Act of 1866; all attempts to do so, however, 
have been defeated. Cf., e.g., Flood v. Kuhn. 
407 U.S. 258; Joint Industry Board v. United 
States, 391 U.S. 224, 228-29 (footnote omitted).

D. Congress subsequently approved o f and 
built upon Runyon

Congress again indicated its agreement that 
Section 1981 applies to private discrimination in 1976, 
when it enacted the Civil Rights Attorneys Fees 
Awards Act of 1976, 42 U.S.C. § 1988, as amended 
(hereinafter the "Fees Act”). The Fees Act expressly 
authorized courts to award attorneys’ fees in actions to 
enforce Section 1981. The legislative reports, on which 
this Court has repeatedly relied,4 plainly evidence 
Congress’ understanding that Sect'on 1981 applies to 
private discrimination, its approval of that construc­
tion, and its intention to build upon it in augmenting 
existing remedies already provided by Section 1981:

Section 1981 is frequently used to challenge 
employment discrimination based on race or 
color. Johnson v. Railway Express Agency, 
Inc., 421 U.S. 454 (1975).8 Under that section 
the Supreme Court recently held that whites

* See Bob Jones University i>. United States, 461 U.S. 574, 600- 
601 (1983), and cases there cited

* See, e.g., Riverside v. Rivera, 477 U.S. 561, 567 (1986), 
Pulliam v. Allen, 466 U.S. 522, 527 (1984); Blum v. Stenson, 
465 U.S. 886, 893-94 (1984); Hensley u. Eckerhart, 461 U.S. 
424, 429 (1983); Roadway Express, Inc. v. Piper, 447 U.S. 752, 
758 n.5 (1980); Hutto u. Finney, 437 U.S. 678,694 (1978).



10

as well as blacks could bring suit alleging 
racially discriminatory employment practices. 
McDonald v. Santa Fe Trail Transportation
C o.,______U .S .______ , 96 S. Ct. 2574 (1976).
Section 1981 has also been cited to attack 
exclusionary admissions policies at recrea­
tional facilities. Tillman v. Wheaton Haven 
Recreation Ass’n., Inc., 410 U.S. 431 (1973). 
Section 1982 is regularly used to attack dis­
crimination in property transactions, such as 
the purchase of a home. Jones u. Alfred H. 
Mayer Co., 392 U.S. 409 (1968).9
8 With respect to the relationship between 

Section 1981 and the Title VII of the Civil 
Rights Act of 1964, the House Committee 
on Education and Labor has noted that 
"the remedies available to the individual 
under Title VII are co-extensive with the 
individual’s right to sue under the provi­
sions of the Civil Rights Act of 1866, 42 
U.S.C. § 1981, and that the two procedures 
augment each other and are not mutually 
exclusive.” H.R. Rept. No. 92-238, p. 19 
(92nd Cong. IstSess. 1971). That view was 
adopted by the Supreme Court in Johnson 
v. Railway Express Agency, supra.

9 As with Section 1981 and Title VII, 
Section 1982 and Title VIII of the Civil 
Rights Act of 1968 are complementary 
remedies, with similarities and differences 
in coverage and enforcement mechanism. 
See Jones v. Mayer Co., supra.

H.R. Rep. 94-1558, 94th Cong., 2nd Sess., at 3. See also 
S. Rep. 94-1011, 94th Cong., 2nd Sess. 3 (1976), 
reprinted in 1976 U.S. Code Cong, and Adm. News 
5908, 5910 (noting that Section 1981 "protects similar

11

rights” as Title VII "but involves fewer technical 
prerequisites.”)

Congress reaffirmed its approval of Runyon yet 
again in 1982, when it held hearings to investigate the 
Reagan administration’s refusal to defend IRS rules 
rendering donations to racially discriminatory educa­
tional institutions of education non-deductible under 
Section 170 of the Internal Revenue Code. See Bob 
Jones University v. United States, 461 U.S. at 574. 
Runyon was repeatedly and approvingly cited in those 
hearings as the keystone in the legal structure support­
ing the IRS determination to deny charitable deduc­
tions for contributions to racially discriminatory 
schools as violative of public policy.5 As the Court said

5 Witnesses at both Senate and Mouse hearings repeatedly cited 
Runyon for the proposition that private schools may not dis­
criminate based on race, and there was no indication any 
committee members believed that Runyon was wrongly 
decided. See, eg.. Administration's Change in Federal Policy 
Regarding the Tax Status of Racially Discriminatory Private 
Schools: Hearings Before the House Committee on Ways and 
Means, 97th Cong., 2d Sess. 187 (1982) (statement of William 
Bradford Reynolds, Assistant Attorney General, Civil Rights 
Division) ("the Supreme Court said . . .  in Runyon v. McCrary 
that 42 U.S.C. § 1981 specifically forbade private schools from 
discriminating on the grounds of race or color.”); id. at 67 
(statement of Laurence Tribe, Professor of Constitutional 
Law, Harvard Law SchooDC'one of the illegal activities under 
the Civil Rights Act of 1866 is excluding people on grounds of 
race, even from a private school (according to) . . Runyon v. 
McCrary ”) See also id at 37 (statement of Michael I. 
Sanders); id. at 267 (Joint Statement Re the Tax Exempt 
Status of Private Schools submitted to the Committee on Ways 
and Means); Legislation to Deny Tax Exemption to Racially 
Discriminatory Private Schools: Hearings Before the Senate 
Committee on Finance, 97th Cong., 2d Sess. 25 
(1982) [hereinafter "Senate Hearings” | (background material 
prepared by the staff of the Joint Committee on Taxation).

(Footnote continued)



12

of the closely related question addressed in Bob Jones 
University, 461 U.S. at 600-01, "It is hardly conceivable 
that Congress — and.in this setting, any Member of 
Congress — was not abundantly aware” that Section 
1981 had been interpreted to apply to private acts of 
discrimination.

E. The principle that racial discrimination in 
the private sector is unlawful and should 
be actionable is not unique to Runyon, but 
has been widely adopted and implemented 
by the executive and legislative branches 
and by state and local governments

The primary duty not to discriminate against 
racial minorities in economic activity did not spring full 
grown from Runyon v. McCrary. The proscription 
against private discrimination reaffirmed in Runyon, 
far from being inconsistent with the weighing of values 
undertaken by Congress or the executive branch in 
other contexts, is fully consistent with a wide range of 
analogous proscriptions in legislation, executive orders, 
and administrative regulations.

As Justice Stevens observed concurring in Runyon, 
the principle that racial discrimination has no place in 
economic activity generally "surely accords with the 
prevailing sense of justice today.” 427 U.S. at 191.

(Footnote continued)
Administration witnesses agreed that Section 1981 rendered 
it unlawful for private schools to discriminate on the basis ol 
race. See, e g., in addition to the statement of W. Bradford 
Reynolds cited above, Senate Hearings 240 (statement of K. 
McNamar, Secretary, Department of the Treasury) ( The 
Court said, in Runyon v. McCrary several terms ago, that Sec­
tion 1981 allows private citizens to bring a private right ot 
action against those institutions that are racially discriminat­
ing."); see also id. at 117, 145 n.18 ("Analysis of Legal
Authorities For Possible Inclusion in a Brief, submitted by
the Department of Justice).

13

Many of the sanctions against discrimination in the 
private as well as public sector were exhaustively cata­
logued in Chief Justice Burger’s opinion for eight 
members of the Court in Bob Jones University v. United 
Sta^s, 461 U.S. at 592-595, where the Court found that 
all three branches of government had joined in forging 
"the fundamental policy of eliminating racial discrim­
ination.” A sampling of other such sanctions, though 
surely not all, is set forth below.

Congress prohibited racial discrimination in 
private employment in 1964, and extended that pro­
hibition in 1972.6 * This Court has upheld the right of 
private employers and unions to engage in affirmative, 
race-conscious action to remedy past discrimination. 
Congress has attempted to remedy past discrimination 
in certain businesses, eg ., construction, by providing 
for set asides for minority-owned firms, and this Court 
has upheld its right to do so.8

Discrimination in the private housing market was 
prohibited in 1968.9 ^

Congress prohibited discrimination by recipients of 
federal aid — a category of institutions that includes 
within the private sector almost all secular institutions 
of higher education and hospitals — in Title VI of the 
Civil Rights Act of 1964, and succeeding administra­
tions have generally enforced stringent regulations 
implementing that proscription.10 When this Court 
narrowly construed that proscription, leaving a far

• Equal Employment Opportunity Act of 1972, 86 Stat. 103, 42 
U.S.C. § 2000e (1981).

7 United Steelworkers v. Weber, 443 U.S. 193(1979).
8 Fullilove u. Klutznick, 448 U.S. 448 (1980).
* Trafficante u. Metropolitan Life Ins. Co., 409 U S 205 (1972).
10 See Grove City College v. Bell, 465 U.S. 555, 586-592 (1984) 

(Brennan, J., concurring and dissenting).



14

broader range within which private discrimination 
could flourish, its decision was promptly condemned in 
Congress and throughout the nation at large, and was 
overturned by substantial majority in Congress.1 *

Discrimination in public accommodations was 
made unlawful by Title II of the Civil Rights Act of 
1964.11 *

States and local governments have also inde­
pendently condemned and provided varying remedies 
for discrimination in the private economic sector, and 
this Court has generally upheld this legislation against 
claims of federal preemption on the ground that 
Congress considered the anti-discrimination principle 
so important that its purposes would be furthered by a 
system of partially duplicative and overlapping 
remedies.13

11 The Civil Rights Restoration Act of 1987, Pub L 100-259, 
overruling Grove City College v. Bell, 465 U.S. 574 (1984), 
was passed by the Senate 75-14, 134 Cong. Rec. S205 (daily 
ed. January 28, 1988), and by the House 513-98, Cong. Rec. 
H555 (daily ed. March 2, 1988). After President Reagan 
subsequently vetoed the measure, his veto was overridden in 
the Senate by 73-24, 134 Cong Rec S2730 (daily ed. March 
22, 1988), and in the House by 292 133, 134 Cong. Rec. 
H1037 (daily ed. March 22,1988).

•* Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241 
(1964).

13 See, e g., California Fed. Sav. & Loan Ass’n v. Guerra, 107 S. 
Ct. 683, 689-95 (1987) (California Pregnancy Discrimination 
Act not preempted by Title Vll because Federal Pregnancy
Discrimination Act does not conflict with the California law

(Footnote continued)

15

In sum, Runyon is wholly consistent with the legis­
lative will of the nation. For this reason alone, it should 
not even be reconsidered, much less overruled.

II
PAST STATUTORY CONSTRUCTION MUST BE 
ADHEREDTO WHERE OVERRULING WOULD 

CONTRAVENE RECENTLY EXPRESSED 
CONGRESSIONAL INTENT EMBODIED IN 

LEGISLATION, OR ABSENT A SHOWING THAT THE 
DECISION TO BE OVERRULED IS INCONSISTENT WITH 

SUBSEQUENT DECISIONS OR REPUDIATED BY 
SUBSEQUENT CONGRESSIONAL ACTION

Stare decisis is particularly weighty in matters of 
statutory construction. Square D Co. v. Niagara 
Frontier Tariff Bureau, Inc., 476 U.S. 409, 424 & n. 34 
(1986) ("More than any other doctrine in the field of 
precedent, it has served to limit the freedom of the 
Court.”); Illinois Brick Co. v. Illinois, 431 U.S. 720, 736 
(1977). Although the Court "has never announced a 
definitive formula for determining whether prior 
decisions should be overruled or reconsidered,” Patsy v. 
Board of Regents, 457 U.S. 496 (1982), more than a mis­
take in past interpretation must be shown, since 
"correction can be had by legislation, Burnet v. 
Coronado Oil & Gas Co., 285 U.S. at 406 (Brandeis, J.,

(Footnote continued)
which "also promotes equal employment opportunity”); 
Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 100-04 (1983) 
(Title VII held not to preempt New York statute proscribing 
discrimination on basis of pregnancy); Alexander v. Gardner- 
Denver Co., 415 U.S. 36, 48-49 (1974) ("The legislative 
history of Title VII manifests a congressional intent to allow 
an individual to pursue independently his rights under both 
Title VII and other applicable state and federal statutes. The 
clear inference is that Title VII was designed to supplement, 
rather than supplant, existing laws and institutions relating 
to employment discrimination ”)



16

dissenting). This Court’s application of the doctrine 
makes clear that fully considered interpretations of 
statutes must be adhered to unless a decision is found to 
be either contrary to congressional intent or in some 
other sense aberrational — i.e., at odds with other 
clearly expressed legislative policies, or inconsistent 
with or repudiated by other decisions. Neither of these 
conditions permits overruling the interpretation of 
Section 1981 reaffirmed in Runyon.

A. Recent indications o f congressional 
intent require adherence to Runyon’s 
interpretation o f  Section 1981

This Court’s reluctance to overrule its own prece­
dents is nowhere stronger than in statutory cases where 
reliable indications of congressional intent demonstrate 
approval of the Court’s interpretation of an earlier 
statute. Maine v. Thiboutot, 448 U.S. 1, 8 (1980); 
United States u. Rutherford, 442 U.S. 544, 554 n,10 
(1979); Runyon v. McCrary, 427 U.S. at 173-75; Monell 
v. Dep’t of Social Services, 436 U.S. 658, 696-99 (1978); 
Laird v. Nelms, 406 U.S. 797, 802 (1972); Monroe v. 
Pape, 365 U.S. at 192 (Harlan, J., concurring).

When presented with affirmative legislation build­
ing upon a prior decision, as opposed to only congres­
sional inaction or rejection of an attempt to alter the 
statutory meaning, this Court has uniformly adhered to 
its statutory interpretation, even if that interpretation 
is arguably incorrect. Such adherence has been re­
quired by the Court’s fundamental duty to interpret 
statutes according to operative congressional intent as 
expressed through duly enacted legislation. The legis­
lative intent underlying a subsequent statute that 
Congress has erected on the foundation of one of this 
Court’s prior statutory interpretations can only be 
respected if that prior interpretation is adhered to, even

17

if it could be said to have misread the intentions of the 
Congress that enacted the earlier statute. Indeed, cases 
like this one, in which Congress has affirmatively built 
upon this Court’s alleged "mistakes” of statutory inter­
pretation, are not stare decisis cases at all: the Court 
adheres to its prior decisions not to maintain the con­
tinuity of its jurisprudence, but rather to obey more 
recent congressional direction.

Thus, in Patsy v. Board o f Regents, 457 U.S. 496, 
508-512 (1982), finding the legislative intentions of the 
nineteenth century Congress that enacted 42 U.S.C. 
§ 1983 inconclusive, the Court relied principally on the 
legislative history of a far more recent statute, 42 
U.S.C. § 1997e, in declining to overrule past decisions 
holding that exhaustion of administrative remedies 
was not required in Section 1983 cases. The Court 
observed that Congress had relied on and built upon the 
Court’s prior, disputed interpretation of Section 1983 in 
designing the more recent statute. Since correction of 
any error "would be inconsistent with Congress’ deci­
sion to adopt 1997e,” overruling the decisions allegedly 
misinterpreting Section 1983 was deemed impermis­
sible. Similarly, in Miller v. Fenton, 474 U.S. 104, 114 
(1985), the Court adhered to its prior interpretation of 
the habeas corpus statute in Townsend v. Sain, 359 
U.S. 64 (1959), where the voluntariness of a confession 
was treated as an issue of fact rather than of law, be­
cause Congress had relied on that earlier decision in 
designing 28 U.S.C. § 2254 (d).M 14

14 See also Merrill Lynch, Pierce, Fenner & Smith, Inc. v. 
Curran, 456 U.S. 353, 382 (1982) ("Where, as here, Congress 
adopts a new law incorporating sections of a prior law, 
Congress normally can be presumed to have had knowledge 
of the interpretation given to the incorporated law, at least

(Footnote continued)



18

This case presents such an abundance of clear sub­
sequent legislative intent, discernible through legisla­
tion duly enacted as well as through unmistakable 
rejection of an attempt to render Section 1981 inappli­
cable to private discrimination, that departure from 
stare decisis would be not only inadvisable, in light of 
this Court’s unbroken line of decisions, but imper­
missible, a clear departure from controlling legislative 
direction.

First, and we believe dispositively, Congress relied 
on and built upon the broad interpretation of Section 
1981 in Runyon and its predecessors in amending 42 
U.S.C. § 1988 to provide for court-awarded attorneys’ 
fees in Section 1981 actions against private parties that 
refused to enter into contracts for racially discrimina­
tory reasons. The House Report expressly cited 
Runyon's companion case, McDonald v. Santa Fe Trail 
Transp., as well as Tillman v. Wheaton-Haven Recrea­
tion Ass’n and Johnson v. Railway Express Agency — 
all involving discrimination by private actors that 
would not have been actionable under the narrow 
interpretation of Section 1981 urged in the Runyon

(Footnote continued)
insofar as it affects the new statute” [ct/mg Lnrillard u. Pons, 
434 U S 575, 580 81 (1978)1); New York Gaslight Club, Inc. 
v. Carey, 447 U S 54, 70 n.9 (1980) (representation by public 
interest group held not to be "special circumstance” which 
would result in denial of attorney fees under Title VII, 
because Congress so decided in passing the Fees Act of 1976), 
Cannon u. University of Chicago, 441 U S. 677, 711 (1979) 
("the relevant inquiry is not what Congress correctly per 
ceived as the then state of the law, but rather what its 
perception of the state of the law was”) (citation omitted); 
Brown u. GSA, 425 U S. 820, 828 (1976) (interpreting 
legislation built upon prior judicial decisions in I'.ght of the 
understanding of Congress, not in terms of whether that 
congressional understanding was correct).

19

dissent — as illustrative of the kinds of Section 1981 
actions in which private enforcement was to be induced 
through court-awarded attorneys’ fees. Making the 
same point, the Senate Report explained that the Fees 
Act yras being applied to Section 1981 cases because

fees are now authorized in an employment dis­
crimination suit under Title VII of the Civil 
Rights Act, but not in the same suit brought 
under 42 U.S.C. § 1981, which protects similar 
rights but involves fewer technical pre­
requisites to the filing of an action.

S. Rep. No. 94-1011, at 4. Since overruling Runyon and 
its predecessors would without question contravene the 
Fees Act and its underlying legislative intent, the 
interest in fidelity to congressional intent surely cannot 
justify overruling Runyon.

Second, as Runyon noted, Congress in 1972, clearly 
informed that Section 1981 had been construed by 
various courts of appeals to proscribe racial discrim­
ination by private employers, carefully considered and 
squarely rejected an attempt to repeal Section 1981 as 
thus understood and to make Title VII the exclusive 
remedy for employment discrimination. See pp. 8-9 
above. Again, whether or not Congress’ understanding 
that Section 1981 reached private discrimination in 
employment and education was historically correct is 
no longer of decisive importance. See Patsy v. Board of 
Regents and the other cases cited above at p. 16. Since 
the Fees Act and the Equal Employment Opportunity 
Act of 1972 evidence a clear legislative understanding 
and intention that courts should vigorously enforce 
Section 1981 in private discrimination cases, the Court 
must refrain from overruling Runyon and its predeces­
sors even if convinced that the modern interpretation of 
that statute as reaching private disci rmination was "in



20

some ultimate sense incorrect,” Brown v. GSA, 425 U.S. 
820, 828(1976).

At the very least, congressional rejection of the 
Hruska amendment in 1972, passage of the Fees Act in 
1976, the absence of a single bill introduced to overturn 
Runyon in the 94th, 95th or 96th Congresses, and con­
gressional approval of Runyon evidenced in the Bob 
Jones hearings of 1982, see pp. 8-12 above, taken all 
together, amount to the kind of congressional consensus 
that precludes departure from stare decisis. Such 
Congressional refusal to overrule a decision of this 
Court, where (as here) such a refusal can fairly be dis­
cerned, has repeatedly moved the Court not to under­
take to correct a "mistake” that Congress is fully 
capable of correcting. See Johnson v. Transportation 
Agency, 107 S. Ct. 1442, 1450 n.7 (1987) (inferring 
congressional agreement with a prior decision from the 
fact that no bills were introduced to change result in 
highly publicized, controversial case, and noting that 
Congress remained free to change interpretation if the 
Court had misconstrued its intent); Bob Jones Univer­
sity v. United States, 461 U.S. at 599-602 (inferring con­
gressional acquiescence to an IRS policy from 
congressional inaction); Flood v. Kuhn, 407 U.S. 258 
(1972).15

18 See also Guardians Ass’n v. Civil Service Comm'n, 463 U.S. 
582, 590 n .ll (1983) (White, J.) ("If a statute is to be amended 
after it has been authoritatively construed by this Court, 
that task should almost always be performed by Congress”) 
(citation omitted).

21

B. This Court’s interpretation of Section 1981 
in Runyon should be adhered to because it 
is not inconsistent with related precedent 
and has not been repudiated by subse­
quent legislative action

'Amici believe that Runyon was correctly decided. 
But even assuming arguendo that it misread contem­
poraneous legislative intent, affirmance would be 
required.

The essence of stare decisis is that something be­
yond a proven mistake in past interpretation is neces­
sary "to overcome the strong presumption of continued 
validity that adheres in the judicial interpretation of a 
statute.” Square D Co. v. Niagara Frontier Tariff 
Bureau, Inc., 476 U.S. at 424. "Any detours from the 
straight path of stare decisis in our past,” the Court has 
stressed, "have occurred for articulable reasons, and 
only when the Court has felt obliged 'to bring its 
opinions into agreement with experience and with facts 
newly ascertained.’ ” Vasquez v. Hillery, 474 U.S. 254, 
266 (1986), quoting Burnet v. Coronado Oil & Gas Co., 
285 U.S. at 412 (Brandeis, J., dissenting). No reasons of 
the sort that the Court has previously relied on in 
departing from stare decisis have been offered or are 
available to justify overruling the rule of Runyon and 
its predecessors.

The seven cases overruling statutory precedents 
cited by the per curiam opinion restoring this case to 
the calendar, 56 U.S.L.W. 3735 (U.S. 4/26/1988), dis­
play the typical, indispensable factors that enable the 
Court to justify departing from stare decisis in statutory 
interpretation cases: in each of these cases, the Court 
essentially found that the decision to be overruled was 
an aberration, either inconsistent with another line of 
good authority, or subsequently repudiated by Congress 
in ways that enabled the Court to declare confidently



22
i

that the cases were inconsistent with legislative intent. 
These factors are entirely absent here.

In four of the cases, the Court overruled prior 
decisions that had been undercut by subsequent 
decisions construing the same or related statutes in 
different ways. Preservation of the challenged inter­
pretation in these cases would have left conflicting and 
irreconcilable lines of parallel authority. Consistent 
application of congressional intent and fidelity to con­
gressional purposes required resolution of the con­
tinuing conflicts. Thus, in Boys Markets, Inc. v. Retail 
Clerks Union, Local 770, 398 U.S. 235, 245 (1970), the 
Court overruled Sinclair Refining Co. v. Atkinson, 370 
U.S. 195 (1962), stressing that adherence to Sinclair, in 
light of the Court’s recent decision in another case, 
would effectively "oust state courts of jurisdiction in 
301(a) suits where injunctive relief is sought for breach 
of a no-strike obligation,” a result which would violate 
"the clearly expressed congressional policy to the con­
trary” as recently authoritatively construed. Similarly, 
in Peyton u. Rowe, 391 U.S. 54, 57, 61 (1968), and in 
Lodge 76, Int’l Ass’n o f Machinists & Aerospace Workers 
v. Wisconsin Employee Relations Comm’n, 427 U.S. 132, 
154 (1976), the Court departed from prior interpre­
tations of federal statutes because they had been so 
undercut by numerous subsequent decisions that, in the 
words of the Machinists decision, the prior authority 
"must be regarded as having 'been worn away by the 
erosion of time’ . . .  and of contrary authority.” 427 U.S. 
at 154, citing United States v. Raines, 362 U.S. 17, 26 
(1960). And in Andrews u. Louisville & Nashville R.R. 
Co., 406 U.S. 320, 322 (1972), the Court relied on the 
fact that subsequent cases had read the relevant 
legislative history differently than did the case being 
overruled. It noted that "later cases . . .  have 
repudiated the reasoning advanced in support of the 
result reached” in the case being overruled and con­
cluded that the case "was never good history and is no 
longer good law.” 406 U.S. at 322.

23

In two other cases cited in the per curiam order, the 
Court found that the prior statutory interpretations 
under review had been undercut by subsequent con­
gressional activity indicating clearly expressed legis­
lative intent contrary to the prior interpretation under 
revie V  Thus, in Monell v. Dep’t o f Social Services, 436 
U.S. 658 (1978), the Court noted that a number of its 
previous judgments (both preceding and following the 
case overruled, Monroe v. Pape) were inconsistent with 
the rule announced in Monroe, and that that rule was 
"inconsistent with recent indications of congressional 
intent,” as well as "beyond doubt” incorrect as a matter 
of history. 436 U.S. at 663 n.5, 696, 700. And in Braden 
v. 30th Judicial Circuit, 410 U.S. 484 (1973), the Court 
noted that subsequent congressional activity had 
demonstrated that "a number of the premises which 
were thought to require [the decision in the overruled 
case] are untenable.”

The Court has also overruled a prior decision that 
departed significantly from earlier decisions and from 
prior established practice, the results of which were 
inconsistent with the law established in those decisions. 
In Continental T.V., Inc. v. GTE Sylvania, Inc., 433 U.S. 
36 (1977), the Court overruled a prior decision because 
its approach to what constitutes a per se violation of 
Section 1 of the Sherman Act "was an abrupt and 
largely unexplained departure from [the earlier case 
and was] the subject of continuing controversy and con­
fusion, both in the scholarly journals and in the federal 
courts.” Additionally, "[t]he great weight of scholarly 
opinion” had been critical of the decision, and a number 
of the federal courts confronted with [the issue] ha[d] 
sought to limit its reach.” 433 U.S. at 44-48.

None of these factors present not only in the 
seven cases the Court cited in support of reconsidera­
tion here, but in statutory interpretation cases depart­
ing from stare decisis generally — is present in this 
case. See Point I supra. The principle that schools



24

should not refuse to admit children on account of race, 
that employers should not consider race in deciding 
whether or not to engage or terminate employees, and 
that swimming pools generally open to the white public 
should be open to blacks as well, is not at odds with 
other lines of authority in this Court. There is no dis­
cernible congressional policy precluding aggrieved indi­
viduals from seeking a remedy for private discrimina­
tion. Far from being at odds with national policy as 
embodied in any other legislation, or repudiated by 
legislation adopted since the Runyon result was fore­
shadowed in 1968, the non-discrimination principle is 
national policy, determined by the clear and repeated 
decisions of the people’s representatives and duly 
enacted into law. See, e.g., Bob Jones University v. 
United States, 461 U.S. at 594-95, and pp. 8-14 above.

Accordingly, there is no occasion even for reconsid­
ering Runyon and its predecessors, much less for over­
ruling them.10

'* The Court has occasionally relied on additional factors not 
present in the cases cited in the per curiam order here to 
justify departing from stare decisis in statutory cases. See, 
e g., Gulfstream Aerospace Corp. v. Mayacamas Corp., 108 S. 
Ct. 1133, 1140 (1988) (overruling decisions imposing proce­
dural rule where ”[a| half century’s experience has per­
suaded us, as it has persuaded an impressive array of judges 
and commentators, that the rule is unsound in theory, un­
workable and arbitrary in practice, and unnecessary to 
achieve any legitimate goals”); Erie Railroad Co. v. 
Tompkins, 304 U.S. 64, 77-80 (1938) (overruling prior deci­
sion which had produced "injustice and confusion and an 
unconstitutional assumption of powers by courts of the 
United States ”) None of these factors supports overruling 
Runyon here.

25

III

THE POLICIES UNDERLYING STARE DECISIS 
COUNSEL AGAINSTOVERRULING 

RUNYON V. MCCRARY

ft is vital that minorities believe that they have a 
fair forum in which to redress racial discrimination. 
The principle of stare decisis plays an important role in 
this regard.

As the Court noted in Moragne v. States Marine 
Lines, Inc., 398 U.S. at 403,

Very weighty considerations underlie the prin­
ciple that courts should not lightly overrule 
past decisions. Among these are the 
desirability that the law furnish a clear guide 
for the conduct of individuals, to enable them 
to plan their affairs with assurance against 
untoward surprise; the importance of further­
ing fair and expeditious adjudication by 
eliminating the need to relitigate every rele­
vant proposition in every case; and the neces­
sity of maintaining public faith in the judiciary 
as a source of impersonal and reasoned judg­
ments. The reasons for rejecting any estab­
lished rule must always be weighed against 
these factors.

These three policies strongly militate against over­
ruling Runyon and its predecessors.

First, the interest in establishing clear guidelines 
for conduct would be directly undermined by a decision 
overruling Runyon. Runyon’s clear pronouncement 
that racial discrimination has no place in decisions 
regarding a wide variety of contracts has presumably 
had widespread educative and deterrent effect. 
Overruling Runyon would erode the ability of those in



positions of authority in private businesses or 
associations, or responsible for counseling or advising 
clients, to resist the inclination of others to engage in 
discrimination. Overruling Runyon would also send 
the wrong signal to those whose conduct may in fact be 
proscribed by other federal, state or local anti- 
discrimination statutes. Some persons would 
understandably attempt to exercise the new-found 
right to discriminate on the basis of race.

Overruling Runyon would also frustrate the 
reliance of plaintiffs who may have pursued Section 
1981 claims in preference to other possible legal claims 
because of its perceived procedural advantages, particu­
larly the availability of juries. See Patsy v. Board of 
Regents, 457 U.S. at 501 n.3.

Even more importantly, the reliance of the benefi­
ciaries of Section 1981 argues strongly against over­
ruling Runyon and its predecessors. These cases have 
created settled expectations in the hearts and minds of 
racial minorities who have been assured that they 
possess a significant guarantee against racial discrimi­
nation. To reverse the decision would undermine that 
security and betray the hopes of millions. Cf. Wygant v. 
Bd. ofEduc., 106 S. Ct. 1842 (1986) (plurality opinion), 
id. at 1852 (O’Connor, J., concurring in part) and id. at 
1857 (White, J., concurring) (stressing importance of 
not undermining settled expectations of white 
teachers).

Second, the interest in avoiding additional burdens 
on the justices of this Court, important in any case, 
must be at its zenith in statutory interpretation cases 
like this, where revisiting a settled question requires 
extensive research and analysis of a 120-year old

27

statute through its legislative history.17 As this Court’s 
decisions construing Sections 1981, 1982, and 198318 
and the briefs being submitted in this case demon­
strate, such belated interpretation (or reinterpretation) 
is enormously time-consuming, and ultimately incon­
clusive. The reasons for the Court to leave any neces­
sary further correction to Congress, decisive in the 
usual case, are therefore particularly compelling here, 
especially since Congress has shown great interest in 
questions of civil rights and no reluctance to revisit 
statutes which it believes this Court has misconstrued.

Finally, and perhaps most crucially, overruling 
Runyon would threaten "public faith in the judiciary as 
a source of impersonal and reasoned judgments.”19

Where the interpretation of a statute has arguably 
been repudiated by Congress, or is inconsistent with 
conflicting lines of good authority, or has proven 
unworkable, the occasion for overruling a precedent is 
self-evident. See Vasquez v. Hillery, 474 U.S. at 266.

17 "The labor of judges would be increased almost to the break­
ing point if every past decision could be reopened in every 
case, and one could not lay one’s own course of bricks on the 
secure foundation of the courses laid by others who had gone 
before him.” B. Cardozo, The Nature of the Judicial Process 
149 (1921), quoted in Johnson u. Transportation Agency, 107 
S. Ct. 1442, 1459(1987).

'* E g., Runyon u. McCrary, 427 U.S. 160 (1976); Jones u. Alfred 
H. Mayer Co., 392 U.S. 409 (1968); and Monell v. Dep’t of 
Social Services, 436 U.S. 658(1978).

"  Moragne v. States Marine Lines, Inc., 398 U.S. at 403. See 
also United States v. Rabinowitz, 339 U.S. 56, 86 (1950) 
(Frankfurter, J., dissenting) (stare decisis essential to avoid 
"giving fair ground for the belief that Law is the expres­
sion . . .  of unexpected changes in the Court’s composition and 
the contingencies in the choice of successors.”); Pollack u. 
Farmers’ Loan & Trust Co., 157 U.S. 601, 652 (1895) (White, 
J., dissenting).



28

Objective circumstances, and not merely a change in 
the Court’s composition, warrants the reconsideration.

Departure from stare decisis is unwarranted and 
dangerous, however, precisely to the extent that consid­
erations of that kind are absent. Here, reconsideration 
has been ordered absent the request of any party, upon 
the majority’s 5-4 sua sponte order directing reargu­
ment. Congress has not even colorably repudiated 
Runyon, which to the contrary is demonstrably in 
accord with existing national policy. (Indeed, Congress 
has only recently overwhelmingly overridden a presi­
dential veto and thereby effectively overruled one of 
this Court’s statutory civil rights decisions, which had 
narrowly construed Title IX of the Education Amend­
ments of 1972 so as to narrow the range of racial dis­
crimination by private institutions subject to direct 
federal oversight.20)

20 In Section 2 of the aptly named Civil Rights Restoration Act 
of 1987, 42 U.S.C. § 2000(d), overruling Grove City College v. 
Bell, 465 U S. 574 (1984), Congress expressly found that "cer­
tain aspects of recent decisions have unduly narrowed or cast 
doubt upon [civil rights legislation! and legislative action is 
necessary to restore the prior consistent and longstanding 
interpretation . . .  of those laws . . . . ’* See also, e g., Newport 
News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 
670, 678-682 (1983) (construing legislation overruling 
General Electric Co. v. Gilbert, 429 U.S. 125 (1976)); Civil 
Rights Attorneys’ Fees Awards Act, 42 U.S.C. § 1988, over­
ruling Alyeska Pipeline Service Co. v. Wilderness Society, 421 
U.S. 240 (1974); Voting Rights Act 42 U.S.C. § 1973, over­
ruling Mobile v. Bolden, 446 U.S. 55 (1980); The Handi­
capped Children’s Protection Act of 1986, Pub. L. 99-372,100 
Stat. 796, codified at 20 U.S.C. § 1415 (e)(4)(B)-(G), over­
ruling Smith v. Robinson, 468 U.S. 992 (1984). Although 
this Court’s opinions historically construed civil rights legis­
lation broadly, like any remedial legislation, to best effec­
tuate its purposes, e g., Griffin v. Breckenridge, 403 U.S. 88, 
97 (1971), this canon of construction has all but disappeared 
from the Court’s more recent civil rights decisions.

29

Under all these circumstances, our obligations as 
members of the bar of this Court, concerned about its 
vital position in our system of government and the 
respect on which its power ultimately depends, compel 
us to urge on the Court the most deliberate restraint in 
reaching out to reverse the interpretation of Section 
1981 adopted in Runyon and its predecessors. Section 
1981, as construed in Runyon, in modern civil rights 
jurisprudence, and in post -Runyon congressional 
activity, is a critically important federal statute; and no 
justification we have seen comes close to justifying 
overruling Runyon and transforming Section 1981 from 
a vital instrument of justice into a derelict on the 
waters of the law.

CONCLUSION

For all the foregoing reasons, the Court should 
reaffirm Runyon u. McCrary.

Respectfully submitted,

Sheldon Oliensis
President, The Association of the 
Bar of The City of New York 

Jonathan Lang*
Chair, Committee on Civil Rights 

Howard J. Aibel 
Chair, Committee on Federal 
Legislation

Of Counsel:
Charles S. Sims

June 1988

* Counsel of Record