stating that “ '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' ” (alteration in original) (citations omitted) (quoting Norwood v. Harrison, 413 U.S. 455, 469, 470, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973))
How later courts described this case
- stating that “ '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' ” (alteration in original) (citations omitted) (quoting Norwood v. Harrison, 413 U.S. 455, 469, 470, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973))
- holding that while, "it may be assumed that parents have a First Amendment right to send their children to educational institutions that promote" racial discrimination, "it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle"
- explaining that although “parents have a First Amendment right to send their children to educational insti- tutions that promote the belief that racial segregation is desirable, . . . it does not follow that the practice of excluding racial minorities from such institutions is also protected”
- stating that parents “have no constitutional right to provide their children with private school education unfettered by reasonable government regulation” (citing Yoder, 406 U.S. at 213, 92 S.Ct. at 1532; Pierce, 268 U.S. at 534, 45 S.Ct. at 573; Meyer, 262 U.S. at 402, 43 S.Ct. at 627-28)
Written by the judges who cited it.
Distinguished
Distinguished by a later decision, 470 F.3d 827 (2006)
Despite the inherent logic of plaintiff's argument, the majority avoids reaching a similar conclusion by holding "[q]uite simply, Runyon is inapposite," Maj.
The opinion
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, 459-460 (1975), an opinion in which I joined; Tillman v. Wheaton-Haven Recreation Assn., 410 U. S. 431, 439-440 (1973), another opinion in which I joined; Sullivan v. Little Hunting Park, Inc., 396 U. S. 229, 236-237 (1969); and particularly and primarily, Jones v. Alfred H. Mayer *187 Co., 392 U. S. 409, 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 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 “[tjhere 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 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 *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 *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.