Petition — Runyon v. McCrary

Supreme Court, U. S$.

FILED

JUL 10 1975 ~

| MICHAEL RODAK, JR. CLERK

IN THE

Supreme Court of the United States

OcTOBER TERM, 1975

No. ? 5 " 62

RusseE.__ L. Runyon

AND

KATHERYNE E. Runyon

Petitioners

v.

MIcHAEL L. McCrary, ETC.

AND

CoLIN GONZALES, ETC.

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE

UNITED STATES COURT OF APPEALS

FOR THE

FOURTH CIRCUIT

Lovuts KouTOULAKOS, ESQ.

2054 14th Street, North

Arlington, Va. 22201

For Petitioners

Pagss or Brron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

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QuESTIONS PRESENTED ...........0.cceccecececcececs 2

SD EEE nc cnvececcedvacseusseenss ieds3s 2

DUATUIAENS GH PAGES oo cc ccccccccccccccess Hiseweues 3

REASONS For GRAw ING THE WRIT ..........00--eeeees i)

i Se os Lo nvadeweseweseeenesaneeues 6

EROS SE REESE PO PAR EE OE OO Oe me Hoe 13

APPENDIX ....... ie Adee eeenideeeseowndeeseeuss la

TABLE OF CITATIONS

CASEs: ;

Burton v. Wilmington Parking Authority, 365 U.S. 715,

81 S.Ct. 856, 6 L.Ed. (2d) 45 (1951) .............. 10

Civil Rights Cases, 3 S.Ct. 18, 109 U.S. 3 (1883) ...... 7

Corrigan v. Buckley, 271 U.S. 323, 46 S.Ct. 521, 70 L.Ed.

Sadan day cada cddke ae ba eno endbeseeekeusnes 9

Hampton v. Thompson (C.A. Tex. 1949), 171 F.(2d)

a i deeds 12

Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847,92 L.Ed. 1187 9

Jones v, Alfred Mayer & “ 0., 392 U.S. 409, 88 S.Ct. 2186

EE cod dauhece Caakesaecdsdsdckersetecaniesene 8

Martinsen v. Mullaney, 85 F. Supp. 76, 12 Alaska, 455

DE So be cu ids ded etete inane ikenenendaedlegs 7

McDonald v Shawnee Country Club Inc., 438 F.(2d)

DT <Ucccudshus bundius ts Mike beetseue uedaseoces )

ii Table of Citations Continued

Page

Moose Lodge v. Irvis, 407 U.S. 173, 92 S.Ct. 1965

SD Rodvcactnetseceude beac) deweteaeeeus 9, 10

Norwood v. Harrison, 93 S.Ct. 2804 (1973) .......... 10

Pierce v. Society of Sisters, et al., 268 U.S. 510, 45 S.Ct.

Set GE a0 ko. cus ceaduekeuunceus haan ddber kas 9

Riley v. Adirondack School for Girls, 368 F. Supp. 392

SSE sshbudcsin pedis banadntet thd eadsecusts 10

Robeson v. Finelli, D.C.N.Y. 1950, 94 F. Supp. 62 ..... 12

Shelly v. Kramer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed

ee Ek dasncusddadvasdddetuncs cabeeeuass 10

Sims v. Order of Commercial Travelers, 433 F. Supp.

ee Sk SE SEE ccdecbedivccsctassiuasacee 9

Tillman v. Wheaton Haven Recreation Association, 410

Ge EE acavckasdcuewuedscaunsed Land epadee eons 10

U.S. v. Cruickshank, 25 Fed. Case No. 14,897, Affirmed,

92 US. 542, 2 Otto 542, 25 L.Ed. 588 ........... 7

Wak, He Ss UY MED 0 b's da ceneccchaveeenesseess 7

Waters v. Pachen Contractors Inc. (D.C., Ill, 1966, 227

ih Sy GEE hn edn ad ueeceknn aces ee seuce«aee 7

Wesley v. City of Savannah, 294 F. Supp. 698 ........ 9

Wisconsin v. Yoder, 92 S.Ct. 1526 (1972) ............ 10

MISCELLANEOUS:

Cy EE Se ccdeceesesedecdacnees 2, 6, 7, 8, 11, 13

Cong. Globe, 39th Cong., Ist Sess. 409 (1866) ........ 6

Gressman, Civit Ricuts Lecisiation, at p. 1329 ...... 7

IN THE

Supreme Court of the United States

OcToBER TERM, 1975

No.

RUSSELL L. RUNYON

AND

KATHERYNE E. RuNYON

Vv.

MIcHAEL L. McCrary, ETC.

AND

CoLIN GONZALES, ETC.

Petitioners

Respondents

PETITION FOR WRIT OF CERTIORARI

TO THE ear

UNITED STATES COURT OF APPEALS

FOR THE

FOURTH CIRCUIT

Petitioner prays for a writ of Certiorari to issue to

review the judgment of the United States Court of

Appeals for the Fourth Circuit affirming a judgment

of the United States District Court for the Eastern

District of Virginia.

2

OPINION BELOW

The United States Court of Appeals for the Fourth

Circuit affirmed, in a 4 to 3 decision, the judgment of

the United States District Court for the Eastern Dis-

trict of Virginia, on April 15, 1975. Rehearing by

Plaintiff Appellant, and by intervenor denied May

29, 1975.

JURISDICTION

Jurisdiction is invoked under Title 28 U.S.C. §1254

(1).

QUESTIONS PRESENTED

1. WHETHER OR Nor 42 U.S.C.A. §1981 Reacnes

PuRELY PRIVATE CoNDUCT, AND CAN PRIVATE

ScHoots FREE or ANY STATE Action, Set THEIR

Own STANDARDS AS TO WHO THEY WILL ADMIT.

THE UNCONSTITUTIONAL APPLICATION AND INTER-

PRETATION OF 42 U.S.C.A. §1981, By tHE Lower

Court, WHEREBY IT LIMITs ITS APPLICATION TO ONLY

WHITE SCHOOLS.

3. THE First AMENDMENT OF THE UNITED STATES

CONSTITUTION GUARANTEES AND PROTECTS THE RIGHT

TO A FREE CHOICE OF ASSOCIATION, PRIVACY, AND

EXPRESSION TO ALL ITS CITIZENS.

STATUTE INVOLVED

42 U.S.C.A. §1981: (Appendix Exhibit A)

** All persons within the jurisdiction of the United

States shall have the same right in every state and

Territory to make and enforce contracts, 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.”’

bo

3

STATEMENT OF FACTS

The following is a succinct review of the material

facts involved:

A joint action for damages wes brought against Peti-

tioners Russell L. Runyon and Katheryne E. Runyon

d/b/a Bobbe’s School, by Michael McCrary, an infant,

by his parents, and Colin M. Gonzales, an infant, by

his parents, pursuant to 42 U.S.C. §1981 and 42 U.S.C.

§2000a, to secure for the plaintiffs, now respondents,

who are black, the alleged right to contract, as enjoyed

by whites, and to enjoyment of places of public ac-

commodation without discrimination, based on race

or color.

The respondents, at the trial level, waived and dis-

missed any claims under any civil rights act except 42

U.S.C. §1981. They further stipulated that the peti-

tioners were a private school, not supported by any

local, state or federal assistance, thus no state involve-

ment, and relying solely on funds derived from tuition

paid by its students to support it. (see p. 181 J.T.)

A similar suit was filed against Fairfax-Brewster

School, Inc., which was consolidated for trial.

The Southern Independent School Association inter-

vened, by agreement and with court permission.

The .Respondent and Petitioners, Bobbe’s School,

introduced evidence in their behalf. Regarding

Bobbe’s School, the Gonzales testimony, in substance

was that upon their son being rejected by Brewster

School after application, called the Bobbe’s School

inquired about its integration policy, and upon being

told by someone that the school was not integrated, did

nothing further. [This was in 1969, suit brought in

4

1972.] Mr. Gonzales further testified that he was ad-

vised of the admission policies of the school, that an ap-

plication would have to be filled out, a registration fee

paid, a need for a doctor’s certificate and a personal

interview. Also that the ‘‘race’’ of an applicant was

not requested on any of the forms. ((See p. 107 of J.T.)

Mr. Gonzales never complied in any way, although he

admitted receiving the forms. (p. 109 J.T.)) He

further testified he did not identify himself nor did he

say he was black. (pp. 123-124 Tr.) He said he was

only concerned with Brewster School, he never told

young Colin about Bobbe’s School, or about the call to

the Bobbe’s School. (pp. 103, 108 J.T.) That the

youngster enrolled at Congressional, a private school,

lost no time from school, then entered Catholic school,

and later a publie school. He conceded his son was well

adjusted and did well in school. (Mrs. Gonzales’s

testimony was substantially the same.) see pp. 82-83

J.T.

Mrs. McCrary testified, in material substance, that in

1972 she ealled the Bobbe’s School, inquired about its

admission and integration policy and on being told,

allegedly, that the school did not accept ‘‘blacks’’, did

nothing further. Although advised about the require-

ment for format application, did not make any formal

application. That she had only the one contact, by

phone, with the school. Never told her son about this.

(pp. 126, 127 J.T.) Her husband’s testimony was es-

sentially the same, but he did not call the school at any

time, and he never said anything to his son, about the

eall and the conversation.

Mr. Gates testified that he was superintendent of

Bobbe’s School, that it was a development for pre-

school education, and for the first and second grades.

5

That he was superintendent in 1969. That he could

not recall any calls from Mr. Gonzales, that the school

policy did not exclude children purely on basis of race.

[ (pp. 183-184 J.T. Tr.)] Did not recall any eall from

McCrary. That the school was integrated, that children

of other races attended. That no black child had ever

applied. That the school policy was to require formal

application for everyone, regardless of race. That

any child, regardless of race, would be treatd alike, con-

sidered on the same basis. That the school was selective

of its students, regardless of race (pp. 185-187 J.T.)

That the school policy was that no one was accepted on

the basis of any phone call, regardless of race. (p. 187

J.T.)

It was stipulated that Mrs. Runyon, the founder of

the school, would corroborate Mr. Gates’ testimony.

(pp. 188-189 J.T.)

The district court, at the conclusion of the evidence

and argument by counsel, rendered a memorandum

opinion and judgment order, a copy of which is at-

tached hereto as Exhibit B.

On appeal the judgment was affirmed in part by a

divided court, with a 4-3 split as to the main issue of

the case. A copy of said opinion is attached here as

Exhibit C. The constitutionality of an act of congress

is being questioned, therefore 28 U.S.C. §2403 may be

applicable.

REASONS FOR GRANTING THE WRIT

1. The issues involve substantial constitutional is-

sues of extreme public importance. They deal with

the private rights of citizens guaranteed to them by

the Constitution.

2

aL eT ll FOr ron

6

2. The issue involved is one of first impression, by

any federal court, at any level, involving the constitu-

tionality of 42 U.S.C.A. §1981, and its applicability to

purely private conduct.

8. The constitutionally protected right, under the

First Amendment, guaranteeing to all citizens the right

of privacy, freedom of speech, and association, protects

parents and private schools in their private conduct.

LEGAL ARGUMENT

42 U.S.C.A. § 1981 Is Not Applicable To Private Acts of

Discrimination

The determination by the trial court and by the

majority, 4-3 of the court of appeals, that §1981 reached

purely private conduct is clearly erroneous and con-

stitutionally unsound.

It would seem proper, at this time, to briefly sum-

marize the history and background of §1981. This

section was conceived during the Reconstruction Era

by legislation involving the Civil Rights Act of 1866

and 1870 as well as the 13th, 14th, and 15th Amend-

ments.

The 13th Amendment was passed abolishing slavery

and involuntary servitude. Thereafter the Civil Rights

Acts of 1866 were passed. The clear and only purpose

of the 13th Amendment was to abolish all forms of in-

voluntary servitude. This is confirmed by the Con-

gressional Record of the debates, alluding to the fact

that the 13th Amendment was to be no wider than to

eover the relation existing between master and slave

and could extend no further (Cong. Globe, 39th Cong.,

Ist Sess. 409 [1866].) The Civil Rights Act of 1866

became law despite a presidential veto. The 14th

Amendment came into being because of the great con-

7

ceri about the vitality and legality of the 13th Amend-

ment and the Civil Rights Act. As a matter of fact the

provisions of the 1866 Act were meant to be incorpo-

rated into the 14th Amendment. (Gressman, Civil

Rights Legislation, at p. 1329.) Thus the equal rights

amendment was born and given shape in the form of

the 14th Amendment. To further reinforce the argu-

ment as to the concern over the 13th Amendment and

the Civil Rights Act of 1866, the Civil Rights Act of

1870 was passed, re-enacting the Civil Rights measure,

after passage of the 14th Amendment, to provide con-

stitutional support.

That the 14th Amendment did not and could not

reach private discriminatory acts was clearly decided

by this honorable court, in its decision in the Civil

Rights cases (109 U.S. 3[1883]). The Honorable

Justice Bradley concluded that individual invasion of

individual rights is not constitutionally prohibited and

was not, and could not be the subject matter of the

Amendment (id at p. 11). The object of this section

(42 U.S.C.A. §1981) was to protect civil rights against

state infringement, having reference to the 14th Amend-

ment as its bedrock (see Va. v. Rives, 100 U.S. 313).

And this subchapter could not be given any broader

scope than the 14th Amendment on which it was based.

(Martinsen v. Mullaney, 85 F.Supp. 76, 12 Alaska 455

[1949].) The Civil Rights Act of 1866 was passed to

shield Negroes from hostile legislation by the states.

(U.S. v. Cruickshank, 25 Fed. Case No. 14,897, aff’d.

92 U.S. 542, 2 Otto 542, 25 L.Ed. 588.) And 42 U.S.

C.A. §1981, the modern version of the Civil Rights

Act, equally only applies to acts done under color of

state law. (Waters v. Pachen Contractors Inc. [D.C.

Ill., 1966, 227 F.Supp. 6597.)

8

In passing the Civil Rights Act of 1964 (that is 42

U.S.C.A. §1981) certainly Congress was aware of the

Civil Rights Acts of 1866 and 1870, and also of the

decisions in the Civil Rights cases decided in 1883,

and the interpretations contained in the opinion of the

court. It was clear that the U.S. Supreme Court

determined that private conduct, that is private acts of

discrimination, were not prohibited by the Constitu-

tion, and therefore the Civil Rights Acts were not ap-

plicable to private conduct.

Certainly, with this knowledge, had Congress in-

tended that 42 U.S.C.A. §1981 reach private con-

duct, it would have said so. However, it did not and

could not intend to restrict purely private acts (albeit

admission policies to private or independent schools).

Even if it wanted to, such a provision could not pass

constitutional muster.

The application of §1981 to private acts, by the

courts, is of a very limited nature, and of recent vin-

tage. It has never before been decided that it applies to

purely private schools. (It may be further pointed out

that there is a marked split of opinion in its applica-

tion, even in the limited area of decision.)

In Jones v. Alfred Mayer & Co., (392 U.S. 409, 88

S. Ct. 2186, [1968]) this court held §1982 applicable

to certain private discriminatory acts and by way of

dicta alluded to §1981 as being cut from the same mold,

and, thus has been subsequently interpreted by some

courts as applicable to some private acts. [Even here,

there is a decided split among the courts regarding this

application, with cases on both sides of the issue.]

It should be pointed out that Jones did not involve

§1981 and dealt with real estate on the public market.

= 9

The dissent in ‘‘Jones”’ clearly focusses on the ra-

tionale of §1982 and puts it in proper perspective.

There the Honorable Justices Harlan and White seri-

ously question the majority opinion, and the construc-

tion of §1982.

At 88 S.Ct. pp. 2208 et seq., Mr. Justice Harlan traces

the civil rights legislation and points up the legislative

history and court decisions as prohibiting ‘‘state’’

action as opposed to private action.

See: (Corrigan v. Buckley, 271 U.S. 323, 46 S.Ct.

521, 70 L.Ed. 969), (Hurd v. Hodge, 334 U.S. 24, 68

S.Ct. 847, 92 L.Ed. 1187)

See also: (Moose Lodge v. Irvis, 407 U.S. 173, 92 S.

Ct. 1965 [1972] ), (McDonald v. Shawnee Country Club

Inc., 438 F.(2d) (632), (Wesley v. City of Savannah,

294 F.Supp. 698), (Sims v. Order of Commercial Trav-

elers, 433 F.Supp. 102 [D. Mass. 1972]).

The Right of Parents and of Private Schools To Freedom of

Choice As To Admission Policies and Private School Selec-

tion Is Protected by the First Amendment of the Consti-

tution.

The right to a public education is certainly clothed

with state action and public interest. Therefore there

could not and should not be any discriminatory policies

of any type under any guise. However, there is no

eivil right nor constitutional right to a private educa-

tion. It is inescapable that the task of educating is a

1st Amendment right of parents, as a freedom of choice

and freedom of association and expression, protected

by the Constitution. (Pierce v. Society of Sisters, et

al, 268 U.S. 510, 45 S.Ct. 571 [1925]). This case cuts

through the argument of public responsibility and

“-

Pa

10

police power, and resolves the question of parental

-“ights protected by the Ist Amendment in declaring a

state compulsory education act as violative of the 14th

Amendment. See also Wisconsin v. Y — (92 S.Ct.

1524, [1972] ). —_

“In Moose Lodge No. 107 v. Irvis, supra, this Honor-

able Court specifically held that the equal protection

clause prohibits discriminatory action by the state,

but “‘erects no shield”’ against private conduct, how-

ever discriminatory or wrongful. (See also Shelley v.

Kramer, 334 U.S. 1, 68 8.Ct. 836, 92 L. Ed. 1161 [1948],

Burton v. Wilmington Parking Authority, 365 U.S.

715, 81 S.Ct. 856, 6 L.Ed. (2d) 45 [1951].)

The case of Tillman v. Wheaton Haven Recreation

Association 410 U.S. 431, did not involve a private

club and was limited in its scope to just that and no

more. As a matter of fact the court pointed out it

was not deciding the issue of a private club.

And in Norwood v. Harrison (93 8.Ct. 2804 [1973]),

the court in striking down a state law, in essence said

that private schools have a right to exist and operate,

and absent state involvement a purely private school

can have discriminatory policies and not be in violation

of the Constitution.

See also Riley v. Adirondack School for Girls (368

F.Supp. 392, [1972] ).

The Constitution was never meant to be a vehicle by

which to deprive people of individual rights, freedom

to choose and freedom of association. It could never

be the intention of Congress or any other body, politic,

judicial, or otherwise, to eliminate private schools.

Every one has a right to a public education, should they

so desire. The effect of the court's ruling is to destroy

il

the private school system, and creates for all practical

purposes a de facto public school system. The argu-

ment that this is a constitutional protected contractual

right does not come to grips with the real issue that

each citizen in his or its private conduct has a freedom

of choice protected by the Constitution. And this

private conduct even includes the right to discriminate,

if it so desires, absent state action.

‘‘Equality’’ cuts both ways, and eliminating the phil-

osophical and emotional approach, these individual

rights go to the very core of our democracy. Destroy

them and you undercut the basic vitality and fibre of

a free society.

42 U.S.C.A. § 1981 as Interpreted by the Court, is Unconsti-

tutional, Class Legislation, and/or Unconstitutionally

Applied. It is Beyond the Power of Congress to Legislate

Against Purely Private Conduct.

The Constitution cannot be an instrument for special

or class legislation, but must be interpreted to apply

equally to all.

The district court, in its opinion decided that §1981

only restricts ‘‘whites’’ and has no application to any

other race. (See footnote of district court’s opinion

(363 F.Supp. 1200, at p. 1204].) As the dissent ably

points out (see U.S.C.A. 4th Cireuit—McCrary, et als

v. Runyon, et als, No. 73-2348) at p. 33 that this cer-

tainly is an unconstitutional application of the statute,

assuming the statute is constitutional.

Constitutional amendments and federal statutes deal-

ing with race or color have been interpreted and applied

not to discriminate in favor of Negroes but to prevent

discrimination against them, not to make but to prevent

12

a different rule for Negroes than for whites. (Hamp-

ton v. Thompson, [C.A. Tex. 1949], 171 F.(2d) 535.)

Certainly, no court can ever force a person to enter

into a contract against his will, and that is what we are

concerned with here. The law has always required a

meeting of the minds, that is an offer and acceptance,

mutually, not unilaterally.

In the Civil Rights cases (3 S.Ct. 18,109 U.S. 3, 27

L.Ed. 836, [1883]) this court specifically held that

Congress did not have the power to legislate on subjects

that are within the domain of state legislation but to

provide relief against state action or legislation. And

as to contracts it held specifically that Congress did not

have the power to provide laws for the general enforce-

ment of contracts. The court further pointed out that

class legislation is prohibited and absent any state in-

volvement, the power of Congress is curtailed. The

Congress has no constitutional power to restrict purely

individual and private conduct, nor can it protect so-

ealled civil liberties absent state action. (Robeson v.

Finelli, D.C.N.Y. 1950, 94 F.Supp. 62.)

The Honorable Justice Harlan, in his dissent, joined

by Honorable Justice White, in the Jones case, alludes

to the question here raised, regarding this constitu-

tional infirmity. (See 88 S.Ct. pp. 2208-9.)

The 14th Amendment requires state action. The 13th

Amendment only dealt with abolition of slavery. Cer-

tainly the finding of the court, compelling private in-

dividuals to enter into a contract against their will,

would seem to reverse history, and in effect compel

‘‘whites’’ into a contract, thus tantamount to making

‘*slaves’’ of them, since they now have no freedom of

choice.

ae ae eee a eee _

13

CONCLUSION

A serious and important question of great public

concern is involved. The constitutionality of 42 U.S.

C.A. §1981 is in serious doubt, the freedom of choice of

association by individuals and the very existence of

the private schools is in issue.

The issue is one of first impression and great con-

stitutional significance. A Writ should be granted.

Respectfully submiticd,

Louis KovuTouLAKOs, ESQ.

2054 14th Street North

Arlington, Va. 22201

For Petitioner Bobbe’s School

APPENDIX

la

EXHIBIT A

SUBCHAPTER I—GENERALLY

§ 1981. Equal rights under the law

All persons within the jurisdiction of the United States

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, pen-

alties, taxes, licenses, and exactions of every kind, and to

no other.

R.S. § 1977

Historical Note

Derivation. Act May 31, 1870, ec. 114. § 16, 16 Stat. 144.

2a

EXHIBIT B

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

Civit Action No. 494-72-A

Courx M. Gonza.gs, et al.,

Plaintiffs,

v.

Farrrax-Brewster Scuoor, Inc.,

Defendant,

and

Civiz Action No. 495-72-A

Micnaet C. McCrary, et al.,

Plaintiffs,

Vv.

Russe_t L. Runyon, et al.,

Defendants,

and

SovTHERN INDEPENDENT ScHoo. Association,

Intervenor-Defendant.

Memoradum Opinion and Order

(Filed July 27, 1972)

On May 17, 1954, the Supreme Court decided Brown v.

Board of Education, 347 U.S. 483 (1954) The same vear

Fairfax-Brewster School was founded. It commenced op-

erations in 1955. In 1958 Bobbe’s Private School com-

menced operations. Neither school receives any assistance,

financial or otherwise, from any state, local or federal

agency; and each relies entirely on funds derived from

tuition paid by students to support its operations. In 1956

Fairfax-Brewster commenced operation of a summer day

camp and in 1967 Bobbe’s did the same thing.

+ oe Ceram ———

wh ee hs het ne

ee ee eee ~

3a

The enrollment at Fairfax-Brewster School gr.w from

an average of 21 in the first year, 1955-56, to 223 in the year

1972-73. The rise in enrollment has generally been in-

creasing except for the year 1969-70 when it dropped to

177 from the previous year’s 208. The day camp’s en-

rollment records are not available prior to 1962, but ir

shows a growth from 21 that year to 236 in the summer of

1972. An unusually large increase was shown in 1969

over the previous year, but this dropped back in 1970.

Bobbe’s School grew from 5 in 1958 to an average of 200

in the years 1966-72. The day camp has averaged 100 stu-

dents per year since its commencement. Neither school has

ever had a black enrolled at either its day camp or school.

Both schools require submision of an application form, a

medical certificate as to the child’s health, and a personal

interview with the parties.

In early May of 1969, in response to an advertisement

appearing in the ‘‘yellow pages’’ of the telephone direc-

tory similar to Pltf’s Ex. 3, the parents of Colin M. Gon-

zales, both of whom are black, as is Colin, telephoned and

then visited the school where they were shewn around.

Being pleased with what they saw, they completed, on

forms furnished them by the school, an application for the

day camp and later a medical certificate prepared by a

doctor. They subsequently submitted these to the school

with a check for either $15 or $20. On May 16, 1969, Mr.

and Mrs. Gonzales received the medical certificate and

check in the mail with a form letter from Fairfax-Brewster

(Pitf’s Ex. 2) stating that the school was ‘‘unable to ac-

commodate the application.’’ No reason was given. Upon

receipt of the letter Mr. Gonzales called the school, spoke

to a person who identified himself as Captain Reiss,’ and,

in response to his inquiry as to why his son’s application

! Capt. Stuart A. Reiss is the Chairman of the Board while his

son, Robert S. Reiss, is the Administrative Director, and his

daughter-in-law, Olga M. Reiss, the registrar.

4a

was rejected, was told ‘‘we are not integrated.’’ Both

Robert S. Reiss and Stuart Reiss denied any such con-

versation. They then stated that Colin, whom they be-

lieved was primarily imierested in entering the first grade,

was rejected, not on the basis of his race, but because his

application lacked supporting data as to his previous school-

ing. Moreover, knowing that Colin had previously attended

Crossroads Day Nursey, they claimed he would not qualify

for the first grade. Consequently, since eligibility for the

day camp was contingent on one’s being qualified for the

first grade, they felt it would be unfair to allow Colin to

enter the day camp and then have to be withdrawn before

the commencement of the academie year. In conclusion,

the three Reisses all denied that it was the school or day

camp’s policy to exclude an applicant because of his race.

The Court rejects this testimony as unbelievable and finds

that the reason for the rejection was because Colin was

black.

Subsequent to his son’s rejection by Fairfax-Brewster,

Mr. Gonzales telephoned Bobbe’s School where, in answer

to an inquiry as to whether it was integrated, he was told

that only members of the Caucasian race were accepted.

He filed no formal application with Bobbe’s School.

Application was ultimately made for Colin at Congres-

sional School, a non-public school, where he was accepted

and did well.

In August, 1972, in response to an advertisement in the

‘‘yellow pages’’ of the telephone directory, Mrs. Sandra

McCrary, who is black, called Bobbe’s Private School to

enroll her 2 year old son, Michael, in nursery school.

After first inquiring as to the price, policies, meals, trans-

portation and facilities for ‘‘toilet training,’’ she asked if

the school was integrated. Upon receiving a negative reply,

she asked if the school accepted black children. The an-

swer to this question was also ‘‘no.’’ She filed no formal

application with Bobbe’s.

el

da

Bobbe’s denied receiving telephone calls from either Mr.

Gonzales or Mrs. McCrary; stated that it was not the pol-

icy of the school to exclude anyone because of race; de-

nied that the school has ever told anyone that the school

was not integrated; and stated that no one can be consid-

ered without a personal interview with the applicant and

his parents or without a formal application being submitted

with an accompanying medical certificate. Bobbe’s intro-

duced further testimony that no black child had ever ap-

plied for enrollment.

The Court finds that the calls were made to Bobbe’s and

that both Colin Gonzales and Michael McCrary were de-

nied admission because they were black. It is of no moment

that no formal application was filed. It would be ridicu-

lous to require this of the plaintiffs after they had effee-

tively been told its was useless.

The policy of the schools with regard to exclusion of

blacks was corroborated by Mrs. Bryant and Mr. Brooks.

The former testified that in 1972 she telephoned Fairfax-

Brewster and Bobbe’s School to inquire about their admis-

sion policies. She testified that both schools told her they

were not integrated and would not accept blacks. Mr.

Brooks, a deputy Equal Employment Opportunity Commis-

sion officer with the Navy and Mrs. MeCrary’s supervisor,

testified that after he became aware of the McCrary’s al-

legations as raised in this suit against Bobbe’s he decided

to call for himself. He stated that during his telephone

conversation of May 31, 1973, with a Mr. Gates at Bobbe’s,

he asked whether the school was accredited and if it was

integrated. Upon receiving a negative response to the

latter question Brooks further asked if blacks were admit-

ted. Again he was told ‘‘no.”’

Colin Gonzales has filed an action against Fairfax-

Brewster. Mr. and Mrs. McCrary, Michael MeCrary, and

Coline Gonzales have filed an action against Bobbe’s. The

6a

sole basis for the actions is 42 U.S.C. § 1981.2. The South-

ern Independent School Association intervened as a party-

de*~ndant in the action against Bobbe’s asserting that it

represents ‘‘non-profit, private white schools in seven

states and the class of all similarly situated schools and

their associated students and parents.’’

The intervenor takes a different tack from that of the

principal defendants. It concedes that race is a factor in

its policies of exclusiveness, but says that 42 U.S.C. § 1981

cannot be used to compel admission of a black child to a

white school of the type it represents, and prays an ad-

judication to that effect.

The actions were consolidated and tried on July 16 and

17, 1973.

No determination was made prior to trial that the ac-

tions might be maintained as a class action, either as as-

serted by the plaintiff or the intervenor; and the Court

does not feel it should be so maintained. Accordingly the

decision is only binding on the named plaintiffs, the named

defendants, and those schools which actually comprise the

intervenor.

42 U.S.C. $1981 reads as follows:

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 bene-

fit of all laws and proceedings for the security of per-

sons 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.

If read literally the act covers these plaintiffs, who have

been denied their right to make a contract with the defend-

* Originally 42 U.S.C. $2000a was alleged as a basis for the

actions. This was withdrawn prior to trial.

7a

ants because they are not white. That is to be read literally

is no longer open to question. In considering 42 U.S.C.

§ 1982, the Supreme Court has said that ‘‘. . . Congress

meant exactly what it said.’’ Jones v. Mayer Co., 392

U.S. 409, 422 (1968). Interrelated as § 1981 and § 1982

are, there is no reason to think Congvess meant any less

when it enacted § 1981. Tillman v. Wheaton-Haven Recrea-

tion Ass’n., 41 U.S.L.W. 4311 (February 27, 1973). The

purpose of both is to prohibit all racial discrimination

against non-whites,* whether that infr sement be ‘*by

‘State or local law,’’’ or ‘‘by ‘custom, or prejudice.’ ’’

Jones v. Mayer Co., supra. at 423. In other words, no state

action is necessary to invoke § 1981.

Although both schools claim to have strictly established

criteria for enrollment, the end result of their admission

policies as applied to both Colin and Michael evidences no

‘‘pnlan or purpose of eominetvences” for selection of stu-

dents ‘‘other than race.’

v. Little Hunting Park, 396 U.S. 229, 236 (1969). This dis--

poses of the argument that these were ‘‘truly private=**

schools since the opportunity to attend these schools was

open to every white child. Tillman, at 4313 and 4314. It

is difficult to accept the defendants’ argument that the plain-_

tiffs may not have been qualified to meet their schools’

high standards. This answer is certainly unavailing with

regard to the day camp or nursery and is suspect insofar -

as the first grade is concerned since Colin Gonzales, be-

3 The analogy to all black academies, all Chinese schools, and -

all rabbinical schools is inapposite. These institutions don’t fall

within the proscription of §1981. Whatever else may be said

of their policies, those institutions are free to diseriminate against -

whites, or against other non-whites if whites are similarly dis- —

criminated against, without running afoul of § 1981.

(Emphasis added.) Sullivan -

Sa

cause of his race, was never given the opportunity to

demonstrate that he was qualified.

Intervenor proffered testimony which would establish:

1. That intervenor parents act rationally in holding a

belief that segregation is desirable in education in light

of the performance record of these schools and current.

scientific theory ; and

2. That the intervenor schools are academically sue-

The Court finds this testimony to be irrelevant to the

issue in these actions, feeling that such testimony, as a de-

fense to outlawed policies of segregation, embodies a con-

cept rejected in Brown v. Board of Education, supra.

25, 1973), which states that “private bias” is not pro-

scribed by the Constitution and that ‘‘private diserimina-

tion may be characterized as a form of exercising freedom

of association protected by the First Amendment... .”’

Comforting as these words may be to the defendants out of

* The defendant Fairfax-Brewster points to page 2 of its hand-

hook (Def's Ex. 2) to jndicate that Colin Gonzales should have

submitted « report card and other pertinent records from bis

previews echoel, the omimmion of which was a ground for his rejec-

tien. The same page of the han beck provides for Entrance

Examination if previous eholast» records are inadequate Colin

was denied the oppertanity to take this examination since he was

newer told thet bic echolastic record imedequacy was the reason

ee ee ee

9a

lawful by Congress; and that the opinion specifically points

out that ‘‘[t]his case does not raise any question as to

the right of citizens to maintain private schools with ad-

mission limited to students of particular national origins,

race or religion. ...°* Norwood v. Harrison, at 5095.

Moreover, although perhaps not legally significant, as a

pfactical consideration, it is inconceivable that the opinion

im the case would have attained the indicated degree of

unanimity if it stood for the proposition urged by the

intervenor. Accordingly the Court feels Norwood is not

authority for that proposition.

While no relief is sought under 42 U.S.C. § 2000a et seq.,

it seems appropriate to point out that, in the Court’s view,

this act is not a limitation on § 1981, and consequently the

exemption of 42 U.S.C. § 2000a(e) for private establish-

ments does not apply in this ease. Moreover, as indicated

before, Sullivan v. Little Hunting Park has abolished tra-

ditional notions of what is “‘private’’ insofar as these

types of actions are concerned.

Plaintiffs are accordingly entitled to the relief requested,

namely :

A. An adjudication that the policies with respect to the

admission of students to defendants’ day camp and school,

of discriminating on the basis of race or color, are a

violation of 42 U.S.C. § 1981.

B A permanent injunction against the defendants and

intervenor, their agents and those acting in concert with

them, prohibiting them from following the policies de-

scribed in Paragraph A.

10a

C. An award of compensatory ° damages for the em-

barrassment, humiliation and mental anguish which the

Court finds to have been suffered by the plaintiffs as

follows:

1. In favor of Colin Gonzales:

(a) Against Fairfax-Brewster

School $2,000

(b) Against Bobbe’s School 500

2. In favor of Michael McCrary

against Bobbe’s School 1,000

3. In favor of Sandra McCrary

and Curtis L. MeCrary

against Bobbe’s School 2,000

D. An award of attorney’s fees as follows:

1. Against Fairfax-Brewster

School $1,000

2. Against Bobbe’s School 1,000

E. Their costs.

And it is so ordered.

/s/ A. V.B.

United States District Judge

Alexandria, Virginia

July 27, 1973

*Punitive damages are not awarded. While the defendants’

acts have here been declared improper, insofar as the Court

ean determine similar acts have not heretofore been so declared.

Accordingly the defendants cannot be said to have acted reck-

lewsly or wilfully in disregard of clear existing law.

wus han tents —"

lla

EXHIBIT C

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-2348

Micnaet C. McCrary, Inrant sy Curtis L. McCrary anp

Sanpra McCrary anp Cotin M. Gonzares, INFANT By

Raymonb GonzALes AND Marcaret R. GonzZALgs,

. Appellees,

Russe. L. Runyon, Katueryne E. Ruyyoyn,

Defendants,

SouTHERN INDEPENDENT ScHOOL ASSOCIATION,

Appellant.

No. 73-2349

Micnaet C. McCrary, Inrant sy Curtis L. McCrary anp

Sanpra McCrary anp Cours M. Gonzares, Inrant By

Raymonb GonzALes AND Marcaret R. Gonza.es,

2 Appellees,

Russet L. Runyon, Katueryne E. Runyon,

Appellants.

SouTHERN INDEPENDENT ScHooL AssocIATION,

Defendant.

No. 73-2350

Micnaet C. McCrary, Inrant py Curtis L. McCrary anp

Sanpra McCrary,

Plaintiffs,

Cours M. Gonzates, Inrant By RaymMonp GoNZALES AND

Mareoaret R. Gonza.es,

- Appellants,

Russeii L. Runyon, Katueryne E. Runyon

SourTHerN INDEPENDENT ScHoou AssociATION,

Appellees.

12a

No. 73-2351

Couin M. Gonza.es, [nrant By His Parents, RayMoND

GonzALEs AND Marcaret R. GonZALgs,

Appellees,

v.

F’arrFAx-BrewstTer ScuHoo., Inc.,

Appellay’

No. 73-2352

Coutin M. Gonzaues, INFANT By His Parents, RayMonpD

GONZALES AND Marcaret R. GonzAa.es,

Appellants,

v.

FarrFax-Brewster ScHoo , Inc.,

Appellee.

Argued April 2, 1974

Decided April 15, 1975

‘Appeals from the United States District Court for the

Eastern District of Virginia, at Alexandria. Albert V.

Bryan, Jr., District Judge.

Before Haynsworth, Chief Judge ,and Winter, Craven,

Butzner Russell, Field and Widener, Circuit Judges,

sitting en bance.

George S. Leonard and Louis Koutoulakos for Appellants

in Nos. 73-2348, 73-2349 and 73-2350; Andrew A. Lips-

comb (Gary R. Sheehan and Tolbert, Lewis and Fitz-

gerald on brief) for Appellants/cross-Appellees in Nos.

73-2351 and 73-2352; (Thomas J. Schwab on brief for

I ee OR ll eave OR ate «| Chet . maarine oe he

oe

we Vwi a WE Pe “

13a

Amici Curiae in Nos. 73-2348, 73-2349 and 73-2351;

Allison W. Brown, Jr., (Robert M. Alexander and

Roderick V. O. Boggs on brief) for Appellees/cross-

Appellants in Nos. 73-2348, 73-2349, 73-2350, 73-2351

and 73-2352.

Haynswortu, Chief Judge:

The issue in this case is whether 42 U.S.C.A. § 1981?

-.° prohibits private schools from denying admission to quali-

fied black applicants solely on the basis of their race.

+ This appeal is a corsolidation of two suits initiated by

parents of black children who claim that they were denied

.admission to the appellant schools because of their race.

The Southern Independent School Association intervened

in these actions, alleging that it is an association reprasent-

ing over 300 private, non-profit schools in the South, some

of which concededly are racially exclusive in their admission

policies. The position of the intervenor is simply that

racial discrimination by private schools is not prohibited by

§ 1981, and, in any event, cannot be constitutionally pro-

hibited.

I.

As found by the trial judge, in early May 1969, the par-

ents of Colin Gonzales contacted the Fairfax-Brewster

School, a private school located in Fairfax County, Vir-

ginia, about enrolling their son in the school’s summer day

camp prgoram, and continuing into the first grade in the

fall. The Gonzales’ learned of Fairfax-Brewster through

| 1** 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 ¢qual 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.’’

-

lta

a mass mailing addressed to ‘‘P »sident,’’ an advertisement

in the Yellow Pages in the telephone book, and from a

friend whose son attended the Summer Camp.

Thereafter, the Gonzales visited the school and, being

pleased with what they saw, completed an application for

their son. They also furnished, as required, a medical

certificate and application fee. On May 16, 1969, the med-

ical certificate and application fee were returned, accom-

panied by a form letter stating that the school was ‘‘unable

to accommodate the application.’’ No further explanation

was given.

Mr. Gonzales called the school and spoke with someone

who identified himself as Captain Reiss. In response to

Mr. Gonzales’ inquiry as to why his son’s application was

rejected, he was told that the school was not integrated.

Captain Reiss is the Chairman of the Board of Fairfax-

Brewster School. His son, Robert, is the Administrative

Director, and his daughter-in-law Olga is the Registrar.

Both Captain Reiss and his son deny any such conversa-

tion. They testified that Colin, age 544, was rejected be-

cause they felt that the kindergarten he had previously

attended gave Colin insufficient preparation for the first

grade at Fairfax-Brewster. Because they found Colin

unqualified for the first grade, the Reisses concluded that

‘*there was no point”’ in allowing him to enter the summer

camp only to have to ‘‘yank him out”’ at the beginning of

the academic year.

Subsequent to their son’s rejection from Fairfax-Brew-

ster, the Gonzales telephoned Bobbe’s School, and were told

that only members of the Caucasian race were accepted.

In August 1972, Mrs. MeCrary called Bobbe’s School

about enrolling her two year old son, Michael, in the

nursery school. She asked whether the school was inte-

grated and accepted blacks, and was told it did not. She

did not file a formal application with Bobbe's.

———

lda

Mr. Gates, the superintendent of Bobbe’s, testified that

he never received a call from either the Gonzales or Mrs.

McCrary. He testified that the school does not discrimi-

nate on the basis of race, although he said that no black

child had ever applied.

The district court found the testimony of the Reiss ‘‘un-

believabie,’’ and concluded that Colin had been rejected

- from Fairfax-Brewster because of his race. He further

found that both the Gonzales and Mrs. McCrary had called

Bobbe’s and had been told that the school would not

accept blacks. It held that ‘‘[i]t is of no moment that no

formal application was filed. It would be ridiculous to re-

quire this of the plaintiffs after they had effectively been

told it was useless.’’

Accordingly, the court concluded that the appellant

schools practiced racial discrimination in their adniissions

liei

On the authority of Jones v. Alfred H. Mayer Co. 392

U.S. 409 (1968), Sullivan v. Little Hunting Park, Inc., 396

U.S. 229 (1969) and Tillman vy. Wheaton-Haven Recreation

Assn., 410 U.S. 431 (1973), it held that § 1981 prohibits

racial discrimination in private contractual arrangements,

even when there is no state involvement. Therefore, it

held that the schools were in violation of § 1981 in their

admissions policies, end permanently enjoined defendants

and intervenors fro. discriminating against blacks in

enrollment in their schools. In addition, it awarded dam-

ages for embarrassment, humiliation and mental anguish

to Colin, Michael and Michael’s parents, and attorney's

fees against Fairfax-Brewster and Bobbe’s. Gonzales v.

Fairfaz-Brewster School, Inc., 363 F. Supp. 1200 (E_D.

Va. 1973).

Defendants and intervenor appeal. We affirm the injune-

tion and the award of damages, but reverse the award of

attorney’s fees.

l6a

Il.

Initially, the appellants contest the district court’s find-

ings of facts, urging that the district court was clearly

erroneous in concluding that Fairfax-Brewster and Bobbe’s

practice racial discrimination.

There was conflicting testimony as to whether the Gon-

zales had been told that Fairfax-Brewster was not inte-

grated and whether both the McCrarys and Gonzales

were told that Bobbe’s was not integrated. Resolution of

this conflict depended upon the district court’s evaluation

of the credibility of the witnesses. We may not reverse a

trier of fact, who had the advantage of hearing the testi-

mony, on a question of credibility.

In addition, the testimony of the black parents was cor-

robrated and supported by the testimony of two other wit-

nesses. Mrs. Bryant testified that she had telephoned

Fairfax-Brewster and Bobbe’s to inquire about their ad-

missions policies and was told that the schools were not

integrated. Mr. Brooks, Mrs. MeCrary’s supervisor at

her job, testified that a Mr. Gates, at Bobbe’s told him, over

the telephone, that Bobbe’s did not accept blacks.

The trial judge also thought that the Reiss’s story that

Colin was rejected on educational rather than racial

grounds was undercut by the fact that Fairfax-Brewster

allows applicants to take an entrance examination when

previous scholastic preparation is inadequate. Colin was

not given this opportunity.

In short, there is ample evidence in the record to support

the trial judge’s factual determinations, and we are unable

to say that, viewing the record as a whole, he was clearly

erroneous in concluding that Colin and Michael were denied

admission to the schools because of their race.

a eee ee

a

lia

IT.

The substantial legal questions, which have been the sub-

ject of varied comment in the literature,? we think were

correctly resolved by the district court. Section 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.

A.

It may once have been supposed that § 1981 served only

the limited office of removing legal disabilities which state

statutes imposed upon black people. It, of course, did can-

cel state statutes which imposed restrictions upon the right

of blacks to contract, but the Supreme Court has clearly

held that it did much more than that. Jones v. Alfred H.

Mayer Co., 392 U.S. 409 (1968) ; Sullivan v. Little Hunting

Park, Inc., 396 U.S. 229; Tillman v. Wheaton-Haven Recrea-

tional Assn., 410 U.S. 431 (1973).

In Jones v. Mayer, the Court was concerned with the

right to purchase real estate. There a real estate devel-

oper had refused to sell a residence in a ‘‘white area’’ to

the black plaintiff. Analyzing the text and legislative his-

tory of § 1 of the Civil Rights Act of 1866,’ the Court held

2 See, Note, Federal Power to Regulate Private Discrimination :

The Revival of the Enforcement Clauses of the Reconstruction

Era Amendments, 74 Colum. L. Rev. 449 (1974) ; Note, Desegrega-

tion of Private Schools: Section 1981 as an Alternative to State

Action, 62 Geo. L. J. 1363 (1974); Note, Segregation Acad-

emies and State Action, 82 Yale L.J. 1436 (1973); Comment,

Jones v. Alfred H. Mayer Co. Extended to Private Education:

Gonzales v. Fairfax-Brewster School, Inc., 122 U. Pa. L. Rev.

471 (1973); Recent Decisions, 45 Miss. L.J. 246 (1974); Recent

Decisions, 8 U. Rich. L. Rev. 285 (1974); Recent Cases, 42 U.

Cin. L. Rev. 767 (1973); Recent Cases, 26 Vand. L. Rev. 1307

(1973).

°14 Stat. 27.

18a

that § 1982 applied to purely private activity and provided

a judicial remedy. As so construed, it was held that enact-

ment of § 1982 was a valid exercise of the power of Congress

under the enforcement clause of the Thirteenth Amend-

ment, which gave Congress power to ‘‘pass all laws neces-

sary and proper for abolishing all badges and incidents of

slavery.’’* The Court concluded that, unlike the Four-

teenth Amendment, the Thirteenth reached private conduct

in which no state action was involved.

As an intellectual exercise, the historical reading and

interpretation of the majority in Jones v. Mayer may be

debatable. See VI History of the Supreme Court of the

United States ; Fairman—Reconstruction and Reunion, 1207

et seq. That reading and interpretation was followed in

Sullivan v. Little Hunting Park and in Tillman v. Wheaton-

Haven, however, and, for us, is firmly established.

Jones v. Mayer, of course, dealt with § 1982, assuring the

right to purchase property. We deal with § 1981, assuring

the right to contract, but both sections derive from $1 of

the Civil Rights Act of 1866. Both are subject to the

same analysis and must be interpreted in the same light.

In Tillman v. Wheaton-Haven, the claim of the guest and

the host rested upon $1981. The Supreme Court expressly

noticed the relation between § 1981 and § 1982, their com-

mon derivation from $1 of the Civil Rights Act of 1866

and the necessity of according them similar interpretation.

It is contended here, however, that § 1981 confers no right

of action unless the contract denied the aggrieved person

was open to all white people. It seems obvious that the

relationship between the school on the one hand and a pupil

and his parent on the other hand is a contractual one and

that admission is a part of the process of forming such a

contractual arrangement. It is also true that admission to

the school is not open to all white people because there are

* Civil Rights Cases, 109 U.S. 3, 20 (1883).

ee A tk A Ns eM

19a

academic, financial and other restrictions upon admission.

Within the qualified class, however, there is no other limita-

tion upon the admission of white applicants up to the

school’s capacity.

We may not read § 1981 so restrictively as the schools

would have us to do it. The school may not refuse with

impunity to accept an otherwise qualified black applicant

simply because it declines to admit unqualified white appli-

eants. The section is violated by the school as long as the

basis of exclusion is racial, for it is then clear that the black

applicant is denied a contractual right which would have

been granted to him if he had been white.

What we have said should not be read to call into ques-

tion the right of the school to insist upon an evenhanded

requirement of academic and other racially neutral quali-

fications. Indeed, the right of the school to be selective on

those basis is unquestioned here. All that is contended and

all that we hold is that § 1981 prohibits the rejection of a

black applicant when his qualifications meet all other re-

quirements and race is the only basis for his rejection.

B.

As applied here, we see no violation of any constitution-

ally protected rights of free association and of privacy.

There is a protected right of free association. As stated

by the Supreme Court in NAACP v. Alabama, 357 U.S. 449

(1958), ‘‘It is beyond debate that freedom to engage in

association for the advancement of beliefs and ideas is an

inseparable aspect of * * * freedom of speech.’’ Id. at 460.

The constitutional protection, however, is essentially an

attribute of First Amendment rights and would not ordi-

narily justify exclusion of others sharing the same beliefs

and ideas. Here, at least, there is no showing that discon-

tinuance of their discriminatory admission practices would

inhibit in any way the teaching in these schools of any ideas

or dogma.

20a

Nothing in § 1981 impedes parents in their exercise of a

choice of a private school presenting ideas or having edu-

cational methods or practices which are not available in the

public schools. They may do the same thing to avoid ideas

and influences in the public schools which they regard as

unhealthy. See Pierce v. Society of Sisters, 268 U.S. 510

(1925). Among private schools, they are free to prefer one

with a certain curriculum or dogma over others, but the

school, while it may exclude applicants on the basis of

neutral principles, may not exclude on the basis of race.

There is also a right of privacy. Its constitutional basis

may be elusive, but it has clearly been held to exist. Roe

v. Wade, 410 U.S. 113 (1973); Griswold v. Connecticut, 381

U.S. 479 (1965).

Though certain intimate and private affairs of men and

women are protected from governmental interference, the

schoolhouse is far from the realm of protection. The right

is appropriately recognized in certain instances when only

a few people are involved in activity unintended for the

public view. In such imstances, it is more than likely or

inevitable that there is some plan or purpose of exclusive-

ness other than race. When relations between husband and

wife are involved, their purpose to exclude all the rest of

the world has no racial connotations. When a school holds

itself open to the public, however, or even to those appli-

cants .neeting established qualifications, there is no per-

ceived privacy of the sort that has been given constitutional

protection.

Indeed, $1981 does not purport to reach all private

associations. It reaches only those which evidence ‘‘no

plan or purpose of exclusiveness’’ other than race. Sul-

livan v. Little Hunting Park, supra. Private associations

having non-racial criteria for the selection of members may

apply their criteria, even if it results in a disproportionate

impact upon the members of one race. It is only when

blacks are excluded because they are black, or denied a

7 a

right to contract which would be granted were they white,

that § 1981 is violated.

Nor do we read anything in Norwood v. Harrison, 413

U.S. 455 (1973), as holding that rights of association or

rights of privacy, or both combined, prevent the appli¢a-

tion of § 1981 here. In Norwood the Supreme Court struck

down a Mississippi statute giving free textbooks to all

students, including those attending private, segregated

schools. Mississippi contended that its failure to furnish

free textbooks to students in private, segregated schools

would violate the equal protection clause and would under-

mine the right of the parents to send their children to

private schools. In answer, the Court observed that be-

cause ‘‘the Constitution may compel tolerance of private

discrimination in some circumstances does not mean that

it requires state support for such discrimination.’’ ‘413

U.S. at 463.

‘The observation in Norwood is far from a holding that

segregation in a private sehool is constitutionally protected.

Earlier in the opinion the Court had observed that no such

question was presented. 413 U.S. at 457. Nor are we met

with the question whether segregation in private schools

is itself a violation of the Thirteenth or Fourteenth Amend-

ment. We deal with a specifie statute passed in imple-

mentation of the Thirteenth Amendment. See Katzenbach

v. Morgan, 384 U.S. 641 (1966); Note, Federal Power to

Regulate Private Discrimination: The Revival of the En-

forcement Clauses of the Reconstruction Era Amendments,

74 Colum. L. Rev. 449 (1974).

Finally, the Court in Norwood recognized the thrust of

§ 1981 and § 1982 when it noted that private discrimination

‘*has never been accorded affirmative constitutional pro-

tections. And even some private discrimination is subject

to special remedial legislation in certain circumstances

under § 2 of the Thirteenth Amendment.”’ 413 U.S. at 470.

’ We deal with such circumstances. In short, we cannot

read Norwood as a holding that segregation in private

oh ih rly uf sh ial i

HL He i

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Harper v. Kloster, 4 Cir., 486 F.2d 1134 ($$ 1981, 1983);

Cooper v. Allen, 5 Cir., 467 F.2d 836 ($1981). In Cooper

the plaintiff based his suit on racial discrimination in hiring

by a municipal golf course, but he failed to go through the

conciliation procedures of Title VII and could not proceed

under the statute. Nevertheless, Congress had authorized

fees in the similar Title VII action to encourage private

elimination of such discrimination. Where plaintiffs ad-

vance precisely the same congressional goal by the use of

a more general statute, they may be entitled to attorney’s

fees. That is not to say, however, that once fees are

awarded in any $1981 or § 1982 case, they should always

be granted in actions based on those statutes. The focus

of the inquiry should be whether the plaintiffs advanced a

goal the attainment of which Congress sought to further

by providing for the recovery by a prevailing plaintiff of

his attorney’s fees.

In this case the plaintiffs have not acted to foster a goal

that Congress deemed so urgent. The Emergency School

Aid Act spoke only to desegregation actions against public

and federally aided schools. Unlike the Federal Housing

Law or Titles II and VII of the 1964 Civil Rights Act,

the statute does not aim to eliminate discrimination from a

facet of private American life. The limitation in that

statute to public schools is not merely a technical or pro-

cedural restriction, but goes rather to the substance of the

congressional goal. Without some congressional direction,

even by analogy, we will not award attorney’s fees, but will

adhere to the usual rule that prevailing plaintiffs may not

recover attorney’s fees,"* for we find none of the recognized

exceptions applicable.”

ArrinMep 1s Parr.

Reversep ts Parr.

“ Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S.

714, 717 (1967).

" See Hall v. Cole, 412 U.S. 1 (1973); Mills v. Electrie Auto-

Lite Co., 396 U.S. 375 (1970).

o7.

27a

Butzner, Circuit Judge, concurring in part and dissenting

in part:

I concur in Parts I, II, III, and IV-A of the opinion. I

dissent from Pert IV-B which reverses the district court ’s

allowance of attorney’s fees. I would adhere to our practice

of sustaining a district judge who, for reasons, has allowed

attorneys’ fees. His discretion can be justified in this

case on two grounds: the appellees acted as private

attorneys general, and, alternatively, the appellants’ de-

fense was tainted by obdurate obstinacy.

By prosecuting this single case, the appellees invalidated

the racially exclusive admission practices of over three

hundred schools represented by the Southern Independent

School Association, as well as the practices of Fairfax-

Brewster and Bobbe Schools. In so doing, “ye ear

congressional policy by abolishing an aspect of racial dis-

pean prohibited by the Civil Rights Act of 1866 [42

U.S.C. $1981]. This type of suit is encompassed by the

private attorney general doctrine, which is applicabie to

suits brought under the Civil Rights Acts of 1866, 187 1, and

1964. See, e.g., Newman v. Piggie Park Enterprises, Inc.,

390 U. S. 400 (1968); Cooper v. Allen, 467 F.2d 836 (Sth

Cir. 1972) ; Lee v. Southern Home Sites Corp., 444 F.2d 143

(5th Cir. 1971); Sims v. Amos, 340 F. Supp. 691 (M.D.

Ala., 3-judge court), aff’d mem., 409 1 S. 942 (1972).

Under this doctrine, the award is not dependent on proof

of bad faith, for good or bad faith is irrelevant. Branden-

burger v. Thompson, 494 F.2d 885, 888 (9th Cir. 1974).

Nor does the receipt of compensatory damages preclude an

award of attorneys’ fees, Knight v. Auciello, 453 F.2d 852

(1st Cir. 1972), though, of course, a court may take

damages into account when awarding a fee. See Lee v.

Southern Home Sites Corp., 444 F.2d at 147.

Alternatively, attorneys’ fees are justified when de-

fendants display obdurate obstinacy. See Brewer v.

School Board of City of Norfolk, 456 F.2d 943 (4th Cir.

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and has failed to discern the difference between the

right to purchase real estate and the right to attend

an independent school inferred from the right to ‘‘make

and enforee contracts.’’ The purchase of real estate,

with its attending perquisites, is a commercial transac-

tion pure and simple, and many other contracts are like-

wise purely commercial. On the other hand, the rela-

tionship of teacher and student is one of status, which

is related to the contract concept in the same way

that the status of husband and wife may be said

to grow out of coutract of marriage. The contract aspect

of the situation is minor and incidental and serves no pur-

pose other than as a door opener in the present case

to bring independent schools within the scope of § 1981.

The right to make and enforce contracts does not imply a

right to coerce an unwilling co-contractor into making any

and every variety of contract.

The majority opinion also fails to recognize Moose

Lodge v. Irvis, 407 U.S. 163 (1972), and Gilmore v. City of

Montgomery, 417 U.S. 556 (1974). True, those cases do

not invelve § 1981 or § 1982, but involve the problem of

State action under the Fourteenth Amendment. However,

they do show that answers to apparently the same type of

technical questions in this field may vary according to the

facts of each particular situation.

Legal problems arising out of a purpose to readjust in-

terracial relationships fall into four categories: (1) those

arising under the Fourteenth Amendment; (2) those ere-

ated by the Civil Rights Acts of the 1960's (3) those re-

sulting from conditions imposed by the federal govern-

ment upon benefits bestowed such as aids to education; and

(4) those arising from the resurrection of the post Civil

War Civil Rights Act of 1866 and the several acts of the

1870's, now found in 42 USCA §§ 1981, et seq. Legal

problems involving the issues regarding the newly enfran-

chised slaves were acute until the Civil Rights Cases, 109

3la

U.S. 3 (1883). Thereafter, such legal problems became

stereotyped until the landmark decision in 1954 of Brown v.

Board of Education, 347 U.S. 294 (1954). That case in-

troduced the first of the above four categories, which is still

paramount. Racially discriminatory action may be struck

down under the Fourteenth Amendment provided State

action is involved. In the 1960's, the Congress forbade

racially discriminatory practices under the Civil Rights

Acts of 1964 and 1968. Those acts did not touch private

action in some fields. To cover this hiatus, the post Civil

War Civil Rights Acts were resurrected. The leading case

is Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), which

was decided after the passage of the Civil Rights Act of

1964.

After the Thirteenth Amendment abolished slavery in

1865, various States passed Black Codes designed to keep

those who were newly enfranchised as second class citizens

if citizens at all. Although such former slaves were now

free, the objective was to keep them from exercising the

legal rights usually associated with free citizenship such

as the ownership of property and the making of contracts.

See Private Discrimination, 74 Col. L.Rev. 450, 452 (1974).

To counteract this movement, the Fourteenth and Fifteenth

Amendments were eventually adopted. More immediately,

however, the Civil Rights act of 1866 was passed. It was

based upon § 2, the enforcement section, of the Thirteenth

Amendment which, unlike the Fourteenth Amendment, did

not require State action. What is now 42 USCA §§ 1981

and 1982 were section one of the Act of 1866. And there

were misgivings as to the constitutionality of the Act.

Simply, they were that the Thirteenth Amendment abol-

ished slavery, and conduct, such as that prohibited by the

1866 Civil Rights Act, did not constitute the reestablish-

ment of slavery in the strictest sense of the word. Be-

cause of the constitutional doubt just mentioned, the pro-

visions of the Civil Rights Act of 1866 were reenacted,

practically intact, in various statutes passed during the

32a

1870's, after the effective date of the Fourteenth Amend-

ment. Section One of the Act of 1866 was reenacted in 1870

and is now represented by 42 USCA §§ 1981 and 1982. Only

the 1866, and not the 1870, Act is here pertinent because

State action is clearly not involved in our case. The Acts

of 1866 and 1870 were dormant for so many years that in

civil law countries a desuetude would have oceurred.? Not

until after the passage of the Civil Rights Act of 1964 was

the 1866 Act reactivated. The 1964 Act made no attempt

to prevent racial discrimination in the admission policies

of independent schools. If the Thirteenth Amendment

authorized Congress to forbid independent schools to

use race as an admissions criterion in 1866, it likewise

did so in 1964. Whatever the intent of the 1866 Congress |

may have been, it must be that the 1964 Congress did not

intend to restrict the admissions policies of independent

schools.

The application of 42 USCA §1981 to this case may

be approached either as a matter of interpretation or as a

matter of constitutionalit™: Le, (1) what does § 1981

forbid? (2) is § 1981 constitutionally valid? Here, those

two questions merge together. Section 1981, as any other

statute, should be construed, in the light of constitutional

limitations, to uphold its validity. See Graham v. Rich-

ardson, 403 U.S. 365, 382 (1971).*

* Our dissent is not bottomed on this premise. See Jones, p.

437.

*Our result would be the same whether we construe § 1981 as

being in conflict with the constitutional right of free association,

or construe it consistent therewith. Of course a statute falls if

in conflict with the Constitution. The Federalists, Nos. 16, 78,

Hamilton; No. 44, Madison. In this connection, footnote 3 of the

district court's opinion is curious (363 F.Supp. 1200 at 1204).

That note states that although § 1981 forbids discrimination by

whites against non-whites, it does not forbid discrimination by

non-whites against whites or other non-whites. Such a construc-

tion would make the section clearly unconstitutional. Simply

While dissenting, we wish to make it clear that we do

not necessarily express approval of the alleged restrictive

admissions policies of the appellants. What is involved

here is a collision between competing social interests, any

of which, standing alone, would be regarded with favor.

On the one hand, our society has an interest in the up

ward mobility of all of its citizens, unhampered by in-

vidious distinctions. A corollary of this is an interest in

educational opportunities.

This interest in educational opportunity as a means of

upward mobility is confronted by social interests in the

true independence of private educational institutions, and

in the right of voluntary association and non-association.

Although the backbone of our educational system must of

necessity be found in our public schools, in a diverse so-

ciety such as ours the leavening value of educational in-

stitutions which are autonomous and free from control by

the federal and state governments is generally and legally

accepted. Compare Pierce v. Society of Sisters, 268 US

510 (1925). Society has an interest in preserving the true

independence of such institutions.

The other social interest which supports the position of

appellants is the interest in free association. It is con-

ceeded that, as a general matter, enforced association is

put, the opinion of the district court is that all races, so far as

§ 1981 is concerned, may operate racially segregated schools ex-

cept the white race. Either all may do so (as we contend), or

none may. Such a restrictive construction of § 1981 also goes

against the plain language of the statute The section provides

“All persons ... shall have the seme right .. . to make and en-

foree contracts .. . as is enjoyed by white citizens, and shall be

subject to like [disabilities of various kinds] . . ."" (emphasis

added). To give non-whites greater rights than whites would

run contra to the statute, the same as giving them lew rights

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3Ha

foreign to our institutions. Mr. Justice Douglas, in his dis-

senting ® opinion in Moose p. 179, the proposition thus:

**The associational rights which our system honors

permit all white, all black, all brown, and all yellow

clubs to be formed. They also permit all Catholic, all

Jewish, or all agnostic clubs to be established. Gov-

ernment may not tell a man or woman who his or her

associates must be. The individual can be as selec-

tive as he desires.’’

Even were we to assume, for argument, the majority hold-

ing that the persuasiveness of the right of free association

depends, in part at least, upon the size of the unit, both of

the schools here involved are small. They are not huge

and impersonal. The district court's opinion, 363 F.Supp.

1200, 1201, 1202, indicates a maximum enrollment at Fair-

fax-Brewster School of 296 and at Bobbe’s School an aver-

age of 200. In schools of that size, intimacy of personal

association is still important, and the right of free associa-

tion certainly should apply, if it does in any case, to units of

such numbers. How great a size, if any, might destroy the

constitutional protection is a question not now before us.*

It is one of the missions of law to balance conflicting

social interests so as to give the maximum of protection to

* The force of Mr. Justice Douglas’ statement ix not reduced

by the fact that it was pert of a dimeenting opinion; in fact, it

is accentuate’. The ixeue in the case wae whether the fact that

a private club dispensed liquer by virtae of a State license made

its action State action. The majority thought not; Mr Justice

Denelas theught «. Thus, the quoted language was opposed to

the main thrust of the opinion

*The numbers inwoleed in NAACT ¥. Alabama and Gilmore

woul! seem ty imdeeate that great numbers alone do not necessarily

furnish sufficient cause to lose the comstitutional protection of

freedom of axeuriation

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