Amicus Curiae Brief — Patterson v. McLean Credit Union

OF THE

United States

OCTOBER TERM, 1987

BRENDA PATTERSON,

Petitioner,

vs.

McLEAN CReEpDIT UNION,

Respondent.

On Writ of Certiorari for the United States

Court of Appeal for the Fourth Circuit

BRIEF OF CAROL L. BISHARAT;

CHINESE FOR AFFIRMATIVE ACTION;

EVERETTE M. CLEVELAND;

EQUAL RIGHTS ADVOCATES, INC.;

THE CHARLES HOUSTON BAR ASSOCIATION;

THE LEGAL AID SOCIETY OF

SAN FRANCISCO/EMPLOYMENT LAW CENTER

AS AMICI CURIAE SUPPORTING

PETITIONER-BRENDA PATTERSON

WILLIAM C. McCNeict, III*

EMPLOYMENT LAW CENTER

1663 Mission Street

San Francisco, CA 94103

(415) 864-8848

Rosert L. Harris

CHARLES HOUSTON Bar

ASSOCIATION

77 Beale Street

P.O. Box 7442

San Francisco, CA 94120

(415) 972-6651

June 1988

EvA JEFFERSON PATERSON

301 Mission Street

Suite 400

San Francisco, CA 94105

(415) 543-9444

NATHANIEL COLLEY

WESTERN REGION-NAACP

1810 “S” Street

Sacramento, CA 95814

(916) 446-7584

*Counsel of Record

(Additional Counsel Listed on Inside Cover)

BOWNE OF SAN FRANCISCO. INC

* 190 NINTH ST. + S.F.. CA 94103 + (415) 664-2300

SHAUNA MAB SHALL VALERIE D. TOOHEY

EQUAL RIGHTS ADVOCATES MorRRISON & FOERSTER

1370 Mission Street 345 California Street

4th Floor 35th Floor

San Francisco, CA 94103 San Francisco, CA 94104

(415) 621-0505 (415) 434-7486

Counsel for Amici Curiae

_ QUESTION PRESENTED

“Whether or not the interpretation of 42 U.S.C. section 1981

adopted by this Court in Runyon v. McCrary, 427 U.S. 160

(1976), should be reconsidered?”

TABLE OF CONTENTS

QUESTION PRESENTED ...........ccccccceess a

net oc ssuebeviceesévess

I.

THE NECESSARY HEAVY BURDEN IMPOSED FOR

THE COURT TO DISAVOW ITS DECISION IN

RUNYON V. McCRARY HAS NOT BEEN MET IN

THIS CASE, AND THEREFORE RECONSIDERA-

TION OF THAT DECISION IS INAPPROPRIATE

PE SPI os ose cc cy a-newescdasauses:

A. The Decision In Runyon v. McCrary Did Not Consti-

tute A Departure From Recent Decisions Of This

MESES AG Re ak ge A ek ue! SO

B. Congress Has Not Seen Fit To Change Or To Chal-

lenge This Court’s Interpretation Of 42 U.S.C. Sec-

tion 1981 In Runyon And Therefore, Any Rehearing

Of The Issue Is Unwarranted ...................

C. The Decisions In Question Have Not Misconstrued

the Meaning Of The Statute As Revealed In The

I cc ca ccuenavedscanucecanes ce

D. Overruling Runyon Would Frustrate The Considera-

ble Legitimate Reliance On Runyon .............

E. There Has Been No Indication That Runyon vy

McCrary Has Been Ineffective ..................

F. There Has Been No Showing That There Is Some

Necessity To Bring Runyon Into Agreement With

Experience Or Newly Ascertained Facts..........

ill

TABLE OF CONTENTS

Page

II.

THE ERADICATION OF THE REMNANTS OF

RACIAL DISCRIMINATION IS STILL A

NATIONAL PRIORITY THAT MUST NOT BE

STAYED BY RULINGS THAT OVERTURN LONG

STANDING AUTHORITY THAT FURTHER THAT

PE pia Ch ubiaeuiek enue nid cies detest bee es 14

A. The Possible Message That Would Be Received If

Runyon Were Overruled Would Be Damaging To

The Civil Rights Aspirations Of Minorities........ 14

B. Overruling Runyon Would Truly Withdraw An

Important Forum For The Vindication Of Civil

Pape ecawebDaha Teaser ce Ld tackeiacews 17

1. Reconsideration Of Runyon Has Implications

Far Beyond Employment Discrimination ...... 18

SES Vrs cunseccedcduchudiatheeuyncaests 22

iV

TABLE OF AUTHORITIES CITED

CASES

Page

Alabama v. United States, 304 F.2d 583 (Sth Cir. 1962).

aff'd per curiam, 371 U.S. 37 (1962) ................ 16

Alyeska Pipeline Service Co. v. Wilderness Society, 421

ae ee I a A he en 4

Arizona v. Rumsey, 467 U.S. 203 (1984)............... 5

Bob Jones University v. United States, 461 U.S. 574

SE SPY he Paice P70 Se eae eae 10, 14

Brandon v. Holt, 469 U.S. 464 (1985) ................. 20

Brown v. Dade Christian Schools, 556 F.2d 310 (Sth Cir.).

reh'g denied, 581 F.2d 472, cert. denied, 434 U.S. 1063

aE chav es Ob sky ela e acd bane ae eek ote ekke we 18

Brown v. General Services Administration, 425 U.S. 820

I a et a ret Dic ee a 20

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 (1931)... 7

Choudhury v. Polytechnic Institute of New York, 735 F.2d

REED Bed ineieh Gnidia 20

City of Mobile v. Bolden, 446 U.S. 55 (1980)....... ... 8

City of Newport v. Fact Concerts, Inc., 453 US. 247 (1981) 2!

Cottrell v. Commissioner of Internal Revenue. 628 F.2d

I I 7

Darensbourg v. Dufrene, 460 F.Supp. 662 (E.D. La. 1978) 18

Edelman v. Jordan, 415 l §. 651 (1971) ............... 7

Fiedler v. Marumsco Christian Children School, 631 F.2d

I 19

General Building Contractors Ass’n v. Pennsylvania, 458

CI ig kd oN 11, 13

General Electiic Co. ¥. Gilbert, 429 U.S. 125 (1976)..... 7

Goodman v. Lukens Steel Co., 482 U.S. ___, 107 S.Ct.

I ie ey oe ko 11, 13,17

Gonzalez v. Southern Methodist University, 536 F.2d 1071

(Sth Cir.), reh'g denied, cert. denied, 430 U.S. 987

EN ha phe Ged hn edd ohnd tadek ose oie kd cede 19

Gore v. Turner, 563 F.2d 159 (Sth Cir. 1977) ........... 19

Green v County School Board, 391 U.S. 430 (1968) ..... 14

Grove City College v. Bell, 465 U.S. 555 (1984) ........ 7

v

TABLE OF AUTHORITIES

CASES

Page

Hall v. Pennsylvania State Police, 570 F.2d 86 (3rd Cir.

i tidied Senidiehibesbneuced dctaen” cdasuceces 19

Howard Security Services, Inc. v. The Johns Hopkins Hospi-

tal, 516 F.Supp. 508 (D.Md. 1981) ....... ......... 19

Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977) ........ 5,7

Johnson v. Railway Express Agency, 421 U.S. 454 (1975)

$146endandkdeeneseedees oncedadecesvhsebccue 9, 11,12

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

eseResheesabnebabeeunesedienvunweaneec the 4,6, 7,9, 12

Louisiana v. United States, 380 U.S. 145 (1967) ........ 14

McDonald v. Santa Fe Trails Transportation Co., 427 U.S.

cin sansneGhdsiastbedebéensnsadscavnses 1]

Mondell v. New York Dept. of Social Services, 436 U.S. 658

SRA ee edn ehheGkes cdbaucduceceneteredc«s 6, 13

Monroe v. Pape, 365 U.S. 167 (1961) ................. 13

Nashville Gas Co. v. Satty, 434 U.S. 136 (1977) ........ 7

Occidental Life Insurance Co. v. Equal Employment Oppor-

tunity Commission, 432 U.S. 355 (1977) ............. 18

Oregon v. Mitchell, 400 U.S. 112 (1970) ............... 14

Patsy v. Florida Board of Regents, 457 U.S. 496......... 8, 10

Piper v. Chris-Craft Industry, 430 U.S. 1 (1972) ........ 10

Riley v. Adirondack Southern School for Girls, 541 F.2d

2 TS aa 18

Rodgers v. Fisher Body Division, General Motors Corp., 575

F.Supp. 12 (W.D. Mich. 1982) ..................... 15

Runyon v. McCrary, 427 U.S. 160 (1976) ........... passim

Saint Francis College v. Al-Khazraji, 481 U.S. ___, 107

TE exc dindedi ceencbicatens 11, 13, 16, 17

Seaton v. Sky Realty Co., 491 F.2d 634 (7th Cir. 1974) .. 15

Shaare Tefila Congregation v. John William Cobb, 481 U.S.

ee ne 13, 16

Square D. Co. v. Niagara Frontier Tariff Bureau, 106 S.Ct.

CT hit Ei es phen e wige be ehcheedcutaueewns 8

Sutton v. Bloom, 710 F.2d 1188 (6th Cir.), cert. denied, 464

IRE ee OEE: crore peau gee 20

vi

TABLE OF AUTHORITIES

CASES

Page

Tillman v. Wheaton-Haven Recreational Association, 410

I rere eee ee a 9, 10, 20

United States v. Eglin J.L.E. Ry. Co., 298 U.S. 492 (1936) 7

Vasquez v. Hillery, 474 U.S. 254 (1986) ............... 5, 11

Waters v. Wisconsin Steel Works, etc., 427 F.2d 476 (7th

I a ie od ee 12

Weaver v. Gross, 605 F.Supp. 210 (D.D.C. 1985) ....... 19

Wilkey v. Pyramid Construction Co., 619 F.Supp. 1453

EE + lctuenuduilucucdbede dekh dsuceecees 19

Wright v. The Salisbury Club, 632 F.2d 309 (4th Cir. 1980) 20

STATUTES

Age Discrimination Claim Assistance Act, P.L. 100-283 .. 18

Civil Rights Act of 1964, Title VII, 42 U.S.C. section 2000e-

DT MUb NONE e he esdde cae cdteacabeddeedildeas ok: 12

Civil Rights Restoration Act of 1967, P.L. 100-259....... i

Pregnancy Discrimination Act, Pub. L. No. 95-555, section

v5 0644 cadbaccuseseuyuedcadeeswes 7

42 US.C.

aE Piet a we Cie ble tee Li ee tea 8

MME cis eee dugn twadduueue due Wide passim

a at Ne el od 1 13

ei nee Son cee nian cs ameewuadaeua in 13

ESTES Po oe a a SEM Ree eH Me res 9

Lee ES a SRLS ROI Ae 7

rn rn CO cc ccueneeeceeces 9

H.R. Rep. No. 92-238, p. 19 (1971) ................... 9

I 9

H.R. Rep. No. 95-948, 95th Cong., 2d Sess. 6, reprinted in

U.S. Code, Cong. & Admin. News 4749 (1978) ........ 7

U.S. Rep. 92-415, 92nd Cong., Ist Sess., 24 (1971) ...... 9

S. Rep. 94-1011, at 3-4 reprinted in 1976 U.S. Code, Cong.

NEE EY 6 babe d06-<-0cnced kwocdsdeseecs 9

vii

TABLE OF AUTHORITIES

OTHER AUTHORITIES

Bernstein, 2/ Years After the Kerner Report: Three Societies,

All Separate, New York Times, February 29, 1988, B-8

GEE ebisudidenkledendsnvedendwaneseannanensed 6«s 15

Connell, Minority Gains Lost, Panel Says, San Francisco

SS SY i, GE OPO co cccccccccccucescscces 15

Crenshaw, Race, Reform, Retrenchment: Tranformation and

Legitimation in Antidiscrimination Law, 101 Harvard Law

DN re. ee eee nuanced ebeeneees 15

Kluegel,“Jf There Isn't A Problem, You Don't Need A

Solution”: The Bases of Contemporary Affirmative Action

Attitudes, 28 AM. BEHAV. SCIENTIST 761, 766

i iinih cieiel et aditeéebenebuhaséeseseepeseee 15

Julianne Malveaux, Lower Wage Black Women: Occupa-

tional Descriptions, Stategies for Change.............. 16

National Urban League, The State of Black America 1986

EE tone eee ii cede cecuaseuguenevess 16

New Republic, The Jeweler’s Dilemma, pp. 18-28 (Nov. 10,

PE Denbedbennedsddalhdanebubhdeseendecéaesseese. 20

Note, Combatting Racial Violence: A Legislative Proposal,

101 Harvard Law Review 1270 (1988) ............... 16

Population Bulletin: U.S. Hispanics: Changing the Face of

SN SEE habcaecccedéscenescences: 16

Reeves, America’s Choice: What it Means, New York Times,

Nov. 4 1984, section 6 (Magazine) 36, cols. 4-5....... 15

Schlei and Grossman, Employment Discrimination Law 674

SEE nddnb oe seeNeduabnked die bbdbcneeesbeseess 20

U.S. Commission On Civil Rights, /ntimidation And Vio-

lence: Racial and Religious Bigotry In America (1983) 16

No. 87-107

In the Supreme Court

OF THE

United States

OcTOBER TERM, 1987

BRENDA PATTERSON,

Petitioner,

vs.

McLEAN CREDIT UNION,

Respondent.

On Writ of Certiorari for the United States

Court of Appeal for the Fourth Circuit

BRIEF OF CAROL L. BISHARAT;

CHINESE FOR AFFIRMATIVE ACTION;

EVERETTE M. CLEVELAND;

EQUAL RIGHTS ADVOCATES, INC.;

THE CHARLES HOUSTON BAR ASSOCIATION;

THE LEGAL AID SOCIETY OF

SAN FRANCISCO/EMPLOYMENT LAW CENTER

AS AMICI CURIAE SUPPORTING

PETITIONER-BRENDA PATTERSON

CONSENT FOR FILING

This brief is being submitted with the consent of the parties.

Their letters of consent have been filed with the Clerk of the

Court pursuant to Rule 36.2 of the Rules of this Court.

INTEREST OF AMICI CURIAE

Carol L. Bisharat is a Palestinian-American graduate of the

Hastings College of the Law, University of California, who has

worked on a number of employment discrimination actions for the

2

San Francisco Lawyers’ Committee for Urban Affairs as a law

student. Ms. Bisharat is vitally interested in continuing her

orientation toward civil rights advocacy, and she expects to

continue that advocacy on behalf of minorities in general and

Arab-Americans in particular.

Everette M. Cleveland is an Afro-American who was denied

the opportunity to purchase jewelry for a Christmas present

because the jeweler would not activate the electric lock mecha-

nism to allow Mr. Cleveland to gain entrance because

Mr. Cleveland is an Afro-American. Mr. Cleveland has filed a

suit alleging, inter alia, a violation of section 1981 based on this

deprivation of his opportunity to purchase certain items.

Chinese for Affirmative Action'is a voluntary, non-profit, mem-

bership supported civil rights organization that promotes equal

employment, educational and economic opportunities for Asian

Americans and other minorities. For the past 19 years, Chinese

for Affirmative Action has dedicated itself to the eradication of

racism for all people of color in the workplace, public life,

educational institutions and in the media. In its efforts to combat

racial discrimination, Chinese for Affirmative Action has de-

pended upon this nation’s commitment to equal justice through

civil rights legislation and litigation to affirm the rights of all

individuals in this country regardless of race, creed, sex or

national origin.

Equal Rights Advocates, Inc. is a San Francisco based, public

interest legal and educational corporation specializing in the area

of sex discrimination. It has a special interest in eradicating the

double burden of race and sex discrimination experienced by

women of color. Equal Rights Advocates, Inc. has been particu-

larly concerned with gender equality in the work force because

economic independence is fundamental to women of color’s

ability to gain equality in other aspects of society. This concern

has been expressed through Equal Rights Advocates, Inc.’s par-

ticipation, both as counsel and as amicus, in numerous employ-

ment discrimination cases.

The Charles Houston Bar Association is the San Francisco,

Bay Area branch of the National Bar Association. It represents

3

over 500 black attorneys, judges and law students in Northern

California. Its purposes included achieving equal opportunities for

minorities in the legal profession and protecting the civil and

political rights of all citizens. The Association has a particular

interest in this case because of its belief that all remedies should

be available to eradicate racial discrimination in America.

The Legal Aid Society of San Francisco/Employment Law

Center is a private non-profit public interest law firm that special-

izes in the litigation of employment discrimination cases.

Founded in 1916 to represent individuals unable to afford legal

counsel, the Legal Aid Society/Employment Law Center is

dedicated to the eradication of all forms of employment discrimi-

nation. The Legal Aid Society of San Francisco/Employment

Law Center was counsel of record in Emporium Capwell Co. v.

Western Addition Community Organization, 420 U.S. 50 (1975).

It has recently filed amicus curiae briefs in this Court in Califor-

nia Federal Savings and Loan Association v. Guerra, 107 S.Ct.

683 (1987); Johnson Transportation Agency, Santa Clara

County, California, | .ot. 1442 (1987); Rotary Club of

Duarte v. Board of Directors of Rotary International, 107 S.Ct

1940 (1987); Wygant v. Jackson Board of Education, 476 U.S.

267 (1986); and Vinson v. Meritor Savings Bank, 106 S.Ct. 2399

(1986).

SUMMARY OF THE ARGUMENT

The doctrine of stare decisis is not a doctrine that should be

lightly cast aside. Precedents of this Court have established

factors to be considered for determining the appropriateness of

overruling or reconsidering earlier decisions. This Court in

April of this year has indicated that it desires the parties to

address the continuing validity of Runyon v. McCrary, 427 US.

160 (1976).

A review of the factors this Court has established as guideposts

for establishing the propriety for reconsideration or overruling of

previous decisions indicates that Runyon is well outside the

standards embodied in the various factors, and therefore Runyon

should not be overruled.

4

Runyon constituted no real departure from recent decisions of

this Court in that it was predicated on Jones v. Alfred H. Mayer

Co., 392 U.S. 409 (1968). Additionally, Congress took no steps to

indicate that Runyon evidenced a misapprehension of its intent

concerning section 1981, and it has had a plethora of opportuni-

ties to do so. While the legislative history of this statute may not

be crystal clear, there is no real indication that the Court has

misconstrued the appropriate statutory meaning in its earlier

decisions in Jones and Runyon. Likewise, a reversal of Runyon

would certainly frustrate an incredible degree of reliance on the

opinion including cases on remand from decisions of this Court

only one term ago. Finally, there has been no indication that

Runyon has been either an ineffective decision or one that is out

of step with the times or relevant new information.

Indeed, the overruling of Runyon would have the disastrous

effect of withdrawing a federal forum where one is still appropri-

ate and necessary. This withdrawal of such a forum would have a

devastating impact on litigation of civil rights on behalf of racial

minorities covering a variety of issues. Such a rending in the

fabric of civil rights law should not be undertaken.

ARGUMENT

INTRODUCTION

On April 25, 1988, this Court issued an order restoring this

case, Brenda Patterson v. McLean Credit Union, No. 87-107, to

its calendar for reargument. Additionally, the Court requested

that the parties brief and argue the following question:

Whether or not the interpretation of 42 U.S.C. section 1981

adopted by this Court in Runyon v. McCrary, 427 U.S. 160

(1976), should be reconsidered?

In Runyon v. McCrary, 427 U.S. 160 (1976) this Court, relying

on Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968) held that

section 1981 prohibits private schools—that were operated com-

mercially and open to the general white public in that they

engaged in general advertising to attract their students—from

5

refusing to accept blacks. The statute in question in both in-

stances, 42 U.S.C. section 1981, provides as follows:

§ 1981. Equal rights under the law

All persons within the jurisdiction of the United States

shall have the same right in every State and Territory to

make and enforce contracts, to sue, be parties, give evidence,

and to the full and equal benefit of all laws and proceedings

for the security of persons and property as is enjoyed by

white citizens, and shall be subject to like punishment, pains,

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

no other.

This brief submitted by amici herein only addresses the addi-

tional question presented by the Court in its April 25, 1988,

Order.

THE NECESSARY HEAVY BURDEN IMPOSED FOR THE

COURT TO DISAVOW ITS DECISION IN RUNYON FP.

McCRARY HAS NOT BEEN MET IN THIS CASE, AND

THEREFORE, RECONSIDERATION OF THAT DECI-

SION IS INAPPROPRIATE AND UNWARRANTED.

This Court has stated many times that the doctrine of stare

decisis is one that should not be lightly cast aside. See, e.g.,

Arizona v. Rumsey, 467 U.S. 203, 212 (1984); Vasquez v.

Hillery, 474 U.S. 254, 266 (1986); Illinois Brick Co. v. Illinois,

431 U.S. 720, 736 (1977).

In fact, the doctrine of stare decisis was very recently defined

by this Court in Vasquez v. Hillery, supra, at 266 as being “[t}he

means by which we ensure that the law will not merely change

erratically, but will develop in a principled and intelligent man-

ner.” The Court went on to discuss what was meant by that

definition by stating that the doctrine thereby allows society to

rest assured that certain legal principles would be firmly estab-

lished and not subject to the changing whims of personal or

popular trends. /d. Thus the Court reiterated the fact that legal

precedent is controlling in the judicial sphere of this society rather

6

than people. Principle rather than personnel must be the control-

ling factor. These statements must be considered within the

context of the present case.

In the case presently before the Court, there is nothing in

constitutional or statutory jurisprudence that mandates a deypar-

ture from this doctrine of stare decisis. Indeed, the new issue that

has been placed in this case, sua sponte, by this Court is one that

in no way fits the traditional standards that this Court has

fashioned for the overruling of decisions.

In Monell v. New York Dept. of Social Services, 436 U.S. 658,

695-701 (1978), this Court articulated four factors to be consid-

ered for determining whether decisions should be overruled or

reconsidered. The factors discussed in Monell are as follows:

whether the decision constituted a departure from prior decisions,

whether overruling these decisions would be inconsistent with

more recent expressions of congressional intent, whether overrul-

ing these decisions would frustrate legitimate reliance on these

holdings, and whether the decisions in question misconstrued the

meaning of the statute as revealed in the legislative history. As

will be shown below, a careful analysis of these factors compels

the determination that reconsideration and overruling of Runyon

is inappropriate and unwarranted. Additionally, other considera-

tions often considered by the Court also mandate that Runyon v.

McCrary not be overruled.

A. The Decision In Runyon v. McCrary Did Not Constitute A

Departure From Recent Decisions Of This Court.

Runyon was predicated on this Court’s earlier opinion in Jones

v. Alfred H. Mayer Co., 392 U.S. 409 (1968). While it might be

argued that the outcome in Jones was incorrect at the time, it

clearly had not been reconsidered at the time of the Court's

consideration of Runyon, some eight years later. Amici herein are

aware of the dissents in both cases, but this Court had before it

full presentations of all issues. Thus, there was nothing in Jones or

Runyon that would allow one to opine that the decision in either

case was a casual or incidental holding. It is also important to

note that Jones dealt with a statute that had lain dormant for over

100 years so that there had been no recent cases construing the

7

statute. Earlier precedents were distinguished rather than over-

ruled, and therefore it certaii y cannot be said that theie was a

long line of recent precedent that allowed for stray’ 2

Similarly, Jones was decided some eight years before Runyon,

and the decision in Jones was made in a period that was verdant

with civil nghts cases. Thus, there was enormous opportunity to

reject this consideration. Indeed, the situation was such that

Jones could have been reconsidered virtually at any time, but

instead it became a bedrock of civil rights law through the

decision in Runyon.

B. Congress Has Not Seen Fit To Change Or To Challenge

This Court’s Interpretation of 42 U.S.C. Section 1981 In

Runyon And Therefore Any Rehearing Of The Issue Is

Unwarranted.

Considerations of stare decisis weigh heavily in the area of

statutory construction, where Congress is free to change the

Court’s interpretation of its legislation. J/linois Brick Co. v.

Illinois, 431 U.S. 720, 736 (1977), citing Edelma~ v. Jordan, 415

U.S. 651, 671 (1971); Burnet v. Coronado Oil & Gas Co., 285

U.S. 393, 406 (1931) The decis.on of Runyon v. McCrary, supra,

was decided over twelve years ago, and there has been no effort on

the part of Congress to reverse the Court’s determination in that

action. Compare the Congressional action leading to the adoption

of Civil Rights Restoration Act of 1987, Pub. L. No. 100-259,

legislatively overruling Grove City College v. Bell, 465 U.S. 555

(1984).

In an area as controversial as the Court’s interpretation of the

statutory mandates of civil rights statutes, Congress has seen fit to

remedy situations where this Court has rendered decisions that

Congress felt perverted its intent. See Pregnancy Discrimination

Act, Pub. L. No. 95-555, section 1, 92 Stat. 2076; 42 U.S.C.

section 2000e-(k) passed in response to the Court’s narrow

interpretation of Title VII in General Electric Co. v. Gilbert, 429

U.S. 125 (1976), and Nashville Gas Co. v. Satty, 434 U.S. 136

(1977). See generally, H.R. Rep. No. 95-948, 95th Cong., 2d

Sess. 6, reprinted in U.S. Code, Cong. & Admin. News 4749, 4751

8

(1978). See also 42 U.S.C. Section 1973, overturning City of

Mobile v. Bolden, 446 U.S. 55 (1980).

There has been no similar movement to alter the Court's

determination in Runyon. Thus, one must be left with the

impression that the Court’s opinion in Runyon comported with

Congressional interpretation of the reach of the statute. “The

doctrine of stare decisis, weighty in any context, is especially so in

matters of statutory construction. For in such cases Congress may

cure any error made by the courts”. Cottrell v. Commissioner of

Internal Revenue, 628 F.cd 1127, 1131 (8th Cir. 1980).

Thus, had Congress made the determination that the Court was

wrong in Runyon, it mst have been expected to have done

something to correct ‘e Court’s erring ways. Congressional

inaction in response to 2 decision must be taken as an indication

“that the interpretation of the Act then accepted has legislative

approval.” United States v. Eglin J.L.E. Ry. Co., 298 U.S. 492,

500 (1936).

This is especially true in a situation where the Court’s decisions

are in a controversial area and are rendered in a period of

controversy. The statutes involved in these two cases are hardly in

an obscure or arcane area of federal law. Furthermore, Jones was

decided in the 1960s when the civil rights revolution was in its

heyday. A look at the circumstances surrounding Congressional

silence clearly evidences that Congress has knowingly embraced

this Court’s interpretation of the statutes involved. And in such

circumstances, the doctrine of stare decisis has special force.

Square D. Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409,

106 S.Ct. 1922, 1928-29 (1986); Patsy v. Board of Regents, 457

U.S. 496, 508-12 (1982)

Congress has clearly understood section 1981 to ban racial

discrimination by private individuals. Congress considered

amendments to Title VII of the Civil Rights Act of 1964 in 1971

and 1972. An amendment was offered during its consideration of

that statute that would make Title VII the exclusive remedy for

employment discrimination. This proposal was rejected both in

committee and on the floor of the Senate. Senator Williams who

9

was the floor manager of the bill for the Senate stated the

following in objecting to that proposal:

It was recently stated by the Supreme Court in the case of

Jones v. Mayer, that these acts [including the Civil Rights

Act of 1866] protect fundamental constitutional guarantees.

In any case, the courts have specially held that Title VII and

the Civil Rights Acts of 1866 and 1871 are not mutually

exclusive, and must be read together to provide alternative

means to redress individual grievances.

118 Cong. Rec. 3371, 3372 (1972); accord S. Rep. 92-415, 92nd

Cong., Ist Sess., at 24 (1971) (Existing civil rights statutes will

not be undercut by according to the Equal Employment Opportu-

nity Commission enforcement powers). See also, H.R. Rep. No.

92-238, p. 19 (1971).

An additional indication that there has been an acceptance by

Congress of the propriety of this Court’s decision in Runyon is

evidenced by the inclusion of section 1981 as one of the statutes

under which prevailing plaintiffs could receive attorneys’ fees

pursuant to the Civil Rights Attorneys’ Fees Awards Act of 1976,

42 U.S.C. section 1988. That legislation was in response to this

Court’s decision in Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975). When Congress enacted the Civil

Rights Attorneys’ Fees Award Act of 1976, it specifically set out

certain types of cases brought under section 1981 that would

support fee awards under the statute. The legislative history cited

to Johnson v. Railway Express Agency, 421 U.S. 454 (1975) and

Tillman v. Wheaton-Haven Recreational Ass'n, 410 U.S. 431

(1973) as two such cases.' See H.R. Rep. 94-1558, at 3-4; S. Rep.

94-1011, at 3-4, reprinted in 1976 U.S. Code, Cong. & Admin.

News 5908, 5910.

' Johnson concerned the issue of whether an action under Title VII

against a private employer would toll the running of the statute of

limitations for filing an action under section 1981. Tillman involved

racially motivated refusals to admit blacks to private recreational

facilities.

10

Congress had the perfect opportunity to express any dissatisfac-

tion with the holding in Runyon during the furor that surrounded

the disputes over the denial of tax exempt status to private schools

that were segregated on the basis of race. See Bob Jones Univer-

sity v. United States, 461 U.S. 574 (1982). This period would

have certainly produced an indication from Congress that this

Court’s determination in Runyon was incorrect had Congress had

any such concerns. However, nothing was forthcoming from

Congress which certainly must be read as ratification of this

Court’s decision in Runyon.

C. The Decisions In Question Have Not Misconstrued The

Meaning Of The Statute As Revealed In The Legislative

History.

Reconstructing legislative history is often a doubtful task even

when dealing with recent legislation. See Piper v. Chris-Craft

Industry, 430 U.S. i, 26 (1972). It is beyond cavil that such a

task is even more difficult in the search for the meaning of the

legislature for a statute over one hundred years old. Relating this

component of the factors to consider with regard to overruling

cases, it seems clear that where there has been recent Congres-

sional activity in the area the doctrine of stare decisis has special

force. See Patsy v. Florida Board of Regents, 457 U.S. 496, 501,

502. It is respectfully suggested that in the present case, as in

Patsy, the possible alteration of the impact of an important piece

of Civil Rights legislation would “usurp policy judgments that the

national legislature has reserved for itself.” Jd. at 508.

D. Overruling Runyon Would Frustrate The Considerable Le-

gitimate Reliance On Runyon.

In a virtual unbroken line of cases since Jones, this Court has

determined that sections 1981 and 1982 addressed racially dis-

Criminatory conduct by private parties or entities. In two cases

that followed Jones, this Court determined that section 1981

encompassed private discriminatory actions.

In Tillman v. Wheaton-Haven Recreation Ass'n, supra, this

Court held that the statute would be violated by the denial of

visitors to a private swim club because of their race. The Court in

that case determined that the operative language of both sections

1]

1981 and 1982 was traceable to the first section of the Civil

Rights Act of 1866, and therefore, there was no reason to construe

them differently insofar as their applicability to private acts of

discrimination. Jd. at 439-40.

In Johnson v. Railway Express Agency, 421 U.S. 454 (1975),

this Court considered the application of section 1981 to private

discrimination in employment. After noting that there had been a

plethora of circuit court decisions holding that section 1981

afforded a federal remedy against racial discrimination in private

employment, the Court determined that section 1981 provides a

remedy against employment discrimination on the basis of race

that is independent of Title VII. Jd. at 459, n.6.

One year later in McDonald v. Santa Fe Trails Transportation

Co., 427 U.S. 273 (1976), the Court determined that whites were

covered by section 1981 in private employment situations. Next,

in General Building Contractors Ass'n v. Pennsylvania, 458 U.S.

375 (1982), this Court again sanctioned the application of section

1981 to claims of private employment discrimination on the basis

of race while reaffirming the decision in Runyon. Id. at 390, n.17.

As recently as last term, this Court determined, without discus-

sion, that section 1981 applied to instances of private racial

discrimination in employment. In Goodman v. Lukens Steel Co.,

482 U.S. ___., 107 S.Ct. 2617 (1987), the Court determined the

appropriate statute of limitations for a section 1981 cause of

action against a private employer. In St. Francis College v. Al-

Khazraji, 481 U.S. __, 107 S.Ct. 2022 (1987), the Court

determined that the statute provided protection to Arabs in

instances in which they had been exposed to racial discrimination

by a private college.

Any cursory check of Shepard’s or the data bases of Lexis or

Westlaw will disclose the incredible degree to which the lower

courts have relied on this Court’s opinions as to the impact of

section 1981 in their work and implicitly the work of the litigants

before these courts. Stare decisis protects such settled expecta-

tions. Vasquez v. Hillery, supra.

12

E. There Has Been No Indication That Runyon v. McCrary

Has Been Ineffective.

Additionally, there has been no indication that Runyon v.

McCrary has been an ineffective or iroubling decision. Indeed, no

such argument was made in the case at bar; rather the issue that

was first brought to this Court was whether section 1981 would be

extended to cover a situation involving allegations of racial harass-

ment in employment.’ The opinion of the Fourth Circuit in this

case evidenced no dissatisfaction with the proposition that this

statute reached private conduct. See Patterson v. McLean Credit

Union, 805 F.2d 1143 (4th Cir. 1986). Instead, the court deter-

mined that 1981 did not reach “terms and conditions of employ-

ment” by finding that the reach of section 1981 was not as

inclusive as that of Title VII of the Civil Rights Act of 1964, 42

U.S.C. section 2000e-2(a).

Furthermore, the use of 1981 as a major weapon in the context

of employment discrimination had been accepted since even

before this Court’s decision in Johnson v. Railway Express

Agency, Inc., supra. See Waters v. Wisconsin Steel Works, etc.,

427 F.2d 476 (7th Cir. 1970). While there was some criticism

initially to the Court’s seminal decision in Jones v. Alfred Mayer

Co., 392 U.S. 409 (1968), there has been no widespread concern

Or opposition to Runyon; indeed, as pointed out by Justice

Blackmun in Patterson v. McLean Credit Union, 56 USLW 3735

(1988) (Blackmun, J. dissenting), over 100 decisions of lower

courts have cited to Runyon with approval of the relevant lan-

guage determining that the reach of 1981 includes private action.

Similarly, within the last two terms, this Court has rendered

opinions that reinforced the validity of the Runyon holding. In

? The questions presented for review were: (1) Does 42 U.S.C. 1981

encompass a claim of racial discrimination in terms and conditions of

employment, including claim that petitioner was harassed because of her

race? (2) Did district court err in instructing jury that in order for

petitioner to prevail on her claims of discrimination in promotion she

must prove that she was more qualified than white who received

promotion? 56 U.S.L.W. 3204-05 (Oct. 5, 1987) The petition for

Certiorari was granted on October 5, 1987.

a

13

Goodman v. Lukens Steel, 482 U.S. ——, 107 S.Ct. 2617

(1987), this Court determined, inter alia, the appropriate statute

of limitation for 1981 actions within the context of an action

against a privately owned steel company. Likewise in Saint

Francis College v. Al-Khazraji, 481 U.S. ___, 107 S.Ct. 2022

(1987), this Court determined that 1981 included certain ethnic

Caucasians within its broad reach in an action against a private

college.’ See also, General Building Contractors Ass'n Inc. v.

Pennsylvania, 458 U.S. 375 (1982) where this Court determined

that in order to prevail in a 1981 action, one had to prove

intentional discrimination. This action also involved a situation

that attacked racially discriminatory procedures in the context of

private conduct.

Thus, it is beyond cavil that there had been no evidencing of a

lack of effectiveness or troublesome areas in Runyon.

F. There Has Been No Showing That There Is Some Necessity

To Bring Runyon Into Agreement With Experience Or

Newly Ascertained Facts.

There has been no showing that the decision in Runyon is at

odds with judicial or legislative experience. Indeed, the fact that

the statute reaches private conduct has not been recently an area

of contention. Rather the litigated issues have been more of the

procedural type, e.g., what statute of limitations is appropriate for

a section 1981 action, or covered substantive issues concerning

questions of liability. As stated previously, there has been no

carping as to the reach of section 1981 actions as to private versus

state action. Compare with the experience of 42 U.S.C. section

1983, Monroe v. Pape, 365 U.S. 167 (1961) with Monell, supra.

> The Court reached a similar holding in Shaare Tefila Congregation

v. John William Cobb, 481 U.S. ___., 107 S.Ct. 2019 (1987) that Jews

and Arabs were among the people considered to be distinct races and

hence within the protection of the statute. In the lower court, the action

was brought under both 1981 and 1982, but the issue determined by this

court only addressed the applicability of 1982. The Court held Jewish

congregation members have a cause of action under 42 U.S.C. section

1982 for anti-semitic epithets painted on a synagogue and members’ cars

by whites.

14

The focus of many of the decisions was on the types of recoveries

available to those who had been subjected to the statutory

prohibited behavior. Few, if any, courts questioned the explicit

holding of Runyon. :

Il.

THE ERADICATION OF THE REMNANTS OF RACIAL

DISCRIMINATION IS STILL A NATIONAL PRIORITY

THAT MUST NOT BE STAYED BY RULINGS THAT

OVERTURN LONG STANDING AUTHORITY THAT

FURTHER THAT PRIORITY.

The Court’s Opinion in Runyon v. McCrary, supra, constitutes

part of the very important fabric of this country’s laws stamping

out racial discrimination. It has long been clear that discrimina-

tion is alive and well with regard to the behavior of private

individuals. In the seminal case of Bob Jones University v. United

States, 461 U.S. 574 (1983), this Court cited Runyon as evidence

of a “fundamental national public policy against racial discrimi-

nation in education” /bid. at 593-94. That policy was but one of

many that this Court has stood firm on to bring about the

eradication of racial discrimination root and branch. Green v.

County School Board, 391 U.S. 430, 438 (1968); Louisiana v.

United States, 380 U.S. 145, 154 (1967). The Court’s firm stands

against racia! discrimination must be continued.

A. The Possible Message That Would Be Received If Runyon

Were Overruled Would Be Damaging To The Civil Rights

Aspirations Of Minorities.

The Court should be chary of withdrawing a federal forum

from litigants in this most important area. Section 1981 was

enacted on the force of the Thirteenth Amendment to the

Constitution, one of the Civil War Amendments, and these

amendments were described by this Court as “[u]nquestionably

designed to condemn and forbid every distinction, however tri-

fling, on account of race.” Oregon v. Mitchell, 400 U.S. 112, 128

(1970). Racial discrimination is not something that should be

considered odious solely when practiced by governments. The

terrible impact of racial discrimination is not softened by the

15

labelling and knowledge that it has been practiced in a non-

governmental arena. Humiliation and racial indignity “[i]s one of

the relics of slavery which [42 U.S.C. section 1981] was enacted

to eradicate.” Rodgers v. Fisher Body Division, General Motors

Corp., 575 F. Supp. 12, 16 (W.D. Mich. 1982), citing Seaton v.

Sky Realty Co., 491 F.2d 634, 636 (7th Cir. 1974), and Jones,

supra.

The withdrawal of a federal forum would be most inauspicious

at this particular time. Presently, most Americans believe that

racial and ethnic discrimination is a relic of the past and not a

significant factor for the inferior conditions in which minorities

find themselves. See, e.g., Reeves, America’s Choice: What It

Means, New York Times, Nov. 4, 1984, section 6 (Magazine) at

36, cols. 4-5 (quoting the editor of the Tennessean: “| think white

Americans have reached a consensus on black America. Look,

we've done enough for them. If they can make it fine. If they

can’t, that’s their problem.”; Kluegel, “Jf There Isn't A Problem,

You Don't Need A Solution”: The Bases of Contemporary Affirm-

ative Action Attitudes, 28 AM. BEHAV. SCIENTIST 761, 766

(1985) (White racism can no longer be the explanation for the

socioeconomic differences between blacks and whites). [Both

references cited in Crenshaw, Race, Reform, Retrenchment:

Transformation and Legitimation in Antidiscrimination Law, 101

Harvard Law Review 1331, 1348 n.66 (1988).] By subjecting

what had been considered to be binding precedent to reconsidera-

tion and overruling it, this Court could be interpreted as sending

the signal that it too shares this sentiment. Certainly that would

constitute a disastrous setback for the enforcement of civil rights,

particularly when one is confronted with the harsh realities of the

conditions of minorities in this country.

In 1986, 31 percent of blacks and 27 percent of Hispanics were

living in poverty, nearly three times the rate of whites. Unemploy-

ment in April, 1988, was 12.2 percent for blacks and 9.3 percent

for Hispanics as compared to 4.6 percent for whites. See One

Third of a Nation, report of Commission on Minority Participa-

tion in Education and American Life, reported in Connell, Minor-

ity Gains Lost, Panel Says, San Francisco Examiner, May 23,

1988 at A-1. Black median income is 57 percent of whites, a

16

decline of about four percentage points since the early 1970s.

Bernstein, 2/ Years After the Kerner Report: Three Societies, All

Separate, New York Times, February 29, 1988, B-8 col. 2. Black

unemployment averaged 17 percent between 1981 and 1986, and

the rate of white unemployment was 7.3 percent. National Urban

League, The State of Black America 1986 at 15 (1986)*

The statistics for females of color are equally bleak. Seventy-

five percent of employed Hispanic women work in the three

lowest paid service occupations. See Population Bulletin: U.S.

Hispanics: Changing the Face of America, pp. 35-36 (1983).

Sixty-one percent of employed Black females were in jobs whose

median weekly income place them right at the national poverty

level. See Julianne Malveaux, Lower Wage Black Women: Occu-

pational Descriptions, Strategies for Change. Paper prepared for

the NAACP Legal Defense Fund, Inc. p. 33 (January, 1984).

Statistics speak and courts normally listen particularly in dis-

crimination cases. Alabama v. United States, 304 F.2d 583, 586

(Sth Cir. 1962), afd per curiam, 371 U.S. 37 (1962). While

these statistics may not have direct relevance to the issue at bar,

they do indicate that the battle for equality is not over. Thus, to

withdraw as potent a weapon as section 1981 from the civil rights

litigators’ arsenal would only serve to delay the final victory for

racial equality. Furthermore, more than a limited legal message

would be articulated by the overruling of Runyon. There would

also be the signal that racial equality could be viewed as having

much less importance than it once had as a national policy.

This would be especially true given the fact that the Court just

last term clarified the law as to the extent of the coverage of

section 1981 in Saint Francis College v. Al-Khazraji, supra, and

Shaare Tefila Congregation v. Cobb, 481 U.S. 107 S.Ct.

* Similarly, there has bee 1 an increase in actual overt racial hostility

recently. See U.S. Commission On Civil Rights, /ntimidation And

Violence: Racial and Religious Bigotry In America (1983). See also

Note, Combatting Racial Violence: A Legislative Proposal, 101 Harvard

Law Review 1270 (1988).

17

2019 (1987).° To provide for the expansion of the remedy under

the statute in one term, and then to immediately retract that

remedy in the next term certainly does not posit a situation where

minorities can feel that their grievances will be seriously

considered.°

B. Overruling Runyon Would Truly Withdraw An Important

Forum For The Vindication Of Civil Rights.

Section 1981 is one of the remedial statutes presently available

for redressing employment discrimination. This statute and Title

VII are the primary statutory vehicles for attacking employment

discrimination. By withdrawing section 1981 from the available

means of attacking private employment discrimination, the Court

would leave certain employees without any redress for employ-

ment discrimination based on race. Title VII covers neither

establishments with fewer than 15 employees nor employers not

involved in interstate commerce. Also, persons who have lost their

Title VII claims for procedural reasons would no longer have

recourse to section 1981.’

Additionally, there would be a reduction in the remedies

available to one who has suffered intentional racial discrimination

in employment. The great weight of authority holds that one is

> Relying on A/-Khazraji, the Court determined that Jews as well as

Arabs fell within the protection of section 1982.

®The irony of the situation is grasped when one considers the

following language in A/-Khazraji: “\f respondent on remand can prove

that he was subjected to intentional discrimination based on the fact that

he was born an Arab, rather than solely on the place or nation of his

origin, or his religion, he will have made out a case under section 1981.”

Id. at 2028. The impression that would necessarily follow at the heels of

that direction is the type that our system really can not afford to absorb.

’ There may be a longer statute of limitations period for section 1981

actions, unlike the rather brief limitations period provided for in Title

VII (Either 180 or 300 days depending on the particular state) because

section 1981 derives its statute of limitations from the appropriate state

tort statute of limitations. The appropriate tort statute of limitations is

generally longer than those allowed in Title VII actions. See Goodman v.

Lukens Steel Co., supra.

not entitled to compensatory or punitive damages under Title VII.

See, Schlei and Grossman, Employment Discrimination Law

1452, n.153, 154 (1983); this type of relief is available under

section 1981. Jd.

1. Reconsideration Of Runyon Has Implications Far Beyond

Employment Discrimination.

Section 1981 is not limited to areas of employment discrimina-

tion. It encompasses other areas of contractual rights.

In the years since Runyon was decided courts have applied 42

U.S.C. section 1981 not only to remedy employment discrimina-

tion, but to vindicate a panoply of civil rights. It is a sad comment

indeed that in the years since 1976 a law enacted in 1866 has still

so much vitality in remedying racial discrimination. The following

cases lay testimony to just how compelling the need continues to

be for a vigorous application of section 1981 in the struggle to

provide equal rights for all.

In the battle for equal education, section 1981 has continued to

provide an effective weapon. For example, section 1981 was held

in several post-Runyon cases to prohibit the denial of admission

to private schools because of a child’s race. See Riley vy.

Adirondack Southern School for Girls, 541 F.2d 1124 (Sth Cir.

1976); Brown v. Dade Christian Schools, 556 F.2d 310 (5th Cir.),

reh'g denied, 58\ F.2d 472, cert. denied, 434 U.S. 1063 (1978)

(school’s policy on non-integration prohibited by section 1981);

Darensbourg v. Dufrene, 460 F.Supp. 662 (E.D. La. 1978)

(section 1981 bans selection of children in a nursery school based

* Unlike Title VII, Section 1981 does not have any exhaustion

requirements and therefore an aggrieved party presently can get into

court very quickly. One need not wait for the processing of his or her

charge by an agency that has been notoriously slow in processing

charges. See Occidental Life Insurance Co. v. Equal Employment

Opportunity Commission, 432 U.S. 355, 359, 369 n.24 (1977). See also

Selected Testimony of Chairman of U.S. Equal Employment Opportu-

nity Commission reported in Daily Labor Report D-1-D-3 (March 30,

1988); Age Discrimination Claim Assistance Act, Pub. L. No. 100-283

(extending the statute of limitations in cases not processed by the

E.E.0.C. within the limitations period).

19

on racial criteria); cf. Gonzalez v. Southern Methodist University,

536 F.2d 1071 (Sth Cir.), reh'g denied, cert. denied, 430 U.S. 987

(1977) (plaintiff stated but did not prove a cause of action under

section where she alleged that she was denied admission to

private law school because she is Mexican-American).

Section 1981 also requires commercial businesses to afford

blacks the same treatment it affords whites. Therefore,

photographing “suspicious” black customers of a bank as part of a

surveillance program instituted at the behest of the police states a

cause of action under section 1981. Hall v. Pennsylvania State

Police, 570 F.2d 86 (3rd Cir. 1978). Similarly, allegations that a

hospital refused to award a contract for security services to a

company owned and operated by a black man fall within the

ambit of section 1981. Howard Security Services, inc. v. The

Johns Hopkins Hospital, 516 F.Supp. 508 (D.Md. 1981). Credit

companies are also prohibited from refusing credit for racially

discriminatory reasons.

Indeed, the scope of section 1981 has been greatly expanded in

recent years to bring many others within its protective fold. For

example, section 1981 has jealously guarded rights of whites and

blacks to associate with one another in private settings. In Weaver

v. Gross, 605 F.Supp. 210 (D.D.C. 1985), the Court held that a

white female bartender at an exclusive club who was allegedly

discharged due to her association with a black man has standing

to sue under section 1981. Similarly in Fiedler v. Marumsco

Christian Children School, 631 F.2d 1144 (4th Cir. 1980), the

expulsion of a white female student based on her relationship with

a black male student was held to be remediable under section

1981.

Racial barriers to equal housing have been increasingly elimi-

nated owing in large part to the vigorous interpretation given

section 1981 in Runyon. Section 1981 has continued to be

effective in outlawing discriminatory refusals to rent to black

families. Gore v. Turner, 563 F.2d 159 (Sth Cir. 1977). In one

related case, the statute was applied to bar the dismissal of a

rental secretary who refused to follow her employer's policy of

racial discrimination in showing and renting apartments. Wilkey

v. Pyramid Construction Co., 619 F.Supp. 1453 (D.Conn. 1985).

20

In another case, section 1981 provided a vehicle to challenge an

attempt by whites to purchase the home of a white neighbor in

order to prevent the sale of the home to a black family. Sutton v.

Bloom, 710 F.2d 1188 (6th Cir.), cert. denied, 464 U.S. 1973

(1984).

Community facilities have been made more accessible to

blacks due to the application of section 1981 to private discrimi-

nation. See Wright v. The Salisbury Club, 632 F.2d 309 (4th Cir.

1980) (where race is the only selective criteria for membership in

housing subdivision country club.)

Indeed, while the “availability of lawful means of vindicating

the nght to equal treatment has not eradicated discriminatory

evils, . . . it does reflect a social commitment to achieving that

goal.” Choudhury v. Polytechnic Institute of New York, 735 F.2d

38, 39 (2nd Cir. 1984). That commitment is as crucial now as it

was in 1976 and should not be abandoned by this Court. By

overruling Runyon, there would be no adequate federal remedy

for a large number of circumstances now covered by section

1981.° Minorities would be limited to possible vindication of these

* For example, amicus Cleveland was denied the opportunity to

purchase jewelry at a particular jewelry store by the owner’s refusal to

operate the electrical lock system so that he could enter the store to

make ’

section 1981 in Brown v. General Services Administration, 425 U.S. 820

(1978). The clear weight of authority in the lower courts that have

674 n.16 (1983)

Likewi —_ | from the individual id be

precluded under the logic of Brandon v. Holt, 469 U.S. 464 (1985). And

the award of punitive damages against a municipality would be similarly

21

rights under common law theories or actions under state statutes.

It is not the intent of this brief to suggest that state courts are not

as able to protect the civil rights of any particular litigant, but in

all likelihood, there would not be a comparable body of law

approaching that presently established in the federal court system

under section 1981. In the area of civil rights law, making a

“federal case” out of a lawsuit loses the pejorative connotations.

The Federal Courts have, in recent history, been considered to be

a fortress against racial discrimination. There is something to be

lost by having that fortress subjected to judicial urban renewal.

precluded under City of Newport v. Fact Concerts, Inc., 453 U.S. 247

(1981).

22

CONCLUSION

For the reasons stated above, this Court should affirm its

holding in Runyon v. McCrary.

Respectfully submitted,

WILLIAM C. MCNEILL, III*

EMPLOYMENT LAW CENTER

1663 Mission Street

San Francisco, CA 94103

(415) 864-8848

NATHANIEL COLLEY

WESTERN REGION-NAACP

1810 “S” Street

Sacramento, CA 95814

(916) 446-7584

RosBerT L. HARRIS

CHARLES HOUSTON BAR

ASSOCIATION

77 Beale Street

P.O. Box 7442

San Francisco, CA 94120

(415) 972-6651

SHAUNA MARSHALL

EQUAL RIGHTS ADVOCATES

1370 Mission Street

4th Floor

San Francisco, CA 94103

(415) 621-0505

Eva JEFFERSON PATERSON

301 Mission Street

Suite 400

San Francisco, CA 94105

(415) 543-9444

VALERIE D. TOOHEY

MorRISON & FOERSTER

345 California Street

35th Floor

San Francisco, CA 94104

(415) 434-7486

*Counsel of Record

Counsel for Amici Curiae