# Petition — Runyon v. McCrary

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 427 U.S. 160

## Text

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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EE ie ce cea denkéankedd ChGNanencbeeane 2
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

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26a
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0707%3A01. Public record. Not legal advice.