# Amicus Curiae Brief — Patterson v. McLean Credit Union

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1013%3A24

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1989
- **Citation:** 491 U.S. 164

## Text

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

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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?

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TABLE OF CONTENTS

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INTEREST OF THE AMICUS CURIAE .......... V
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CONCLUSION seenerteeneteeeneeeeeeneeneteneeeneee#ee#ee#ee#e 24

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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.

- 19 -

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

oe M «

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,

Bee eeeeeeee eB Bs |

» 28 «

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

e 26 «

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1013%3A24. Public record. Not legal advice.