MR. JUSTICE STEWART delivered the opinion of the Court.
The principal issue presented by these consolidated cases is whether a federal law, namely 42 U. S. C. § 1981, prohibits private schools from excluding qualified children solely because they are Negroes.
The respondents in No. 75-62, Michael McCrary and Colin Gonzales, are Negro children. By their parents,
The suits were consolidated for trial. The findings of the District Court, which were left undisturbed by the Court of Appeals, were as follows. Bobbe's School opened in 1958 and grew from an initial enrollment of five students to 200 in 1972. A day camp was begun in 1967 and has averaged 100 children per year. The Fairfax-Brewster School commenced operations in 1955 and opened a summer day camp in 1956. A total of
In response to a mailed brochure addressed "resident" and an advertisement in the "Yellow Pages" of the telephone directory, Mr. and Mrs. Gonzales telephoned and then visited the Fairfax-Brewster School in May 1969. After the visit, they submitted an application for Colin's admission to the day camp. The school responded with a form letter, which stated that the school was "unable to accommodate [Colin's] application." Mr. Gonzales telephoned the school. Fairfax-Brewster's Chairman of the Board explained that the reason for Colin's rejection was that the school was not integrated. Mr. Gonzales then telephoned Bobbe's School, from which the family had also received in the mail a brochure addressed to "resident." In response to a question concerning that school's admissions policies, he was told that only members of the Caucasian race were accepted. In August 1972, Mrs. McCrary telephoned Bobbe's School in response to an advertisement in the telephone book. She inquired about nursery school facilities for her son, Michael. She also asked if the school was integrated. The answer was no.
Upon these facts, the District Court found that the Fairfax-Brewster School had rejected Colin Gonzales' application on account of his race and that Bobbe's School had denied both children admission on racial grounds. The court held that 42 U. S. C. § 1981 makes illegal the schools' racially discriminatory admissions policies. It therefore enjoined Fairfax-Brewster School and Bobbe's School and the member schools of the Southern Independent School Association
The Court of Appeals for the Fourth Circuit, sitting en banc, affirmed the District Court's grant of equitable and compensatory relief and its ruling as to the applicable statute of limitations, but reversed its award of attorneys' fees. 515 F.2d 1082 (1975). Factually, the court held that there was sufficient evidence to support the trial court's finding that the two schools had discriminated racially against the children. On the basic issue of law, the court agreed that 42 U. S. C. § 1981 is a "limitation upon private discrimination, and its enforcement in the context of this case is not a deprivation of any right of free association or of privacy of the defendants, of the intervenor, or of their pupils or patrons." 515 F. 2d, at 1086. The relationship the parents had sought to enter into with the schools was in the court's view undeniably contractual in nature, within the meaning of § 1981, and the court rejected the schools' claim that § 1981 confers no right of action unless the contractual relationship denied to Negroes is available to all whites. 515 F. 2d, at 1087. Finally, the appellate
We granted the petitions for certiorari filed by the Fairfax-Brewster School, No. 75-66; Bobbe's School, No. 75-62; and the Southern Independent School Association, No. 75-278, to consider whether 42 U. S. C. § 1981 prevents private schools from discriminating racially among applicants. 423 U.S. 945. We also granted the cross-petition of Michael McCrary, Colin Gonzales, and their parents, No. 75-306, to determine the attorneys' fees and statute of limitations issues. Ibid.
It is worth noting at the outset some of the questions that these cases do not present. They do not present any question of the right of a private social organization to limit its membership on racial or any other grounds.
A. Applicability of § 1981
It is now well established that § 1 of the Civil Rights Act of 1866, 14 Stat. 27, 42 U. S. C. § 1981, prohibits racial discrimination in the making and enforcement of private contracts.
As the Court indicated in Jones, supra, at 441-443, n. 78, that holding necessarily implied that the portion of § 1 of the 1866 Act presently codified as 42 U. S. C. § 1981 likewise reaches purely private acts of racial discrimination. The statutory holding in Jones was that the " Act was designed to do just what its terms suggest: to prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein—including the right to purchase or lease property," 392 U. S., at 436. One of the "rights enumerated" in § 1 is "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . ." 14 Stat. 27. Just as in Jones a Negro's § 1 right to purchase property on equal terms with whites was violated when a private person refused to sell to the prospective purchaser solely because he was a Negro, so also a Negro's § 1 right to "make and enforce contracts" is violated if a private offeror refuses to extend to a Negro,
The applicability of the holding in Jones to § 1981 was confirmed by this Court's decisions in Tillman v. Wheaton-Haven Recreation Assn., supra, and Johnson v. Railway Express Agency, Inc., supra. In Tillman the petitioners urged that a private swimming club had violated 42 U. S. C. §§ 1981, 1982, and 2000a et seq. by enforcing a guest policy that discriminated against Negroes. The Court noted that "[t]he operative language of both § 1981 and § 1982 is traceable to the Act of April 9, 1866, c. 31, § 1, 14 Stat. 27." 410 U. S., at 439. Referring to its earlier rejection of the respondents' contention that Wheaton-Haven was exempt from § 1982 under the private-club exception of the Civil Rights Act of 1964, the Court concluded: "In light of the historical interrelationship between § 1981 and § 1982 [there is] no reason to construe these sections differently when applied, on these facts, to the claim of Wheaton-Haven that it is a private club." 410 U. S., at 440. Accordingly the Court remanded the case to the District Court for further proceedings "free of the misconception that
It is apparent that the racial exclusion practiced by the Fairfax-Brewster School and Bobbe's Private School amounts to a classic violation of § 1981. The parents of Colin Gonzales and Michael McCrary sought to enter into contractual relationships with Bobbe's School for educational services. Colin Gonzales' parents sought to enter into a similar relationship with the Fairfax-Brewster School. Under those contractual relationships, the schools would have received payments for services rendered, and the prospective students would have received instruction in return for those payments. The educational services of Bobbe's School and the Fairfax-Brewster School were advertised and offered to members of the general public.
The petitioning schools and school association argue principally that § 1981 does not reach private acts of racial discrimination. That view is wholly inconsistent with Jones' interpretation of the legislative history of § 1 of the Civil Rights Act of 1866, an interpretation that was reaffirmed in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, and again in Tillman v. Wheaton-Haven Recreation Assn., supra. And this consistent interpretation of the law necessarily requires the conclusion that § 1981, like § 1982, reaches private conduct. See Tillman
It is noteworthy that Congress in enacting the Equal Employment Opportunity Act of 1972, 86 Stat. 103, as amended, 42 U. S. C. § 2000e et seq. (1970 ed., Supp. IV), specifically considered and rejected an amendment that would have repealed the Civil Rights Act of 1866, as interpreted by this Court in Jones, insofar as it affords private-sector employees a right of action based on racial discrimination in employment. See Johnson v. Railway Express Agency, supra, at 459.
B. Constitutionality of § 1981 as Applied
The question remains whether § 1981, as applied, violates constitutionally protected rights of free association and privacy, or a parent's right to direct the education of his children.
1. Freedom of Association
In NAACP v. Alabama, 357 U.S. 449, and similar decisions, the Court has recognized a First Amendment right "to engage in association for the advancement of beliefs and ideas . . . ." Id., at 460. That right is protected because it promotes and may well be essential to the "[e]ffective advocacy of both public and private points of view, particularly controversial ones" that the First Amendment is designed to foster. Ibid. See Buckley v. Valeo, 424 U.S. 1, 15; NAACP v. Button, 371 U.S. 415.
2. Parental Rights
In Meyer v. Nebraska, 262 U.S. 390, the Court held that the liberty protected by the Due Process Clause of the Fourteenth Amendment includes the right "to acquire useful knowledge, to marry, establish a home and bring up children," id., at 399, and, concomitantly, the right to send one's children to a private school that offers specialized training—in that case, instruction in the German language. In Pierce v. Society of Sisters, 268 U.S. 510, the Court applied "the doctrine of Meyer v. Nebraska," id., at 534, to hold unconstitutional an Oregon law requiring the parent, guardian, or other person having custody of a child between 8 and 16 years of age
It is clear that the present application of § 1981 infringes no parental right recognized in Meyer, Pierce, Yoder, or Norwood. No challenge is made to the petitioner schools' right to operate or the right of parents to send their children to a particular private school rather than a public school. Nor do these cases involve a challenge to the subject matter which is taught at any private school. Thus, the Fairfax-Brewster School and Bobbe's School and members of the intervenor association remain presumptively free to inculcate whatever values and standards they deem desirable. Meyer and its progeny entitle them to no more.
3. The Right of Privacy
The Court has held that in some situations the Constitution confers a right of privacy. See Roe v. Wade, 410 U.S. 113, 152-153; Eisenstadt v. Baird, 405 U.S. 438, 453; Stanley v. Georgia, 394 U.S. 557, 564-565; Griswold
While the application of § 1981 to the conduct at issue here—a private school's adherence to a racially discriminatory admissions policy—does not represent governmental intrusion into the privacy of the home or a similarly intimate setting,
The Court has repeatedly stressed that while parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction, they have no constitutional right to provide their children with private school education unfettered by reasonable government regulation. See Wisconsin v. Yoder, supra, at 213; Pierce v. Society of Sisters, supra, at 534; Meyer v. Nebraska, 262 U. S., at 402.
Section 1981, as applied to the conduct at issue here, constitutes an exercise of federal legislative power under § 2 of the Thirteenth Amendment fully consistent with Meyer, Pierce, and the cases that followed in their wake. As the Court held in Jones v. Alfred H. Mayer Co., supra: "It has never been doubted . . . `that the power vested in Congress to enforce [the Thirteenth Amendment] by appropriate legislation' . . . includes the power to enact laws `direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not.' " 392 U. S., at 438 (citation omitted). The prohibition of racial discrimination that interferes with the making and enforcement of contracts for private educational services furthers goals closely analogous to those served by § 1981's elimination of racial discrimination in the making of private employment contracts
A. Statute of Limitations
The District Court held that the damages suit of the petitioners in No. 75-306, Mr. and Mrs. Gonzales, which was initiated 3 1/2 years after their cause of action accrued, was barred by the statute of limitations. This
Had Congress placed a limit upon the time for bringing an action under § 1981, that would, of course, end the matter. But Congress was silent. And "[a]s to actions at law," which a damages suit under § 1981 clearly is, "the silence of Congress has been interpreted to mean that it is federal policy to adopt the local law of limitation." Holmberg v. Armbrecht, 327 U.S. 392, 395. See Johnson v. Railway Express Agency, 421 U. S., at 462; Rawlings v. Ray, 312 U.S. 96; O'Sullivan v. Felix, 233 U.S. 318; Chattanooga Foundry v. Atlanta, 203 U.S. 390. As the Court stated in Holmberg, supra, at 395: "The implied absorption of State statutes of limitation within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles."
At the time of this litigation Virginia had not enacted a statute that specifically governed civil rights suits. In the absence of such a specific statute, the District Court and the Court of Appeals held that the first sentence of Va. Code Ann. § 8-24 (1957) provides the relevant limitations period for a § 1981 action: "Every action for personal injuries shall be brought within two years next after the right to bring the same shall have accrued." The petitioners assert that this provision applies only to suits predicated upon actual physical injury, and that the correct limitation period is five years, by virtue of the second sentence of § 8-24, which comprehends all other "personal" actions:
The petitioners' contention is certainly a rational one, but we are not persuaded that the Court of Appeals was mistaken in applying the two-year state statute. The issue was not a new one for that court, for it had given careful consideration to the question of the appropriate Virginia statute of limitations to be applied in federal civil rights litigation on at least two previous occasions. Allen v. Gifford, 462 F.2d 615; Almond v. Kent, 459 F.2d 200. We are not disposed to displace the considered judgment of the Court of Appeals on an issue whose resolution is so heavily contingent upon an analysis of state law, particularly when the established rule has been relied upon and applied in numerous suits filed in the Federal District Courts in Virginia.
Moreover, the petitioners have not cited any Virginia court decision to the effect that the term "personal injuries" in § 8-24 means only "physical injuries." It could be argued with at least equal force that the phrase "personal injuries" was designed to distinguish those causes of action involving torts against the person from those involving damage to property. And whether the damages claim of the Gonzaleses be properly characterized as involving "injured feelings and humiliation," as the Court of Appeals held, 515 F. 2d, at 1097, or the vindication of constitutional rights, as the petitioners contend, there is no dispute that the damage was to their persons, not to their realty or personalty. Cf. Carva Food Corp. v. Dawley, 202 Va. 543, 118 S.E.2d 664; Travelers Ins. Co. v. Turner, 211 Va. 552, 178 S.E.2d 503.
B. Attorneys' Fees
The District Court, without explanation or citation of authority, awarded attorneys' fees of $1,000 against each of the two schools. The Court of Appeals reversed this part of the District Court's judgment. Anticipating our decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, the appellate court refused to adopt the so-called private attorney general theory under which attorneys' fees could be awarded to any litigant who vindicates an important public interest. And it could find no other ground for the award: no statute explicitly provides for attorneys' fees in § 1981 cases,
Mindful of this Court's Alyeska decision, the petitioners do not claim that their vindication of the right of Negro children to attend private schools alone entitles them to attorneys' fees. They make instead two other arguments.
First, the petitioners claim that the schools exhibited bad faith, not by litigating the legal merits of their racially discriminatory admissions policy, but by denying that they in fact had discriminated. To support this claim, the petitioners cite a number of conflicts in testimony between the McCrarys, the Gonzaleses, and other witnesses, on the one hand, and the officials of the schools, on the other, which the District Court resolved against the schools in finding racial discrimination. Indeed, the trial court characterized as "unbelievable" the testimony of three officials of the Fairfax-Brewster School. 363 F. Supp., at 1202. By stubbornly contesting the facts, the petitioners assert, the schools attempted to deceive the court and, in any event, needlessly prolonged the litigation.
We cannot accept this argument. To be sure, the Court has recognized the "inherent power" of the federal courts to assess attorneys' fees when the losing party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons . . . ." F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129. See Alyeska, supra, at 258-259; Vaughan v. Atkinson, 369 U.S. 527. But in this case the factual predicate to a finding of bad faith is absent. Simply, because the facts were found against the schools does not by itself prove that threshold of irresponsible conduct for which a penalty assessment would be justified. Whenever the facts in a case are disputed, a court perforce must decide that one party's version is inaccurate. Yet it would be
The petitioners' second argument is that while 42 U. S. C. § 1981 contains no authorization for the award of attorneys' fees, 42 U. S. C. § 1988 implicitly does. In relevant part, that section reads:
The petitioners assert, in the words of their brief, that § 1988 "embodies a uniquely broad commission to the federal courts to search among federal and state statutes and common law for the remedial devices and procedures which best enforce the substantive provisions of
This contention is without merit. It is true that in order to vindicate the rights conferred by the various Civil Rights Acts, § 1988 "authorize[s] federal courts, where federal law is unsuited or insufficient `to furnish suitable remedies,' to look to principles of the common law, as altered by state law . . . ." Moor v. County of Alameda, 411 U.S. 693, 702-703. See Sullivan v. Little Hunting Park, Inc., 396 U. S., at 239-240. But the Court has never interpreted § 1988 to warrant the award of attorneys' fees. And nothing in the legislative history of that statute suggests that such a radical departure from the long-established American rule forbidding the award of attorneys' fees was intended.
More fundamentally, the petitioners' theory would require us to overlook the penultimate clause of § 1988: "so far as the same is not inconsistent with the Constitution and laws of the United States." As the Court recounted in some detail in Alyeska, supra, at 247, passim, the law of the United States, but for a few well-recognized exceptions not present in these cases,
For the reasons stated in this opinion, the judgment of the Court of Appeals is in all respects affirmed.
It is so ordered.
MR. JUSTICE POWELL, concurring.
If the slate were clean I might well be inclined to agree with MR. JUSTICE WHITE that § 1981 was not intended to restrict private contractual choices. Much of the review of the history and purpose of this statute set forth in his dissenting opinion is quite persuasive. It seems to me, however, that it comes too late.
The applicability of § 1981 to private contracts has been considered maturely and recently, and I do not feel free to disregard these precedents.
Although the range of consequences suggested by the dissenting opinion, post, at 212, goes far beyond what we hold today, I am concerned that our decision not be construed more broadly than would be justified.
By its terms § 1981 necessarily imposes some restrictions on those who would refuse to extend to Negroes "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens." But our holding that this restriction extends to certain actions by private individuals does not imply the intrusive investigation into the motives of every refusal to contract by a private citizen that is suggested by the dissent. As the Court of Appeals suggested, some contracts are so personal "as to have a discernible rule of exclusivity which is inoffensive to § 1981." 515 F.2d 1082, 1088 (1975).
In Sullivan v. Little Hunting Park, supra, we were faced with an association in which "[t]here was no plan or purpose of exclusiveness." Participation was "open to every white person within the geographic area, there being no selective element other than race." 396 U. S., at 236. See also Tillman v. Wheaton-Haven Recreation Assn., supra, at 438. In certain personal contractual relationships, however, such as those where the offeror selects those with whom he desires to bargain on an individualized basis, or where the contract is the foundation of a close association (such as, for example, that between an employer and a private tutor, babysitter, or housekeeper), there is reason to assume that, although the choice made by the offeror is selective, it reflects "a purpose of exclusiveness" other than the desire to bar
The case presented on the record before us does not involve this type of personal contractual relationship. As the Court of Appeals said, the petitioning "schools are private only in the sense that they are managed by private persons and they are not direct recipients of public funds. Their actual and potential constituency, however, is more public than private." 515 F. 2d, at 1089. The schools extended a public offer open, on its face, to any child meeting certain minimum qualifications who chose to accept. They advertised in the "Yellow Pages" of the telephone directories and engaged extensively in general mail solicitations to attract students. The schools are operated strictly on a commercial basis, and one fairly could construe their open-end invitations as offers that matured into binding contracts when accepted by those who met the academic, financial, and other racially neutral specified conditions as to qualifications for entrance. There is no reason to assume that the schools had any special reason for exercising an option of personal choice among those who responded to their public offers. A small kindergarten or music class, operated on the basis of personal invitations extended to a limited number of preidentified students, for example, would present a far different case.
I do not suggest that a "bright line" can be drawn that easily separates the type of contract offer within the reach of § 1981 from the type without. The case before us is clearly on one side of the line, however defined, and the kindergarten and music school examples are clearly on the other side. Close questions undoubtedly will arise in the gray area that necessarily exists in between. But some of the applicable principles and considerations, for the most part identified by the Court's opinion, are
MR. JUSTICE STEVENS, concurring.
For me the problem in these cases is whether to follow a line of authority which I firmly believe to have been incorrectly decided.
Jones v. Alfred H. Mayer Co., 392 U.S. 409, and its progeny have unequivocally held that § 1 of the Civil Rights Act of 1866 prohibits private racial discrimination. There is no doubt in my mind that that construction of the statute would have amazed the legislators who voted for it. Both its language and the historical setting in which it was enacted convince me that Congress intended only to guarantee all citizens the same legal capacity to make and enforce contracts, to obtain, own, and convey property, and to litigate and give evidence. Moreover, since the legislative history discloses an intent not to outlaw segregated public schools at that time,
But Jones has been decided and is now an important part of the fabric of our law. Although I recognize the force of MR. JUSTICE WHITE'S argument that the construction of § 1982 does not control § 1981, it would be most incongruous to give those two sections a fundamentally different construction. The net result of the enactment in 1866, the re-enactment in 1870, and the codification in 1874 produced, I believe, a statute resting on the constitutional foundations provided by both the Thirteenth and Fourteenth Amendments. An attempt to give a fundamentally different meaning to two similar provisions by ascribing one to the Thirteenth and the other to the Fourteenth Amendment cannot succeed. I am persuaded, therefore, that we must either apply the rationale of Jones or overrule that decision.
There are two reasons which favor overruling. First, as I have already stated, my conviction that Jones was wrongly decided is firm. Second, it is extremely unlikely that reliance upon Jones has been so extensive that this Court is foreclosed from overruling it. Cf. Flood v. Kuhn, 407 U.S. 258, 273-274, 278-279, 283. There are, however, opposing arguments of greater force.
The first is the interest in stability and orderly development of the law. As Mr. Justice Cardozo remarked, with respect to the routine work of the judiciary: "The labor of judges would be increased almost to the breaking
The policy of the Nation as formulated by the Congress in recent years has moved constantly in the direction of eliminating racial segregation in all sectors of society.
With this explanation, I join the opinion of the Court.
MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins, dissenting.
We are urged here to extend the meaning and reach of 42 U. S. C. § 1981 so as to establish a general prohibition against a private individual's or institution's refusing to enter into a contract with another person because of that person's race. Section 1981 has been on the books since 1870 and to so hold for the first time
Title 42 U. S. C. § 1981, captioned "Equal rights under the law,"
On its face the statute gives "[a]ll persons" (plainly including Negroes) the "same right . . . to make . . . contracts. . . as is enjoyed by white citizens." (Emphasis added.) The words "right . . . enjoyed by white citizens" clearly refer to rights existing apart from this
The legislative history of 42 U. S. C. § 1981 confirms that the statute means what it says and no more, i. e., that it outlaws any legal rule disabling any person from making or enforcing a contract, but does not prohibit private racially motivated refusals to contract. Title 42 U. S. C. § 1981 is § 1977 of the Revised Statutes of 1874, which itself was taken verbatim from § 16 of the Voting Rights Act of May 31, 1870, 16 Stat. 144.
This resolution bore fruit in a bill (S. 365),
The bill is next mentioned in the following colloquy later on the same day:
Consideration of the bill was then postponed.
The next reference to the bill was on March 4, 1870. It states:
Consideration of the bill was again postponed.
Then on May 18, 1870, Senator Stewart introduced S. 810 dealing with voting rights but including a section virtually identical to that in S. 365. Id., at 3562. On May 20, 1870, Senator Stewart explained the relevant provision of S. 810, as follows:
The only other reference which research uncovers to the relevant provision of S. 810 is on May 25, 1870, and consists of a speech by Senator Stewart emphasizing the need to protect Chinese aliens. Id., at 3807-3808. The
Three things emerge unmistakably from this legislative history. First, unlike § 1 of the Civil Rights Act
This Court has so construed § 1977 of the Revised Statutes of 1874 on several occasions. The Court said in the Civil Rights Cases, supra, at 16-17:
Similarly in Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886), the Court said:
See also Gibson v. Mississippi, 162 U.S. 565, 580 (1896); McLaughlin v. Florida, 379 U.S. 184, 192 (1964), each of which stands for the proposition that § 1981 was enacted pursuant to Congress' power under the Fourteenth Amendment to provide for equal protection of the laws to all persons.
Indeed, it would be remarkable if Congress had intended § 1981 to require private individuals to contract with all persons the same as they contract with white citizens. To so construe § 1981 would require that private citizens treat aliens the same as they treat white citizens. However, the Federal Government has for some time discriminated against aliens in its employment policies. As we said in Espinoza v. Farah Mfg. Co., 414 U.S. 86, 91 (1973): "Suffice it to say that we cannot conclude Congress would at once continue the practice of requiring citizenship as a condition of Federal employment,
Thus the legislative history of § 1981 unequivocally confirms that Congress' purpose in enacting that statute was solely to grant to all persons equal capacity to contract as is enjoyed by whites and included no purpose to prevent private refusals to contract, however motivated.
The majority seeks to avoid the construction of 42 U. S. C. § 1981 arrived at above by arguing that it (i. e., § 1977 of the Revised Statutes of 1874) is a re-enactment both of § 16 of the Voting Rights Act of 1870—the Fourteenth Amendment statute—and of part of § 1 of the Civil Rights Act of 1866—the Thirteenth Amendment statute.
First of all, as noted above, § 1977 of the Revised Statutes was passed by Congress with the Revisers' unambiguous note before it that the section derived solely
That part of the Thirteenth Amendment statute which gives "[a]ll citizens . . . the same rights to make . . . contracts. . . as is enjoyed by white citizens" was accordingly, not re-enacted as part of § 1977, and, since another
The majority's final argument is that to construe the enactment of the Revised Statutes of 1874 to have repealed that part of the Thirteenth Amendment statute which gave "citizens . . . the same rights to make . . . contracts . . . as is enjoyed by white citizens" is to conclude that a substantive change in the law was wrought by the revision; and that this is contrary to normal canons of construction and contrary to the instructions given to the Revisers in the statute creating their jobs and defining their duties.
First of all, the argument is beside the point. Congress, not the Revisers, repealed part of the Thirteenth Amendment statute by enacting § 5596 quoted above. The repeal is clear and unambiguous, and the reasons for the repeal, if any, are beyond our powers to question.
As we said of the 1874 revision in United States v. Bowen, 100 U.S. 508, 513 (1880):
In Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 41 (1895), we said:
Similarly, here, we are bound by what Congress actually did regardless of its reasons, if any.
Second, the majority's argument may well rest on a false assumption that the repeal of part of the Thirteenth Amendment statute changed the law.
Similarly, President Johnson in vetoing the Thirteenth Amendment statute differentiated between real property rights and contract rights granted by that statute. He said: "If Congress can declare by law who shall hold lands, who shall testify, who shall have capacity to make a contract in a State, then Congress can by law also declare who, without regard to color or race, shall have
Finally, as a matter of common sense, it would seem extremely unlikely that Congress would have intended— without a word in the legislative history addressed to the precise issue—to pass a statute prohibiting every racially motivated refusal to contract by a private individual. It is doubtful that all such refusals could be considered badges or incidents of slavery within Congress' proscriptive power under the Thirteenth Amendment. A racially motivated refusal to hire a Negro or a white babysitter or to admit a Negro or a white to a private association cannot be called a badge of slavery— and yet the construction given by the majority to the Thirteenth Amendment statute attributes to Congress an intent to proscribe them.
The Court holds in McDonald v. Santa Fe Trail Transp. Co., post, p. 273, that § 1981 gives to whites the same cause of action it gives to blacks. Thus under the majority's construction of § 1981 in this case a former slaveowner was given a cause of action against his former slave if the former slave refused to work for him on the ground that he was a white man. It is inconceivable that Congress ever intended such a result.
The majority's holding that 42 U. S. C. § 1981 prohibits all racially motivated contractual decisions—particularly coupled with the Court's decision in McDonald, supra, that whites have a cause of action against others including blacks for racially motivated refusals to contract —threatens to embark the Judiciary on a treacherous course. Whether such conduct should be condoned or not, whites and blacks will undoubtedly choose to form a variety of associational relationships pursuant to contracts which exclude members of the other race. Social clubs, black and white, and associations designed to further the interests of blacks or whites are but two examples. Lawsuits by members of the other race attempting to gain admittance to such an association are not pleasant to contemplate. As the associational or contractual relationships become more private, the pressures to hold § 1981 inapplicable to them will increase. Imaginative judicial construction of the word "contract" is foreseeable; Thirteenth Amendment limitations on Congress' power to ban "badges and incidents of slavery" may be discovered; the doctrine of the right to association may be bent to cover a given situation. In any event, courts will be called upon to balance sensitive policy considerations against each other—considerations which have never been addressed by any Congress—all under the guise of "construing" a statute. This is a task appropriate for the Legislature, not for the Judiciary.
Such balancing of considerations as has been done by Congress in the area of racially motivated decisions not to contract with a member of the other race has led it to ban private racial discrimination in most of the job market and most of the housing market and to go no further. The Judiciary should not undertake the political task of trying to decide what other areas are appropriate ones for a similar rule.
There remains only the question whether any prior pronouncements of this Court preclude me from construing 42 U. S. C. § 1981 in the manner indicated above. What has already been said demonstrates that this Court's construction of § 1982 in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), does not require me to construe § 1981 in a similar manner. The former is a Thirteenth Amendment statute under which the Congress may and did seek to reach private conduct, at least with respect to sales of real estate. The latter is a Fourteenth Amendment statute under which the Congress may and did reach only state action.
However, the majority points to language in Johnson v. Railway Express Agency, 421 U.S. 454 (1975), stating with no discussion whatever that § 1981 supplies a cause of action for a private racially motivated refusal to contract. In Johnson, the respondent had been sued for firing the petitioner on account of his race. The Court of Appeals held the petitioner's action under § 1981 to have been barred by the applicable statute of limitations. We granted petitioner's petition for a writ of certiorari limited to the question
Respondent could have argued in support of the judgment of the Court of Appeals that § 1981 supplied no cause of action quite apart from the statute of limitations, see United States v. American Railway Express
Accordingly, I would reverse.
"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."
On the basis of this omission, at least one court has concluded, in an opinion that antedated Johnson v. Railway Express Agency, 421 U.S. 454, that § 1981 is based exclusively on the Fourteenth Amendment and does not, therefore, reach private action. Cook v. Advertiser Co., 323 F.Supp. 1212 (MD Ala.), aff'd on other grounds, 458 F.2d 1119 (CA5). But the holding in that case ascribes an inappropriate significance to the historical note presently accompanying § 1981, and thus implicitly to the earlier revisers' note.
The commissioners who prepared the 1874 draft revision were appointed pursuant to the Act of June 27, 1866, 14 Stat. 74, re-enacted by the Act of May 4, 1870, c. 72, 16 Stat. 96. They were given authority to "revise, simplify, arrange, and consolidate all statutes of the United States," Act of June 27, 1866, § 1, 14 Stat. 74, by "bring[ing] together all statutes and parts of statutes which, from similarity of subject, ought to be brought together, omitting redundant or obsolete enactments . . . ." § 2, 14 Stat. 75 (emphasis added). The commissioners also had the authority under § 3 of the Act of June 27, 1866, to "designate such statutes or parts of statutes as, in their judgment, ought to be repealed, with their reasons for such repeal." 14 Stat. 75.
It is clear that the commissioners did not intend to recommend to Congress, pursuant to their authority under § 3 of the Act of June 27, 1866, that any portion of § 1 of the Civil Rights Act of 1866 be repealed upon the enactment of the 1874 revision. When the commissioners were exercising their § 3 power of recommendation, they so indicated, in accordance with the requirements of § 3. See 1 Draft Revision of the United States Statutes, Title XXVI, §§ 8, 13 (1872). No indication of a recommended change was noted with respect to the section of the draft which was to become § 1981. It is thus most plausible to assume that the revisers omitted a reference to § 1 of the 1866 Act or § 18 of the 1870 Act either inadvertently or on the assumption that the relevant language in § 1 of the 1866 Act was superfluous in light of the closely parallel language in § 16 of the 1870 Act.
We have, in past decisions, expressed the view that § 16 of the 1870 Act was merely a re-enactment, with minor changes, of certain language in § 1 of the 1866 Act. E. g., Georgia v. Rachel, 384 U.S. 780, 790-791. If this is so, then an assumption on the part of the revisers that the language of the 1866 Act was superfluous was perfectly accurate. But even assuming that the purpose behind the enactment of § 16 of the 1870 Act was narrower than that behind the enactment of relevant language in § 1 of the 1866 Act— and thus that the revisers' hypothetical assumption was wrong—there is still no basis for inferring that Congress did not understand the draft legislation which eventually became 42 U. S. C. § 1981 to be drawn from both § 16 of the 1870 Act and § 1 of the 1866 Act.
To hold otherwise would be to attribute to Congress an intent to repeal a major piece of Reconstruction legislation on the basis of an unexplained omission from the revisers' marginal notes. Such an inference would be inconsistent with Congress' delineation in § 3 of the Act of June 27, 1866, of specific procedures to be followed in connection with the submission of substantive proposals by the revisers. It would also conflict with the square holding of this Court in Johnson v. Railway Express Agency, supra, that § 1981 reaches private conduct.
The pattern of exclusion is thus directly analogous to that at issue in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, and Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431, where the so-called private clubs were open to all objectively qualified whites—i. e., those living within a specified geographic area.
Moreover, it is doubtful that a plausible "implied repeal" argument could be made in this context in any event. Implied repeals occur if two Acts are in irreconcilable conflict. Radzanower v. Touche Ross & Co., 426 U.S. 148, 154-155. Title II of the Civil Rights Act of 1964, of which the "private club" exemption is a part, does not by its terms reach private schools. Since there would appear to be no potential for overlapping application of § 1981 and Title II of the 1964 Act with respect to racial discrimination practiced by private schools, there would also appear to be no potential for conflict between § 1981 and Title II's "private club" exemption in this context. See Note, The Desegregation of Private Schools: Is Section 1981 the Answer?, 48 N. Y. U. L. Rev. 1147, 1159 (1973).
"In the words of Mr. Justice Brandeis: `Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. . . .' " 415 U. S., at 671 n. 14 (citation omitted).
"§ 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."
The title to § 1981 was placed there originally by the Revisers who compiled the Revised Statutes of 1874. They did so under a statute defining their responsibilities in part, as follows: to "arrange the [statutes] under titles, chapters, and sections, or other suitable divisions and subdivisions with head-notes briefly expressive of the matter contained in such divisions." 14 Stat. 75. (Emphasis added.) The headnote to what is now § 1981 was before Congress when it enacted the Revised Statutes into positive law. It may properly be considered as an aid to construction, if the statutory language is deemed unclear. E. g., Patterson v. Bark Eudora, 190 U.S. 169, 172 (1903); FTC v. Mandel Bros., 359 U.S. 385, 389 (1959); Knowlton v. Moore, 178 U.S. 41, 65 (1900); Maguire v. Commissioner, 313 U.S. 1, 9 (1941).
"And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States 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 none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not equally imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void." (Emphasis added.)
As may be seen, the italicized portion is § 1981.
The majority mistakenly asserts that § 1977 of the Revised Statutes of 1874—the present § 1981—is taken from § 1 of the Civil Rights Act of 1866, 14 Stat. 27, which was re-enacted as § 18 of the Voting Rights Act of 1870 and which provided:
"That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding." (Emphasis added.)
While the italicized portion of § 1 of the Civil Rights Act of 1866 is similar to § 1981 it is not the same statute. First, the 1866 statute, passed under the Thirteenth Amendment and before adoption of the Fourteenth Amendment, applies to "citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted"; whereas § 1981, like § 16 of the Voting Rights Act of 1870, applies to "all persons"—including noncitizens. Second, the 1866 statute does not provide express protection against "taxes, licenses and exactions of every kind." Section 1981, like § 16 of the Voting Rights Act of 1870, does. Third, the Revisers' notes to the 1874 Revision—which notes were before Congress when it enacted the Revised Statutes into positive law— clearly designate § 16 of the Voting Rights Act of 1870 as the source for § 1977—the current 42 U. S. C. § 1981.
I deal infra with the majority's equally untenable position that § 1981 is in fact derived both from § 16 of the Voting Rights Act and § 1 of the Civil Rights Act of 1866.
"Be it enacted, &c., That all persons within the jurisdiction of the United States, Indians not taxed excepted, shall have the same right in every State and Territory in the United States 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 person and property as is enjoyed by white citizens, and shall be subject to like punishments, pains, penalties, taxes, licenses, and exactions of every kind and none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person emigrating thereto from a foreign country which is not equally imposed and enforced upon every person emigrating to such State from any other foreign country, and any law of any State in conflict with this provision is hereby declared null and void."
"And be it further enacted, That all persons within the jurisdiction of the United States shall have the same right in every State and Territory in the United States 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 person 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 none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding. No tax or charge shall be imposed or enforced by any State upon any person immigrating thereto from a foreign country which is not equally imposed and enforced upon every person immigrating to such State from any other foreign country; and any law of any State in conflict with this provision is hereby declared null and void."
The Voting Rights Act also contained the following sections dealing with civil rights:
"SEC. 17. And be it further enacted, That any person who, under color of any law, statute, ordinance, regulation, or custom, shall subject, or cause to be subjected, any inhabitant of any State or Territory to the deprivation of any right secured or protected by the last preceding section of this act, or to different punishment, pains, or penalties on account of such person being an alien, or by reason of his color or race, than is prescribed for the punishment of citizens, shall be deemed guilty of a misdemeanor, and, on conviction, shall be punished by fine not exceeding one thousand dollars, or imprisonment not exceeding one year, or both, in the discretion of the court.
"SEC. 18. And be it further enacted, That the act to protect all persons in the United States in their civil rights, and furnish the means of their vindication, passed April nine, eighteen hundred and sixty-six, is hereby re-enacted; and sections sixteen and seventeen hereof shall be enforced according to the provisions of said Act." (This section re-enacted § 1 of the Civil Rights Act of 1866. See n. 4, supra.)
"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property."
"[C]itizens . . . shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence . . . and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens . . . ." (Emphasis added.)