CLARK, Circuit Judge:
This is a suit for injunctive and monetary relief for racial discrimination which interfered with the right to contract for employment in violation of 42 U.S.C. § 1981.
The following facts found by the trial court are amply supported by the record. The Center was conceived by the Georgia General Assembly in 1964 as a research and treatment center, and began operation in 1969 with facilities in Atlanta and Athens. Dr. Clements was appointed as the Center's first superintendent and is largely responsible for its success.
The combined Atlanta and Athens units house 550 resident retarded children and treat an additional 200 outpatients. Of these 750 children, 90% are classed as severely retarded, 9% as trainable, and only 1% as educable. The Center is thoroughly integrated by race and has been since inception, both as to patients and staff. Fifty percent of the staff members in the Division of Community Living are black, 31% of the entire Center staff is black and two-thirds of that 31% are employed at the administrative level.
Employment with the Center during 1971, the year in which the Faracas applied, was effected by obtaining approval of the appropriate supervisor and then going through the Personnel Director who formalized the employment. As a
In July of 1971 the Faracas filled out employment applications with the Center. Mr. Faraca specifically sought employment as a Cottage Program Specialist,
The following day Mr. Faraca met with a Dr. Mills, the Director of Community Living, who was responsible for interviewing Cottage Administrator applicants. Dr. Mills stated during trial that he considered Faraca the best-qualified applicant he had interviewed, and that he was satisfied that Faraca should have been immediately hired. After so satisfying himself, all that remained was for Mills to route the application to Personnel for certification. Upon these facts, the trial court concluded that there was no doubt that, considering Faraca's qualifications, his application would have been routinely granted and that nothing remained for him to do to perfect his application and employment.
After determining the desirability of employing Mr. Faraca, Dr. Mills, rather than sending the application directly to Personnel, notified Dr. Clements of his intent to hire Mr. Faraca.
On appeal, Dr. Clements first contends that Section 1981 was only intended to proscribe a breach of contract, not, as in this case, the refusal to enter into a contract. We disagree. The statute expressly equalizes the right of all citizens "to make and enforce contracts". By specifically protecting the right to make contracts Congress must have meant to protect black citizens from racially based interference with prospective contract rights, otherwise the words italicized would be redundant. In Jones v. Alfred H. Mayer Co., 392 U.S. 409, 442, 88 S.Ct. 2186, 2204, 20 L.Ed.2d 1189 (1968) at fn. 78, the Supreme Court stated that "the right to contract for employment [is] a right secured by 42 U.S.C. § 1981". If Section 1981 did not afford protection prior to execution, the remedy it sought to create could be thwarted in many instances by the expedient of refusing to contract with blacks. Decisions from other jurisdictions are in conformity with today's holding. E. g., Waters v. Wisconsin Steel Works of Internat'l Harvester Co., 427 F.2d 476 (7th Cir.), cert. denied, 400 U.S. 911, 91 S.Ct. 137, 27 L.Ed.2d 151 (1970); Scott v. Young, 307 F.Supp. 1005 (E.D.Va.1969),
Technically, the State of Georgia was the prospective employer and only it would be in a position to refuse to enter into a contract. If Dr. Clements is subject to liability under Section 1981 such liability must be assessable for interfering with the right to contract. Although the present action against Dr. Clements was not denominated as one for tortious interference with the making of a contract, this lack of formality is not fatal since the basic right to relief has been declared to exist. The courts in their broad interpretation of Section 1981 and 1982 (both of these statutes are derived from Section 1 of the Civil Rights Act of 1866, 14 Stat. 27) have held that a third party's interference with those rights guaranteed under Sections 1981 and 1982 will subject such a person to personal liability. E. g., Hernandez v. Erlenbusch, 368 F.Supp. 752 (D.Or.1973); Bennett v. Gravelle, 323 F.Supp. 203 (D. Maryland), aff'd, 451 F.2d 1011 (4th Cir. 1971), cert. denied, 407 U.S. 917, 92 S.Ct. 2451, 32 L.Ed.2d 692 (1972); Walker v. Pointer, 304 F.Supp. 56 (N.D.Tex.1969). The Supreme Court's ruling in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 237, 90 S.Ct. 400, 404, 24 L.Ed.2d 386 (1969) is controlling on this point. That action concerned the appropriateness of a claim under Section 1982 which asserted an interference with the equal right to lease. The court stated:
See also Hurd v. Hodge, 334 U.S. 24, 68 S.Ct. 847, 92 L.Ed. 1187 (1948). It would be logically inconsistent not to apply the Sullivan interpretation with equal force to a suit for interference with the right to contract guaranteed by Section 1981 since, as mentioned previously, it is also derived from Section 1 of the Civil Rights Act of 1866 and thus should enjoy the same broad interpretation of its breadth of coverage. Grier v. Specialized Skills, Inc., 326 F.Supp. 856, 860 (W.D.N.C.1971). See Jones v. Alfred H. Mayer Co., supra; Young v. International Tel. & Tel. Co., 438 F.2d 757 (3d Cir. 1971); Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011 (5th Cir. 1971); Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert. denied, 401 U.S. 948, 91 S.Ct. 935, 28 L.Ed.2d 231 (1971); Scott v. Young, supra.
Dr. Clements further contends that compensatory damages may not be imposed upon a claim for relief under Section 1981. However, the propriety of such an award in a Section 1981 action is well recognized in this circuit. E. g., Sanders v. Dobbs Houses, supra; Mizell v. North Broward Hospital Dist., 427 F.2d 468 (5th Cir. 1970). See also Sullivan v. Little Hunting Park, Inc., supra, 396 U.S. at 239, 90 S.Ct. at 405, in which the Supreme Court stated, "[t]he existence of a statutory right implies the existence of all necessary and appropriate remedies;" and Waters v. Wisconsin Steel Works of Internat'l Harvester Co., supra, 427 F.2d at 488, in which the Seventh Circuit stated that a plaintiff's relief under Section 1981 "is potentially as broad as that available in [an] action . . . under Title VII."
The damages awarded in this case, 7,188.75 dollars, represent the difference between what Mr. Faraca would have
Finally, Dr. Clements asserts that even if damages are normally proper in Section 1981 actions they should not be awarded against him personally in this case since he proceeded on the basis of a good faith concern for the program he was administering as to the consequences which would flow from employing Mr. Faraca in the capacity of Cottage Administrator and not out of any personal bias or prejudice. Such considerations may be found persuasive in considering the right of Dr. Clements to seek reimbursement from his employer, however they are irrelevant to a determination of the right to and appropriateness of relief available to Mr. Faraca as compensation for the loss of this employment opportunity. A brief recurrence to school desegregation precedents reminds us that a public official cannot find sanctuary from the consequences of an act of racial discrimination in a fear that public reaction will bring unfavorable results. E. g., Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1968); Bell v. West Point Municipal Separate School Dist., 446 F.2d 1362 (5th Cir. 1971). The district court correctly distinguished Dr. Clements' knowing failure to obey the law in a good faith fear of the consequences which could ensue, from the situation of a public official who violates a citizen's rights in executing his duties in a way that he in good faith believes the law to require. While the latter may constitute a legitimate defense to a claim by an injured party, e. g., Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), the former does not.
The judgment appealed from is