Title 42 U.S.C. § 1981 provides in part that
"[a]ll persons within the jurisdiction of the United States
shall have the same right in every State . . . to make and enforce
contracts . . . as is enjoyed by white citizens. . . ."
After they had been denied admission to petitioner private
schools in Virginia for the stated reason that the schools were not
integrated, two Negro children (hereafter respondents), by their
parents, brought actions against the schools, alleging that they
had been prevented from attending the schools because of the
schools' admitted policies of denying admission to Negroes, in
violation of § 1981, and seeking declaratory and injunctive relief
and damages. The District Court, finding that respondents had been
denied admission on racial grounds, held that § 1981 makes illegal
the schools' racially discriminatory admissions policies, and
accordingly enjoined the schools and the member schools of
petitioner private school association (which had intervened as a
party defendant) from discriminating against applicants for
admission on the basis of race. The court also awarded compensatory
relief to both children and to the parents of one, and assessed
attorneys' fees against each school, but held that the damages
claim of the parents of the other child was barred by Virginia's
two-year statute of limitations for "personal injury" actions,
"borrowed" for § 1981 suits filed in that State. The Court of
Appeals, while reversing the award of attorneys' fees, affirmed the
grant of equitable and compensatory relief and the ruling as to the
applicable statute of limitations, holding that § 1981 is a
"limitation upon private discrimination, and its enforcement in
the context of this case is not a deprivation of any right of free
association or of privacy of the
Page 427 U. S. 161
defendants; of the intervenor, or of their pupils or
patrons."
Held:
1. Section 1981 prohibits private, commercially operated,
nonsectarian schools from denying admission to prospective students
because they are Negroes. Pp.
427 U. S.
168-175.
(a) Section 1 of the Civil Rights Act of 1866, from which § 1981
is derived, prohibits racial discrimination in the making and
enforcing of private contracts.
See Johnson v. Railway Express
Agency, 421 U. S. 454,
421 U. S.
459-460;
Tillman v. Wheaton-Haven Recreation
Assn., 410 U. S. 431,
410 U. S.
439-440.
Cf. Jones v. Alfred H. Mayer Co.,
392 U. S. 409,
392 U. S.
441-443, n. 78. Pp.
427 U. S.
168-172.
(b) The racial discrimination practiced by petitioner schools
amounts to a classic violation of § 1981: Respondents' parents
sought to enter into a contractual relationship with petitioner
schools, but neither school offered services on an equal basis to
white and nonwhite students. Pp.
427 U. S.
172-173.
2. Section 1981, as applied in this case, does not violate
constitutionally protected rights of free association and privacy,
or a parent's right to direct the education of his children. Pp.
427 U. S.
175-179.
(a) While, under the principle that there is a First Amendment
right "to engage in association for the advancement of beliefs and
ideas,"
NAACP v. Alabama, 357 U.
S. 449,
357 U. S. 460,
it may be assumed that parents have a right to send their children
to schools that promote the belief that racial segregation is
desirable, and that the children have a right to attend such
schools, it does not follow that the practice of excluding racial
minorities from such schools is also protected by the same
principle. The Constitution places no value on discrimination, and
while
"[i]nvidious private discrimination may be characterized as a
form of exercising freedom of association protected by the First
Amendment . . . , it has never been accorded affirmative
constitutional protections."
Norwood v. Harrison, 413 U. S. 455,
413 U. S. 470.
Pp.
427 U. S.
175-176.
(b) The application of § 1981 in this case infringed no parental
right such as was recognized in
Meyer v. Nebraska,
262 U. S. 390;
Pierce v. Society of Sisters, 268 U.
S. 510;
Wisconsin v. Yoder, 406 U.
S. 205; or
Norwood v. Harrison, supra, since no
challenge is made to petitioner schools' right to operate, to
parents' right to send their children to a particular private
school rather than a public school, or to the subject matter that
is taught at any private school. Pp.
427 U. S.
176-177.
(c) While parents have a constitutional right to send their
Page 427 U. S. 162
children to private schools and to select private schools that
offer specialized instruction, they have no constitutional right to
provide their children with private school education unfettered by
reasonable government regulation. Section 1981, as applied to the
conduct at issue here, constitutes an exercise of federal
legislative power under § 2 of the Thirteenth Amendment "to enforce
[that Amendment] by appropriate legislation," fully consistent with
Meyer v. Nebraska, supra; Pierce v. Society of Sisters,
supra, and the cases that followed in their wake, such power
including "the power to enact laws
direct and primary,
operating upon the acts of individuals, whether sanctioned by State
legislation or not.'" Jones v. Alfred H. Mayer Co., supra,
at 392 U. S. 438.
Pp. 427 U. S.
177-179.
3. Absent a federal statute of limitations for §1981 actions or
a Virginia statute of limitations specifically governing civil
rights actions, the Court of Appeals applied the appropriate
statute of limitations to bar the damages claim in question,
particularly where it appears that the Court of Appeals, as well as
the Federal District Courts in Virginia, had considered the
question in previous federal civil rights litigation, and that the
phrase "personal injuries" in the Virginia two-year statute of
limitations can reasonably be construed to apply to the sort of
injuries claimed here and not only to "physical injuries" as one
respondent's parents contend. Pp.
427 U. S.
179-182.
4. Absent any federal statute expressly providing for attorneys'
fees in § 1981 cases or any bad faith on petitioner schools' part
in contesting the actions, the Court of Appeals properly reversed
the award of such fees. Nor is implied authority for such an award
furnished by the generalized command of 42 U. S. C. §1988 "to
furnish suitable remedies" to vindicate the rights conferred by the
various Civil Rights Acts. Pp.
427
U.S. 182-186.
515 F.2d 1082, affirmed.
STEWART, J., delivered the opinion of the Court, in which
BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and
STEVENS, JJ., joined. POWELL, J., post, p.
427 U. S. 186,
and STEVENS, J., post, p.
427 U. S. 189,
filed concurring opinions. WHITE, J., filed a dissenting opinion,
in which REHNQUIST, J., joined, post, p.
427 U. S.
192
Page 427 U. S. 163
MR. JUSTICE STEWART delivered the opinion of the Court.
The principal issue presented by these consolidated cases is
whether a federal law, namely 42 U.S.C. § 1981, prohibits private
schools from excluding qualified children solely because they are
Negroes.
I
The respondents in No. 762, Michael McCrary and Colin Gonzales,
are Negro children. By their parents,
Page 427 U. S. 164
they filed a class action against the petitioners in No. 75-62,
Russell and Katheryne Runyon, who are the proprietors of Bobbe's
School in Arlington, Va. Their complaint alleged that they had been
prevented from attending the school because of the petitioners'
policy of denying admission to Negroes, in violation of 42 U.S.C. §
1981 [
Footnote 1] and Title II
of the Civil Rights Act of 1964, 78 Stat. 243, 42 U.S.C. § 2000a
et seq. [
Footnote 2]
They sought declaratory and injunctive relief and damages. On the
same day, Colin Gonzales, the respondent in No. 75-66, filed a
similar complaint by his parents against the petitioner in No.
75-66, Fairfax-Brewster School, Inc., located in Fairfax County,
Va. The petitioner in No. 75-278, the Southern Independent School
Association, sought and was granted permission to intervene as a
party defendant in the suit against the Runyons. That organization
is a nonprofit association composed of six state private school
associations, and represents 395 private schools. It is stipulated
that many of these schools deny admission to Negroes.
The suits were consolidated for trial. The findings of the
District Court, which were left undisturbed by the Court of
Appeals, were as follows. Bobbe's School opened in 1958 and grew
from an initial enrollment of five students to 200 in 1972. A day
camp was begun in 1967, and has averaged 100 children per year. The
Fairfax-Brewster School commenced operations in 1955, and opened a
summer day camp in 1956. A total of
Page 427 U. S. 165
223 students were enrolled at the school during the 1972-1973
academic year, and 236 attended the day camp in the summer of 1972.
Neither school has ever accepted a Negro child for any of its
programs.
In response to a mailed brochure addressed "resident" and an
advertisement in the "Yellow Pages" of the telephone directory, Mr.
and Mrs. Gonzales telephoned and then visited the Fairfax-Brewster
School in May, 1969. After the visit, they submitted an application
for Colin's admission to the day camp. The school responded with a
form letter, which stated that the school was "unable to
accommodate [Colin's] application." Mr. Gonzales telephoned the
school. Fairfax-Brewster's Chairman of the Board explained that the
reason for Colin's rejection was that the school was not
integrated. Mr. Gonzales then telephoned Bobbe's School, from which
the family had also received in the mail a brochure addressed to
"resident." In response to a question concerning that school's
admissions policies, he was told that only members of the Caucasian
race were accepted. In August, 1972, Mrs. McCrary telephoned
Bobbe's School in response to an advertisement in the telephone
book. She inquired about nursery school facilities for her son,
Michael. She also asked if the school was integrated. The answer
was no.
Upon these facts, the District Court found that the
Fairfax-Brewster School had rejected Colin Gonzales' application on
account of his race, and that Bobbe's School had denied both
children admission on racial grounds. The court held that 42 U.S.C.
§ 1981 makes illegal the schools' racially discriminatory
admissions policies. It therefore enjoined Fairfax-Brewster School
and Bobbe's School and the member schools of the Southern
Independent School Association [
Footnote 3] from discriminating
Page 427 U. S. 166
against applicants for admission on the basis of race. The court
awarded compensatory relief to Mr. and Mrs. McCrary, Michael
McCrary, and Colin Gonzales. [
Footnote 4] In a previous ruling the court had held that
the damages claim of Mr. and Mrs. Gonzales was barred by Virginia's
two-year statute of limitations for personal injury actions,
"borrowed" for § 1981 suits filed in that State. Finally, the court
assessed attorneys' fees of § 1,000 against each school.
363 F.
Supp. 1200 (ED Va.1973).
The Court of Appeals for the Fourth Circuit, sitting en banc,
affirmed the District Court's grant of equitable and compensatory
relief and its ruling as to the applicable statute of limitations,
but reversed its award of attorneys' fees. 515 F.2d 1082 (1975).
Factually, the court held that there was sufficient evidence to
support the trial court's finding that the two schools had
discriminated racially against the children. On the basic issue of
law, the court agreed that 42 U.S.C. § 1981 is a
"limitation upon private discrimination, and its enforcement in
the context of this case is not a deprivation of any right of free
association or of privacy of the defendants, of the intervenor, or
of their pupils or patrons."
515 F.2d at 1086. The relationship the parents had sought to
enter into with the schools was in the court's view undeniably
contractual in nature, within the meaning of § 1981, and the court
rejected the schools' claim that § 1981 confers no right of action
unless the contractual relationship denied to Negroes is available
to all whites. 515 F.2d at 1087. Finally, the appellate
Page 427 U. S. 167
court rejected the schools' contention that their racially
discriminatory policies are protected by a constitutional right of
privacy.
"When a school holds itself open to the public . . . or even to
those applicants meeting established qualifications, there is no
perceived privacy of the sort that has been given constitutional
protection."
Id. at 1088.
We granted the petitions for certiorari filed by the
Fairfax-Brewster School, No. 766; Bobbe's School, No. 75-62; and
the Southern Independent School Association, No. 75-278, to
consider whether 42 U.S.C. § 1981 prevents private schools from
discriminating racially among applicants. 423 U.S. 945. We also
granted the cross-petition of Michael McCrary, Colin Gonzales, and
their parents, No. 75-306, to determine the attorneys' fees and
statute of limitations issues.
Ibid.
II
It is worth noting at the outset some of the questions that
these cases do not present. They do not present any question of the
right of a private social organization to limit its membership on
racial or any other grounds. [
Footnote 5] They do not present any question of the right
of a private school to limit its student body to boys, to girls, or
to adherents of a particular religious faith, since 42 U.S.C. §
1981 is in no way addressed to such categories of selectivity. They
do not even present the application of § 1981 to private sectarian
schools that practice racial exclusion on religious grounds.
[
Footnote 6] Rather, these
cases
Page 427 U. S. 168
present only two basic questions: [
Footnote 7] whether § 1981 prohibits private, commercially
operated, nonsectarian schools from denying admission to
prospective students because they are Negroes, and, if so, wether
that federal law is constitutional as so applied.
A.
Applicability of § 1981
It is now well established that § 1 of the Civil Rights Act of
1866, 14 Stat. 27, 42 U.S.C. § 1981, prohibits racial
discrimination in the making and enforcement of private contracts.
[
Footnote 8]
See Johnson
v. Railway Express
Page 427 U. S. 169
Agency, 421 U. S. 454,
421 U. S.
459-460;
Tillman v. Wheaton-Haven Recreation
Assn., 410 U. S. 431,
410 U. S.
439-440.
Cf. Jones v. Alfred H. Mayer Co.,
392 U. S. 409,
392 U. S.
441-443, n. 78.
Page 427 U. S. 170
In
Jones, the Court held that the portion of § 1 of the
Civil Rights Act of 1866 presently codified as 42 U.S.C. § 1982
prohibits private racial discrimination in the sale or rental of
real or personal property. Relying on the legislative history of §
1, from which both § 1981 and § 1982 derive, the Court concluded
that Congress intended to prohibit "all racial discrimination,
private and public, in the sale . . . of property," 392 U.S. at
392 U. S. 437,
and that this prohibition was within Congress' power under § 2 of
the Thirteenth Amendment "rationally to determine what are the
badges and the incidents of slavery, and . . . to translate that
determination into effective legislation." 392 U.S. at
392 U. S.
440.
As the Court indicated in
Jones, supra, at
392 U. S.
441-443, n. 78, that holding necessarily implied that
the portion of § 1 of the 1866 Act presently codified as 42 U.S.C.
§ 1981 likewise reaches purely private acts of racial
discrimination. The statutory holding in
Jones was that
the
"[1866] Act was designed to do just what its terms suggest: to
prohibit all racial discrimination, whether or not under color of
law, with respect to the rights enumerated therein -- including the
right to purchase or lease property,"
392 U.S. at
392 U. S. 436.
One of the "rights enumerated" in § 1 is "the same right . . . to
make and enforce contracts . . . as is enjoyed by white citizens. .
. ." 14 Stat. 27. Just as, in
Jones, a Negro's § 1 right
to purchase property on equal terms with whites was violated when a
private person refused to sell to the prospective purchaser solely
because he was a Negro, so also a Negro's § 1 right to "make and
enforce contracts" is violated if a private offeror refuses to
extend to a Negro,
Page 427 U. S. 171
solely because he is a Negro, the same opportunity to enter into
contracts as he extends to white offerees. [
Footnote 9]
The applicability of the holding in
Jones to § 1981 was
confirmed by this Court's decisions in
Tillman v. Wheaton-Haven
Recreation Assn., supra, and
Johnson v. Railway Express
Agency, Inc., supra. In
Tillman, the petitioners
urged that a private swimming club had violated 42 U.S.C. §§ 1981,
1982, and 2000a
et seq. by enforcing a guest policy that
discriminated against Negroes. The Court noted that "[t]he
operative language of both § 1981 and § 1982 is traceable to the
Act of April 9, 1866, c. 31, § 1, 14 Stat. 27." 410 U.S. at
410 U. S. 439.
Referring to its earlier rejection of the respondents' contention
that Wheaton-Haven was exempt from § 1982 under the private club
exception of the Civil Rights Act of 1964, the Court concluded:
"In light of the historical interrelationship between § 1981 and
§ 1982, [there is] no reason to construe these sections differently
when applied, on these facts, to the claim of Wheaton-Haven that it
is a private club."
410 U.S. at
410 U. S. 440.
Accordingly the Court remanded the case to the District Court for
further proceedings "free of the misconception that
Page 427 U. S. 172
Wheaton-Haven is exempt from §§ 1981, 1982, and 2000a."
Ibid. In
Johnson v. Railway Express Agency,
supra, the Court noted that § 1981 "relates primarily to
racial discrimination in the making and enforcement of contracts,"
421 U.S. at
421 U. S. 459,
and held unequivocally "that § 1981 affords a federal remedy
against discrimination in private employment on the basis of race."
Id. at
421 U. S.
459-460.
It is apparent that the racial exclusion practiced by the
Fairfax-Brewster School and Bobbe's Private School amounts to a
classic violation of § 1981. The parents of Colin Gonzales and
Michael McCrary sought to enter into contractual relationships with
Bobbe's School for educational services. Colin Gonzales' parents
sought to enter into a similar relationship with the
Fairfax-Brewster School. Under those contractual relationships, the
schools would have received payments for services rendered, and the
prospective students would have received instruction in return for
those payments. The educational services of Bobbe's School and the
Fairfax-Brewster School were advertised and offered to members of
the general public. [
Footnote
10] But neither school offered services
Page 427 U. S. 173
on an equal basis to white and nonwhite students. As the Court
of Appeals held,
"there is ample evidence in the record to support the trial
judge's factual determinations . . . [that] Colin [Gonzales] and
Michael [McCrary] were denied admission to the schools because of
their race."
515 F.2d at 1086. The Court of Appeals' conclusion that § 1981
was thereby violated follows inexorably from the language of that
statute, as construed in
Jones, Tillman, and
Johnson.
The petitioning schools and school association argue principally
that § 1981 does not reach private acts of racial discrimination.
That view is wholly inconsistent with
Jones'
interpretation of the legislative history of § 1 of the Civil
Rights Act of 1866, an interpretation that was reaffirmed in
Sullivan v. Little Hunting Park, Inc., 396 U.
S. 229, and again in
Tillman v. Wheaton-Haven
Recreation Assn., supra. And this consistent interpretation of
the law necessarily requires the conclusion that § 1981, like §
1982, reaches private conduct.
See Tillman
Page 427 U. S. 174
v. Wheaton-Haven Recreation Assn., 410 U.S. at
410 U. S.
439-440;
Johnson v. Railway Express Agency, 421
U.S. at
421 U. S.
459-460.
It is noteworthy that Congress in enacting the Equal Employment
Opportunity Act of 1972, 86 Stat. 103, as amended, 42 U.S.C. §
2000e
et seq. (1970 ed., Supp. IV), specifically
considered and rejected an amendment that would have repealed the
Civil Rights Act of 1866, as interpreted by this Court in Jones,
insofar as it affords private sector employees a right of action
based on racial discrimination in employment.
See Johnson v.
Railway Express Agency, supra at
421 U. S. 459.
[
Footnote 11] There
could
Page 427 U. S. 175
hardly be a clearer indication of congressional agreement with
the view that § 1981 does reach private acts of racial
discrimination.
Cf. Flood v. Kuhn, 407 U.
S. 258,
407 U. S.
269-285;
Joint Industry Board v. United States,
391 U. S. 225,
391 U. S.
228-229. In these circumstances, there is no basis for
deviating from the well settled principles of
stare
decisis applicable to this Court's construction of federal
statutes.
See Edelman v. Jordan, 415 U.
S. 651,
415 U. S. 671
n. 14. [
Footnote 12]
B.
Constitutionality of § 1981 as Applied
The question remains whether § 1981, as applied, violates
constitutionally protected rights of free association and privacy,
or a parent's right to direct the education of his children.
[
Footnote 13]
1.
Freedom of Association
In
NAACP v. Alabama, 357 U. S. 449, and
similar decisions, the Court has recognized a First Amendment right
"to engage in association for the advancement of beliefs and ideas.
. . ."
Id. at
357 U. S. 460.
That right is protected because it promotes and may well be
essential to the "[e]ffective advocacy of both public and private
points of view, particularly controversial ones" that the First
Amendment is designed to foster.
Ibid. See Buckley v.
Valeo, 424 U. S. 1,
424 U. S. 15;
NAACP v. Button, 371 U. S. 415.
Page 427 U. S. 176
From this principle it may be assumed that parents have a First
Amendment right to send their children to educational institutions
that promote the belief that racial segregation is desirable, and
that the children have an equal right to attend such institutions.
But it does not follow that the practice of excluding racial
minorities from such institutions is also protected by the same
principle. As the Court stated in
Norwood v. Harrison,
413 U. S. 455,
"the Constitution . . . places no value on discrimination,"
id. at
413 U. S. 469,
and while
"[i]nvidious private discrimination may be characterized as a
form of exercising freedom of association protected by the First
Amendment . . . it has never been accorded affirmative
constitutional protections. And even some private discrimination is
subject to special remedial legislation in certain circumstances
under § 2 of the Thirteenth Amendment; Congress has made such
discrimination unlawful in other significant contexts."
Id. at
413 U. S. 470.
In any event, as the Court of Appeals noted,
"there is no showing that discontinuance of [the] discriminatory
admission practices would inhibit in any way the teaching in these
schools of any ideas or dogma."
515 F.2d at 1087.
2.
Parental Rights
In
Meyer v. Nebraska, 262 U. S. 390, the
Court held that the liberty protected by the Due Process Clause of
the Fourteenth Amendment includes the right "to acquire useful
knowledge, to marry, establish a home and bring up children,"
id. at
262 U. S. 399,
and, concomitantly, the right to send one's children to a private
school that offers specialized training -- in that case,
instruction in the German language. In
Pierce v. Society of
Sisters, 268 U. S. 510, the
Court applied "the doctrine of
Meyer v. Nebraska," id. at
268 U. S. 534,
to hold unconstitutional an Oregon law requiring the parent,
guardian, or other person having custody of a child between 8 and
16 years of age
Page 427 U. S. 177
to send that child to public school on pain of criminal
liability. The Court thought it
"entirely plain that the [statute] unreasonably interferes with
the liberty of parents and guardians to direct the upbringing and
education of children under their control."
Id. at
268 U. S.
534-535. In
Wisconsin v. Yoder, 406 U.
S. 205, the Court stressed the limited scope of
Pierce, pointing out that it lent
"no support to the contention that parents may replace state
educational requirements with their own idiosyncratic views of what
knowledge a child needs to be a productive and happy member of
society,"
but, rather,
"held simply that, while a State may posit [educational]
standards, it may not preempt the educational process by requiring
children to attend public schools."
Id. at
406 U. S. 239
(WHITE, J., concurring). And in
Norwood v. Harrison,
413 U. S. 455, the
Court once again stressed the "limited scope of
Pierce,"
id. at
413 U. S. 461,
which simply "affirmed the right of private schools to exist and to
operate. . . ."
Id. at
413 U. S.
462.
It is clear that the present application of § 1981 infringes no
parental right recognized in
Meyer, Pierce, Yoder, or
Norwood. No challenge is made to the petitioner schools'
right to operate or the right of parents to send their children to
a particular private school, rather than a public school. Nor do
these cases involve a challenge to the subject matter which is
taught at any private school. Thus, the Fairfax-Brewster School and
Bobbe's School and members of the intervenor association remain
presumptively free to inculcate whatever values and standards they
deem desirable.
Meyer and its progeny entitle them to no
more.
3.
The Right of Privacy
The Court has held that, in some situations, the Constitution
confers a right of privacy.
See Roe v. Wade, 410 U.
S. 113,
410 U. S.
152-153;
Eisenstadt v. Baird, 405 U.
S. 438,
405 U. S. 453;
Stanley v. Georgia, 394 U. S. 557,
394 U. S.
564-565;
Griswold
Page 427 U. S. 178
v. Connecticut, 381 U. S. 479,
381 U. S.
484-485.
See also Loving v. Virginia,
388 U. S. 1,
388 U. S. 12;
Skinner v. Oklahoma ex rel. Williamson, 316 U.
S. 535,
316 U. S.
541.
While the application of § 1981 to the conduct at issue here --
a private school's adherence to a racially discriminatory
admissions policy -- does not represent governmental intrusion into
the privacy of the home or a similarly intimate setting, [
Footnote 14] it does implicate
parental interests. These interests are related to the procreative
rights protected in
Roe v. Wade, supra, and
Griswold
v. Connecticut, supra. A person's decision whether to bear a
child and a parent's decision concerning the manner in which his
child is to be educated may fairly be characterized as exercises of
familial rights and responsibilities. But it does not follow that,
because government is largely or even entirely precluded from
regulating the childbearing decision, it is similarly restricted by
the Constitution from regulating the implementation of parental
decisions concerning a child's education.
The Court has repeatedly stressed that while parents have a
constitutional right to send their children to private schools and
a constitutional right to select private schools that offer
specialized instruction, they have no constitutional right to
provide their children with private school education unfettered by
reasonable government regulation.
See Wisconsin v. Yoder,
supra at
406 U. S. 213;
Pierce v. Society of Sisters, supra at
268 U. S. 534;
Meyer v. Nebraska, 262 U.S. at
262 U. S. 402.
[
Footnote 15] Indeed, the
Court in Pierce expressly acknowledged "the power of the State
Page 427 U. S. 179
reasonably to regulate all schools, to inspect, supervise and
examine them, their teachers and pupils. . . ." 268 U.S. at
268 U. S. 534.
See also Prince v. Massachusetts, 321 U.
S. 158,
321 U. S.
166.
Section 1981, as applied to the conduct at issue here,
constitutes an exercise of federal legislative power under § 2 of
the Thirteenth Amendment fully consistent with
Meyer,
Pierce, and the cases that followed in their wake. As the
Court held in
Jones v. Alfred H. Mayer Co., supra:
"It has never been doubted . . . 'that the power vested in
Congress to enforce [the Thirteenth Amendment] by appropriate
legislation' . . . includes the power to enact laws 'direct and
primary, operating upon the acts of individuals, whether sanctioned
by State legislation or not.'"
392 U.S. at
392 U. S. 438
(citation omitted). The prohibition of racial discrimination that
interferes with the making and enforcement of contracts for private
educational services furthers goals closely analogous to those
served by § 1981's elimination of racial discrimination in the
making of private employment contracts [
Footnote 16] and, more generally, by § 1982's
guarantee that "a dollar in the hands of a Negro will purchase the
same thing as a dollar in the hands of a white man." 392 U.S. at
392 U. S.
443.
III
A.
Statute of Limitations
The District Court held that the damages suit of the petitioners
in No. 7306, Mr. and Mrs. Gonzales, which was initiated 3 1/2 years
after their cause of action accrued, was barred by the statute of
limitations. This
Page 427 U. S. 180
ruling was affirmed by the Court of Appeals. The petitioners
contend that both courts erred in "borrowing" the wrong Virginia
statute of limitations.
Had Congress placed a limit upon the time for bringing an action
under § 1981, that would, of course, end the matter. But Congress
was silent. And "[a]s to actions at law," which a damages suit
under § 1981 clearly is, "the silence of Congress has been
interpreted to mean that it is federal policy to adopt the local
law of limitation."
Holmberg v. Armbrecht, 327 U.
S. 392,
327 U. S. 395.
See Johnson v. Railway Express Agency, 421 U.S. at
421 U. S. 462;
Rawlings v. Ray, 312 U. S. 96;
O'Sullivan v. Felix, 233 U. S. 318;
Chattanooga Foundry v. Atlanta, 203 U.
S. 390. As the Court stated in
Holmberg, supra
at
327 U. S.
395:
"The implied absorption of State statutes of limitation within
the interstices of the federal enactments is a phase of fashioning
remedial details where Congress has not spoken but left matters for
judicial determination within the general framework of familiar
legal principles."
At the time of this litigation Virginia had not enacted a
statute that specifically governed civil rights suits. In the
absence of such a specific statute, the District Court and the
Court of Appeals held that the first sentence of Va.Code Ann. §
8-24 (1957) provides the relevant limitations period for a § 1981
action: "Every action for personal injuries shall be brought within
two years next after the right to bring the same shall have
accrued." The petitioners assert that this provision applies only
to suits predicated upon actual physical injury, and that the
correct limitation period is five years, by virtue of the second
sentence of § 8-24, which comprehends all other "personal"
actions:
"Every personal action, for which no limitation is otherwise
prescribed, shall be brought within five
Page 427 U. S. 181
years next after the right to bring the same shall have accrued,
if it be for a matter of such nature that in case a party die it
can be brought by or against his representative; and, if it be for
a matter not of such nature, shall be brought within one year next
after the right to bring the same shall have accrued."
The petitioners' contention is certainly a rational one, but we
are not persuaded that the Court of Appeals was mistaken in
applying the two-year state statute. The issue was not a new one
for that court, for it had given careful consideration to the
question of the appropriate Virginia statute of limitations to be
applied in federal civil rights litigation on at least two previous
occasions.
Allen v. Gilford, 462 F.2d 615;
Almond v.
Kent, 459 F.2d 200. We are not disposed to displace the
considered judgment of the Court of Appeals on an issue whose
resolution is so heavily contingent upon an analysis of state law,
particularly when the established rule has been relied upon and
applied in numerous suits filed in the Federal District Courts in
Virginia. [
Footnote 17] In
other situations in which a federal right has depended upon the
interpretation of state law,
"the Court has accepted the interpretation of state law in which
the District Court and the Court of Appeals have concurred even if
an examination of the state law issue without such guidance might
have justified a different conclusion."
Bishop v.
Page 427 U. S. 182
Wood, 426 U. S. 341,
426 U. S. 346,
and n. 10, citing,
inter alia, United States v. Durham Lumber
Co., 363 U. S. 522;
Propper v. Clark, 337 U. S. 472;
Township of Hillsborough v. Cromwell, 326 U.
S. 620.
Moreover, the petitioners have not cited any Virginia Court
decision to the effect that the term "personal injuries" in § 24
means only "physical injuries." It could be argued with at least
equal force that the phrase "personal injuries" was designed to
distinguish those causes of action involving torts against the
person from those involving damage to property. And whether the
damages claim of the Gonzaleses be properly characterized as
involving "injured feelings and humiliation," as the Court of
Appeals held, 515 F.2d at 1097, or the vindication of
constitutional rights, as the petitioners contend, there is no
dispute that the damage was to their persons, not to their realty
or personalty.
Cf. Carva Food Corp. v. Dawley, 202 Va.
543, 118 S.E.2d 664;
Travelers Ins. Co. v. Turner, 211 Va.
552, 178 S.E.2d 503.
B.
Attorneys' Fees
The District Court, without explanation or citation of
authority, awarded attorneys' fees of § 1,000 against each of the
two schools. The Court of Appeals reversed this part of the
District Court's judgment. Anticipating our decision in
Alyeska
Pipeline Service Co. v. Wilderness Society, 421 U.
S. 240, the appellate court refused to adopt the
so-called private attorney general theory under which attorneys'
fees could be awarded to any litigant who vindicates an important
public interest. And it could find no other ground for the award:
no statute explicitly provides for attorneys' fees in § 1981 cases,
[
Footnote 18] and
neither
Page 427 U. S. 183
school had evinced "
obstinate obduracy'" or bad faith in
contesting the action. 515 F.2d at 1089-1090.
Mindful of this Court's Alyeska decision, the petitioners do not
claim that their vindication of the right of Negro children to
attend private schools alone entitles them to attorneys' fees. They
make instead two other arguments.
First, the petitioners claim that the schools exhibited bad
faith, not by litigating the legal merits of their racially
discriminatory admissions policy, but by denying that they in fact
had discriminated. To support this claim, the petitioners cite a
number of conflicts in testimony between the McCrarys, the
Gonzaleses, and other witnesses, on the one hand, and the officials
of the schools, on the other, which the District Court resolved
against the schools in finding racial discrimination. Indeed, the
trial court characterized as "unbelievable" the testimony of three
officials of the Fairfax-Brewster School. 363 F. Supp. at 1202. By
stubbornly contesting the facts, the petitioners assert, the
schools attempted to deceive the court and, in any event,
needlessly prolonged the litigation.
We cannot accept this argument. To be sure, the Court has
recognized the "inherent power" of the federal courts to assess
attorneys' fees when the losing party has "acted in bad faith,
vexatiously, wantonly, or for oppressive reasons. . . ."
F. D.
Rich Co. v. United States ex rel. Industrial Lumber Co.,
417 U. S. 116,
417 U. S. 129.
See Alyeska, supra at
451 U. S.
258-259;
Vaughan v. Atkinson, 369 U.
S. 527. But in this case, the factual predicate to a
finding of bad faith is absent. Simply because the facts were found
against the schools does not, by itself, prove that threshold of
irresponsible conduct for which a penalty assessment would be
justified. Whenever the facts in a case are disputed, a court
perforce must decide that one party's version is inaccurate. Yet it
would be
Page 427 U. S. 184
untenable to conclude
ipso facto that that party had
acted in bad faith. As the Court of Appeals stated, 515 F.2d at
1090:
"Faults in perception or memory often account for differing
trial testimony, but that has not yet been thought a sufficient
ground to shift the expense of litigation."
We find no warrant for disturbing the holding of the Court of
Appeals that no bad faith permeated the defense by the schools of
this lawsuit.
The petitioners' second argument is that, while 42 U.S.C. § 1981
contains no authorization for the award of attorneys' fees, 42
U.S.C. § 1988 implicitly does. In relevant part, that section
reads:
"The jurisdiction in civil . . . matters conferred on the
district courts by the provisions of this chapter and Title 18, for
the protection of all persons in the United States in their civil
rights, and for their vindication, shall be exercised and enforced
in conformity with the laws of the United States, so far as such
laws are suitable to carry the same into effect; but in all cases
where they are not adapted to the object, or are deficient in the
provisions necessary to furnish suitable remedies and punish
offenses against law, the common law, as modified and changed by
the constitution and statutes of the State wherein the court having
jurisdiction of such civil or criminal cause is held, so far as the
same is not inconsistent with the Constitution and laws of the
United States, shall be extended to and govern the said courts in
the trial and disposition of the cause. . . ."
The petitioners assert, in the words of their brief, that §
1988
"embodies a uniquely broad commission to the federal courts to
search among federal and state statutes and common law for the
remedial devices and procedures which best enforce the substantive
provisions of
Page 427 U. S. 185
Sec.1981 and other civil rights statutes."
As part of that "broad commission," the federal courts are
obligated, the petitioners say, to award attorneys' fees whenever
such fees are needed to encourage private parties to seek relief
against illegal discrimination.
This contention is without merit. It is true that, in order to
vindicate the rights conferred by the various Civil Rights Acts, §
1988
"authorize[s] federal courts, where federal law is unsuited or
insufficient 'to furnish suitable remedies,' to look to principles
of the common law, as altered by state law. . . ."
Moor v. County of Alameda, 411 U.
S. 693,
411 U. S.
702-703.
See Sullivan v. Little Hunting Park,
Inc., 396 U.S. at
396 U. S.
239-240. But the Court has never interpreted § 1988 to
warrant the award of attorneys' fees. And nothing in the
legislative history of that statute suggests that such a radical
departure from the long-established American rule forbidding the
award of attorneys' fees was intended.
More fundamentally, the petitioners' theory would require us to
overlook the penultimate clause of § 1988: "so far as the same is
not inconsistent with the Constitution and laws of the United
States." As the Court recounted in some detail in
Alyeska,
supra at
421 U. S. 247,
passim, the law of the United States, but for a few well
recognized exceptions not present in these cases, [
Footnote 19] has always been that, absent
explicit congressional authorization, attorneys' fees are not a
recoverable cost of litigation. Hence, in order to "furnish" an
award of attorneys' fees, we would have to find that, at least as
to cases brought under statutes to which § 1988 applies, Congress
intended
Page 427 U. S. 186
to set aside this longstanding American rule of law. We are
unable to conclude, however, from the generalized commands of §
1988, that Congress intended any such result.
For the reasons stated in this opinion, the judgment of the
Court of Appeals is in all respects affirmed.
It is so ordered.
* Together with No. 75-66,
Fairfax-Brewster School, Inc. v.
Gonzales et al.; No. 75-278,
Southern Independent School
Assn. v. McCrary et al.; and No. 75-306,
McCrary et al. v.
Runyon et ux., dba Bobbe's School, et al., also on certiorari
to the same court.
[
Footnote 1]
Title 42 U.S.C. § 1981 provides:
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other."
[
Footnote 2]
The respondents withdrew their Title II claim before trial.
[
Footnote 3]
The District Court determined that the suit could not be
maintained as a class action.
[
Footnote 4]
For the embarrassment, humiliation, and mental anguish which the
parents and children suffered, the Court awarded Colin Gonzales
$2,000 against the Fairfax-Brewster School and $500 against Bobbe's
School. Michael McCrary was awarded damages of $1,000, and Mr. and
Mrs. McCrary $2,000, against Bobbe's School.
[
Footnote 5]
See generally Tillman v. Wheaton-Haven Recreation
Assn., 410 U. S. 431,
410 U. S.
439-440;
Moose Lodge No. 107 v. Irvis,
407 U. S. 163.
[
Footnote 6]
Nothing in this record suggests that either the Fairfax-Brewster
School or Bobbe's Private School excludes applicants on religious
grounds, and the Free Exercise Clause of the First Amendment is
thus in no way here involved.
[
Footnote 7]
Apart, of course, from the statute of limitations and attorneys'
fees issues involved in No. 75-306, and dealt with in
427 U.
S.
[
Footnote 8]
The historical note appended to the portion of the Civil Rights
Act of 1866, presently codified in 42 U.S.C. § 1981, indicates that
§ 1981 is derived solely from § 16 of the Act of May 31, 1870, 16
Stat. 144. The omission from the historical note of any reference
to § 18 of the 1870 Act, which reenacted § 1 of the 1866 Act, or to
the 1866 Act itself reflects a similar omission from the historical
note that was prepared in connection with the 1874 codification of
federal statutory law. The earlier note was appended to the draft
version of the 1874 revision prepared by three commissioners
appointed by Congress.
On the basis of this omission, at least one court has concluded,
in an opinion that antedated
Johnson v. Railway Express
Agency, 421 U. S. 454,
that § 1981 is based exclusively on the Fourteenth Amendment and
does not, therefore, reach private action.
Cook v. Advertiser
Co., 323 F.
Supp. 1212 (MD Ala.),
aff'd on other grounds, 458 F.2d
1119 (CA5). But the holding in that case ascribes an inappropriate
significance to the historical note presently accompanying § 1981,
and thus implicitly to the earlier revisers' note.
The commissioners who prepared the 1874 draft revision were
appointed pursuant to the Act of June 27, 1866, 14 Stat. 74,
reenacted by the Act of May 4, 1870, c. 72, 16 Stat. 96. They were
given authority to "revise, simplify, arrange, and consolidate all
statutes of the United States," Act of June 27, 1866, § 1, 14 Stat.
74, by
"bring[ing] together all statutes and parts of statutes which,
from similarity of subject, ought to be brought together,
omitting redundant or obsolete enactments. . . ."
§ 2, 14 Stat. 75 (emphasis added). The commissioners also had
the authority under § 3 of the Act of June 27, 1866, to "designate
such statutes or parts of statutes as, in their judgment, ought to
be repealed, with their reasons for such repeal." 14 Stat. 75.
It is clear that the commissioners did not intend to recommend
to Congress, pursuant to their authority under § 3 of the Act of
June 27, 1866, that any portion of § 1 of the Civil Rights Act of
1866 be repealed upon the enactment of the 1874 revision. When the
commissioners were exercising their § 3 power of recommendation,
they so indicated, in accordance with the requirements of § 3.
See 1 Draft Revision of the United States Statutes, Title
XXVI, §§ 8, 13 (1872). No indication of a recommended change was
noted with respect to the section of the draft which was to become
§ 1981. It is thus most plausible to assume that the revisers
omitted a reference to § 1 of the 1806 Act or § 18 of the 1870 Act
either inadvertently or on the assumption that the relevant
language in § 1 of the 1866 Act was superfluous in light of the
closely parallel language in § 16 of the 1870 Act.
We have, in past decisions, expressed the view that § 16 of the
1870 Act was merely a reenactment, with minor changes, of certain
language in § 1 of the 1866 Act.
E.g., Georgia v. Rachel,
384 U. S. 780,
384 U. S.
790-791. If this is so, then an assumption on the part
of the revisers that the language of the 1866 Act was superfluous
was perfectly accurate. But even assuming that the purpose behind
the enactment of § 16 of the 1870 Act was narrower than that behind
the enactment of relevant language in § 1 of the 1866 Act -- and
thus that the revisers' hypothetical assumption was wrong -- there
is still no basis for inferring that Congress did not understand
the draft legislation which eventually became 42 U.S.C. § 1981 to
be drawn from both § 16 of the 1870 Act and § 1 of the 1866
Act.
To hold otherwise would be to attribute to Congress an intent to
repeal a major piece of Reconstruction legislation on the basis of
an unexplained omission from the revisers' marginal notes. Such an
inference would be inconsistent with Congress' delineation in § 3
of the Act of June 27, 1866, of specific procedures to be followed
in connection with the submission of substantive proposals by the
revisers. It would also conflict with the square holding of this
Court in
Johnson v. Railway Express Agency, supra, that §
1981 reaches private conduct.
[
Footnote 9]
The petitioning schools and school association rely on a
statement in
Norwood v. Harrison, 413 U.
S. 455,
413 U. S. 469,
that
"private bias [in the admission of students to private schools]
is not barred by the Constitution,
nor does it invoke any
sanction of laws, but neither can it call on the Constitution
for material aid from the State."
(Emphasis added.) They argue that this statement supports their
contention that § 1981 does not proscribe private racial
discrimination that interferes with the formation of contracts for
educational services. But
Norwood involved no issue
concerning the applicability of § 1981 to such discrimination. The
question there was rather whether a state statute providing free
textbooks to students attending private segregated schools violated
the Equal Protection Clause of the Fourteenth Amendment. Indeed,
Norwood expressly noted that "some private discrimination
is subject to special remedial legislation in certain circumstances
under § 2 of the Thirteenth Amendment. . . ." 413 U.S. at
413 U. S.
470.
[
Footnote 10]
These cases do not raise the issue of whether the "private club
or other [private] establishment" exemption in § 201(e) of the
Civil Rights Act of 1964, 42 U.S.C. § 2000a(e), operates to narrow
§ 1 of the Civil Rights Act of 1866. As the Court of Appeals
implied, that exemption, if applicable at all, comes into play only
if the establishment is "not in fact open to the public. . . ." 42
U.S.C. § 2000a(e).
See 515 F.2d 1082, 1088-1089. Both
Bobbe's School and the Fairfax-Brewster School advertised in the
"Yellow Pages" of the telephone directory, and both used mass
mailings in attempting to attract students. As the Court of Appeals
observed, these
"schools are private only in the sense that they are managed by
private persons and they are not direct recipients of public funds.
Their actual and potential constituency, however, is more public
than private. They appeal to the parents of all children in the
area who can meet their academic and other admission requirements.
This is clearly demonstrated in this case by the public
advertisements."
Id. at 1089.
The pattern of exclusion is thus directly analogous to that at
issue in
Sullivan v. Little Hunting Park, Inc.,
396 U. S. 229, and
Tillman v. Wheaton-Haven Recreation Assn., 410 U.
S. 431, where the so-called private clubs were open to
all objectively qualified whites --
i.e., those living
within a specified geographic area.
Moreover, it is doubtful that a plausible "implied repeal"
argument could be made in this context in any event. Implied
repeals occur if two Acts are in irreconcilable conflict.
Radzanower v. Touche Ross & Co., 426 U.
S. 148,
426 U. S.
154-155. Title II of the Civil Rights Act of 1964, of
which the "private club" exemption is a part, does not by its terms
reach private schools. Since there would appear to be no potential
for overlapping application of § 1981 and Title II of the 1964 Act
with respect to racial discrimination practiced by private schools,
there would also appear to be no potential for conflict between §
1981 and Title II's "private club" exemption in this context.
See Note, The Desegregation of Private Schools: Is Section
1981 the Answer?, 48 N.Y.U.L.Rev. 1147, 1159 (1973).
[
Footnote 11]
Senator Hruska proposed an amendment which would have made Title
VII of the Civil Rights Act of 1964 and the Equal Pay Act the
exclusive sources of federal relief for employment discrimination.
118 Cong.Rec. 3371 (1972). Senator Williams, the floor manager of
the pending bill and one of its original sponsors, argued against
the proposed amendment on the ground that "[i]t is not our purpose
to repeal existing civil rights laws" and that to do so "would
severely weaken our overall effort to combat the presence of
employment discrimination."
Ibid. Senator Williams
specifically noted:
"The law against employment discrimination did not begin with
title VII and the EEOC, nor is it intended to end with it. The
right of individuals to bring suits in Federal courts to redress
individual acts of discrimination, including employment
discrimination was first provided by the Civil Rights Acts of 1866
and 1871, 42 U.S.C. sections 1981, 1983. It was recently stated by
the Supreme Court in the case of
Jones v. Mayer, that
these acts provide fundamental constitutional guarantees. In any
case, the courts have specifically held that title VII and the
Civil Rights Acts of 1866 and 1871 are not mutually exclusive, and
must be read together to provide alternative means to redress
individual grievances. Mr. President, the amendment of the Senator
from Nebraska will repeal the first major piece of civil rights
legislation in this Nation's history. We cannot do that."
Ibid. The Senate was persuaded by Senator Williams'
entreaty that it not "strip from [the] individual his rights that
have been established, going back to the first Civil Rights Law of
1866,"
id. at 3372, and Senator Hruska's proposed
amendment was rejected.
Id. at 3372-3373.
[
Footnote 12]
The Court in
Edelman stated as follows:
"In the words of Mr. Justice Brandeis: '
Stare decisis
is usually the wise policy, because, in most matters, it is more
important that the applicable rule of law be settled than that it
be settled right. . . . This is commonly true even where the error
is a matter of serious concern, provided correction can be had by
legislation. . . .'"
415 U.S. at
415 U. S. 671
n. 14 (citation omitted).
[
Footnote 13]
It is clear that the schools have standing to assert these
arguments on behalf of their patrons.
See Pierce v. Society of
Sisters, 268 U. S. 510,
268 U. S.
535-536.
[
Footnote 14]
See n 10,
supra.
[
Footnote 15]
The
Meyer-Pierce-Yoder "parental" right and the privacy
right, while dealt with separately in this opinion, may be no more
than verbal variations of a single constitutional right.
See
Roe v. Wade, 410 U. S. 113,
410 U. S.
152-153 (citing
Meyer v. Nebraska and
Pierce v. Society of Sisters for the proposition that this
Court has recognized a constitutional right of privacy).
[
Footnote 16]
The Court has recognized in similar contexts the link between
equality of opportunity to obtain an education and equality of
employment opportunity.
See McLaurin v. Oklahoma State
Regents, 339 U. S. 637;
Sweatt v. Painter, 339 U. S. 629.
[
Footnote 17]
See, e.g., Van Horn v. Lukhard, 392 F.
Supp. 384, 391 (ED Va.);
Edgerton v.
Puckett, 391 F.
Supp. 463 (WD Va.);
Wilkinson v. Hamel, 381 F.
Supp. 768, 769 (WD Va.);
Cradle v. Superintendent,
Correctional Field Unit #7, 374 F.
Supp. 435, 437 n. 3 (WD Va.);
Taliaferro v. State Council
of Higher Education, 372 F.
Supp. 1378, 1383 (ED Va.);
Landman v.
Brown, 350 F.
Supp. 303,
306 (ED
Va.);
Sitwell v. Burnette, 349 F.
Supp. 83, 85-86 (WD Va).
[
Footnote 18]
Cf., e.g., Title II of the Civil Rights Act of 1964, 42
U.S.C. § 2000a-3(b).
See Alyeska Pipeline Serv. Co. v.
Wilderness Society, 421 U. S. 240,
421 U. S.
260-262, and n. 33.
[
Footnote 19]
See, e.g., Trustees v. Greenough, 105 U.
S. 527 (allowance of attorneys' fees out of a common
fund);
Toledo Scale Co. v. Computing Scale Co.,
261 U. S. 399
(assessment of fees as part of the fine for willful disobedience of
a court order);
F. D. Rich Co. v. United States ex rel.
Industrial Lumber Co., 417 U. S. 116
(assessment of attorneys' fees against party acting in bad
faith).
MR. JUSTICE POWELL, concurring.
If the slate were clean, I might well be inclined to agree with
MR. JUSTICE WHITE that § 1981 was not intended to restrict private
contractual choices. Much of the review of the history and purpose
of this statute set forth in his dissenting opinion is quite
persuasive. It seems to me, however, that it comes too late.
The applicability of § 1981 to private contracts has been
considered maturely and recently, and I do not feel free to
disregard these precedents.
* As they are
reviewed in the Court's opinion, I merely cite them:
Johnson v.
Railway Express Agency, 421 U. S. 454,
421 U. S. 459
460 (1975), an opinion in which I joined;
Tillman v.
Wheaton-Haven Recreation Assn., 410 U.
S. 431,
410 U. S.
439-440 (1973), another opinion in which I joined;
Sullivan v. Little Hunting Park, Inc., 396 U.
S. 229,
396 U. S.
236-237 (1969); and particularly and primarily,
Jones v. Alfred H.
Mayer
Page 427 U. S. 187
Co., 392 U. S. 409,
392 U. S.
420-437 (1968). Although the latter two cases involved §
1982, rather than § 1981, I agree that their considered holdings
with respect to the purpose and meaning of § 1982 necessarily apply
to both statutes in view of their common derivation.
Although the range of consequences suggested by the dissenting
opinion,
post at
427 U. S. 212,
goes far beyond what we hold today, I am concerned that our
decision not be construed more broadly than would be justified.
By its terms, § 1981 necessarily imposes some restrictions on
those who would refuse to extend to Negroes "the same right . . .
to make and enforce contracts . . . as is enjoyed by white
citizens." But our holding that this restriction extends to certain
actions by private individuals does not imply the intrusive
investigation into the motives of every refusal to contract by a
private citizen that is suggested by the dissent. As the Court of
Appeals suggested, some contracts are so personal "as to have a
discernible rule of exclusivity which is inoffensive to § 1981."
515 F.2d 1082, 1088 (1975).
In
Sullivan v. Little Hunting Park, supra, we were
faced with an association in which "[t]here was no plan or purpose
of exclusiveness." Participation was "open to every white person
within the geographic area, there being no selective element other
than race." 396 U.S. at
396 U. S. 236.
See also Tillman v. Wheaton-Haven Recreation Assn., supra
at 438. In certain personal contractual relationships, however,
such as those where the offeror selects those with whom he desires
to bargain on an individualized basis, or where the contract is the
foundation of a close association (such as, for example, that
between an employer and a private tutor, babysitter, or
housekeeper), there is reason to assume that, although the choice
made by the offeror is selective, it reflects "a purpose of
exclusiveness" other than the desire to bar
Page 427 U. S. 188
members of the Negro race. Such a purpose, certainly in most
cases, would invoke associational rights long respected.
The case presented on the record before us does not involve this
type of personal contractual relationship. As the Court of Appeals
said, the petitioning
"schools are private only in the sense that they are managed by
private persons, and they are not direct recipients of public
funds. Their actual and potential constituency, however, is more
public than private."
515 F.2d at 1089. The schools extended a public offer open, on
its face, to any child meeting certain minimum qualifications who
chose to accept. They advertised in the "Yellow Pages" of the
telephone directories and engaged extensively in general mail
solicitations to attract students. The schools are operated
strictly on a commercial basis, and one fairly could construe their
open-end invitations as offers that matured into binding contracts
when accepted by those who met the academic, financial, and other
racially neutral specified conditions as to qualifications for
entrance. There is no reason to assume that the schools had any
special reason for exercising an option of personal choice among
those who responded to their public offers. A small kindergarten or
music class, operated on the basis of personal invitations extended
to a limited number of preidentified students, for example, would
present a far different case.
I do not suggest that a "bright line" can be drawn that easily
separates the type of contract offer within the reach of § 1981
from the type without. The case before us is clearly on one side of
the line, however defined, and the kindergarten and music school
examples are clearly on the other side. Close questions undoubtedly
will arise in the gray area that necessarily exists in between. But
some of the applicable principles and considerations, for the most
part identified by the Court's opinion, are
Page 427 U. S. 189
clear: § 1981, as interpreted by our prior decisions, does reach
certain acts of racial discrimination that are "private" in the
sense that they involve no state action. But choices, including
those involved in entering into a contract, that are "private" in
the sense that they are not part of a commercial relationship
offered generally or widely, and that reflect the selectivity
exercised by an individual entering into a personal relationship,
certainly were never intended to be restricted by the 19th century
Civil Rights Acts. The open offer to the public generally involved
in the cases before us is simply not a "private" contract in this
sense. Accordingly, I join the opinion of the Court.
* In some instances, the Court has drifted almost accidentally
into rather extreme interpretations of the post-Civil War Acts. The
most striking example is the proposition, now often accepted
uncritically, that 42 U.S.C. § 1983 does not require exhaustion of
administrative remedies under any circumstances. This far-reaching
conclusion was arrived at largely without the benefit of briefing
and argument.
See, e.g., Wilwording v. Swenson,
404 U. S. 249
(1971);
Houghton v. Shafer, 392 U.
S. 639 (1968);
Damico v. California,
389 U. S. 416
(1967). I consider the posture of §§ 1981 and 1982 in the
jurisprudence of this Court to be quite different from that of §
1983.
MR. JUSTICE STEVENS, concurring.
For me, the problem in these cases is whether to follow a line
of authority which I firmly believe to have been incorrectly
decided.
Jones v. Alfred H. Mayer Co., 392 U.
S. 409, and its progeny have unequivocally held that § 1
of the Civil Rights Act of 1866 prohibits private racial
discrimination. There is no doubt in my mind that that construction
of the statute would have amazed the legislators who voted for it.
Both its language and the historical setting in which it was
enacted convince me that Congress intended only to guarantee all
citizens the same legal capacity to make and enforce contracts, to
obtain, own, and convey property, and to litigate and give
evidence. Moreover, since the legislative history discloses an
intent not to outlaw segregated public schools at that time,
[
Footnote 2/1] it is quite
unrealistic to assume that Congress intended
Page 427 U. S. 190
the broader result of prohibiting segregated private schools.
Were we writing on a clean slate, I would therefore vote to
reverse.
But
Jones has been decided, and is now an important
part of the fabric of our law. Although I recognize the force of
MR. JUSTICE WHITE's argument that the construction of § 1982 does
not control § 1981, it would be most incongruous to give those two
sections a fundamentally different construction. The net result of
the enactment in 1866, the reenactment in 1870, and the
codification in 1874 produced, I believe, a statute resting on the
constitutional foundations provided by both the Thirteenth and
Fourteenth Amendments. An attempt to give a fundamentally different
meaning to two similar provisions by ascribing one to the
Thirteenth and the other to the Fourteenth Amendment cannot
succeed. I am persuaded, therefore, that we must either apply the
rationale of
Jones or overrule that decision.
There are two reasons which favor overruling. First, as I have
already stated, my conviction that
Jones was wrongly
decided is firm. Second, it is extremely unlikely that reliance
upon
Jones has been so extensive that this Court is
foreclosed from overruling it.
Cf. Flood v. Kuhn,
407 U. S. 258,
407 U. S.
273-274,
407 U. S.
278-279,
407 U. S. 283.
There are, however, opposing arguments of greater force.
The first is the interest in stability and orderly development
of the law. As Mr. Justice Cardozo remarked, with respect to the
routine work of the judiciary:
"The labor of judges would be increased almost to the
breaking
Page 427 U. S. 191
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.
[
Footnote 2/2]"
Turning to the exceptional case, Mr. Justice Cardozo noted:
"[W]hen a rule, after it has been duly tested by experience, has
been found to be inconsistent with the sense of justice or with the
social welfare, there should be less hesitation in frank avowal and
full abandonment. . . . If judges have woefully misinterpreted the
mores of their day, or if the
mores of their day
are no longer those of ours, they ought not to tie, in helpless
submission, the hands of their successors. [
Footnote 2/3]"
In this case, those admonitions favor adherence to, rather than
departure from, precedent. For even if
Jones did not
accurately reflect the sentiments of the Reconstruction Congress,
it surely accords with the prevailing sense of justice today.
The policy of the Nation as formulated by the Congress in recent
years has moved constantly in the direction of eliminating racial
segregation in all sectors of society. [
Footnote 2/4] This Court has given a sympathetic and
liberal construction to such legislation. [
Footnote 2/5] For the Court now to overrule
Jones would be a significant step backwards, with effects
that would not have arisen from a correct decision in the first
instance. Such a step would be so
Page 427 U. S. 192
clearly contrary to my understanding of the mores of today that
I think the Court is entirely correct in adhering to
Jones.
With this explanation, I join the opinion of the Court.
[
Footnote 2/1]
The sponsor of the bill in the House, Representative Wilson of
Iowa, disclaimed any effect of the bill upon segregated schools.
Cong.Globe, 39th Cong., 1st Sess., 1117, 1294 (1866). Opponents of
the bill raised this point as an objection to a provision in the
bill that
"there shall be no discrimination in civil rights or immunities
among the citizens of the United States in any State or Territory
of the United States on account of race, color, or previous
condition of slavery. . . ."
Id. at 1122 (remarks of Rep. Rogers);
id. at
1268 (remarks of Rep. Kerr);
id. at 1271-1272 (remarks of
Rep. Bingham);
see id. at 500 (remarks of Sen. Cowan). The
provision was deleted in part for this reason.
See id. at
1366 (remarks of Rep. Wilson). In that form, the bill was enacted
into law.
[
Footnote 2/2]
B. Cardozo, The Nature of the Judicial Process 149 (1921).
[
Footnote 2/3]
Id. at 150-152.
[
Footnote 2/4]
See, e.g., the Civil Rights Act of 1964, 78 Stat. 241,
as added and as amended, 28 U.S.C. § 1447(d), 42 U.S.C. §§ 1971,
1975a-1975d, 2000a-2000h-6 (1970 ed. and Supp. IV); the Voting
Rights Act of 1965, 79 Stat. 437, as added and as amended, 42
U.S.C. §§ 1973-1973bb-4; the Civil Rights Act of 1968, Titles VIII,
IX, 82 Stat. 81, 89, as amended, 42 U.S.C. §§ 3601-3631 (1970 ed.
and Supp. IV).
[
Footnote 2/5]
See, e.g., Trafficante v. Metropolitan Life Ins. Co.,
409 U. S. 205;
Griggs v. Duke Power Co., 401 U.
S. 424;
Daniel v. Paul, 395 U.
S. 298;
Allen v. State Board of Elections,
393 U. S. 544.
MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins,
dissenting.
We are urged here to extend the meaning and reach of 42 U.S.C. §
1981 so as to establish a general prohibition against a private
individual's or institution's refusing to enter into a contract
with another person because of that person's race. Section 1981 has
been on the books since 1870, and to so hold for the first time
[
Footnote 3/1] would be contrary to
the language of the section, to its legislative history, and to the
clear dictum of this Court in the
Civil Rights Cases,
109 U. S. 3,
109 U. S. 117
(1883), almost contemporaneously with the passage of the statute,
that the section reaches only discriminations imposed by state law.
The majority's belated discovery of a congressional purpose which
escaped this Court only a decade after the statute was passed and
which escaped all other federal courts for almost 100 years is
singularly unpersuasive. [
Footnote
3/2] I therefore respectfully dissent.
Page 427 U. S. 193
I
Title 42 U.S.C. § 1981, captioned "Equal rights under the law,"
[
Footnote 3/3] provides in
pertinent part:
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens. . . .
"
On its face, the statute gives "[a]ll persons" (plainly
including Negroes) the "
same right . . . to make . . .
contracts . . . as is enjoyed by white citizens." (Emphasis added.)
The words "right . . . enjoyed by white citizens" clearly refer to
rights existing apart from this
Page 427 U. S. 194
statute. Whites had at the time when § 1981 was first enacted,
and have (with a few exceptions mentioned below), no right to make
a contract with an unwilling private person, no matter what that
person's motivation for refusing to contract. Indeed it is and
always has been central to the very concept of a "contract" that
there be "assent by the parties who form the contract to the terms
thereof," Restatement of Contracts § 19(b) (1932);
see
also 1 S. Williston, Law of Contracts § 18(3) (3d ed., 1957).
The right to make contracts, enjoyed by white citizens, was
therefore always a right to enter into binding agreements only with
willing second parties. Since the statute only gives Negroes the
"same rights" to contract as is enjoyed by whites, the language of
the statute confers no right on Negroes to enter into a contract
with an unwilling person, no matter what that person's motivation
for refusing to contract. What is conferred by 42 U.S.C. § 1981 is
the
right -- which was enjoyed by whites -- "to make
contracts" with other willing parties and to "enforce" those
contracts in court. Section 1981 would thus invalidate any state
statute or court-made rule of law which would have the effect of
disabling Negroes or any other class of persons from making
contracts or enforcing contractual obligations or otherwise giving
less weight to their obligations than is given to contractual
obligations running to whites. [
Footnote 3/4] The statute, by its terms, does not
require any private individual or institution to enter into a
contract or perform any other act under any circumstances, and it
consequently fails to supply a cause of action by respondent
students against
Page 427 U. S. 195
petitioner schools based on the latter's racially motivated
decision not to contract with them. [
Footnote 3/5]
II
The legislative history of 42 U.S.C. § 1981 confirms that the
statute means what it says, and no more,
i.e., that it
outlaws any legal rule disabling any person from making or
enforcing a contract, but does not prohibit private racially
motivated refusals to contract. Title 42 U.S.C. § 1981 is § 1977 of
the Revised Statutes of 1874, which itself was taken verbatim from
§ 16 of the Voting Rights Act of May 31, 1870, 16 Stat. 144.
[
Footnote 3/6] The legislative
Page 427 U. S. 196
process culminating in the enactment of § 16 of the Voting
Rights Act of 1870 was initiated by the following resolution
proposed by Senator Stewart of Nevada, a
Page 427 U. S. 197
member of the Judiciary Committee, and eventual floor manager of
the Voting Rights Act, and unanimously agreed to by the Senate on
December 6, 1869.
"
Resolved, That the Committee on the Judiciary be
requested to inquire if any States are denying to any class of
persons within their jurisdiction the
equal protection of the
law, in violation of treaty obligations with foreign nations
and of
section one of the fourteenth amendment to the
Constitution; and if so,
what legislation is necessary to
enforce such treaty obligations and
such amendment,
and to report by bill or otherwise."
Cong.Globe, 41st Cong., 2d Sess. 3 (1869). (Emphasis added.)
This resolution bore fruit in a bill (S. 365), [
Footnote 3/7] which
Page 427 U. S. 198
was first referred to in the Congressional Globe on January 10,
1870. On that day, Senator Stewart "asked and by unanimous consent
obtained, leave to introduce a bill (S. 365) to secure to
all
persons the equal protection of the laws." (Emphasis added.)
Cong.Globe, 41st Cong., 2d Sess., 323. The bill was then referred
to the Judiciary Committee. The next reference to the bill in the
Congressional Globe is on February 2, 1870. It states:
"Mr. TRUMBULL, from the Committee on the Judiciary, to whom was
referred the bill (S. No. 365) to secure to
all persons the
equal protection of the laws reported it with an
amendment."
Id. at 964. (Emphasis added.) The next reference to the
bill is on February 24, 1870. It states:
"MR. STEWART. I move that the Senate proceed to the
consideration of bill (S. No. 365) to secure to
all persons
equal protection of the laws. I do not think it will take more
than a moment to pass that bill."
"MR. HAMILTON. I desire that that bill be read."
Id. at 1536. (Emphasis added.) The bill is next
mentioned in the following colloquy later on the same day:
"MR. POMEROY. I have not examined this bill, and I desire to ask
the Senator from Nevada a question. I understood him to say that
this bill gave the same civil rights to all persons in the United
States which are enjoyed by citizens of the United States. Is that
it?"
"MR. STEWART.
No; it gives all the protection of the
laws. If the Senator will examine this bill in connection with
the original civil rights bill, [
Footnote 3/8] he
Page 427 U. S. 199
will see that it has no reference to inheriting or holding real
estate."
"MR. POMEROY. That is what I was coming to."
"MR. STEWART. The civil rights bill had several other things
applying to citizens of the United States. This simply extends to
foreigners, not citizens, the protection of our laws where the
State laws deny them the equal civil rights enumerated in
the first section."
Ibid. (Emphasis added.) Consideration of the bill was
then postponed.
The next reference to the bill was on March 4, 1870. It
states:
"MR. STEWART. I move that the Senate proceed to the
consideration of Senate bill No. 365, to secure to
all persons
the equal protection of the laws."
Id. at 1678. (Emphasis added.) Consideration of the
bill was again postponed.
Then, on May 18, 1870, Senator Stewart introduced S. 810,
dealing with voting rights but including a section virtually
identical to that in S. 365.
Id. at 3562. On May 20, 1870,
Senator Stewart explained the relevant provision of S. 810, as
follows:
"Then the other provision which has been added is one of great
importance. It is of more importance to the honor of this nation
than all the rest of this bill. We are inviting to our shores, or
allowing them to come, Asiatics. We have got a treaty allowing them
to come. . . . While they are here, I say it is our duty to protect
them. I have incorporated that provision in this bill on the advice
of the Judiciary Committee, to facilitate matters and so
Page 427 U. S. 200
that we shall have the whole subject before us in one
discussion. It is as solemn a duty as can be devolved upon this
Congress
to see that those people are protected, to see that
they have the equal protection of the laws, notwithstanding that
they are aliens. They, or any other aliens, who may come here
are entitled to that protection.
If the State courts do not
give them the equal protection of the law, if public sentiment
is so inhuman as to rob them of their ordinary civil rights, I say
I would be less than man if I did not insist, and I do here insist,
that that provision shall go on this bill; and that the pledge of
this nation shall be redeemed, that we will protect Chinese aliens
or any other aliens whom we allow to come here, and give them a
hearing in our courts;
let them sue and be sued; let them be
protected by all the laws and the same laws that other men are.
That is all there is in that provision."
"Why is not this bill a good place in which to put that
provision? Why should we not put in this bill a measure to enforce
both the
fourteenth and fifteenth
amendments at
once? . . .
The fourteenth amendment to the Constitution says
that no State shall deny to any person the equal protection of the
laws. Your treaty says that they shall have the equal
protection of the laws. Justice and humanity and common decency
require it. I hope that provision will not be left off this bill,
for there is no time to take it up as a separate measure, discuss
it, and pass it at this session."
Id. at 3658. (Emphasis added.) The only other reference
which research uncovers to the relevant provision of S. 810 is on
May 25, 1870, and consists of a speech by Senator Stewart
emphasizing the need to protect Chinese aliens.
Id. at
3807-3808. The
Page 427 U. S. 201
voting rights bill was enacted into law on May 31, 1870, with
the section providing for equal protection of the laws included as
§ 16. [
Footnote 3/9]
Three things emerge unmistakably from this legislative history.
First, unlike § 1 of the Civil Rights Act
Page 427 U. S. 202
of 1866, which was passed under Congress' Thirteenth Amendment
powers to remove from former slaves "
badges and incidents of
slavery,'" Jones v. Alfred H. Mayer Co., 392 U.
S. 409, 392 U. S. 439
(1968), § 16 of the Voting Rights Act of 1870 was passed under
Congress' Fourteenth Amendment powers to prevent the States from
denying to "any person . . . equal protection of the laws."
U.S.Const., Amdt. 14, § 1. Second, consistent with the scope of
that Amendment, see, e.g., Jackson v. Metropolitan Edison
Co., 419 U. S. 345,
419 U. S. 349
(1974); Civil Rights Cases, 109 U. S.
3 (1883), § 16 was designed to require "all persons" to
be treated "the same" or "equally" under the law, and was not
designed to require equal treatment at the hands of private
individuals. Third, one of the classes of persons for whose benefit
the statute was intended was aliens -- plainly not a class with
respect to which Congress sought to remove badges and incidents of
slavery -- and not a class protected in any fashion by § 1 of the
Civil Rights Act of 1866, since that Act applied only to
"citizens."
This Court has so construed § 1977 of the Revised Statutes of
1874 on several occasions. The Court said in the Civil Rights
Cases,
supra at
109 U. S.
16-17:
"That law, as reenacted, after declaring that
all persons
within the jurisdiction of the United States shall have the same
right in every State and Territory to make and enforce contracts,
to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and
property as is enjoyed by white citizens, and shall be subject to
like punishment, pains, penalties, taxes, licenses and exactions of
every kind, and none other, any law, statute, ordinance,
regulation or custom to the contrary notwithstanding, [
Footnote 3/10]
Page 427 U. S. 203
proceeds to enact, that any person who, under color of any law,
statute, ordinance, regulation or custom, shall subject, or cause
to be subjected, any inhabitant of any State or Territory to the
deprivation of any rights secured or protected by the preceding
section (above quoted), or to different punishment, pains, or
penalties, on account of such person being an alien, or by reason
of his color or race, than is prescribed for the punishment of
citizens, shall be deemed guilty of a misdemeanor, and subject to
fine and imprisonment as specified in the act.
This law is
clearly corrective in its character, intended to counteract and
furnish redress against State laws and proceedings, and customs
having the force of law, which sanction the wrongful acts
specified. . . . The Civil Rights Bill here referred to is
analogous in its character to what a law would have been under the
original Constitution, declaring that
the validity of contracts
should not be impaired, and that, if any person bound by a contract
should refuse to comply with it, under color or pretense that it
had been rendered void or invalid by a State law, he should be
liable to an action upon it in the courts of the United States,
with the addition of a penalty for setting up such an unjust and
unconstitutional defence."
(Emphasis added.) Similarly in
Yick Wo v. Hopkins,
118 U. S. 356,
118 U. S. 369
(1886), the Court said:
"
The Fourteenth Amendment to the Constitution is not
confined to the protection of citizens. It says:"
"Nor shall any State deprive
any person of life,
liberty, or property without due process of law; nor
Page 427 U. S. 204
deny to any person within its jurisdiction the equal protection
of the laws."
"These provisions are universal in their application, to all
persons within the territorial jurisdiction, without regard to any
differences of race, of color, or of nationality; and the equal
protection of the laws is a pledge of the protection of equal laws.
It is accordingly enacted by § 1977 of the Revised Statutes,
that"
"
all persons within the jurisdiction of the United States
shall have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens and
shall be subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other."
(Emphasis added.)
See also Gibson v. Mississippi,
162 U. S. 565,
162 U. S. 580
(1896);
McLaughlin v. Florida, 379 U.
S. 184,
379 U. S. 192
(1964), each of which stands for the proposition that § 1981 was
enacted pursuant to Congress' power under the Fourteenth Amendment
to provide for equal protection of the laws to all persons.
Indeed, it would be remarkable if Congress had intended § 1981
to require private individuals to contract with all persons the
same as they contract with white citizens. To so construe § 1981
would require that private citizens treat aliens the same as they
treat white citizens. However, the Federal Government has for some
time discriminated against aliens in its employment policies. As we
said in
Espinoza v. Farah Mfg. Co., 414 U. S.
86,
414 U. S. 91
(1973):
"Suffice it to say that we cannot conclude Congress would at
once continue the practice of requiring citizenship as a condition
of Federal employment,
Page 427 U. S. 205
and, at the same time, prevent private employers from doing
likewise."
Thus, the legislative history of § 1981 unequivocally confirms
that Congress' purpose in enacting that statute was solely to grant
to all persons equal capacity to contract as is enjoyed by whites,
and included no purpose to prevent private refusals to contract,
however motivated.
III
The majority seeks to avoid the construction of 42 U.S.C. § 1981
arrived at above by arguing that it (
i.e., § 1977 of the
Revised Statutes of 1874) is a reenactment
both of § 16 of
the Voting Rights Act of 1870 -- the Fourteenth Amendment statute
--
and of part of § 1 of the Civil Rights Act of 1866 --
the Thirteenth Amendment statute. [
Footnote 3/11] The majority argues from this that §
1981 does limit
private contractual choices, because
Congress may, under its Thirteenth Amendment powers, proscribe
certain kinds of private conduct thought to perpetuate "
badges
and incidents of slavery,'" Jones v. Alfred H. Mayer Co.,
392 U.S. at 392 U. S. 439;
and because this Court has already construed the language "[a]ll
citizens of the United States shall have the same right . . . as is
enjoyed by white citizens . . . to . . . purchase . . . real .
. . property" (emphasis added), contained in the Thirteenth
Amendment statute, to proscribe a refusal by a private individual
to sell real estate to a Negro because of his race. Id. at
392 U. S.
420-437. The majority's position is untenable.
First of all, as noted above, § 1977 of the Revised Statutes was
passed by Congress with the Revisers' unambiguous note before it
that the section derived solely
Page 427 U. S. 206
from the Fourteenth Amendment statute, accompanied by the
confirmatory sidenote "Equal rights under the law." Second and more
importantly, the majority's argument is logically impossible,
because it has the effect of construing the language "
the same
rights to make . . . contracts . . . as is enjoyed by white
citizens," contained in § 1977 of the Revised Statutes, to
mean one thing with respect to one class of "persons" and another
thing with respect to another class of "persons." If § 1981 is held
to be a reenactment of the Thirteenth Amendment statute aimed at
private discrimination against "citizens"
and the
Fourteenth Amendment statute aimed at state law-created legal
disabilities for "all persons," including aliens, then one class of
"persons" -- Negro citizens -- would, under the majority's theory,
have a right not to be discriminated against by private individuals
and another class -- aliens -- would be given
by the same
language no such right. The statute draws no such distinction
among classes of persons. It logically must be construed either to
give "all persons" a right not to be discriminated against by
private parties in the making of contracts or to give no persons
such a right. Aliens clearly never had such a right under the
Fourteenth Amendment statute (or any other statute); § 1977 is
concededly derived solely from the Fourteenth Amendment statute so
far as coverage of aliens is concerned; and there is absolutely no
indication that aliens' rights were expanded by the reenactment of
the Fourteenth Amendment statute in § 1977 of the Revised Statutes
of 1874. Accordingly, the statute gives
no class of
persons the right not to be discriminated against by private
parties in the making of contracts.
That part of the Thirteenth Amendment statute which gives "[a]ll
citizens . . . the same rights to make . . . contracts . . . as is
enjoyed by white citizens" was accordingly, not reenacted as part
of § 1977, and, since another
Page 427 U. S. 207
portion of the Thirteenth Amendment statute was reenacted as §
1978 of the Revised Statutes, [
Footnote 3/12] the "right to contract" part of the
Thirteenth Amendment statute was repealed in 1874, by § 5596 of the
Revised Statutes which provides in part as follows:
"All acts of Congress passed prior to said first day of December
one thousand eight hundred and seventy-three, any portion of which
is embraced in any section of said revision, are hereby repealed,
and the section applicable thereto shall be in force in lieu
thereof."
The majority's final argument is that to construe the enactment
of the Revised Statutes of 1874 to have repealed that part of the
Thirteenth Amendment statute which gave "citizens . . . the same
rights to make . . . contracts . . . as is enjoyed by white
citizens" is to conclude that a substantive change in the law was
wrought by the revision; and that this is contrary to normal canons
of construction and contrary to the instructions given to the
Revisers in the statute creating their jobs and defining their
duties.
First of all, the argument is beside the point. Congress, not
the Revisers, repealed part of the Thirteenth Amendment statute by
enacting § 5596 quoted above. The repeal is clear and unambiguous,
and the reasons for the repeal, if any, are beyond our powers to
question.
As we said of the 1874 revision in
United States v.
Bowen, 100 U. S. 508,
100 U. S. 513
(1880):
"The Revised Statutes must be treated as the legislative
Page 427 U. S. 208
declaration of the statute law on the subjects which they
embrace on the first day of December, 1873. When the meaning is
plain,the courts cannot look to the statutes which have been
revised to see if Congress erred in that revision. . . ."
In
Bate Refrigerating Co. v. Sulzberger, 157 U. S.
1,
157 U. S. 41
(1895), we said:
"Now, it is true that, according to the report in the
Congressional Globe of the proceedings in the House of
Representatives . . . , the report of the revisers had been
examined by the House Committee on Revision of the Laws of the
United States, and 'found to embody all the provisions of existing
law, in brief, clear and precise language. . . .'"
"These considerations, it is supposed, should have controlling
weight in our interpretation of the act as it finally passed. We
cannot assent to this view. . . . [W]hatever may have been the
scope of the act of 1866 [providing for compilation of a revised
code] the purpose, in the act [in question] to go beyond revision
and to amend the existing statutes, is manifest from the title of
that act, and from the bill that came from the House Committee on
Patents. . . ."
Similarly, here, we are bound by what Congress actually did,
regardless of its reasons, if any.
Second, the majority's argument may well rest on a false
assumption that the repeal of part of the Thirteenth Amendment
statute changed the law. [
Footnote
3/13] The repealed
Page 427 U. S. 209
portion [
Footnote 3/14] of the
Thirteenth Amendment statute may well never have had any effect
other than that of removing certain legal disabilities. First, as
noted above, some of the rights granted under the Thirteenth
Amendment statute -- the rights to sue, be parties, give evidence,
enforce contracts -- could not possibly accomplish anything other
than the removal of
legal disabilities. Thus, the question
is whether the right to "make contracts" in the repealed part of
the Thirteenth Amendment statute would have been construed in the
same vein as these other rights (later included in the Fourteenth
Amendment statute), or rather in the same vein as the right to
"purchase, etc., real and personal property." The fact that one of
the leaders of the efforts to pass the Thirteenth Amendment statute
-- Senator Stewart -- included the right to "make contracts," but
not the right to "purchase, etc., real and personal property"
Page 427 U. S. 210
in the Fourteenth Amendment statute providing for equal rights
under the laws which he sponsored four years later is strong
evidence of the fact that Congress always viewed the right to "make
contracts" as simply granting equal legal capacity to contract.
Plainly that is the only effect of such language in the Fourteenth
Amendment statute. It is reasonable to suppose Congress intended
the identical language to accomplish the same result when included
in a different statute four years earlier. Indeed Senator Stewart
specifically drew a distinction between the rights enumerated in
the Fourteenth Amendment statute including the right to "make
contracts" and the real and personal property rights not so
included. In connection with the Fourteenth Amendment statute, he
was asked:
"MR. POMEROY. I have not examined this bill, and I desire to ask
the Senator from Nevada a question. I understood him to say that
this bill gave the same civil rights to all persons in the United
States which are enjoyed by citizens of the United States. Is that
it?"
He replied:
"MR. STEWART.
No; it gives all the protection of the
laws. If the Senator will examine this bill in connection with
the original civil rights bill, he will see that it has no
reference to inheriting or holding real estate."
Similarly, President Johnson in vetoing the Thirteenth Amendment
statute differentiated between real property rights and contract
rights granted by that statute. He said:
"If Congress can declare by law who shall hold lands, who shall
testify, who shall have
capacity to make a contract in a
State, then Congress can by law also declare who, without regard to
color or race, shall have
Page 427 U. S. 211
the right to sit s juror or as a judge, to hold any office, and,
finally, to vote, 'in every State and Territory of the United
States.'"
Cong.Globe, 39th Cong., 1st Sess., 1680 (1866). (Emphasis
added.) Moreover, the legislative history of the Thirteenth
Amendment statute is laced with statements that it does not require
Negroes and whites to be sent to the same schools -- statements
which are inconsistent with a provision banning all racially
motivated contractual decisions. [
Footnote 3/15]
Finally, as a matter of common sense, it would seem extremely
unlikely that Congress would have intended -- without a word in the
legislative history addressed to the precise issue -- to pass a
statute prohibiting every racially motivated refusal to contract by
a private individual. It is doubtful that all such refusals could
be considered badges or incidents of slavery within Congress'
proscriptive power under the Thirteenth Amendment. A racially
motivated refusal to hire a Negro or a white babysitter or to admit
a Negro or a white to a private association cannot be called a
badge of slavery -- and yet the construction given by the majority
to the Thirteenth Amendment statute attributes to Congress an
intent to proscribe them.
The Court holds in
McDonald v. Santa Fe Trail Transp. Co.,
post, p.
427 U. S. 273,
that § 1981 gives to whites the same cause of action it gives to
blacks. Thus under the majority's construction of § 1981 in this
case a former slaveowner was given a cause of action against his
former slave if the former slave refused to work for him on the
ground that he was a white man. It is inconceivable that Congress
ever intended such a result.
Page 427 U. S. 212
IV
The majority's holding that 42 U.S.C. § 1981 prohibits all
racially motivated contractual decisions -- particularly coupled
with the Court's decision in
McDonald, supra, that whites
have a cause of action against others including blacks for racially
motivated refusals to contract -- threatens to embark the Judiciary
on a treacherous course. Whether such conduct should be condoned or
not, whites and blacks will undoubtedly choose to form a variety of
associational relationships pursuant to contracts which exclude
members of the other race. Social clubs, black and white, and
associations designed to further the interests of blacks or whites
are but two examples. Lawsuits by members of the other race
attempting to gain admittance to such an association are not
pleasant to contemplate. As the associational or contractual
relationships become more private, the pressures to hold § 1981
inapplicable to them will increase. Imaginative judicial
construction of the word "contract" is foreseeable; Thirteenth
Amendment limitations on Congress' power to ban "badges and
incidents of slavery" may be discovered; the doctrine of the right
to association may be bent to cover a given situation. In any
event, courts will be called upon to balance sensitive policy
considerations against each other -- considerations which have
never been addressed by any Congress -- all under the guise of
"construing" a statute. This is a task appropriate for the
Legislature, not for the Judiciary.
Such balancing of considerations as has been done by Congress in
the area of racially motivated decisions not to contract with a
member of the other race has led it to ban private racial
discrimination in most of the job market and most of the housing
market and to go no further. The Judiciary should not undertake the
political task of trying to decide what other areas are appropriate
ones for a similar rule.
Page 427 U. S. 213
V
There remains only the question whether any prior pronouncements
of this Court preclude me fro construing 42 U.S.C. § 1981 in the
manner indicated above. What has already been said demonstrates
that this Court's construction of § 1982 in
Jones v. Alfred H.
Mayer Co., 392 U. S. 409
(1968), does not require me to construe § 1981 in a similar manner.
The former is a Thirteenth Amendment statute under which the
Congress may and did seek to reach private conduct, at least with
respect to sales of real estate. The latter is a Fourteenth
Amendment statute under which the Congress may and did reach only
state action.
However, the majority points to language in
Johnson v.
Railway Express Agency, 421 U. S. 454
(1975), stating with no discussion whatever that § 1981 supplies a
cause of action for a private racially motivated refusal to
contract. In
Johnson, the respondent had been sued for
firing the petitioner on account of his race. The Court of Appeals
held the petitioner's action under § 1981 to have been barred by
the applicable statute of limitations. We granted petitioner's
petition for a writ of certiorari limited to the question
"'[w]hether the timely filing of a charge of employment
discrimination with the Equal Employment Opportunity Commission
pursuant to Section 706 of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-5, tolls the running of the period of
limitation applicable to an action based on the same facts brought
under the Civil Rights Act of 1866, 42 U.S.C. § 1981?'"
417 U.S. 929 (1974). Respondent could have argued in support of
the judgment of the Court of Appeals that § 1981 supplied no cause
of action quite apart from the statute of limitations,
See United States v. American
Railway Express
Page 427 U. S. 214
Co., 265 U. S. 425,
265 U. S.
435-436 (1924), but it did not do so. It argued only
that the action was barred by the statute of limitations. The Court
ruled for respondent, in any event, holding the action barred by
the statute of limitations. Thus the statement in
Johnson v.
Railway Express Agency that § 1981 supplies a cause of action
for a private racially motivated refusal to contract was dictum,
made without benefit of briefs by the parties and without reference
to the legislative history of § 1981 set forth above -- as is
demonstrated by the erroneous reference to the Thirteenth Amendment
statute in the question on which certiorari was granted. The Court
simply cited several Courts of Appeals' decisions each of which had
erroneously assumed the legislative history of § 1981 to be
identical to that of § 1982 and thus assumed the construction of §
1981 to be governed by this Court's decision in
Jones v. Alfred
H. Mayer Co., supra. [
Footnote
3/16] Moreover, the dictum in
Johnson v. Railway Express
Agency is squarely contrary to the dictum in the
Civil
Rights Cases, 109 U. S. 3 (1883).
The issue presented in this litigation is too important for this
Court to let the more recent of two contradictory dicta stand in
the way of an objective analysis of legislative history and a
correct construction of a statute passed by Congress.
Cf. Jones
v. Alfred H. Mayer Co., supra at
392 U. S. 420
n. 25. Accordingly, I would reverse.
[
Footnote 3/1]
The majority and two concurring Justices assert that this Court
has already considered the issue in this litigation and resolved it
in favor of a right of action for private racially motivated
refusals to contract. They are wrong. As is set forth more fully
below, the only time the issue has been previously addressed by
this Court, it was addressed in a case in which the Court had
issued a limited grant of certiorari, not including the issue
involved here; in which the issue involved here was irrelevant to
the decision; and in which the parties had not briefed the issue
and the Court had not canvassed the relevant legislative
history.
[
Footnote 3/2]
I do not question at this point the power of Congress or a state
legislature to ban racial discrimination in private school
admissions decisions. But, as I see it, Congress has not yet chosen
to exercise that power.
[
Footnote 3/3]
Title 42 U.S.C. § 1981 provides in full:
"§ 1981.
Equal rights under the law."
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to the
full and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens, and shall
be subject to like punishment, pains, penalties, taxes, licenses,
and exactions of every kind, and to no other."
The title to § 1981 was placed there originally by the Revisers
who compiled the Revised Statutes of 1874. They did so under a
statute defining their responsibilities in part, as follows: to
"arrange the [statutes] under titles, chapters, and sections, or
other suitable divisions and subdivisions with
head-notes
briefly expressive of the matter contained in such
divisions."
14 Stat. 75. (Emphasis added.) The headnote to what is now §
1981 was before Congress when it enacted the Revised Statutes into
positive law. It may properly be considered as an aid to
construction, if the statutory language is deemed unclear.
E.g., Patterson v. Barc Eudora, 190 U.
S. 169,
190 U. S. 172
(193);
FTC v. Mandel Bros., 359 U.
S. 385,
359 U. S. 389
(1959);
Knowlton v. Moore, 178 U. S.
41,
178 U. S. 65
(1900);
Maguire v. Commissioner, 313 U. S.
1,
313 U. S. 9
(1941).
[
Footnote 3/4]
The statute also removes any state law-created legal
disabilities enacted by the Southern States --
see E.
McPherson, The Political History of the United States of America
During the Period of Reconstruction 29, 33, 35 (1871) -- preventing
Negroes or any other class of persons from suing, being parties,
and giving evidence; and provides that all persons shall have full
and equal benefit of all laws.
[
Footnote 3/5]
One of the major issues in this case plainly is whether the
construction in
Jones v. Alfred H. Mayer Co., 392 U.
S. 409 (1968), placed on similar language contained in
42 U.S.C. § 1982 granting all citizens the "same rights to . . .
purchase . . . real . . . property" as is enjoyed by white citizens
prevents this Court from independently construing the language in
42 U.S.C. § 1981. As will be developed more fully below,
Jones
v. Alfred H. Mayer Co. does not so constrict this Court.
First, the legislative history of § 1981 is very different from the
legislative history of § 1982 so heavily relied on by the Court in
Jones v. Alfred H. Mayer Co. Second, notwithstanding the
dictum in
Jones v. Alfred H. Mayer Co. quoted by the
majority,
ante at
427 U. S. 170, even the majority does not contend that
the grant of the other rights enumerated in § 1981,
i.e.,
the rights "to sue, be parties, give evidence," and "enforce
contracts" accomplishes anything other than the removal of legal
disabilities to sue, be a party, testify or enforce a contract.
Indeed it is impossible to give such language any other meaning.
Thus, even accepting the
Jones v. Alfred H. Mayer Co.
dictum as applicable to § 1981, the question still would remain
whether the right to "make contracts" is to be construed in the
same vein as the other "right[s]" included in § 1981, or rather in
the same vein as the right to "purchase . . . real property" under
§ 1982 involved in
Jones v. Alfred H. Mayer Co.,
supra.
[
Footnote 3/6]
Section 16 of the Voting Rights Act of 1870 provided:
"And be it further enacted, That
all persons within the
jurisdiction of the United States shall have the same right in
every State and Territory in the United States to make and enforce
contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and none other, any law, statute,
ordinance, regulation, or custom to the contrary notwithstanding.
No tax or charge shall be imposed or enforced by any State upon any
person immigrating thereto from a foreign country which is not
equally imposed and enforced upon every person immigrating to such
State from any other foreign country; and any law of any State in
conflict with this provision is hereby declared null and void."
(Emphasis added.) As may be seen, the italicized portion is §
1981.
The majority mistakenly asserts that § 1977 of the Revised
Statutes of 1874 -- the present § 1981 -- is taken from § 1 of the
Civil Rights Act of 1866, 14 Stat. 27, which was reenacted as § 18
of the Voting Rights Act of 1870 and which provided:
"That all persons born in the United States and not subject to
any foreign power, excluding Indians not taxed, are hereby declared
to be citizens of the United States;
and such citizens, of
every race and color, without regard to any previous condition of
slavery or involuntary servitude, except as a punishment for crime
whereof the party shall have been duly convicted, shall have the
same right, in every State and Territory in the United States, to
make and enforce contracts, to sue, be parties, and give
evidence, to inherit, purchase, lease, sell, hold, and convey
real and personal property,
and to full and equal benefit of
all laws and proceedings for the security of person and property,
as is enjoyed by white citizens, and shall be subject to like
punishment, pains, and penalties, and to none other, any law,
statute, ordinance, regulation, or custom, to the contrary
notwithstanding."
(Emphasis added.) While the italicized portion of § 1 of the
Civil Rights Act of 1866 is similar to § 1981, it is not the same
statute. First, the 1866 statute, passed under the Thirteenth
Amendment and before adoption of the Fourteenth Amendment, applies
to
"
citizens, of every race and color, without regard to
any previous condition of slavery or involuntary servitude, except
as a punishment for crime whereof the party shall have been duly
convicted,"
whereas § 1981, like § 16 of the Voting Rights Act of 1870,
applies to "all persons" -- including noncitizens. Second, the 1866
statute does not provide express protection against "taxes,
licenses and exactions of every kind." Section 1981, like § 16 of
the Voting Rights Act of 1870, does. Third, the Revisers' notes to
the 1874 Revision -- which notes were before Congress when it
enacted the Revised Statutes into positive law -- clearly designate
§ 16 of the Voting Rights Act of 1870 as the source for § 1977 --
the current 42 U.S.C. § 1981.
I deal
infra with the majority's equally untenable
position that § 1981 is in fact derived
both from § 16 of
the Voting Rights Act and § 1 of the Civil Rights Act of 1866.
[
Footnote 3/7]
S. 365 provided in pertinent part:
Be it enacted, &c., That all persons within the
jurisdiction of the United States, Indians not taxed excepted,
shall have the same right in every State and Territory in the
United States to make and enforce contracts, to sue, be parties,
give evidence, and to the full and equal benefit of all laws and
proceedings for the security of person and property as is enjoyed
by white citizens, and shall be subject to like punishments, pains,
penalties, taxes, licenses, and exactions of every kind and none
other, any law, statute, ordinance, regulation, or custom to the
contrary notwithstanding. No tax or charge shall be imposed or
enforced by any State upon any person emigrating thereto from a
foreign country which is not equally imposed and enforced upon
every person emigrating to such State from any other foreign
country, and any law of any State in conflict with this provision
is hereby declared null and void.
[
Footnote 3/8]
This would appear to be a reference to § 1 of the Civil Rights
Act of 1866 which was construed in
Jones v. Alfred H. Mayer
Co., 392 U. S. 409
(1968).
[
Footnote 3/9]
Section 16, 16 Stat. 144, provided, as follows:
"
And be it further enacted, That all persons within the
jurisdiction of the United States shall have the same right in
every State and Territory in the United States to make and enforce
contracts, to sue, be parties, give evidence, and to the full and
equal benefit of all laws and proceedings for the security of
person and property as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes, licenses, and
exactions of every kind, and none other, any law, statute,
ordinance, regulation, or custom to the contrary notwithstanding.
No tax or charge shall be imposed or enforced by any State upon any
person immigrating thereto from a foreign country which is not
equally imposed and enforced upon every person immigrating to such
State from any other foreign country; and any law of any State in
conflict with this provision is hereby declared null and void."
The Voting Rights Act also contained the following sections
dealing with civil rights:
"SEC. 17.
And be it further enacted, That any person
who, under color of any law, statute, ordinance, regulation, or
custom, shall subject, or cause to be subjected, any inhabitant of
any State or Territory to the deprivation of any right secured or
protected by the last preceding section of this act, or to
different punishment, pains, or penalties on account of such person
being an alien, or by reason of his color or race, than is
prescribed for the punishment of citizens, shall be deemed guilty
of a misdemeanor, and, on conviction, shall be punished by fine not
exceeding one thousand dollars, or imprisonment not exceeding one
year, or both, in the discretion of the court."
"SEC. 18.
And be it further enacted, That the act to
protect all persons in the United States in their civil rights, and
furnish the means of their vindication, passed April nine, eighteen
hundred and sixty-six, is hereby reenacted; and sections sixteen
and seventeen hereof shall be enforced according to the provisions
of said Act."
(This section reenacted § 1 of the Civil Rights Act of 1866.
See 427
U.S. 160fn3/4|>n. 4,
supra.)
[
Footnote 3/10]
As can be seen the Court is quoting what is now 42 U.S.C. §
1981.
[
Footnote 3/11]
Hereinafter, I will refer to § 1 of the Civil Rights Act of 1866
as "the Thirteenth Amendment statute" and to § 16 of the Voting
Rights Act of 1870 as "the Fourteenth Amendment statute."
[
Footnote 3/12]
Section 1978 of the Revised Statutes is 42 U.S.C. § 1982 and it
provides as follows:
"All citizens of the United States shall have the same right, in
every State and Territory, as is enjoyed by white citizens thereof
to inherit, purchase, lease, sell, hold, and convey real and
personal property."
[
Footnote 3/13]
I dissented in
Jones v. Alfred H. Mayer Co.,
392 U. S. 409
(1968), on the ground that Congress did not ever intend any of the
rights granted in the Thirteenth Amendment statute -- including the
right to buy real property -- to accomplish more than the removal
of legal disabilities. Under that view, the conduct of the Revisers
and of Congress in 1874 makes perfect sense -- there were two
statutes accomplishing the same thing, one with respect to "all
persons," and the other with respect to the included category of
"citizens." Under this view, which I still believe was shared by
Congress and the Revisers, the statute applicable to the included
category "citizens" was redundant, and was quite sensibly repealed.
I am bound by the holding in
Jones v. Alfred H. Mayer Co.,
supra, that -- with respect to the right to "purchase . . .
real . . . property" -- the Thirteenth Amendment statute
accomplishes more than the removal of legal disabilities. However,
for the reasons set forth below, it does not follow that the right
to "make . . . contracts" in the Thirteenth Amendment statute ever
granted anything more than the right to be free from legal
disabilities to contract. Accordingly, the Revisers and Congress
may well, by repealing part of the Thirteenth Amendment statute,
have simply eliminated redundant legislation.
[
Footnote 3/14]
The repealed portion is set forth below:
"[C]itizens . . . shall have the same right, in every State and
Territory in the United States,
to make and enforce contracts,
to sue, be parties, and give evidence . . . and to full and equal
benefit of all laws and proceedings for the security of person
and property, as is enjoyed by white citizens. . . ."
(Emphasis added.)
[
Footnote 3/15]
See remarks of Senator Cowan, Cong.Globe, 39th Cong.,
1st Sess., 500 (1866); remarks of Representative Wilson,
id. at 1117; remarks of Representative Rogers,
id. at 1120-1123.
[
Footnote 3/16]
Tillman v. Wheaton-Haven Recreation Assn., 410 U.
S. 431,
410 U. S.
439-440 (1973), cited by the majority, contains no
language, either dictum or holding, relevant to the issue in this
case. The Court carefully held in that case solely that the
respondent swimming club was not a private club under Title II of
the Civil Rights Act of 1964, 42 U.S.C. § 2000a(e), and was not
exempt as a private club from any cause of action based either on §
1981 or § 1982. No attempt is made in the opinion to state whether
any cause of action existed under § 1981.