Below is an essay for our Race and the Supreme Court program by Michael E. Rosman, general counsel for the Center for Individual Rights (scroll down on the page to see his bio).  Mr. Rosman has published several articles on race and law, and has argued before the Supreme Court.

My thesis is that, although the Supreme Court has interpreted the Constitution and various statutes in an aggressive fashion in order to combat all kinds of discrimination, it has placed racial discrimination at the top of the list. My main proof for this will be the 1968 case of Jones v. Alfred H. Mayer, Co. and its progeny. With Jones, the Court embarked on interpretations of both statute and the Constitution that were very aggressive, and it has stuck to its guns on these issues "“ indeed, has been supported by Congress on the statutory interpretation "“ ever since. The consequences for the Court's jurisprudence have been significant.

The facts in Jones were quite simple. A couple tried to purchase a home from a developer, and the developer refused to sell it to them because the man was black. The plaintiffs sued under 42 U.S.C. § 1982, which had been originally enacted as Section 1 of the Civil Rights Act of 1866. As initially passed in 1866, that statute provided that

citizens, of every race and color, . . . 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.

There were two questions in Jones: Did Section 1 of the 1866 Act reach a private refusal to deal with another because of the other's race? If it did, did Congress have the power to pass such a law? The Court answered both questions affirmatively. It did so, curiously enough, just a bit more than two months after Congress had passed the Civil Rights Act of 1968, Title VIII of which became the Fair Housing Act.

I will confess my own bias. I found the Court's analysis on both questions less than convincing. The question of statutory interpretation revolved around the meaning of the word "right" "“ was the "right" to own property one that only the government could deny a citizen, or could another person also deny that "right" by refusing to sell? The Court stated ipse dixit that the plain meaning of the statute was that it reached private conduct, but the proposition seems less apparent than the Court would have it. The heart of the opinion, then, focused on the legislative history of the 1866 Act; much of the analysis was puzzling at best. The Court insisted that Section 2 of the 1866 Act (which evolved into 18 U.S.C. § 242, the criminal analogue to 42 U.S.C. § 1983) had an "exemption" for private violations (thus demonstrating that private violations must have been covered by Section 1). But Section 2 had no such "private exemption"; it simply made criminal certain acts under color of state authority. The Court referred to discussions by Congressmen of private violence against African Americans, but it did not bother to relate such private violence (or those discussions) to any of the language in Section 1 itself. Moreover, as Justice Harlan's dissent pointed out, Senator Trumbull, the main sponsor of the 1866 Civil Rights bill in the Senate, repeatedly said that it would have no effect in states whose laws were non-discriminatory; the majority's efforts to sweep away these statements do not convince.

For me, though "“ and I do not pretend to have gone through the legislative history myself with a fine-tooth comb "“ the most telling piece of legislative history is the proverbial dog that did not bark. As Justice Harlan's dissent pointed out, the power of laissez-faire theories and the belief in minimal government interference in private business transactions was still quite strong in the mid-to-late nineteenth century. That no one ever discussed the fact that the bill would preclude people from refusing to sell their own private property for whatever reason they chose, or to have segregated private schools, or to hire and fire as they chose, is more telling than anything that was discussed. A few years later (in his Runyon v. McCrary concurrence), Justice Stevens "“ who, I think, few would say has given crabbed readings to our civil rights laws "“ said that "[t]here is no doubt in my mind" that the Court's construction of Section 1 of the 1866 Civil Rights Act, so as to reach private racial discrimination, "would have amazed the legislators who voted for it." On this point, I think he was surely correct.

The Jones Court's constitutional analysis is not much better. The Court held that (1) Congress had the power under Section 2 of the Thirteenth Amendment to eradicate the "badges and incidents of slavery" and (2) because the right to contract and own property were fundamental rights, it was not irrational for Congress to conclude that private refusals to sell property were a badge or incident of slavery. The Court disingenuously cited The Civil Rights Cases (1881), for each of its two main propositions. But The Civil Rights Cases specifically held that, for example, the racially motivated refusal of a theatre or inn to admit or serve someone "“ a relationship that certainly seems contractual in nature "“ was not a badge or incident of slavery. When that case referred to "fundamental rights" like the right to own property and make contracts, it plainly was referring to the right to do so free from state-sponsored constraint, not private prejudice. Jones took that language and distorted it. And it might very well belittle the inhumanity of the institution of slavery to suggest that a private refusal to sell or contract was one of its primary "badges or incidents." No doubt such refusals beleaguered many others, like white women and Catholics, who were never slaves.

Despite these problems, the Supreme Court has not and will not abandon Jones. In both Runyon v. McCrary (1976), and Patterson v. McLean Credit (1989), the Court followed Jones, with several Justices questioning its analysis but nonetheless respecting its precedential value. In McDonald v. Santa Fe Trail Transp. Co. (1976), the Court held that 42 U.S.C. § 1981 (also derived in part from Section 1 of the 1866 Act) reached private discrimination against whites as well as minorities, with respect to which, apparently, Congress also had the power to legislate pursuant to its Thirteenth Amendment power to eradicate the badges and incidents of slavery. In 1991, Congress confirmed part of the Jones line of cases by specifically amending Section 1981 to state explicitly that it reached private discrimination.

Race discrimination is special, thanks to Jones and its progeny. Victims of race discrimination in employment need not follow the detailed administrative requirements, and fairly short statute of limitations, in Title VII. The question of whether a particular individual is an independent contractor or an employee, crucial under Title VII, is irrelevant for race discrimination because of Section 1981. The "Mrs. Murphy" exception to the Fair Housing Act and the size and commerce requirements for Title VII can be circumvented for race discrimination. With respect to discrimination based upon sex, religion, or other criteria, Congress has had to use its power to regulate commercial transactions and other forms of commerce or to regulate state discrimination under its power under Section 5 of the Fourteenth Amendment. In some instances, like in United States v. Morrison (2000), involving a statute regulating gender-motivated violence, and City of Boerne v. Flores (1997), addressing the Religious Freedom Restoration Act, those powers have proved inadequate.

Section 2 of the Thirteenth Amendment has been deemed to provide Congress with the authority to legislate any and all kinds of racial discrimination. Indeed, three years after Jones, in Griffin v. Breckenridge (1971), the Court concluded that 42 U.S.C. § 1985(3) reaches racially motivated private violence (overruling earlier precedent), relying in part on Congress's power under the Thirteenth Amendment to eradicate the badges of slavery to uphold its constitutionality as so applied. Despite lower court efforts to expand the scope of Section 1985(3), the Court has never held that it applies to anything but race-based deprivations of rights. It rejected its application to women seeking abortions in Bray v. Alexandria Women's Health Clinic (1993).

One can think of other examples in which the Court has, explicitly or implicitly, told us that race discrimination is special. In Runyon, the Court, in addition to finding that segregated private schools violated Section 1981, held that there was no private right of association or speech that protected the schools. Yet, in Boy Scouts of America v. Dale (2000), when the Boy Scouts sought to preclude homosexuals from serving as scoutmasters, the Court managed to find a First Amendment-related right to protect their right to do so without ever distinguishing Runyon.

In the "white primary" cases (Smith v. Allright (1944) and Terry v. Adams (1953)), and again in Adickes v. S. H. Kress & Co. (1971), the Court adopted unusually aggressive interpretations of "state action" to preclude race discrimination by seemingly private parties. Yet, with limited exceptions, the Court seems averse to applying the general "state action" theory of those cases elsewhere. Jones, I submit, is the "race discrimination is special" case that has had the most consequences in the Court's jurisprudence and the state of the law.

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