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Constitutional Law - Civil Rights - Discrimination Against Blacks in Admissions to Private Schools Violates the Right to Contract Guaranteed by Section 1981

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Constitutional Law - Civil Rights - Discrimination Against Blacks in Admissions to Private Schools Violates the Right to Contract Guaranteed by Section 1981 Volume 21 Issue 2 Article 4 1976 Constitutional Law - Civil Rights - Discrimination against Blacks in Admissions to Private Schools Violates the Right to Contract Guaranteed by Section 1981 Susan M. Denbo Follow this and additional works at: https://digitalcommons.law.villanova.edu/vlr Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, and the Education Law Commons Recommended Citation Susan M. Denbo, Constitutional Law - Civil Rights - Discrimination against Blacks in Admissions to Private Schools Violates the Right to Contract Guaranteed by Section 1981, 21 Vill. L. Rev. 271 (1976). Available at: https://digitalcommons.law.villanova.edu/vlr/vol21/iss2/4 This Note is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. Denbo: Constitutional Law - Civil Rights - Discrimination against Blacks 1975-19761 RECENT DEVELOPMENTS CONSTITUTIONAL LAW - CIVIL RIGHTS - DISCRIMINATION AGAINST BLACKS IN ADMISSIONS TO PRIVATE SCHOOLS VIOLATES THE RIGHT TO CONTRACT GUARANTEED BY SECTION 1981. McCrary v. Runyon (4th Cir. 1975) Fairfax-Brewster School (Fairfax-Brewster) and Bobbe's Private School (Bobbe's) are private educational institutions.' In May 1969, the parents of Colin M. Gonzales attempted to have their son admitted to the first grade of Fairfax-Brewster and Bobbe's, 2 but were rejected by both because Colin was black.3 In August 1972, Michael McCrary was also refused admission at Bobbe's because of his race.4 Claiming a violation of their civil right to contract under section 1981, 5 Colin Gonzales filed suits 1. Gonzales v. Fairfax-Brewster School, Inc., 363 F. Supp. 1200, 1201 (E.D. Va. 1973). "Neither school receives any assistance, financial or otherwise, from any state, local or federal agency; and each relies entirely on funds derived from tuition paid by students to support its operations." Id. 2. Colin Gonzales' parents learned of Fairfax-Brewster through a mass mailing, an advertisement in the classified section of the telephone directory, and from a friend. McCrary v. Runyon, 515 F.2d 1082, 1084 (4th Cir.), cert. granted, 96 S. Ct. 354 (1975). The Fourth Circuit consolidated five cases on appeal, 515 F.2d at 1082, and in four of the cases certiorari was applied for and granted by the Supreme Court of the United States; Runyon v. McCrary, 96 S. Ct. 354 (1975) (No. 75-62); Fairfax- Brewster School, Inc. v. Gonzales, id. (No. 75-66) ; Southern Indep. School Assoc. v. McCrary, id. (No. 75-278) ; McCrary v. Runyon, id. (No. 75-306). For a summary of the questions presented in each case, see 44 U.S.L.W. 3270-71 (U.S. Nov. 11, 1975). 3. 515 F.2d at 1085-86. The Gonzaleses had applied for admission to Fairfax- Brewster's summer camp with a view towards having Colin admitted to the first grade. Id. at 1084. The school testified that the reason for rejecting the application was that the kindergarten that Colin had attended gave him insufficient preparation for the first grade, and therefore it would be useless to allow him to enter the summer camp only to have to "yank him out" at the beginning of the academic year. Id. at 1085. However, the trial court found this testimony to be "unbelievable," and it concluded that the real reason for the rejection was because Colin was black. 363 F. Supp. at 1202. On telephoning Bobbe's, the Gonzaleses were told that the school did not accept blacks. 515 F.2d at 1085. The trial court held that it was of "no moment that no formal application was filed." 363 F. Supp. at 1203. 4. 515 F.2d at 1085. Mrs. McCrary learned of Bobbe's from an advertisement in the classified section of the telephone directory. 363 F. Supp. at 1202. No formal application was made since, upon inquiry, Mrs. McCrary was told that Bobbe's did not accept blacks. 515 F.2d at 1085. 5. 42 U.S.C. § 1981 (1970). Section 1981 provides: 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. Id. (271) Published by Villanova University Charles Widger School of Law Digital Repository, 1976 1 Villanova Law Review, Vol. 21, Iss. 2 [1976], Art. 4 VILLANOVA LAW REVIEW [VOL. 21 against both Fairfax-Brewster and Bobbe's while Mr. and Mrs. McCrary and Michael filed suit solely against Bobbe's.6 The actions were consoli- dated for trial7 before the United States District Court for the Eastern District of Virginia which, in addition to permanently enjoining the de- fendants from discriminating against blacks in enrollment in their schools, awarded damages for embarrassment, humiliation, and mental anguish to the plaintiffs.8 The United States Court of Appeals for the Fourth Circuit affirmed the district court's finding of a section 1981 violation,9 holding that section 1981 prohibits racial discrimination in private contractual arrangements and that consequently the defendants had violated the plaintiffs' civil rights by denying them admission to these private schools solely upon the basis of race. McCrary v. Runyon, 515 F.2d 1082 (4th Cir.), cert. granted, 96 S. Ct. 354 (1975) (Nos. 75-62, 75-66, 75-278, 75-306). The Civil Rights Act of 1866 (1866 Act) 10 was enacted pursuant to the enforcement clause of the thirteenth amendment" in order to guar- antee for blacks the benefits of citizenship which were incident to the freedom which that amendment declared. 1 2 However, during the century after its passage, the statute was ineffective in accomplishing its purpose, 6. 363 F. Supp. at 1203. 7. 515 F.2d at 1084. The Southern Independent School Association intervened, claiming that section 1981 did not prohibit racial discrimination in private schools. Id. As of 1971, the Association represented 396 schools with a combined enrollment of 176,000. Note, Segregation Academies and State Action, 82 YALE L.J. 1436, 1448 (1973). These schools were located in Alabama, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Virginia. Id. 8. 363 F. Supp. at 1205. The court also awarded attorney's fees. Id. 9. However, the court reversed the award of attorney's fees since there was no finding of "obstinate obduracy" on the part of the defendant. 515 F.2d at 1089. 10. Act of April 9, 1866, ch. 31, 14 Stat. 27. The Civil Rights Act of 1866 provides in pertinent part: [A]ll persons born in the United States and not subject to any foreign power .. 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 ... 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 .. as is enjoyed by white citizens .... Id. § 1. There is some confusion as to the exact derivation of 42 U.S.C. § 1981. but it was determined in Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), that it is derived from section 1 of the Civil Rights Act of 1866. Id. at 441 n.78. For further discussion on the derivation of section 1981, see note 24 infra. 11. The thirteenth amendment to the United States Constitution provides: Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropri- ate legislation. U.S. CONST. amend. XIII. 12. See Gressman, The Unhappy History of Civil Rights Legislation, 50 Micr. L. REV. 1323, 1325-28 (1952); tenBroek, Thirteenth Amendment to the Constitution of the United States, 39 CALIF. L. Rsv. 171, 186 (1951). https://digitalcommons.law.villanova.edu/vlr/vol21/iss2/4 2 Denbo: Constitutional Law - Civil Rights - Discrimination against Blacks 1975-1976] RECENT DEVELOPMENTS largely due to the fact that the United States Supreme Court in Hodges v. United States'3 held that the 1866 Act could not be interpreted to give 4 one individual a right of redress against another.' It was not until 1968 that the Civil Rights Act of 1866 was put to effective use. 5 In Jones v. Alfred H. Mayer Co., 6 the plaintiff alleged a section 198217 violation in that the defendant refused to sell him a house because he was black.' 8 In an opinion by Justice Stewart, the Court held that in view of the text' 9 and of the legislative history20 of the statute, section 1982 was intended to reach private discrimination,2 1 and that, so construed, the statute was a valid exercise of Congress' power under the enforcement clause of the thirteenth amendment.2 2 In so holding, 13. 203 U.S. 1 (1906). The Hodges Court reversed convictions under sections 1977 and 5508 of the Revised Statutes, U.S. Rrv. STAT. §§ 1977, 5508 (1874) (now codified at 42 U.S.C. § 1981 (1970) and 18 U.S.C. § 241 (1970) respectively). The defendants had been charged with conspiring to deny blacks their right to contract for employment.
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