Petition — SOUTHERN INDEPENDENT INDEPENDENT SCHOOL SCHOOL ASSN. v. MICHAEL McCRARY (Nos. 75-278, 75-62, 75-66, 75-306)

Supreme Court brief1975

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MICHAEL RODAK, JR., CLERK

IN THE

Supreme Court of the Anited States

i No. €07-278 {

SOUTHERN INDEPENDENT SCHOOL ASSOCIATION,

Intervenor-Petitioner,

MICHAEL C. McCRARY, INFANT BY CURTIS L.

McCRARY AND SANDRA McCRARY AND COLIN

M. GONZALES, INFANT BY RAYMOND GONZALES

AND MARGARET R. GONZALES,

Plaintiffs-Respondents,

and

RUSSELL L. RUNYON, KATHERYNE E. RUNYON,

Defendants (Petitioners in No. 75-62)

Petition for Writ of Certiorari

To The

United States Court of Appeals

For The Fourth Circuit

GEO. S. LEONARD, Esq.

1225 Connecticut Ave., N.W.

Of Counsel: Washington, D.C. 20036

SAM CLAMMER Counsel for Petitioner

A. GILMORE FLUES

1225 Connecticut Avenue, N.W.

Washington, D.C. 20036

(i)

INDEX

OPINIONS BELOW .

JURISDICTION .

QUESTION PRESENTED FOR REVIEW .

STATUTES

STATEMENT OF THE CASE .

REASONS FOR GRANTING THE WRIT .

CONCLUSION

APPENDICES

U.S. Court of Appeals, Opinion, April 15, 1975

U.S. Court of Appeals, Judgment, April 15, 1975 .

U.S. Court of Appeals, Order and — on Rehear-

ing, May 29, 1975 . as a &

US. District Court, Opinion, July 27, 1973 .

U.S. District Court, Supplement to Memorandum Opinion

and Order Dated July 27, 1973, September 24, 1973 .

3la

35a

45a

(ii)

TABLE OF AUTHORITIES

Cases: Page

Brown v. Board of Education,

oY We Gc a eels st oS eee Oe

Brown v. Dade Christian Schools,

No. 75-§26¢ (Fifth Circuit) . . . .....2... 2

Central Presbyterian Church v. Black Liberation Front,

303 F. Supp. 894 (E.D. Mo., 1969). . ...... = 16

Civil Rights Cases,

i ee a ee

Coit v. Green,

404 U.S. 907 (1971), affg per curiam, Green v.

Connally, 330 F. Supp. 1150 (D.D.C. 1971). . 18, 19, 22

Cook v. The Advertiser Co., Inc.,

4S8 F.2d 1119 (S Gr. 1972) . . ........ 8

Cook v. Hudson,

S11 F.2d 744 (S Cir. 1975), rehearing denied,

a mF. 2

Gilmore v. City of Montgomery,

OO Sl

Heart of Atlanta Motel v. United States,

ee es IS ck Ge gee oe ewe ee

Jones v. Mayer,

392 US. 409 (1968) . . . . . . . 7, 8, 11-15, 17, 22

Long v. Ford Motor Co.,

996 F286 SO G6 Ge. 199) www th th th tle CU

(iii)

Page

MacDonald v. Shawnee Country Club, Inc.,

438 F.2d 632 (6 Cir.), cert. den., 403 US.

Dic fe tein ys ges bt ee elt lO

McDonnell Douglas Corp. v. Green,

Es + . 5 56-6 « 6 ¢ «0 «>

Moose Lodge v. Irvis,

Ee ee

Norwood v. Harrison,

413 US. 455 (1973) . . . . . . . 7,10, 15, 18, 20-22

Pierce v. Society of Sisters,

Pierce v. Hill Military Academy,

are ee ee ee ee

Riley v. Adirondack Southern School for Girls,

368 F. Supp. 392 (M.D. Fla., 1973); — to

the Fifth Circuit (No. 74-1976) cite as

Sims v. Order of United Commercial Travelers of America,

345 F. Supp. 112 (D. Mass, 1972)... . .... .'18

Sullivar v. Little Hunting Park,

396 U.S. 229 (1969) . . . 7, 8, 11, 12, 14, 15, 17, 22

Tillman v. Wheaton-Haven Recreation Ass’n,

410 US. 431 (1973) . .... . 7, 8, 11-15, 17, 22

Wesley v. City of Savannah, Georgia,

294 F. Supp. 698 (S.D. Ga. 1969). . . . .... 16

Wind River Indian Educational Ass’n v. Ward,

Petition for Certiorari pending No. 74-1568.

531 P.2d 872 (Wyo., 1974). . . 2. 2. 2. es ee 2

Statutes:

United States Constitution, First Amendment

United States Constitution, Thirteenth Amendment

28 US.C. § 12541)

28 U.S.C. § 2403

42 US.C. § 1981

42 US.C. § 1982

Other:

Congressional Globe, 1866, Mar. 1, p. 1117 .

nu NN oo

3-18, 21

13, 14

IN THE

Supreme Court of the Anited States

No.

SOUTHERN INDEPENDENT SCHOOL ASSOCIATION,

Intervenor-Petitioner,

MICHAEL C. McCRARY, INFANT BY CURTIS L.

McCRARY AND SANDRA McCRARY AND COLIN

M. GONZALES, INFANT BY RAYMOND GONZALES

AND MARGARET R. GONZALES,

Plaintiffs-R espondents,

and

RUSSELL L. RUNYON, KATHERYNE E. RUNYON,

Defendants (Petitioners in No. 75-62)

Petition for Writ of Certiorari

To The

United States Court of Appeals

For The Fourth Circuit

Petitionery prays that a writ of certiorari issue to review

the judgment of the United States Court of Appeals for the

Fourth Circuit in its cases No. 73-2348, No. 73-2349 and 73-

2350 (consolidated with cases No. 73-2351 and No. 73-2352

on trial and appeal).

OPINIONS BELOW

The opinions of the Fourth Circuit Court of Appeals

sitting en banc together with the opinion on rehearing are

reported at 515 F.2d 1082 (App. la). The opinion of

the United States District Court for the Eastern District

of Virginia, Alexandria Div. (Bryan, J.) is reported at 363

F.Supp. 1200, (App. 35a).

JURISDICTION

The judgment of the Court of Appeals was entered on

April 15, 1975. Rehearing applications by this petitioner

and others were denied with opinion by order made May

26, 1975 and entered May 29, 1975. The jurisdiction of

this Court arises under 28 U.S.C. §1254(1).

The Court of Appeals, pursuant to 28 U.S.C. § 2403,

has certified to the Attorney General that the constitu-

tionality of 42 U.S.C. § 1981 has been drawn in question.

Petitions for certiorari raising the same or closely re-

lated issues have been filed in this Court by the defend-

ants in this case (No. 75-62); by the defendants in the

consolidated case (No. 75-66); and will be filed in Cook v. Hud-

son,(No. __ ), the last on behalf of teachers having public

school contracts terminated after sending their own chil-

dren to private white schools. A possibly related issue is

raised in No. 74-1568 (Wind River Indian Education Ass'n

v. Ward).

A related issue will be argued en banc before the Fifth Cir-

cuit on or about September 16, 1975, Riley v. Adirondack

Southern School For Girls (No. 74-1976) and could be con-

solidated for argument with Brown v. Dade Christian Schools,

now on appeal to that Court (No J&#2é0 ) from a decision of

the United States District Court in Florida which followed the

majority Opinion in this case.

QUESTION PRESENTED FOR REVIEW

The statement of the issue as concurred in by all judges

of the Fourth Circuit, was as follows:

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

§ 1981 prohibits private schools from denying

admission to qualified black applicants solely

on the basis of their race.

STATUTES

United States Constitution, First Amendment

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the free-

dom of speech, or of the press; or the right

of the people peaceably to assemble, and to

petition the Government for a redress of

grievances.

United States Constitution, Thirteenth Amendment

Section 1. Neither slavery nor involuntary

servitude, except as a punishment for crime >

whereof the party shall have been duly con-

victed, shall exist within the United States,

or any place subject to their jurisdiction.

Section 2. Congress shall have power to en-

force this article by appropriate legislation.

42 U.S.C. § 1981. Equal rights under the law.

All persons within the jurisdiction of the

United States shall have the same righi in

every State and Territory to make and

enforce contracts, to sue, be parties, give evi-

dence, and to the full and equal benefit of all

laws and proceedings for the security of per-

sons and property as is enjoyed by white citi-

zens, and shall be subject to like punishment,

pains, penalties, taxes, licenses, and exactions

of every kind, and to no other.

STATEMENT OF THE CASE

Two Negro minors by their parents as plaintiffs in the

District Court, asserted an appropriate level of scholastic

competence and sought decla:.tory and injunctive relief

for a refusal to admit them on the grounds of their race

to defendants’ allegedly white private school in Arlington

(4).!_ The complaint alleged and defendants denied that

admission to any private school facility is a “contract”

within the meaning of the Civil Rights Act of 1866 (42

U.S.C. § 1981) and argued that such a racial admission

limitation was therefore a denial to them and their class

of the same right “to make and enforce contracts .. . as

is enjoyed by white citizens” under § 1981 and violated

their right to equal enjoyment of “places of public ac-

commodation”’ (7).

This petitioner (SISA), is an association of six South-

eastern non-profit state private school organizations which

have memberships which include a substantial number of

private schools which concededly have racial limitations

On admission. Neither the school operated by defendants

nor the school involved in a companion case tried with

| Plain number references are to pages of Part i of the Joint Appen-

dix filed in the Court of Appeals and forwarded in printed form to

this Court under Rule 21(2).

it, are members of SISA or of its component state associ-

ations.

SISA was granted intervention below as an individual

and class defendant (13). In its answer to the complaint,

SISA denied that the infant plaintiffs were granted a right

by § 1981 or otherwise to invoke judicial assistance to

compel their admission to any private school of their

choice (14). By counterclaim which plaintiffs denied,

SISA alleged that its schools were in fact privately owned

and maintained, were academically advanced over public

education and prayed for a counter-declaration affirming

the constitutional right of the parents of its students to

express their educational opinions by selecting any private

school for their children which conformed to their prefer-

ences — whether or not its admission policy was such as

to exclude one or more constitutionally significant classes

of applicants (15).

In proof of its factual allegations, SISA stipulated with

plaintiffs as follows (17):

1. A substantial proportion of the schools

represented by intervenor deny admission to ap-

plicants of the Negro race.

2. The schools represented by intervenor

admit applicants only in the discretion of the

school authorities.

3. The schools represented by intervenor are

privately owned, financially supported by tui-

tion paid by the parents of the students and,

in some cases, supplementary private gifts.

4. The schools represented by intervenors are

located in areas having cost-free, desegregated

public education available to all children, and

the parents of the students in schools repre-

sented by intervenor are taxpayers who pay

their proportionate share of federal, state and

local taxes for the maintenance of such pub-

lic system of education.

5. The sole basis of jurisdiction asserted by

plaintiffs in this action is 42 U.S.C. § 1981.

In proof of the balance of its allegations SISA intro-

duced uncontradicted evidence before the trial court, to

show (a) that as a result of its use of limited admission

policies, its private schools had achieved demonstrably

higher academic results and have had fewer disciplinary

problems than the public sfigools of their area (33, 54)

and (b) that on the basis of these scholastic records and

in the light of the controversial state of scientific opinion

about educational methods (43°51), the choice of a limit-

ed admission private school Gasuast be said to be so irra-

tional as to deny the parents a judicial declaration of

their constitutional right to so associate their children for

the practical expression of their educational beliefs.

On July 27, 1973, after trial, the District Court found

as a fact that the defendants’ school had excluded the in-

fant plaintiffs some three years earlier by reason of their

race (App. 38a, 39a). The court noted that the infant plain-

tiffs had since been admitted to other private schools of their

choice and were making satisfactory progress (App. 38a).

On the law, the Court ruled that the 42 U.S.C. § 1981

applied to private as well as state-enforced discrimination,

that the defendant school was not “truly private” since it

was “open to every white child,” and therefore that a

right of admission to a white private school was a right

to “contract” within the intendment of § 1981. The Court

also held that since § 1981 was limited in terms to rights

** . . enjoyed by white citizens,” its prohibitions were not

applicable to non-white races or to private all-Negro, all-

Chinese or rabbinica! schools (App. 41a). The Court denied

class representation either by plaintiffs or SISA (App. 40a).

In its order the Court granted the requested declaration of

right that racial discrimination in private school admissions

violates § 1981 (App. 43a). It held SISA’s evidence of the

scholastic value of limited admission schools to be irrelevant

under Brown v. Board of Education (App. 42a) and dismissed

intervenor’s counterclaim for failure to state a cause of action

(App. 45a).

Upon its opinion the District Court issued an injunction

against the school of defendants and all private schoéls asso-

ciated with SISA to prohibit any further denial of admission

to Negro applicants (App. 43a). Damages were awarded (App.

44a) and supplemental orders were later entered (App. 45a)

(71).

An appeal was taken by SISA from the District Court’s dis-

missal of its counterclaim and its correlative declaration of a

statutory right in the Negro plaintiffs to compel admission to

private white schools.

The appeal was heard en banc on April 2, 1974. The

decision of the Fourth Circuit was issued on April 15,

1975. Four of the seven judges affirmed the holding of

the District Court, citing this Court’s rulings in Jones y.

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

Park, 396 U.S. 229 (1969) and Tillman v. Wheaton-Haven

Recreation Ass’n., 410 U.S. 431 (1973). The opinion de-

nied that the question had been considered here in Nor-

wood vy. Harrison, 413 U.S. 455 (1973). The opinion con-

cluded

Nothing in § 1981 impedes parents in their

exercise of a choice of a private school

presenting ideas or having educational methods

or practices which are not available in the pub-

lic schools. They may do the same thing to

avoid ideas and influences in the public schools

which they regard as unhealthy. See Pierce vy.

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.

515 F.2d at 1087-88 (App. 11a).

Three Circuit judges, accepting the issue as defined by

the majority, dissented from their holding on the ground

that the question was “one of first instance in any fed-

eral court at this or higher level,” (App. 2la-222) that

Jones, Sullivan, anc Tillman were not controlling since

they dealt with rights in real property a § 1982, and that

the right to make contracts “does not imply a right to

coerce an unwilling co-contractor into making any and

every variety of contract.”’ (App. 22a). The dissenters fur-

ther argued that the applicable policy was one of associ-

ational right as set out by this Court in “Moose Lodge v.

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

gomery, 417 U.S. 556 (1974)” (App. 23a) concluding:

As we have previously indicated, we do not

find it necessary to express an opinion on the

constitutional validity of 42 U.S.C. § 1981, but

we do feel compelled to say that the result

reached by the majority is an unconstitutional

and invalid application of the statute. Our con-

clusion is supported by the opinpn of the court

in Gilmore v. City of Montgomery, 417 U.S.

556 (1974), which adopts, in the opinion of

the court, the language we have previously

quoted from the dissenting opinion of Mr.

Justice Douglas in Moose Lodge to the effect

that people may band together in their asso-

ciation with whomsoever they please. And

those cases specifically refer to the forbidden

and highly suspect classifications of race and

religion. Nothing in history or the precedents

contains any suggestion that the same reason-

ing applied to a religious school in Pierce, to

a social club in Moose Lodge, and indeed (al-

beit in slightly different context) to private

schools in Gilmore, should not apply here.

And we think the majority takes too little

account of Norwood vy. Harrison, for in that

case, in a discussion of the precise type of

segregated private school involved here, the

court unequivocally stated that the very bias

here charged is neither invalid nor subject to

sanction of law:

“Such private bias is not barred by the Con-

stitution, nor does it invoke any sanction

of laws, but neither can it call on the Con-

stitution for material aid from the State.”

413 U.S. 455, 469.

515 F.2d at 1096-97 (App. 30a-31a).

A stay pending certiorari was granted by the Circuit

Court. Intervenor here prays the issuance of a writ of

certiorari to review the judgment of the Fourth Circuit

denying its private schools the right of limiting admissions by

race.

REASONS FOR GRANTING THE WRIT

THE ISSUE IS ONE OF MAJOR CONSTITUTIONAL

IMPORTANCE AND IS DIRECTLY PRESENTED

FOR RESOLUTION ON THIS RECORD

In holding that 42 U.S.C. $8 1981 requires the compul-

sory admission of black applicants to private white schools,

the decision below has created a constitutiona! conflict be-

tween the First Amendment rights of parents under the

Pierce doctrine, and the Thirteenth Amendment right of

blacks to be free from private discrimination amounting

to an incident or badge of slavery.

The Pierce doctrine was summarized in Norwood (p.

462) as

. . . the constitutionally protected choice [of

parents] to send the children to private [white]

schools.

Both opinions below accept this rule as

. . a form of exercising freedom of associ-

ation protected by the First Amendment.

Norwood, p. 470.

and agree that as a general proposition parents may send

their children to any private school which expresses their

educational beliefs. (App. lla, App. 26a).

The character of that belief in the case of the parents

whose children attend the schools of intervenor was stated

in Norwood to be (p. 469),

‘

‘. . . that segregation is desirable in education.”

But, as the majority below has further held, this is the

one private belief that is not permitted to be expressed

in any corresponding private school because segregation

in education is a form of private bias which this Court

in Jones, Sullivan, and Tillman is said to have held to be

prohibited by Congress when it exercised its Thirteenth

Amendment authority by the enactment of the predeces-

sor to 42 U.S.C. $ 198i.

Intervenor denies that this Court has so ruled or that

such a conclusion is required by those opinions, and adds

first, that the holding sought to be reviewed violates the

intenadment of Congress in its enactment of the predeces-

sor 1866 Act, and second, that the Circuit has thereby

created a constitutional conflict which did not previously,

and, in the opinion of intervenor does not now, exist.

The issue is ripe for decision on this record. The ques-

tion now posed is solely one of law. On the face of the

trial record, there are no open questions of fact as to the

schools of intervenor. They are each concededly private

non-profit institutions supported by tuition and gifts.

They are located in areas having locally available desegre-

gated public schools.” They select their pupils in their

own individual discretion, and they meet all state educa-

tional requirements. Their parents pay private tuition in

addition to taxes which support the local integrated pub-

lic schools. By limiting their admissions to a single con-

stitutionally significant class they have achieved a higher

2 Plus 138 private racially integrated schools (Fourth Circuit

brief amicus of Council for American Private Education, p. 2) said

to be located “in the same area of the country as the schools which

are affiliated in the Intervenor.” (p. 13)

academic result and have fewer disciplinary problems than

do the public schools in their areas.?

The existence of any conflicting constitutional rights of

the parties is therefore directly presented by this record and

its determination by this Court will assist in defining the ex-

tent to which any citizen retains an educational choice.

THE DECISIONS OF THIS COURT HAVE BEEN MIS-

READ. THEY DO NOT REQUIRE THE “CONTRACT”

PHRASE OF § 1981 TO BE EXTENDED TO RACIAL

DISCRIMINATION IN PRIVATE SCHOOL ADMISSIONS

Admittedly, the precise question has never previously

been answered. In 1968 in Jones v. Mayer, you held that

Section | of the 1866 Act was intended by Congress to

prohibit certain forms of private discrimination which con-

stituted badges or incidents of slavery within the meaning

of the Thirteenth Amendment. That interpretation was

restated in your Sullivan and Tillman decisions. The courts

below now hold that those three decisions require biacks

to be admitted to white private schools (App. 40a).

If read literally the act covers these plain-

tiffs, who have been denied their right to make

a contract with the defendants because they

are not white. That it is to be read literally

is no longer open to question. In considering

3 This last sentence was held to be irrelevant under Brown vy.

Board of Education (App. 42a). But Brown not only held that it

was solely concerned with public education but that it was peculiarly

the sanction of official action by the states which made segregated

schooling psychologically detrimental to blacks, 347 U.S. 483, 493

(1954).

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 Congress meant any less

when it enacted § 1981. Tillman v. Wheaton-

Haven Recreation Ass'n., 410 U.S. 431 (1973).

The purpose of both is to prohibit all racial

discrimination against non-whites, whether that

infringement 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.

(District Court opinion, App. 39a-40a).

As an intellectual exercise, the historical

reading and interpretation of the majority in

Jones v. Mayer may be debatable .. . . That

reading and interpretation was followed in Sul-

livan v. Little Hunting Park and in Tillman vy.

Wheaton-Haven, however, and for us, is firmly

established.

(Court of Appeals opinion, App. 9a)

But intervenor says this result is not mandated by your

holdings in those three decisions for at least three reasons.

First, they were each specifically concerned with the scope

of the right to purchase property under § 1982, a well-

known problem of slavery. They did not deal with “con-

tracts” under § 1981. Second, while Jones and Tillman

arguably concur that some forms of private discrimination

would be prohibited by § 1981, the circumstances under

which it would be so extended were left open for further

consideration. Third, which intervenor does not here ar-

gue, the decisions of this Court and others indicate that

the presence of First Amendment rights in opposition are

a limiting factor on legislative interpretation as are the sub-

ject matters of modern Civil Rights legislation against pri-

vate discrimination.

1. The Courts Below

Misread Jones, Sullivan

and Tillman. These were

Rulings on § 1982 only.

In Jones vy. Mayer this Court took note that only state-

supported discrimination was prohibited by the Fourteenth

Amendment and therefore any applicability of the 1866

Act against private bias had to depend on such discrimina-

tion being established as a badge or incident of slavery

within the scope of the constitutional delegation of author-

ity given to Congress in the second paragraph of the Thir-

teenth Amendment. On a review of the legislative history

of the 1866 Act, this Court concluded that § 1982 had

been originally intended by Congress to prohibit private

racial bias burdening transfers of real property and this

view has since been uniformgly applied, Sullivan v. Little

Hunting Park, Inc., supra.

Intervenor says that the same limitation is equally true

as to this Court’s Tillman opinion. The complaint in that

case did cite § 1981 as well as 8 1982, and possibly for

that reason both judgments below specifically rely on Till-

man as compelling a broad interpretation of the “contract”

clause of § 1981. But that was not the holding of this

Court. On its facts, Tillman was a $8 1982 case and dealt

— as did Jones and Sullivan — with the extent of rights

acquired under a real property transfer,

When an organization links membership bene-

fits to residency in a narrow geographical area,

that decision infuses those benefits into the

bundle of rights for which an individual pays

when buying or leasing within the area.

We hold, as a consequence, that Wheaton-Haven

is not a private club and that it is not neces-

sary in this case to consider the issue of any

implied limitation of the sweep of § 1982 when

its application to a truly private club, within

the meaning of § 2000a(e), is under considera-

tion. Cf. Moose Lodge No. 107 v. Irvis, 407

U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d. 627

(1972); Daniel v. Paul, 395 U.S. 298, 89 S.Ct.

1697, 23 L.Ed.2d 318 (1969).

410 U.S. 437, 438-9, 93 S.Ct., 1090, 1094 (1973).

And on remand, the District judge confirmed that the action

taken by the Court in Tillman was a reading of § 1982, 367

F.Supp. 860 (D. Md. 1973). Accord, Riley v. Adirondack

Southern School for Girls, 368 F.Supp. 392, 396-7 (M.D.

Fla. 1973)

Jones, Sullivan, and Tillman are therefore not precedents

on the scope of the application of § 1981 to private discri-

mination in the making and enforcement of contracts.

2. Only Such “Contracts” as to Which

Private Discrimination Would Constitute

a “Badge or Incident of Slavery”’ are

Within the Ambit of § 1981.

This Court noted in Jones that 8 1981 and 1982 were

not enacted in the usual course of legislation. Since “the

Constitution does not proscribe private bias” (Norwood,

p. 469) the power of Congress to legislate against an

individual’s discrimination by race, sex, or religion must

be traceable to some constitutional delegation of specific

legislative authority. For example, the anti-discrimination

provisions of the 1964 Civil Rights Act were shown to be

an exercise of the power of Congress over interstate com-

merce, Heart of Atlanta Motel v. United States, 379 US.

241 (1964) and justified as a codification of “the common-

law inn-keeper rule which long pre-dated the Thirteenth

Amendment,” (p. 261). The similar provisions in Section

1 of the 1866 Civil Rights Act on the other hand were

sustained by reference to the constitutional delegation un-

der the second paragraph of the Thirteenth Amendment,

which, as this Court put it, authorized Congress to legis-

late against such examples of private bias as had thereto-

fore constituted a badge or incident of slavery, Civil Rights

Cases, 109 U.S. 3 (1883).

The inability to make an enforceable contract, shared

before 1866 by slaves, minors and incompetents, was eli-

minated as to former slaves by § 1 of the 1866 Act —

now in part § 1981. But this was the removal of a legal

disqualification of the newly freed citizens, not the grant

of an affirmative and preferential right, McDonnell Doug-

las Corp. v. Green, 411 U.S. 792 (1973): Long v. Ford

Motor Co., 496 F.2d 500 (6 Cir. 1974). Blacks and others

were given the rights of a “white person”’, not a new form of

legal status. But the legal status of a claim of right to com-

pulsory association is clear. Before 1866 and still today

a white person has had no standing in law to compel

others to admit him to an organization, Moose Lodge vy.

Irvis, supra, MacDonald v. Shawnee Country Club, Inc.,

438 F.2d 632 (6 Cir.) cert. den. 403 U.S. 932 (1971),

Wesley v. City of Savannah, Ga., 294 F.Supp. 698 (S.D.

Ga. 1969), Central Presbyterian Church v. Black Libera-

tion Front, 303 F.Supp. 894 (E.D. Mo. 1969).

Compulsory admission to a private school was never a

right of white citizens and therefore the denial of such a

right could not be a ‘badge or incident’ of slavery. That

this was not intended to be a right under § 1981 was par-

ticularly affirmed on the explication of the 1866 Act given

by its Floor Manager, Congressman Wilson,

This part of the bill will probably excite more

opposition and elicit more discussion than any

other; and yet to my mind it seems perfectly

defensible. It provides for the equality of citi-

zens of the United States in the enjoyment of

“civil rights and immunities”. What do these

terms mean? Do they mean that in all things

civil, social, political, all citizens without dis-

tinction of race or color, shall be equal? By

no means can they be so construed ... . Nor

do they mean that all citizens shall sit on the

juries or that their children shall attend the

same schools. These are not civil rights or im-

munities.

(Cong. Globe 1866, Mar. 1, p. 1117).

Consensuality is at the heart of all contract doctrine.

True, in Jones the property owner did not want to sell

but was a large scale corporate developer. In Sullivan the

property sale was consented to by the owner and only

the extent of the rights passed were in question. In Till-

man the contract in the swim club had already been made

and only the scope of the rights under it were considered.

In short, nothing in this Court’s decisions has ever con-

ferred preferential rights of compulsory contracting on

black citizens. It has merely been held that what they

receive in a transaction shall not be less than a white citi-

zen would receive whenever some third private party was

willing to contract with him, Cook v. The Advertiser Co.,

Inc., 458 F.2d. 1119, 1124 (5 Cir. 1972), Sims v. Order

of United Commercial Travelers of America, 343 F.Supp.

112 (D. Mass. 1972).

The prerequisite of consent to a private contract was

not a disability of slavery but one of law applicable to all

citizens and therefore cannot fall within the types of pri-

vate discrimination to be prohibited under § 1981.

Ill

THE RULING BELOW IS IN CONFLICT WITH THE

PRIOR HOLDINGS OF THIS COURT

The constitutionality of maintaining a white private school

has been before this Court by necessary implication in

three prior cases involving differing forms of state action,

denying them (1) use of free state textbooks in Norwood

v. Harrison, supra, (2) access to public athletic grounds in

Gilmore v. City of Montgomery, Alabama, supra, and (3)

educational tax exemptions in Coit v. Green, 404 U.S. 907

(1971) aff’g. per curiam Green v. Connally, 330 F.Supp.

1150 (D.D.C. 1971).

In Norwood (p. 469) it was held

The private school that closes its doors to de-

fined groups of students on the basis of con-

stitutionalify suspect criteria manifests, by its

own actions, that its educational processes are

vased on private belief that segregation is de-

sirable in education. . . . Such private bias is

not barred by the Constitution, nor does it in-

voke any sanction of laws, but neither can it

call on the Constitution for material aid from

the State.

Gilmore held that “private segregated school groups”

could not be given exclusive use of city-owned recreational

facilities on the same basis as others. This Court said (94

S.Ct. at 2427)

We close with this word of caution. It should

be obvious that the exclusion of any person or

group — all-Negro, all-oriental, or all-white —

from public facilities infringes upon the free-

dom of the individual to associate as he chooses.

Mr. Justice Douglas emphasized this in his dis-

sent, joined by Mr. Justice Marshall, in Moose

Lodge. He observed, “The associational rights

which our system honors permit ali 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.

Government may not tell a man or woman

who his or her associates must be. The indi-

vidual can be as selective as he desires.”” 407

U.S., at 179-180, 92 S.Ct., at 1975. The

freedom to associate applies to the beliefs we

share, and to those we consider reprehensible.

It tends to produce the diversity of opinion

that oils the machine of democratic govern-

ment and insures peaceful, orderly change.

The three-judge opinion which was summarily affirmed

by this Court in Coit v. Green, stated of these intervenor

schools

The general right of association is protected

no matter how unpopular the group’s purposes

or characteristics may be. Indeed, one has the

constitutionally protected right to belong to

political groups embracing both legal and illegal

aims so long as one does not intend to engage

in acts in furtherance of their unlawful pur-

poses. Scales v. United States, 367 U.S. 203,

81 S.Ct. 1469, 6 L.Ed.2d 782 (1961), Elfbrandt

v. Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.

2d 321 (1966). “For the Constitution protects

expression and association without regard to

the race, creed, or political or religious affili-

ation of the members of the group which in-

vokes its shield, or to the truth, popularity, or

social utility of the ideas and beliefs which are

offered.” NAACP v. Button, 371 U.S. 415,

444-445, 83 S.Ct. 328, 344, 9 L.Ed.2d 405

(1963).

Neither plaintiffs’ prayers nor defendants’

policy seeks to stop intervenors from sending

their children to segregated private schools at

their own expense, paying the full cost of edu-

cation at such schools.

330 F.Supp. 1150 at 1166, aff'd. per

curiam 404 U.S. 997, 92 S.Ct. 564 (1971).

Intervenor says that in each of these three cases the

constitutionality of the continued maintenance of segre-

gated private schools was a necessary pre-determination

to the actual decision. To the contrary, both the District

Court and Circuit majority have ruled that this Court’s

statements should not be so interpreted and the question

is therefore novel (App. 13a, 42a-43a). The District Court

repeated your Norwood language (App. 42a-43a)

Intervenor has seized on certain dicta of the

Supreme Court in Norwood v. Harrison, 41

U.S.L.W. 5094 (June 25, 1973), which states

that “private bias” is not proscribed by the

Constitution and that “private discrimination

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 context, it

must be pointed out that § 1981 was not

there involved; that Jones » Mayer Co. was

cited to the contrary as an example of pri-

vate discrimination made unlawful 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 admission limited to students of

particular national origins, race or religion. . . .

Norwood v. Harrison, at 5095.

The fact that § 1981 was not involved in Norwood is

not the point. It can hardly be said that this Court over-

looked that statute particularly since it pointed out that

Jones, based on the same origins, was an example of un-

lawful private discrimination.

On the other hand, the Court of Appeals did agree

(App. 13a) that § 1981 had been considered by you in

Norwood

Finally the Court in Norwood recognized the

thrust of § 1981 and § 1982 when it noted

that private discrimination “has never been ac-

corded affirmative constitutional protections.

And even some private discrimination is sub-

ject 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 can-

not read Norwood as a holding that segregation

in private schools such as chese is constitution-

ally protected so as to be beyond the reach of

§ 1981.

In the opinion of intervenor the holding below is in di-

rect conflict with your decisions in Coit, Norwood, and

Gilmore and certiorari should be allowed to correct the

error.

CONCLUSION

The petition should be granted, the judgment of the

Court below reversed and the case rermanded to the Dis-

trict Court to grant the declaratory judgment prayed in

intervenor’s counterclaim. In support of this prayer inter-

venor has here shown that the issue is one of major con-

stitutional proportion, fully presented on this record, that

the Courts below have misread the rule established by

your opinions in Jones, Sullivan, and Tillman, and the

judgment sought to be reversed is in conflict with your

decisions in Coit, Norwood, and Gilmore.

Respectfully submitted,

GEO. S. LEONARD, Esq.

1225 Connecticut Ave. N.W.

Washington, D.C. 20036

Counsel for Petitioner

August 22, 1975.

APPENDIX

[Filed April 15, 1975]

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 73-2348

Michael C. McCrary, infant by Curtis L. McCrary

and Sandra McCrary and Colin M. Gonzales, infant

by Raymond Gonzales and Margaret R. Gonzales,

Appellees,

Russell L. Runyon, Katheryne E. Runyon,

’ Defendants,

Southern Independent School Association,

Appellant.

No. 73-2349

Michael C. McCrary, infant by Curtis L. McCrary

and Sandra McCrary and Colin M. Gonzales, infant

by Raymond Gonzales and Margaret R. Gonzales,

Appellees,

Russell L. Runyon, Katheryne E. Runyon,

, Appellants,

Southern Independent School Association,

Defendant.

No. 73-2350

Michael C. McCrary, infant by

Curtis L. McCrars and Sandra McCrary,

Plaintiffs,

Colin M. Gonzales, infant by Raymond

Gonzales and Margaret R. Gonzales,

Appellants,

Russell L. Runyon, Katheryn E. Runyon,

Southern Independent School Association,

Appellees.

No. 73-2351

Colin M. Gonzales, infant by his parents,

Raymond Gonzales and Margaret R. Gonzales,

Appellees,

Vv.

Fairfax-Brewster School, Inc.,

Appellant.

No. 73-2352

Colin M. Gonzales, infant by his parents,

Raymond Gonzales and Margaret R. Gonzales,

Appellants,

Fairfax-Brewster School, 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, Cir-

cuit Judges, sitting en banc.

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 Fitzgerald

on brief) for Appellants/cross-Appellees in Nos. 73-2351

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

HAYNSWORTH, Chief Judge:

The issue in this case is whether 42 U.S.C.A. 8 1981!

prohibits private schools from denying admission to quali-

fied black applicants solely on the basis of their race.

1 «ay persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and en-

force contracts, to sue, be parties, give evidence, and to the full and

equal benefit of all laws and proceedings for the security of persons

(continued)

This appeal is a consolidation of two suits initiated by

parents of black children who claim that they were de-

nied admission to the appellant schools because of their

race.

The Southern Independent School Association interven-

ed in these actions, alleging that it is an association repre-

senting 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 prohi-

bited by § 1981, and, in any event, cannot be constitu-

tionally prohibited.

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

parents 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 program, and continuing into the first grade in the

fail. The Gonzales’ learned of Fairfax-Brewster through

a mass mailing addressed to “Resident,” 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 cer-

tificate and application fee. On May 16, 1969, the medi-

cal certificate and application fee were returned, accompanied

(continued) 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.”

by a form letter stating that the school was “unable to ac-

commodate 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 reject-

ed, 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 5-1/2, was rejected be-

cause they felt that the kindergarten he ‘had previously at-

tended 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-Brewster,

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

only members of the Caucasian race were accepted.

In August 1972, Mrs. McCrary called Bobbe’s School about

enrolling her two-year-old son, Michael, in the nursery school.

She asked whether the school was integrated and accepted

blacks, and was told it did not. She did not file a formal

application with Bobbe’s.

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 discriminate

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-

believable,” 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 applica-

tion was filed. It would be ridiculous to require 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 admissions policies.

On the authority of Jones v. Alfred H. Maver Co., 392

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

U.S. 229 (1969) and Tillman v. 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 admis-

sions policies, and permanently enjoined defendants and in-

tervenors from discriminating against blacks in enrollment

in their schools. In addition, it awarded damages for em-

barrassment, humiliation and mental anguish to Colin, Mi-

chael and Michael’s parents, and attorney’s fees against Fair-

fax-Brewster and Bobbe’s. Gonzales v. Fairfax-Brewster

School, Inc., 363 F. Supp. 1200 (E.D. Va., 1973).

Defendants and intervenor appeal. We affirm the injunc-

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

torney’s fees.

Initially, the appellants contest the district court's findings

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 Gonzales

had been told that Fairfax-Brewster was not integrated and

whether both the McCrarys and Gonzales’ were told that

Bobbe’s was not integrated. Resolution of this conflict de-

pended 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 testimony, on a question

of credibility.

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

roborated and supported by the testimony of two other wit-

nesses. Mrs. Bryant testified that she had telephoned Fair-

fax-Brewster and Bobbe’s to inquire about their admissions

policies and was told that the schools were not integrated.

Mr. Brooks, Mrs. McCrary’s supervisor at her job, testified

that a Mr. Gates, at Bobbe’s, told him, over the telephone,

that Bobbe’s did net 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 appli-

cants to take an entrance examination when previous scho-

lastic 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.

Ill.

The substantive 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 enforce-

ment 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.

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.

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

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

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

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, Desegregation of

Private Schools: Section 1981 as an Alternative to State Action, 62

Geo. LJ. 1363 (1974); Note, Segregation Academies and State Action,

82 Yale LJ. 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. LJ.

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).

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

to purchase real estate. There a real estate developed had

refused to sell a residence in a “white area” to the black

plaintiff. Analyzing the text and legislative history of 8 |

of the Civil Rights Act of 1866,° the Court held that § 1982

applied to purely private activity and provided a judicial

remedy. As so construed, it was held that enactment of

$ 1982 was a valid exercise of the power of Congress under

the enforcement clause of the Thirteenth Amendment, which

gave Congress power to “pass all laws necessary and proper

for abolishing all badges and incidents of slavery."* The

Court concluded that, unlike the Fourteenth Amendment,

the Thirteenth reached private conduct in which no state

action was involved.

As an intellectual exercise, the historical reading and in-

terpretation of the majority in Jones v. Mayer may be de-

batable. See VI History of the Supreme Court of the United

States; Fairman - Reconstruction and Reunion, | 207, et seq.

That reading and interpretation was followed in Sullivan v.

Little Hunting Park and in Tillman v. Wheaton-Haven, how-

ever, 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 § | of

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

ar.alysis and must be interpreted in the same light. In 7ill-

man v. Wheaton-Haven, the claim of the guest and the host

rested upon § 1981. The Supreme Court expressly noticed

3 14 Stat. 27.

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

10a

the relation between § 1981 and § 1982, their common de-

rivation 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 per-

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

relationship between the school on the one hand and a pupil

and his parents 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 ali white people because there are

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-

cants. 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 qualifi-

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

those bases 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.

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 asso-

ciation for the advancement of beliefs and ideas is an insepa-

rable aspect of ***freedom of speech.” Jd. at 460. The

constitutional protection, however, is essentially an attribute

of First Amendment rights and would not ordinarily justify

exclusion of others sharing the same beliefs and ideas. Here,

at least, there is no showing that discontinuance of their dis-

criminatory admission practices would inhibit in any way

the teaching in these schools of any ideas or dogma.

Nothing in § 1981 impedes parents in their exercise of a

choice of a private school presenting ideas or having educa-

tional 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 neu-

tral 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

12a

is appropriately recognized in certain instances when only a

few people are involved in activity unintended for the public

view. In such instances, it is more than likely or inevitable

that there is some plan or purpose of exclusiveness 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 applicants meeting

established qualifications, there is no perceived privacy ot

the sort that has been given constitutional protection.

Indeed, § 1981 does not purport to reach all private asso-

ciations. It reaches only those which evidence “‘no plan or

purpose of exclusiveness” other than race. Sullivan 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 mem-

bers of one race. Ii is only when blacks are =xcluded be-

cause they are black, or denied a right to contract which

would be granted were they white, that § 198? is violated.

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

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

rights of privacy, or both combined, prevent the application

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

a Mississippi statute giving free textbooks to all students, in-

cluding those attending private, segregated schools. Mississippi

contended that its failure to furnish free textbooks to stu-

dents in private, segregated schools would violate the equal

protection clause and would undermine the right of the par-

ents to send their children to private schools. In answer,

the Court observed that because “the Constitution may com-

pel tolerance of private discrimination in some circumstances

does not mean that it requires state support for such dis-

crimination.” 413 U.S. at 463.

13a

The observation in Norwood is far from a holding that

segregation in a private school 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 specific statute passed in implemen-

tation of the Thirteenth Amendment. See Katzenbach v.

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

late Private Discrimination: The Revival of the Enforcement

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

“thas never been accorded affirmative constitutional protec-

tions. 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 Nor-

wood as a holding that segregation in private schools such

as these is constitutionally protected so as to be beyond the

reach of § 1981.

Cc.

Some schools may be so private as to have a discernible

rule of exclusivity which is inoffensive to § 1981. Should

siblings combine to employ tutors for their children, they

may exclude the rest of the world, for the rule of exclusivity

bars the more distantly related and the unrelated regardless

of race. The schools here are not private in that sense, and

there is no discernible neutral rule of exclusivity which would

bar these plaintiffs. The schools are private only in the sense

that they are managed by private persons and they are not

l4a

direct recipients of public funds. Their actual and potential

consistency, however, is more public than private. They ap-

peal to the parents of all children in the area who can meet

their academic and other admission requirements. This is

clearly demonstrated in this case by the public advertisements.

Within that constituency, they may not exclude a black ap-

plicant, solely because of his race, while accepting white ap-

plicants with comparable qualifications.

The district court awarded damages for embarrassment,

humiliation and mental anguish suffered plus an award of

attorney’s fees. The schools complain of both.

It is not helpful to look to state decisions in personal in-

jury tort cases in which damages for such injuries are cenied 5

That damages are reccverable for violations of § § 1981 and

1982 is established by Sullivan v. Little Hunting Park, supra,

396 U.S. 229, 240, in which we are told, “both federal and

state rules on damages may be utilized, whichever better

serves the policies expressed in the federal statutes.”

Section 1981 doubtless was intended to give to the former

slaves access to opportunities for material betterment of

themselves, but it was also intended to remove the stigma

> After the recent decision of the Virginia Supreme Court in Wo-

mack v. Eldridge, 43 U.S.L.W. 2267 (Va. December 2, 1974), it is

arguable that the plaintiffs here could recover damages in a state tort

action for emotional distress. For an earlier discussion of Virginia’s

requirement of a resulting physical injury in distress cases, see Hughes

v. Moore, 214 Va. 27, 197 S.E.2d 214 (1973).

15a

which accompanied the disabilities under which they former-

ly had labored. The plain command of the statutes is that

those formerly enslaved henceforth shall be treated as hav-

ing all of the rights and dignity of other people dwelling

with them in a land of freedom. A denial of those statu-

tory rights is treatment of the victim as being subject to

those earlier disabilities. It is an affront, of which embar-

rassment and humiliation are natural consequences. If the

statute is to be enforced fairly, if injuries suffered directly

because of its violation are to be fairly compensated, dam-

ages for embarrassment and humiliation must be recoverable

in a case such as this.

The award of attorney’s fees stands in a different posture.

It is one thing to award damages for the invasion of a legal

right and quite another to impose all of the litigation costs

on the defendant. Unlike damages, attorney’s fees have been

granted only in narrowly defined circumstances.

We have recognized the propriety of an award of fees

when a party maintained his position in bad faith, displaying

“obstinate obduracy.” Brewer v. School Board of City of

Norfolk, 4 Cir., 456 F.2d 943, 948-52. The district court,

however, made no finding of “obstinate obduracy,’”® and

we can see no basis for such a finding. Since this suit in-

volves a novel application of a recently revived statute, the

litigation of the issues cannot be equated with the recalci-

trance we found in Brewer. Although at trial the pariies

6 In refusing punitive damages, the district court found that the

defendants had not “acted recklessly or wilfully in disregard of clear

existing law.” 363 F. Supp. at 1205 n. 5.

16a

recounted different versions of the facts and the court ac-

cepted the plaintiffs’ story, the finding suggests no bad faith

or perjury. Faults in perception or memory often account

for differing trial testimony, but that has not yet been

thought a sufficient ground to shift the expense of litigation.

Attorney's fees, of course, are available where Congress

has expressly authorized them. A conspicuous example is

Title I] of the 1964 Civil Rights Act.’ Newman v. Piggie

Park Enterprises, Inc., 390 U.S. 400 (1968). Section 1981

never contained a provision for fees, and although the Emer-

gency School Aid Act of 1972 expressly allows fees in suits

to desegregate public or federally aided secondary or elemen-

tary schools,® plaintiffs have made no showing of federal

aid to, or state action by, the defendants.

In the absence of expressed congressional direction, we

are presented with the question whether to adopt a “private

attorney general” theory. Although application of that

theory may be proper in some actions based on the 1866

and 1870 Civil Rights Act, it would be inappropriate in this

case. In considering an award of fees in an action based on

the older civil rights statutes, we look to more recent con-

gressional determinations that a policy is so important or

public enforcement mechanisms are so ineffective that at-

torney’s fees are necessary to promote private enforcement.

Mere provision of a private cause of action is not sufficient.

7 42 US.C. § 2000a-3(b).

8 20 U.S.C. 8 1617 (allowing fees against a “local educational agency,

a State .. . or the United States” for a violation of that Act, Title VI,

of the 1964 Civil Rights Act or the Fourteenth Amendment). See

Bradley v. School Board of the City of Richmond, 416 U.S. 696 (1974);

Northcross v. Board of Education of the Memphis City Schools, 412

U.S. 427 (1973).

17a

A statutory grant of attorney’s fees in suits covering the

same subject matter, however, would be a strong indication

of such a congressional determination.

In Lee v. Southern Home Sites Corp., 5 Cir., 444 F.2d

143, Judge Wisdom looked to the enactment of the Fair

Housing Law of 1968, which contained a fees section, 42

U.S.C. § 3612(c), in deciding that fees were available to a

plaintiff seeking to redress racial discrimination in the sale

of houses under § 1982. In 1968 Congress had acted, pur-

suant to its powers under the Thirteenth Amendment,’ to

prohibit discrimination in the sale of private housing.!° In

Lee’s § 1982 action, he proceeded against precisely the dis-

crimination that Congress had sought to curb by providing

for an award of reasonable fees for his attorney to a pre-

vailing plaintiff in a private enforcement action.

Employment discrimination suits provide another example

of judicial allowance of fees under the older, more general

civil rights stautes. We have recognized that a plaintiff under

Title VII might recover attorney fees.'! Reaching beyond

Title VII, courts have allowed fees in actions brought under

the older civil rights statutes to eliminate similar employment.

discrimination. Fowler v. Schwarzwalder, 8 Cir., 498 F.2d

143, (8 1981, 1983); Harper v. Mayor and City Council of

Baltimore, D. Md., 359 F. Supp. 1187, 1218-19, modified

9 United States v. Hunter, 4 Cir., 459 F.2d 205, 214.

10 After December 31, 1968, the Act applied to all dwellings, 42

U.S.C. $ 3603(a\(2), except those enumerated in § 3603(b). In Lee

it was not clear whether the Act applied since the transactions occur-

red before December 31, 1968, and evidence on the applicability of

§ 3603(a(1), which covered that time period, was not recounted in

the opinion.

11 42 U.S.C. § 2000e-5(k); Lea v. Cone Mills Corp., 4 Cir., 438 F.

2d 86; Robinson v. Lorillard Corp., 4 Cir., 444 F.2d 791.

18a

on other grounds sub nom., Harper v. Kloster, 4 Cir., 486

F.2d 1134 (8 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. Never-

theless, Congress had authorized fees in the similar Title VII

action to encourage private elimination of such discrimina-

tion. Where plaintiffs advance precisely the same congress-

ional 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 che attainment of which Congress

sought to further by providing for the recovery by a pre-

vailing 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 fa-

cet of private American life. The limitation in that statute

to public schools is not merely a technical or procedural

restriction, but goes rather to the substance of the congress-

ional 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

their attorney’s fees,!? for we find none of the recognized

12 Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714,

717 (1967).

19a

exceptions applicable.!4

AFFIRMED IN PART.

REVERSED IN PART.

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 Part 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 sound reasons, had

allowed attorney’s fees. His discretion can be justified in

this case on two grounds: the appellees acted as private at-

torneys general, and, alternatively, the appellants’ defense

was tainted by obdurate obstinacy.

By prosecuting this single case, the appellees invalidated

the racially exclusive admission practices of over three hun-

dred schools represented by the Southern Independent School

Association, as well as the practices of Fairfax-Brewster and

Bobbe Schools. In so doing, they vindicated congressional

policy by abolishing an aspect of racial discrimination pro-

hibited 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 applicable to suits brought under

the Civil Rights Acts of 1866, 1871, 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. South-

ern Home Sites Corp., 444 F.2d 143 (Sth Cir. 1971); Sims

v. Amos, 340 F. Supp. 691 (M.D. Ala., 3-judge court), aff'd

mem., 409 U.S. 942 (1972). Under this doctrine, the award

13 See Hall v. Cole, 412 U.S. 1 (1973); Mills v. Electric Auto-Lite

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

20a

is not dependent on proof of bad faith, for good or bad

faith is irrelevant. Brandenburger v. Thompson, 494 F.2d

885, 888 (9th Cir. 1974). Nor does the receipt of compen-

satory 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 dependants

display obdurate obstinacy. See Brewer v. School Board of

City of Norfolk, 456 F.2d 943 (4th Cir. 1972) (dictum).

The district court’s findings, amply supported by the record,

demonstrate that the officers of the schools did not truth-

fully recount under oath the facts of the case. Such bad

faith in the conduct of litigation is a pernicious form of

obstinacy that can no more be tolerated than out-of-court

bad faith. Cf. Hall v. Cole, 412 U.S. 1, 15 (1973). This

behavior should not be excused simply because this case in-

volves a novel factual situation. Cf. Lea v. Cone Mills Corp.,

438 F.2d 86, 88 (4th Cir. 1971): Miller v. Amusement En-

terprises, Inc., 426 F.2d 534, 536 (Sth Cir. 1970).

Finally, I believe that the enactment of 20 U.S.C. § 1617

directing the allowance of fees in public school desegrega-

tion cases does not create an inference that Congress intend-

ed to withdraw from district courts “the inherent equitable

power™!* of a chancellor to allow fees in actions against

private schools when the facts otherwise justify the award

because the plaintiffs acted as private attorneys general or

the defendants displayed obdurate obstinacy. Other courts

confronted with analogous problems have ot restricted the

14 See Hall v. Cole, 412 US. 1, 5 (1973).

2la

allowance of fees in suits brought under the earlier Civil

Rights Acts to instances where Congress has subsequently

authorized fees in related legislation. See, e.g., Branden-

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

benefits); Sims v. Amos, 340 F. Supp. 691 (M.D. Ala., three-

judge court), aff'd mem., 409 U.S. 942 (1972) (reapportion-

ment). Indeed, the drastic limitation on the allowance of

fees in civil rights cases suggested by the majority appears

to be without precedent.

Judge Winter and Judge Craven concur in Parts I, II, III,

and IV-A of the court’s opinion. They join Judge Butzner

in dissenting from Part IV-B.

RUSSELL, FIELD, and WIDENER, Circuit Judges, concur-

ring and dissenting:

We concur in the result reached in part IV-B of the opin-

ion of the court. We would not, of course, reach the ques-

tion of attorneys’ fees if our view on the merits prevailed.

Otherwise, we respectfully dissent.

In its opening paragraph, the majority opinion correctly

states the legal issue! in this case. We add, however, that

the issue is presented to this court as one of first instance

| We are not convinced that the district court’s findings of fact are

not clearly erroneous. Such laments, however, being largely unavailing.

see United States v. Johnston, 268 U.S. 220, 227 (1925), we address

ourselves to the important legal issue here presented.

22a

in any federal court at this or higher level.2_ We are bound

by no definitive Supreme Court decision.

The majority regard Jones v. Alfred H. Mayer Co., 392

U.S. 409 (1968), followed in Sullivan v. Little Hunting Park,

Inc., 396 U.S. 229 (1969); and Tillman v. Wheaton-Haven

Recreational Association, 410 U.S. 431 (1973), as being

controlling precedents. We do not so regard those decisions.

We believe that the majority has been unduly impressed

by the historical relationship between §§ 1981 and 1982,

and has failed to discern the difference between the right

to purchase real estate and the right to attend an independ-

ent school inferred from the right to “make and enforce

contracts.” The purchase of real estate, with its attending

prequisites, is a commercial transaction pure and simple, and

many other contracts are likewise purely commercial. On

the other hand, the relationship 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 a contract of marriage. The contract

aspect of the situation is minor and incidental and serves no

purpose 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.

2 In Grier v. Specialized Skills, Inc., 326 F. Supp. 856 (W.D. N.C.,

1971), the United States District Court for the Western District of

North Caroline held the refusal of a barber school to admit black

students constituted a violation of § 1981. On the other hand, in

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

D., Fla. 1974), the court refused to apply § 1981 to a racially segre-

gated independent school. The decision is based at least in part on

factual determinations. See also, Segregation in Private Schools, 122

U. of Penna. L. Rev. 471, at 475 (1973).

23a

The majority opinion also fails to recognize Moose Lodge

v. Irvis, 407 U.S. 163 (1972); and Gilmore v. City of Mont-

gomery, 417 U.S. 556 (1974). True, those cases do not in-

volve § 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 techni-

cal questions in this field may vary according to the facts

of each particular situation.

Legal problems arising out of a purpose to readjust inter-

racial relationships fall into four categories: (1) those arising

under the Fourteenth Amendment; (2) those created by the

Civil Rights Acts of the 1960's; (3) those resulting from con-

ditions imposed by the Federal Government 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 $8 1981, et seq. Legal problems involving the is-

sues regarding the newly enfranchised slaves were acute until

the Civil Rights Cases, 109 U.S. 3 (1883). Thereafter, such

legal problems became stereotyped until the landmark deci-

sion in 1954 of Brown v. Board of Education, 347 U.S. 294

(1954). That case introduced 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.

24a

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 abolished slavery,

and conduct, such as that prohibited by the 1866 Civil Rights

Act, did not constitute the reestablishment of slavery in the

strictest sense of the word. Because of the constitutional

doubt just mentioned, the provisions of the Civil Rights Act

of 1866 were reenacted, practically intact, in various statutes

passed during the 1870's, after the effective date of the

Fourteenth Amendment. 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 occurred.? Not until after the passage of the Civil Rights

Act of 1964 was the 1866 Act reactivated. The 1964 Act

3 Our dissent is not bottomed on this premise. See Jones, p. 437.

Rn eedamigs 5 Oe

a ee ek re nae

o/ «ndings:

25a

made no attempt to prevent racial discrmination in the ad-

mission 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 inde-

pendent schools.

The application of 42 USCA § 1981 to this case may be

approached either as a matter of interpretation or as a mat-

ter of constitutionality: ie., (1) what does § 1981 forbid?

(2) is § 1981 constitutionally valid? Here, those two ques-

tions merge together. Section 1981, as any other statute,

should be construed, in the light of constitutional limita-

tions, to uphold its validity. See Graham v. Richardson,

403 U.S. 365, 382 (1971).4

While dissenting, we wish to make it clear that we do not

necessarily express approval of the alleged restrictive admis-

sions 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.

4 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 con-

flict with the Constitution. The Federalist, 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 construction would make the section

clearly unconstitutional. Simply put, the opinion of the district court

is that all races, so far as § 1981 is concerned, may operate racially

segregated schools except the white race. Either all may do so (as we

(continued)

26a

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

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

ous distinctions. A corollary of this is an interest in edu-

cational 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 society such as

ours the leavening value of educational instutions 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 U.S. 510 (1925). Society

has an interest in preserving the true independence of such

institutions.

The other social inteest which supports the position of

appellants is the interest in free association. It is conceded

that, as a general matter, enforced association is foreign to

our institutions. Mr. Justice Douglas, in his dissenting®

opinion in Moose Lodge No. 107 v. Irvis, 407 U.S. 163

(1972), stated, at p. 179, the proposition thus:

4 (continued)

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 same right . . . to

make and enforce 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 con-

tra to the statute, the same as giving them less rights would violate it.

5 The force of Mr. Justice Douglas’ statement is not reduced by

the fact that it was part of a dissenting opinion; in fact, it is accentu-

ated. The issue in the case was whether the fact that a private club

dispensed liquor by virtue of a State license made its action State ac-

tion. The majority thought not; Mr. Justice Douglas thought so. Thus,

the quoted language was opposed to the main thrust of the opinion.

———\

saab we

27a

“The associational rights which our system honors

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

clubs to be formed. They also permit all Catholic,

all Jewish, or all agnostic clubs to be established.

Government may not tell a man or woman who

his or her associates must be. The individual can

be selective as he desires.”

Even were we to assume, for argument, the majority holding

that the persuasiveness of the right of free association de-

pends, 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 Fairfax-

Brewster School at 236 and at Bobbe’s School an average of

200. In schools of that size, intimacy of personal associa-

tion is still important, and the right of free association cer-

tainly should apply, if it does in any case, to units of such

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

stitutional protection is a question not now before us.®

It is one of the missions of law to balance conflicting so-

cial interests so as to give the maximum of protection to

each.’ Which interest will prevail will depend therefore

upon special considerations in each context in which the

conflict is presented. A good illustration of this point is to

seem to indicate that great numbers alone do not necessarily furnish

sufficient cause to lose the constitutional protection of freedom of

association.

7 See Julius Stone, Social Dimensions of Law and Justice (Stan-

ford University Press, 1966), Chapter 4, pages 164, ef seq., citing

Roecoe Pound and other legal scholars. Somewhat this same idea is

suggested in 122 U. Penna. L. Rev. 471 at 478, 479 (1973), and 74

Col. L. Rev. 449, 468, 469 (1974).

28a

be found in a comment upon the district court’s decision in

the instant cases in Segregation in Private Schools, 122 U.

Penna. L. Rev. 471, at 478, 479 (1973). It is there stated

that “a balancing of Constitutional interests is necessary to

produce a proper construction of Section 1981.” The au-

thor continues:

“Our discussion to this point suggests where the

balance might be struck without seriously impair-

ing either right. The right to contract protected

in Section 1981 should be limited to contracts

found in secondary, as contrasted with primary

relationships. The former [sic, latter] are ‘basi-

cally relationships between friends,’ characterized

by ‘intimate association.” Secondary relationships,

by contrast are ‘impersonal, highly formalized re-

lations between people,’ for example, the relation-

ship between buyer and seller . . . under this

approach, discrimination would be allowed in

primary relationships for any reason whatever,

including racial bias, .. .”

The article suggests that such a differentiation reconciles the

results in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968);

and Moose Lodge No. 107 v. Irvis, 407 U.S. 163 (1972).

If this approach is used, it seems to us that a secondary

school as found here involves a primary relationship and

thus is not within the scope of § 1981.

So far as the balancing of conflicting interests is concern-

ed, the difference between the right to own property, under

§ 1982, and the alleged right to attend an independent school

under § 1981 becomes apparent. The word “right” is am-

biguous. See Private Discrimination, 74 Col. R. Rev. 449,

at 469 (1974). It may mean an immunity from legal disa-

bility to own property or make a contract. In Hohfeldian

and.

ee ee

——-

ee ee ee ee) ee ee,

ee ee ee

29a

terms, this would be a privilege. Or it may mean a power

to compel another to convey property or enter into contrac-

tual relations notwithstanding a refusal to do so solely be-

cause Of race. It is not necessary to assume that the word

right means the same in all contexts. If on the one hand

we consider society’s interest in upward mobility and the

removal of invidious discrimination against disadvantaged

groups, it would seem clear, as pointed out in the Columbia

Law Review citation, supra, that a mere freedom from legal

disability to own property would be of little value to a black

person if prospective vendors could refuse to sell to him be-

cause of his race. There might be no other source from

which he could purchase property. Thus, the Supreme

Court’s decision in Jones v. Alfred H. Mayer Co., 392 U.S.

409 (1968), can be readily understood and accepted, even

were we not under obligation to accept and follow it.

The same basis of necessity is not available to support

the desire of blacks to attend an all white independent school.

The overwhelming portion of the burden of educating our

people is borne by public schools, which by law are non-

segregated. If all schools, nursery through college, are con-

sidered, in 1972, 86.6% attended public schools and only

13.4% attended non-public schools. If only secondary schools,

which is what are involved in this case, be considered, statis-

tics show that in 1972, 92.4% of students attended public

schools and only 7.6% attended non-public schools. (Ameri-

can Almanac for 1974, page 108). These statistics are the

more significant when it is considered that more independ-

ent schools, including all or practically all church affiliated

institutions, do not use race as a basis for admission. Thus,

so far as acceptance as a first-class citizen is dependent upon

educational opportunity, the impact of schools such as those

operated by the two appellants is diminutive. If it be assert-

ed that the exclusionary policies of schools such as these ap-

30a

pellants have invidious implications, it must be remembered

that most, if not all, of the high prestige private schools,

are not racially segregated. In fact, many of them make an

affirmative effort to obtain black students. See Segregated

Academies and State Action, 82 Yale L. Jour. 1436, at

1444 (1973). Indeed, at the time of the district court’s de-

cision in this case, appellee Colin Gonzales had been accept-

ed by and was attending the Congressional School, a non-

public school. 363 F. Supp. 1202. Insofar as society's in-

terests in educational opportunity for all of its citizens and

the removal of invidious discrimination are weighed against

society’s interests in true independence of non-public edu-

cational institutions and freedom of association, especially

in connection with close, intimate relationships, we believe

that, unlike the right to purchase property involved in Jones

v. Alfred H. Mayer Co., the balance is in favor of construing

the right to make and enforce contracts protected by § 1981

as being a freedom from legal disability and not as being ex-

tended to prohibiting a non-public institution from operating

on a racially segregated basis.

As we have previously indicated, we do not find it neces-

ary to express an opinion on the constitutional validity of

42 USC § 1981, but we do feel compelled to say that the

result reached by the majority is an unconstitutional and in-

valid application of the statute. Our conclusion is supported

by the opinion of the court in Gilmore v. City of Montgomery,

417 U.S. 556 (1974), which adopts, in the opinion of the

court, the language we have previously quoted from the dis-

senting opinion of Mr. Justice Douglas in Moose Lodge to

the effect that people may band together in their association

with whomsoever they please. And those cases specifically

refer to the forbidden and highly suspect classifications of

race and religion. Nothing in history or the precedents con-

tains any suggestion that the same reasoning applied to a

3la

religious school in Pearce, to a social club in Moose Lodge,

and indeed (albeit in slightly different context) to private

schools in Gilmore, should not apply here. And we think

the majority takes too little account of Norwood y. Harri-

son, for in that case, in a discussion of the precise type of

segregated private school involved here, the court unequivo-

cally stated that the very bias here charged is neither invalid

nor subject to sanction of law:

—— Ss

“Such private bias is not barred by the Constitu-

tion, nor does it invoke any sanction of laws, but

neither can it call on the Constitution for material

aid from the State.” 413 U.S. 455, 469.

We would reverse the judgment of the district court on

all points.

JUDGMENT

UNITED STATES COURT OF APPEALS

| FOR THE FOURTH CIRCUIT

No. 73-2351

_— ———

Colin M. Gonzales, infant by his parents,

Raymond Gonzales and Margaret R. Gon-

zales,

| Appellees,

| Vs.

Fairfax-Brewster School, Inc.,

Appellant.

Appeal from the United States District Court for the East-

ern District of Virginia.

32a

This cause came on to be heard on the record from the

United States District Court for the Eastern District of Vir-

ginia, and was argued by counsel.

On consideration whereof, it is now here ordered and ad-

judged by this Court that the judgment of the said District

Court appealed from, in this cause, be, and the same is here-

by, affirmed in part and reversed in part.

/s/ WILLIAM K. SLATE, II

William K. Slate, II

Clerk

Filed April 15, 1975

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Nos. 73-2348

73-2349

73-2350

[Filed May 29, 1975, by William K. Slate, II, Clerk]

Michael C. McCrary, infant by Curtis :

L. McCrary and Sandra McCrary

and Colin M. Gonzales, infant by

Raymond Gonzales and Margaret

R. Gonzales,

Appeliees,

33a

Russell L. Runyon, Katheryne E.

| Runyon,

Defendants, :

Southern Independent School

Association,

Appellant.

Nos. 73-2351

; 73-2352

Colin M. Gonzales, infant by his

parents, Raymond Gonzales and :

Margaret R. Gonzales,

) Appellees,

) v.

| Fairfax-Brewster School, Inc.,

| Appellant.

| ORDER

Upon consideration of the petitions for rehearing filed on

behalf of the appellants and the appellees,

IT IS ORDERED that Section [V-A of the opinion be

amended, adding at the end thereof a paragraph reading:

: While allowing damages in favor of the Mc-

Crarys against Bobbe’s School and in favor of

Colin Gonzales because of his minority, the dis-

: trict court denied an award of damages to Mr.

| and Mrs. Gonzales since it concluded that their

claim was foreclosed by the applicable statute

! of limitations. The statute applied was the

34a

first sentence of Virginia Code § 8-24, applica-

ble to actions for personal injuries. It is con-

tended on appeal that the judge should have

applied Virginia’s five-year statute, the second

sentence of § 8-24, applicable to actions not

otherwise provided for in more specific stat-

utes of limitations. While the action is brought

under Section 1981, the damage claim is en-

tirely referable to injured feelings and humi-

liation. We have held such claims asserted

under the Reconstruction Acts to be governed

by Virginia’s two year statute. Allen v. Gif-

ford, 4th Cir. 462 F.2d 615: see Almond vy.

Kent, 4th Cir., 459 F.2d 200. It is also contend-

ed that the five year statute for actions on a con-

tract, Virginia Code $ 8-13, applies, but it is clear

that no action on a contract is involved.

IT IS FURTHER ORDERED that the petitions for rehear-

ing be and each of them hereby is denied.

Upon consideration of the motion for allowance of attor-

neys’ fees on appeal filed on behalf of the appellees,

IT IS ORDERED that the motion for allowance of attor-

ney's fees be and hereby is denied.

In conformity with Alyeska Pipeline Service Company v.

Wilderness Society, 43 U.S.L.W. 4561 (U.S. May 12, 1975),

Judge Butzner withdraws that part of his dissent approving

the district court's allowance of attorneys’ fees on the basis

of the private attorneys general theory. However, he retains

the section which would affirm the allowAgce of fees be-

cause of the defendants’ bad faith. See Alyeska Pipeline

Service Company v. Wilderness Society, supra, 43 U.S.L.W.

at 4567, 4570 n. 46. Judge Winter and Judge Craven con-

cur in this amendment of Judge Butzner’s dissent.

35a

Except as modified herein, each member of the court ad-

heres to the position he took in the previously released opin-

ions.

FOR THE COURT

/s/ Clement F. Haynesworth, Jr.

: Clement F. Haynesworth, Jr.

: Chief Judge, Fourth Circuit

May 26, 1975

[Filed July 27, 1973}

IN THE UNITED STATES DISTRICT COURT FOR

THE EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

COLIN M. GONZALES, et ai.

Plaintiffs, : Civil Action No.

| v. : 494-72-A

. FAIRFAX-BREWSTER SCHOOL, INC.

Defendant,

) and

. MICHAEL C. McCRARY, et al.

| Plaintiffs.

v. : Civil Action No.

| RUSSELL L. RUNYON, et ai. : 495-72-A

Defendants,

36a

and ;

SOUTHERN INDEPENDENT SCHOOL:

ASSOCIATION, :

Intervenor-

Defendant.

MEMORANDUM OPINION AND ORDER

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

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

Fairfax-Brewster School was founded. It commenced opera-

tions in 1955. In 1958, Bobbe’s Private School commenced

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-Brew-

ster commenced operation of a summer day camp and in

1967, Bobbe’s did the same thing.

The enrollment at Fairfax-Brewster School grew 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 increas-

ing except for the year 1969-70, when it dropped to 177

from the previous year’s 208. The day camp’s enrollment

records are not available prior to 1962, but it shows a growth

from 21 that year to 236 in the summer of 1972. An un-

usually 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 submission of an application form, a

+ Oe tt ON A OA Nm

” Arendt) Fat vipat, Fee Oy hm nee

37a

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 directory

similar to Pitf’s Ex. 3, the parents of Colin M. Gonzales,

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

visited the school where they were shown around. Being

pleased with what they saw, they completed, on forms then

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 accommodate the

arplication.”” 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 was rejected, was

told “we are not integrated.” Both Robert S. Reiss and

Stuart Reiss denied any such conversation. They then stated

that Colin, whom they believed was primarily interested 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 schooling. Moreover, knowing that Colin

had previously attended Crossroads Day Nursery, they claim-

ed 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 un-

fair to allow Colin to enter the day camp and then have to

I 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.

38a

be withdrawn before the commencement of the academic

year. In conclusion, the three Reisses all denied that it was

the school or day camp’s policy to exclude an applicant be-

cause of his race. The Court rejects this testimony as un-

believable 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 Congressional

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 Mc-

Crary, 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, transportation and

facilities for “toilet training,’’ she asked if the school was

integrated. Upon receiving a negative reply, she asked it

the school accepted biack children. The answer to this ques-

tion was also “‘no.” She filed no formal application with

Bobbe’s.

Bobbe’s denied receiving telephone calls from either Mr.

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

of the school to exclude anyone because of race; denied that

the school has ever told anyone that the school was not in-

tegrated; and stated that no one can be considered without

a personal interview with the applicant and his parents or

without a formal application being submitted with an accom-

panying medical certificate. Bobbe’s introduced further testi-

mony that no black child had ever applied for enrollment.

39a

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

that both Colin Gonzales and Michael McCrary were denied

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

no formal application was filed. It would be ridiculous to

require this of the plaintiffs after they had effectively been

told it 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 Commission offi-

cer with the Navy and Mrs. McCrary’s supervisor, testified

that after he became aware of the McCrary’s allegations as

raised in this suit against Bobbe’s he decided to call for him-

self. 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 re-

ceiving a negative response to the latter question Brooks

further asked if blacks were admitted. Again he was told

“ ”

no.

Colin Gonzales has filed an action against Fairfax-Brewster.

Mr. and Mrs. McCrary, Michael McCrary, and Colin Gonzales

have filed an action against Bobbe’s. The sole basis for the

actions is 42 U.S.C. § 1981.2 The Southern Independent

School Association intervened as a party-defendant in the

2 Originally 42 U.S.C. § 2000a was alleged as a basis for the actions.

This was withdrawn prior to trial.

40a

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 adjudi-

cation to that effect.

The actions were conslidated and tried on July 16 and

17, 1973.

No determination was made prior to trial that the actions

might be maintained as a class action, either as asserted by

the plai:. iff 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

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.

If read literally the act covers these plaintiffs, who have

been denied their right to make a contract with the defendants

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

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

4la

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 Congress meant any less when it enacted

$1981. Tillman v. Wheaton-Haven Recreation 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 infringement 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.

7 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

“plan or purpose of exclusiveness’”’ for selection of students

) “other than race.”’ [Emphasis added.] Sullivan v. Little

i Hunting Park, 396 U.S. 229, 236 (1969). This disposes 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 plaintiffs 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

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

i rabbinical schools is inapposite. These institutions don’t fall within

p the proscription of § 1981. Whatever else may be said of their policies,

those institutions are free to discriminate against whites, or against

; other non-whites if whites are similarly discriminated against, without

running afoul of § 1981.

42a

concerned since Colin Gonzales, because 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 be-

lief 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 success-

ful beyond the national public school average and have low

disciplinary problems, both of which are causally related to

segregated policies.

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.

Intervenor has seized on certain dicta of the Supreme

Court in Norwood vy. Harrison, 41 U.S.L.W. 5094 (June 25,

1973), which states that “private bias” is not proscribed by

the Constitution and that “private discrimination 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 context, it

must be pointed out that § 1981 was not there involved;

that Jones v. Mayer Co., was cited to the contrary as an

4 The defendant Fairfax-Brewster points to page 2 of its handbook

(Def’s Ex. 2) to indicate that Colin Gonzales should have submitted a

report card and other pertinent records from his previous school, the

omission of which was a ground for his rejection. The same page of

the handbook provides for Entrance Examination if previous scholastic

records are inadequate. Colin was denied the opportunity to take this

examination since he was never told that his scholastic record inade-

quacy was the reason for his rejection.

43a

example of private discrimination made unlawful by Con-

gress; 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 admission limited to stu-

dents of particular national origins, race or religion. . . .””

Norwood v. Harrison, at 5095. Moreover, although perhaps

not legally significant, as a practical consideration, it is in-

conceivable that the opinion in the case would have attained

the indicated degree of unanimity if it stood for the proposi-

tion 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 establishments

does not apply in this case. Moreover, as indicated before,

Sullivan y. Little Hunting Park has abolished traditional no-

tions 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

aumission of students to defendants’ day camp and school,

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

tion 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 described

in Paragraph A.

44a

An award of compensatory damages for the embar-

rassment, humiliation and mental anguish which the Court

finds to have been suffered by the plaintiffs as follows:

In favor of Colin Gonzales:

(a) Against Fairfax-Brewster School $2,000

(b) Against Bobbe’s School 500

In favor of Michael McCrary against

Bobbe’s School 1 ,000

. In favor of Sandra McCrary and Curtis

L. McCrary against Bobbe’s School 2,000

An award of attorney’s fees as follows:

. Against Fairfax-Brewster School $1,000

Against Bobbe’s School 1,000

Their costs.

And it is so ordered.

/s/ ALBERT V. BRYAN, JR.

United States District Judge

Alexandria, Virginia

July 27th, 1973

> Punitive damzges are not awarded. While the defendants’ acts

have here been declared improper, insofar as the Court can determine

similar acts have not heretofore been so declared. Accordingly, the

defendants cannot be said to have acted recklessly or wilfully in dis-

regard of clear existing law.

45a

IN THE

UNITED STATES DISTRICT COURT

FOR THE

EASTERN DISTRICT OF VIRGINIA

ALEXANDRIA DIVISION

MICHAEL C. McCRARY, et al,

Plaintiffs,

v. : CIVIL ACTION

: No. 495-72-A

RUSSELL L. RUNYON, et ai.

d/b/a BOBBE’S SCHOOL,

Defendants,

and

SOUTHERN INDEPENDENT SCHOOL

ASSOCIATION,

Intervenor-

Defendant.

[Filed September 24, 1973]

SUPPLEMENTAL TO MEMORANDUM OPINION

AND ORDER DATED JULY 27, 1973

1. The counterclaim of intervenor is dismissed for fail-

ure to state a cause of action.

2. The proffered testimony of intervenor described on

page 8 of said Memorandum Opinion was admitted into

evidence subject to the Court’s reserved ruling on relevance.

3. Intervenor shall furnish the Clerk with the names of

the schools in the component associations of the Southern

Independent School Association within 30 days.

46a

And it is so ordered.

/s/ ALBERT V. BRYAN, JR.

Albert V. Bryan, Jr.

United States District Judge

A True Copy, Teste:

W. Farley Powers, Jr., Clerk

By /s/ John Edmond Cox

John Edmond Cox

Deputy Clerk

Alexandria, Virginia

September 24, 1973

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.