Amicus Curiae Brief — Patterson v. McLean Credit Union

Supreme Court, US.

FILED

JUN 24 1988

JOSEPH F. SPANIOL, JR.

CLERK

No. 87-107

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

BRENDA PATTERSON ,

Petitioner,

MCLEAN CREDIT UNION,

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF AMICUS CURIAE OF

CURTIS AND SANDY McCRARY

SUPPORTING PETITIONER

Gary T. Brown

729 15th Street, N.W.

Suite 800

Washington, D.C. 20005

(202) 393-8100

SeFeggzs eee eee

QUESTION PRESENTED

Whether the interpretation of 42 U.S.C.

sec. 1981 adopted by the Court in Runyon

v. McCrary, 427 U.S. 168 (1976) should be

reconsidered?

FTE ERERRESEET Eee

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TABLE OF CONTENTS

GURSTION PRESENTED ...ccccccccccccccccce fi

UE PUIOMETEND cccccccccccccccccce Ali

INTEREST OF THE AMICUS CURIAE .......... V

DUPE EEEE Ee Geescsccccecccccccs |

CONCLUSION seenerteeneteeeneeeeeeneeneteneeeneee#ee#ee#ee#e 24

PEBSSeeSSSER ER eSB aaa =

TABLE OF AUTHORITIES

Cases

Alexander v. Gardner-Denver Co.,

415 U.S. 36 (1974) rrr rrTrTyT rT Tritt ft

Alyeska Pipeline Service Company v.

Wilderness Society,

421 U.S. 240 CA97D) ccocccccescccccece se

Burnet v. Coronado Oil and Gas Co.,

ZEUS Ucbe 39S CAPSS) cocccceccccccocechk’#

Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975) TrrrTTTTTiITtTs oS 18

Jones v. Alfred H. Mayer Co.,

392 U.S. 409 (1968) ......2..-18, 20, 24

Monell v. New York City Department of

Social Services,

436 U.S. 658 (1978) ..22e+4, 16, 17, 19

Newman v. Piggie Park Enterprises, Inc.,

390 U.S. 400 (1968) PPrrrrrrrTTTTrTirTtTe Ss 8

Patterson v. McLean Credit Union,

—-—

805 F.2d 1143 (4th Cir. 1986) ..2, 3, 4

Patterson v. McLean Credit Union,

F.Supp. , 42 FEP Cases 659

(M.D. N.C.) e*eeeeeeeneeneteeeeneeneeneteeeeee#e# 2

Runyon v. McCrary,

427 U.S. 16@ (1976) e*eenee#e#eoee#ee#e#ee#e# passim

Trafficante v. Metropolitan Life

Insurance Co.,

me

SEEREREERRGREREE

Statutes

18 U.S.C.

42 U.S.C.

42 U.S.C.

42 U.S.C.

sec. 1964 (c) *oenereeneteenrneteee eee eee ood

3601 et Sl; ie ee.

sec. 19Bliwcccccccccccese Passim

sec. 200Ge et SOG... e eee ee ee 2G

SEEREERESREERERRZEEE

INTEREST OF THE AMICUS CURIAE

Sandra and Curtis McCrary are

parents of a son, who at a preschool age,

was denied admission to a private day

care facility solely on the basis of his

race. Finding that distinction

un isfactory, the McCrarys filed an

action in federal district court based on

42 U.S.C. sec. 1981. In 1976, this Court

ruled that the McCrarys could use that

statute to seek redress for harm caused

from racial discrimination by private

actions. That ruling allowed their son to

grow in an atmosphere less charged by the

necessary tensions created by invidious

racial discrimination. Twelve years

later, when this Court requested

reargument involving its earlier

interpretation of 42 U.S.C. sec. 1981

(1982 and Supp IV), as set out in Runyon,

the McCrarys decided to let this Court

know the happier ending to their

discrimination story resulting from the

decision. Within this document's

discussion of stare decisis is a

statement from Mr. and Mrs. McCrary.

SRERERRERERRRERESEE

No. 87 - 107

IN THE SUPREME COURT

OF THE UNITED STATES

OCTOBER TERM, 1987

BRENDA PATTERSON

Petitioner

V.

MCLEAN CREDIT UNION

Respondent

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF OF CURTIS AND SANDRA McCRARY

AS AMICUS CURIAE

SUPPORTING PETITIONER

Ms. Brenda Patterson, Petitioner

here, has claimed that certain methods in

which she was treated by her former

employer and by co-workers at her former

place of employment were racially

SERERERRERERREEEE

discriminatory and constituted a form of

racial harassment. Petitioner pled that

her racial harassment constituted a

discrete violation of 42 U.S.C. Sec.

1981. The district court held that a

claim for racial harassment is not

cognizable under Sec. 1981. Patterson v.

McLean Credit Union, F.Supp. » 42

FEP Cases 659 (M.D. N.C. 1985). That

holding was affirmed by the Fourth

Circuit, finding that the right to

establish a contractual relationship with

an employer that is free of racial

factors does not include the expectation

of freedom from workplace racial

harassment. Patterson v. McLean Credit

Union, 805 F.2d 1143 (1986).

Petitioner Patterson claims that

certain behavior to which she was

subjected on her job created racial

SERRE ER RRR RRSEREEESE

harassment against her because she is

black. That her incidents may not amount

to a legal definition of harassment is

not here at issue. That any behavior of

racial harassmert may form the basis of a

cause of action against her employer

Pursuant to Sec. 1981 is the issue

addressed by Patterson.

Since the question is whether or not

"racial harassment" of any ilk is

redressable by 42 U.S.C. Sec. 1981, the

Particular circumstances of Petitioner

Patterson's claim and her ability to

prove them are not yet relevant. Further,

Since the question of whether such

behavior falls within the contract

between the parties seems answerable

without reconsideration of Runyon v.

McCrary, 427 U.S. 160 (1976), the

activism in requesting such

reconsideration indicates that a decision

far beyond the facts of Patterson is

being considered.

Because of the limits of the

Patterson grant of certiorari and the

favored judicial policy of ruling

narrowly when exercising the power of the

judiciary, Amicus McCrary would first

argue that reconsideration of the Court's

prior decision is not necessary. The

Court could render a fair determination,

and even prevent an expansion of the

scope of 42 U.S.C. sec. 1981, if a

majority so determines, without the need

to actively review settled law.

In Monell ve. New York City

Department of Social Services, 436 U.S.

658 (1978), both Justice Powell, in

concurrence (at p. 709 n. 6), and Chief

Justice Rehnquist (then Justice), in

dissent (at p. 718), voiced the

oft-spoken opinion that “this Court is

surely not free to abandon settled

statutory interpretation at any time a

new thought seems appealing.” Much weight

must be given by this Court to the

reliance that citizens place on law

properly pronounced by this Court. In

this instance, the deterence felt by

private citizens to harness racially

discriminatory acts against others is

undoubtedly due, at least in part, on the

clear pronouncements spoken in Runyon.

Others, of course, feel much safer since

that decision. Can it possibly be that

private racism, currently redressable in

federal courts as reprehensible societal

behavior, will no longer be mediated in

our judicial system?

If one main tenet of our legal

system is that it provides an opportunity

to effectively redress harm, then a

system to determine whether an act or

series of actions is harmful is required.

That evaluation should employ the

sensibilities of today’s values and not

those values based on the ambiguously

discerned intent of a Congress more than

one century past. 1/

1/ A jury, by definition, imposes the

values of today. Sec. 1981 provides a

jury trial, Johnson v. Railway Express

Agency, Inc., 421 U.S. 454 1375) and

Title VII of the Civil Rights Act of 1964

does not. The elimination of sec. 1981

from the employment context may not

interfere with the rights of an employee

who has been the victim of racial

discrimination at the hands of his

employer from reaching court but it will

interfere with his ability to have a

panel of his peers judge those actions

and greatly interferes with t'e desire of

a company to settle the differences prior

to a trial before a jury.

That sec. 1981 also provides for punitive

damages not recoverable under Title VII

is another aspect it has provided to

eliminate discrimination in employment.

BEREREEERE ERR ER ESEE

The concept that ‘rac ial

discrimination in any form is harmful to

our society has been voiced by this Court

on a number of occasions. For example, in

Newman v. Piggie Park Enterprises, Ituc.,

399 U.S. 400, 402 (1968), reference was

made to repeated Congressional

assessments that eradication of racial

discrimination was "a policy ... of the

highest priority”. This policy was again

relied upon in Alexander v.

Gardner-Denver Co., 415 U.S. 36, 45

(1974). There can be little doubt that

the elimination of racial discrimination

is acknowledged as a proper judicial

objective.

This concept of eradication of

17 (Cont.) As Congress has repeatedly

recognized, the deterent effect of

monetary punishment is thought to be

great. E.g., the award of treble damages

for RICO Act violations, 18 U.S.C. sec.

1964(c) (1982 and Supp IV).

racial injustice as being of a high

priority can also be discerned from the

Court’s repeated affirmation of the

theory of private attorneys general. In

providing a generous construction to the

attorney fee provision of Title II of the

Civil Rights Act of 1964, the Court

approved the use of private attorneys

general to attack discriminatory

practices which it determined were

adversely affecting not only blacks but

all citizens. Newman, supra, 399 U.S. at

402. ‘11 of society benefits from the

elimination of unjust racial

distinctions. This was reiterated ina

related way in Trafficante v.

Metropolitan Life Insurance Co., 409 U.S.

205 (1972) where this Court granted

standing to a white to challenge private

racially discriminatory housing

practices. Each citizen is thought to

suffer when racial discrimination is

practiced, even if it is by the loss of

association with other citizens of a

Slightly different background. The Court

there repeated Senator Javit’s comments

indicating that race discrimination

victimizes “the whole community...." 409

U.S. at 211.

A reading of these and related

decisions of the Court demonstrates its

collective belief that the harm caused by

racial discrimination, of whatever type,

pervades the entire fabric of our society

and that its elimination is cause for

monetary payments and other forms of

judicially awarded relief. If this is so,

the question then becomes whether Sec.

1981 provides a proper vehicle to

accomplish this specific goal of society.

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One valid method of assessment would be

to learn of the effects of the Runyon v.

McCrary decision from one party involved

in that litigation. Sandra and Curtis

McCrary participated in the legal process

to attain for their son the same rights

others of his age enjoyed. Now the

progress that their determination wrought

may be set aside. The following statement

is set forth to indicate their feelings:

“Our prospective is as parents of

Michael McCrary, who in 1972 at the age

of two was denied admission to one of the

Private schools in Northern Virginia that

were defendants in Runyon. That incident

began a 4 1/2 year journey through the

legal system, culminating in the Supreme

Court’s June 1976 decision.

"By the time the decision was

rendered, Michael was in the first grade

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cof public school, so admission to the

private daycare center was a moot issue.

Having remained in the Virginia area,

however, we ve been able to observe the

positive impact of the decision on the

community.

“We are concerned that the recent

move by the Court to revisit the Runyon

decision could erode the progress

realized in the past 12 years. We are

worried, more specifically, that the

Court’s action may be a harbinger of an

intent to retreat from what we believed

and trusted were established precedents.

“For Michael, now 17 and about to

enter his freshman year of college,

Runyon v. McCrary is an abstraction -- an

incident we've discussed with him,

usually in the context of a school

assignment on civil rights. As with many

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other young black men and women born

after the passage of the Civil Rights Act

of 1964, much of the civil rights

struggle seems so very removed from his

reality.

"Michael’s self-image is intact, not

having been indelibly marked by the

injustice and indignity of segregation.

For his generation, the sons and

daughters of the first beneficiaries of

equal access to education, housing, and

job opportunities, the American dream can

in fact be realized.

"Of course, we do not delude

ourselves: problems still exist. However,

this does not diminish the significant

social progress achieved as a result of

hard-fought civil rights victories. Our

nation can, and should, be proud of the

advances made over the last 25 years

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toward the elimination of racial

discrimination, both public and private.

"With every successive victory, we

as a people moved further away from a

past that was shadowed by racial

divisiveness. Today, even some of the

most intractable foes of civil rights

have acknowledged that the removal of

racial barriers has enhanced the general

welfare of our society.

"A key contributor to this progress

has been our judicial system, and the

willingness of the courts to interpret

the law in a manner consistent with

current concepts of social good. We

believe that the intent of the

legislators in passing the 1866 civil

rights laws, in particular sec. 1981, the

Statute at issue in Runyon, was to extend

to a people formerly disenfranchised by

SESSRBERBRSRSRSERERBRERERB ZB RBS

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Slavery full rights as citizens of our

nation.

“Fundamental to our society is the

right to enter into contracts, whether

for property or services. The extension

of sec. 1981 to areas of private

discrimination affecting equal access to

housing, employment, and education was a

logical and necessary progression in

bestowing full citizenship rights on a

people previously denied.

"The private schools that were the

focus in Runyon did not receive direct

federal funds -- but they advertised in

the Yellow Pages, sent fliers out through

general mailings, and enjoyed tax

exemptions. In essence, the schools’

status as “private” seemed to be

primarily a matter of racial exclusivity,

Since interested white persons had only

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to apply to gain admission.

"The Supreme Court’s ruling in

elimination of some of the remaining

vestigaes of racial discrimination. In

the past, by hiding under a cloak of

privacy, such institutions were openly

able to disregard the civil rights laws.

Under sec. 1981 and subsequent

interpretations, black Americans are

afforded an effective vehicle for

challenging these remaining barriers to

racial equality.

"As a free and open society, where

individual initiative and merit are the

espoused criteria for advancement, there

should be no place for a policy of

exclusion based on one’s race or other

immutable characteristics. That policy

belongs to another time and place from

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which we have hopefully evolved. Let

there be no equivocation on matters so

fundamental to what we have come to know

and believe in as the American way.

"Por Michae!, and others in his

generation and those to follow, the Court

should uphold the original ruling. Indeed

it must -- if we are to continue as a

society to move forward."

These words of the McCrarys indicate

that Runyon has worked well for thea,

since 1976. Although only viewed on an

individual basis, it would seem that the

Court*s decision had a beneficial effect.

Since the correctness of the Court's 12

year old ruling must involve a “full

airing of all the relevant

considerations,” Justice Powell in

Monell, at 709, mn 6, Amicus McCrarys

offer their personal expericence to the

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Court.

Because this Court’s review of

Runyon must of necessity involve the

principle of stare decisis, the McCrarys

opinion has relevance. As Justice

Brandeis has stated in Burnet v. Coronado

Oil and Gas Co., 285 U.S. 393, 412

(1932), and often thereafter quoted,

including in Monell, supra, the reasons

for deviating from the straight path of

stare decisis should be limited to

bringing “opinions into agreement with

experience and with facts newly

ascertained...." Neither the experience

Since 1976 or facts newly ascertained

Since then provides the valid basis for

reconsideration of Runyon envisioned by

this honored jurisprudential principle.

The addition of new justices or the

elevation of prior members of the Court

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are certainly not the new facts to which

Justice Brandeis makes reference.

The legislative history, even though

previously known, is relevant. It is,

however, but one factor in the caiculus

of the determination. As both Justices

Powell and Stevens pointed out in the

original decision in Runyon, the Court at

that time was not writing on a clean

slate. The time for analysis of the

Situation by only reviewing the

legislative history has passed with the

Court’s first decision on the Civil

Rights Acts where it was determined that

a cause of action existed against private

acts. (Jones v. Alfred H. Mayer Co., 392

U.S. 4809 (1968) and more specifically for

42 U.S.C. sec. 1981, Johnson, supra). Now

the revisit of Runyon must encompass many

other factors, as set forth in the

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principles of stare decisis. It would be

a slim reed to rest a holding which

reverses a ruling that works on the same

legislative history already analyzed

where that history requires a twentieth

century interpretation of nineteenth

century documents.

As Justice Brennen stated in Monell,

436 U.S. at 695, ome factor of stare

decisis principle is the consideration of

the departure from the prior practice

that the decision under review visits on

the state of the law at the time of the

decision. Here, Runyon was not a

departure from prior practice, but rather

the determination to allow the McCrarys

to have the ability to sue directly the

Private parties allegedly refusing to

contract with them because of their race

fit perfectly with judicial

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interpretations of other civil rights

acts. For example, Sec. 1982 has been

interpreted to allow for individual law

suits for acts that are strictly private,

i.e., mot performed by or related to any

governmental entity. Jones, supra.

The decision in Runyon was also in

step with other civil rights laws

providing for the attack on privately

practiced racial discrimination. The Fair

Housing Act, 42 U.S.C. secs. 3601 ct seq.,

(1982 and Supp IV) allows citizens to

initiate legal action by directly

confronting those who caused them harm,

through the mediation of the legal

system, even if that harm was committed

solely by a private citizen. Title VII of

the Civil Rights Act of 1964, as amended,

42 U.S.C. secs. 2008e et seg, (1982 and

Supp IV) also provides an avenue for a

BEEBE REE RE REE ERE ES

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harmed citizen to sue for compensation

from one who has committed that harm.

Again, the harm could be performed only

in the private sector and still be

redressable. In both instances, although

the government may become involved, it

need not be beyond providing the

opportunity for resolution of the

allegations. If that opportunity is not

fruitful, or even if it does not occur, 4

person still have access to the courts to

challenge purely private actions by

others.

Runyon, therefore, provides a person

the ability to seek restitution in the

courts for private discrimination as does

other civil rights laws. It is “so

consistent with the warp and the woof of

civil rights laws as to be beyond

question.” Runyon, 436 U.S. at 696. Thus,

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the Court should have no need to tamper

with the decision.

The Runyon decision was also

thoroughly consistent with the

congressional intent that was apparent in

1976. The same year this Court was again

deciding that citizens may sue for

privately engendered harmn, Congress was

passing the Civil Rights Attorney Fees

Award Act, 42 U.S.C. sec 1988 (1982 and

Supp IV). That act provides that

sucessful private attorneys general can

pay the attorneys that were engaged by

them to carry forth the claims of

discrimination. That act negated the

American Rule of attorneys fees awards,

as stated in Alyeska Pipeline Service

Company v. Wilderness Society, 421 U.S.

24@ (1975), as to the specific statute

involved here. The congressional intent

- 23 «-

to provide fees for successful plaintiffs

in a sec. 1981 action certainly does not

comport with any interpretation that

would limit in any way the ability of

priv.te citizens to bring such actions.

Further, regarding the intent of

Congress, tacit approval for the decision

in Runyon exists. Congress has had ample

opportunity to limit the ability of

citizens to use sec. 1981 against other

private persons. No such action on the

part of Congress has occurred, making it

clear that private citizens are to be

helped, not hindered, in their efforts to

obtain this nation’s highest priority.

The harm of discrimination is viewed by

Congress as a leech that should no longer

suck the vitality of our populace. Runyon

was another weapon for the fight that

Congress has joined, and had named the

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highest priority. Truly, the Congress was

acting as representatives of the people.

As Justice Stevens wrote, in Runyon, “For

even if Jones did not accurately reflect

the sentiments of the Reconstruction

Congress, it surely accords with the

prevailing sense of justice today."

For the foregoing reasons, Sandra

and Curtis McCrary respectfully request

this Court to not reconsider its prior

decision in Runyon or, alternatively, to

uphold its prior decision.

Respectfully submitted,

Suite 800d

Washington, D.C. 20005

(202) 393-8100