RUNYON v. MCCRARY

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Argument of Louis Koutoulakos

Chief Justice Warren E. Burger: We will hear arguments next in 75-62, Runyon against McCrary and the related and consolidated cases.

Mr. Koutoulakos, you may proceed whenever you are ready.

Mr. Louis Koutoulakos: Mr. Chief Justice, Honorable Justices, I represent the Bobbe's School which is Mr. and Mrs. Runyon operating.

I will limit my argument to the narrow areas of what I considered the crucial issue in this case and if necessary we will rebut on the point of statute of limitations on the right of attorney’s fees.

Now first, let me touch on the facts a little bit as to the reason why we are here.

The Bobbe’s School is a small school in Arlington, Virginia and in Fairfax, Virginia.

It is like the only line that operates a private school.

It has been stipulated in the facts that here at the school is not supported in anyway by any federal or state money and it depends entirely on the support upon the student enrolment.

Insofar as the Bobbe’s School is concerned -- now this case was consolidated with the Brewster School -- but insofar as the Bobbe’s School is concerned, Mr. and Mrs. McCrary and Mr. and Mrs. Gonzales testified and of course this is unrebutted that as a result of a telephone call, it is by both parties, one in 69 and one in 71 or 2 as I recall.

And no further contact and no formal application, as a result of a telephone call, it brought into play the Section 1981, the Civil Rights Act that we are now hereon.

And the Court upon hearing evidence -- and there is a serious question in my mind as to whether or not in the dissent found in the Greenough, but what I am going to say that there is a serious question as to whether or not they made out a case.

It certainly did not rebut the fact that there are selected standards of exclusion by our school. There is no evidence contrary to that.

I think that all the evidence is clear that no one would be admitted on the basis of a phone call.

There has to be a formal application and certain admission policies that are necessary, such as the medical examination or personal interview with the parent and based on that, then it is determined as to whether not the person is to be admitted.

Now, it seems to me that the bedrock or what the plaintiffs are relied upon to be here is the Jones case.

First, starting off with Section 1981, I just quote it briefly, it says that, “All persons within the jurisdiction of the United States shall have the same right in every state and territory to make an 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 it enjoyed by white citizens.”

Now, I will jump to the Jones case, because as I said that seems to be the foundation of private discrimination and really that is what I think we are hereon.

Now, first at the outset, I want to make this observation.

Being of great heritage, it is not a question whether I agree or do not agree with respective policies.

I am here as Mr. Justice Marshall used to in the old days, support individual rights and his battle to eliminate abuses.

Well, I am here in support of an individual right of a citizen in this country or any person in this country, the right of privacy and the right to freely choose his associates.

Now the Jones case says that private discrimination, at least in contract matters, is barred by the Constitution.

Now, without getting in the place whether I agree or do not agree with that decision, I do not want to say that that decision can be distinguished.

First, if we get to the 1883 Civil Rights cases, I think in those cases, this Honorable Court, there determined that Congress is limited as to what it can do under certain basic rights that transcend and militate against the rights of Congress or any other political body to regulate against.

And I am talking about the freedom of association.

Now it seems to me that we are at the crossroads and I have tried to read and I am not certainly the smartest man in the world nor the most brilliant legal author, but it seems to me that just plain common sense at least to me that conclusion that this country is based on two things and it separates us from other nations and that is the most basic thing as the right to be the left alone.

The right of individual freedom, which of course, incorporates with it and I think that it is protected by the Bill of Rights, but I think this right transcends the Bill of Rights.

I think it is a God-given right to be left alone and to be free and as the Pierce and the Yoder and the Meyer cases indicated with reference to private schools and the right of an education there is certainly no constitutional right on education.

This Court has held that once a state steps in and provides in the education, then due process requires that all people be treated alike independent to color and I certainly subscribe to that.

But we are talking about public schools, when we get into the area of Private Schools I think all the cases that I have read from this Court, and I do not know I want to take your time citing, but in the end they all point to the fact that private schools do have a right to exist regardless of their discriminatory policies, and I think they have got that right.

I think anymore than I have the right to invite whoever I want to in my home and the argument would be, well, this is a private school however, it does require a certain amount of touch with the public, is that not sufficient to bring it within any ambit of the Meyer case, and I say no.

Justice William H. Rehnquist: Well, why is that any difficult that an employer says, we should have, as a private employer, the right to choose whom he wants to as his employee?

Mr. Louis Koutoulakos: Well because I think as the dissent pointed out in this case, in the Runyon case that this right of association is personal situations that come into play in the private school, and I think parents, if the parent has the right, as this court said in the Pierce case, to select a school on the education for its children, then I say that this is a concomitant right on the private school to select the student it wants to educate, and I feel that that right has to be a fundamentally protected right.

It seems to me that the right of contract, if the Jones case is accepted to its fullest analysis, then it gives the right to a group that no other group can have in this country.

It gives a unilateral right to force a contract when that violates and emasculates all the rules of contract and at least I have been introduced to both in law school and since my active career as a practitioner.

It seems to me that the contract right that they are talking about at 1981 dealt with of course the eliminating the shackles of slavery and should have been, there is no argument on that.

And that is all we are talking about because the blacks did not have a right to contract and as a result of that that they were submitted to the humiliation that those folks had to go through, and that is what we are talking about.

They certainly are not talking about and I do not believe they intended to talk about the fact that a private school like a private individual is mandate to accept the contract by somebody they do not want to accept the contract with, anymore than I can be forced to accept the contract or anybody else because contracts require mutuality.

If we are going to get into the (Inaudible), legalities and explanations of rights and duties and if we are going to get in to contractual rights, whether it would be Wilson or anybody else, whatever it may be, I have never seen in any legislation, any contract forced upon an individual, lacks in the mutuality of the minds and that is exactly what is being done here.

Justice Potter Stewart: Except the statute says that all persons should have the right but to make and enforce contracts?

Mr. Louis Koutoulakos: Exactly.

Justice Potter Stewart: And what you say is certainly correct as I remember my contract from law school except that if a school, your client, says we will never ever make any offered to anybody at the Negro race.

So nobody in the Negro race will ever have an opportunity of accepting.

Is that not depriving everybody in the Negro race of his right to make a contract?

Mr. Louis Koutoulakos: Well now, we are assuming as we are here that this is purely private school.

Justice Potter Stewart: Yes, well it is.

Mr. Louis Koutoulakos: My answer is no, and if it is and this area goes to my views I may disagree with it.

I say they have got that right.

It is a absolute right that every single --

Justice Potter Stewart: But I was talking about the application of the statute?

Mr. Louis Koutoulakos: No, I say no, it does not apply with that because in citing the Civil Rights Case of 1883, we bring them forward.

The Constitution cannot reach private discrimination, it is just that simple.

Justice Potter Stewart: Well I was trying -- My questioning went to the wording of the statute.

I have a right to make a contract under this statute, same right as all white citizens and let us say the whole world said disagree that I would never during my whole lifetime have an offer and therefore I could never accept, I could never make a contract.

Would that not deprive me on my right to make contracts?

Mr. Louis Koutoulakos: Well, maybe in the pure sense it would, but in the sense of a right and a duty that the contract would bring into play then I say that that statute cannot do that because it cannot force a person to undergo a contract he does not wish to.

And I think that has been fundamental in all our cases.

There is actually no decision that I have seen anywhere, and of course I could not possibly, that says, you Mr. Koutoulakos must be mandated to accept the contract whether you want it or not.

That is exactly what the interpretation of 1981 would have to do, and I say, no, that is not the case.

Justice Potter Stewart: Now, I suppose the matter of contract law, and your client would make the offer and the applicant would make the acceptance or is it the other way?

Mr. Louis Koutoulakos: Well, it seems to me that the offer has to come from the other way.

Chief Justice Warren E. Burger: You invite the offer, is that your theory?

Mr. Louis Koutoulakos: Exactly, exactly correct like you invite a guest in your home and that is exactly the predicate that I am operating Your Honor.

Chief Justice Warren E. Burger: Let us suppose a man is running in contracting business and he puts an ad in the paper saying that he needs seven bricklayers and five plumbers and what not.

He is then inviting applications, is he not?

Mr. Louis Koutoulakos: But he also has the right to refuse it.

Chief Justice Warren E. Burger: Oh yes! But he is inviting applications?

Mr. Louis Koutoulakos: Yes sir.

Chief Justice Warren E. Burger: But if he announce or practice a universal refusal to employ any person of a particular race, where would he be?

Mr. Louis Koutoulakos: Well, of course, depending on whether he have any federal involvement or state involvement, absent that --

Chief Justice Warren E. Burger: He is building an interstate highway.

Mr. Louis Koutoulakos: He has got the right absent what the criteria have been as set out in prior court precedents, he has that right.

It might not be a nice right; it maybe something that we do not want to --

Justice Potter Stewart: But that is a statute; that is on the statute --

Mr. Louis Koutoulakos: That is a statute --

Justice Potter Stewart: That is a statue that certainly he has unless there is state action or state involvement, but there is a statute covering the Chief Justice’s question, Title VII, and there is a statute here, and the question is, does it apply this to situation?

That is the only question.

Mr. Louis Koutoulakos: That is right and I say it does not.

I say there has been some rather interesting decisions even flowing from that decision.

And I certainly do not want to presumptuous.

I said earlier, I disagree with it; I will say it again I disagree, but anyone can be distinguished but --

Justice Thurgood Marshall: You also disagree with Smith against Allwright, do you not?

The exact same argument was made that the primary in Texas was right because the white people wanted it white and they had the right to do it.

Nobody could do anything to do about their right to associate with whom they want to associate.

This Court just ignored that argument completely.

Mr. Louis Koutoulakos: Well, except for one thing.

We are talking here about a statute that owes its existence to the post revolutionary days, and a hard reading of a both the debates and the decision, and I just got have to believe that this Court was just as conversant with the debate in those days, back in 1983 when they came down hard with that decision as they are today.

Justice Thurgood Marshall: Which decision?

Mr. Louis Koutoulakos: The 1883 Civil Rights Decision.

Justice Thurgood Marshall: Well, I am talking about Smith against Allwright.

Mr. Louis Koutoulakos: I understand that but --

Justice Thurgood Marshall: Smith against Allwright says he do not have that unlimited right to associate with only whom he wants to associate with.

Mr. Louis Koutoulakos: Well, that literally -- I just do not go on with that argument.

Justice Thurgood Marshall: You mean you do not go along with the decision?

Mr. Louis Koutoulakos: Well, if that is a decision. I do not go along with the decision.

Justice Thurgood Marshall: The decision is saying you could not ban Negroes from voting in the primary in Texas?

Mr. Louis Koutoulakos: Well yes, but you --

Justice Thurgood Marshall: Clearly.

Mr. Louis Koutoulakos: Right but you are talking about a --

Justice Thurgood Marshall: And the Civil Rights cases said to the contrary.

Mr. Louis Koutoulakos: But you are talking about the voting right now.

Justice Thurgood Marshall: No, I am talking about the right that they said it was a right to assemble.

Mr. Louis Koutoulakos: That is right.

Justice Thurgood Marshall: And the right to be together.

It was just like a country club. I can remember the (Inaudible) yesterday.

It was just a perfect little private manner, you could do whatever you please, and this caught just right up to end.

Mr. Louis Koutoulakos: Well, of course they must have made that argument with tongue-in-cheek that deals with voting right.

Certainly I would have to agree with you on that view.

It is a little different proposition than private school.

Justice Thurgood Marshall: And you say there is no state action in it at all?

It is completely financed.

I guess the buildings are all completely financed by private people and I assume they pay taxes.

Mr. Louis Koutoulakos: The state action --

Justice Thurgood Marshall: I assume they pay taxes.

Mr. Louis Koutoulakos: I would assume so but I really do not know.

Justice Thurgood Marshall: Do you think school pays property taxes?

Mr. Louis Koutoulakos: I would hope so but some schools do not.

I would say that they probably did.

Justice Thurgood Marshall: Do they meet the requirements of the Virginia Educational Laws?

Mr. Louis Koutoulakos: Are you talking about the school that I represent?

Justice Thurgood Marshall: Yes sir.

Mr. Louis Koutoulakos: Well, you know the private schools in Virginia, at least this one is not regulated other than having a certificate, and that is the only type of thing that they have to meet.

Yes, they do pay taxes.

I did not realize you were referring to my -- yes, they do pay taxes.

Justice Thurgood Marshall: And they have a certificate and they are not periodically examined by the state?

Mr. Louis Koutoulakos: For health reasons or fire prevention reasons that type of thing.

We have a very comprehensive public school statutory scheme in Virginia.

It is one of the finest in the world, and that is why I come down art on the right of a private school at least in our state to do as it chooses because I probably thought that was great.

Justice Thurgood Marshall: The state law does not give the right to refuse Negroes.

Mr. Louis Koutoulakos: I am not saying that the state law does, what I said is that insofar as a private individual is concerned, and I am of course taking the position of private school, that is purely private school as it has the same rights, and that is a right that is the personal right, that is a God-given right for you to live with, and that is what I think what separates the democracy from other nations.

That right to choose your associates, who do you want to bring in your home and to do as you see fit personally as long as --

Justice Thurgood Marshall: This is no home.

A school is not a home?

Mr. Louis Koutoulakos: It is a home in the sense that is a private establishment Mr. Justice.

Justice Thurgood Marshall: It is not a home.

Justice Potter Stewart: Mr. Koutoulakos, could you tell us a little about the school, how many students are there?

Mr. Louis Koutoulakos: About 155 in that area.

Justice Potter Stewart: And what grades?

Mr. Louis Koutoulakos: They run up to the second grade.

Justice Potter Stewart: Just Kindergarten, first grade and second grade?

Mr. Louis Koutoulakos: And second grade, yes sir.

Justice Potter Stewart: Boys and girls?

Mr. Louis Koutoulakos: Boys and girls.

Justice Potter Stewart: About 155?

Mr. Louis Koutoulakos: About 155.

Justice Potter Stewart: All drawn from the immediate area?

Mr. Louis Koutoulakos: In that –- Well, yes I would say generally.

Justice Thurgood Marshall: They have both --

Justice Potter Stewart: All day long a half day?

Mr. Louis Koutoulakos: Both half day and all day and they do have --

Justice Thurgood Marshall: Yeah I have seen the presents.

Mr. Louis Koutoulakos: And it is a very fine school, as a matter of fact that man that runs it used to be and his wife used to be (Inaudible).

They are both fine people and love children and let me make this observation.

Justice Potter Stewart: How long is the school been in existence?

Mr. Louis Koutoulakos: Since the late 50s.

They never had an opportunity to reject or admit, because no black person had ever applied.

Once they did apply, we have admitted them and I think they are two or three presently in the school now, so that is not the question.

The question that we come down hard on this is the individual right of a private citizen just like a private school to insist on who they wish or do not wish to give --

Justice Potter Stewart: But I thought it was the question.

You say there are in fact Negro students?

Mr. Louis Koutoulakos: Now there are, yes, because since the decision came down, they did apply.

Justice Potter Stewart: But not at the time of this lawsuit?

Mr. Louis Koutoulakos: But it was none -- at that time --

Justice Potter Stewart: The question is, whether the school can practice a policy and complete racial exclusion.

That was the question.

Mr. Louis Koutoulakos: That is the question, yes, that is at least before this Court and we take the position that is private school, it can.

It got a freedom of choice.

Justice Potter Stewart: And that is the issue.

Mr. Louis Koutoulakos: That is the issue; that is squarely the issue.

No questions.

Chief Justice Warren E. Burger: And what you have done since this lawsuit started is not relevant to issue here?

Mr. Louis Koutoulakos: No, not at all.

No, because we still take the position and I say regardless of my personal views, I take the position that we have got that right as an individual.

We have got the right of privacy and the right of association, and I remember what Justice Brandeis said in a dissent.

And he said, one of the great rights we have in this country, and he consist that the highest right was the right to be left alone without getting so much government regulation, governmental interference and everything and when that falls short I guess, it devolves upon the courts, when they see abuses, and I certainly do not argue that too much, but I think sometimes we have extended ourselves in the areas that belong to the legislature.

I do not believe we can legislate or rather we can by judicial precedent do away with --

Justice Potter Stewart: Well, the point is that the legislature acted here when we have statute to construe, that is the only issue?

Mr. Louis Koutoulakos: That is right, but the interpretation of statute if –-

Justice Potter Stewart: That is not an issue here.

Mr. Louis Koutoulakos: I like the dissent and I guess it seems like I am mostly on dissent side that the Honorable Justice White and Justice Harlan had, and I think that pretty well covers it, just like there is a --

Justice Potter Stewart: That was a different statutory provision; that was Section 1982.

Mr. Louis Koutoulakos: 1982.

Justice Potter Stewart: And this is 1981.

Mr. Louis Koutoulakos: But we are talking about --

Justice Potter Stewart: It is a different language and maybe a different history.

Mr. Louis Koutoulakos: No, we are talking about private discrimination --

Justice Potter Stewart: But certainly you would agree that it has different language.

Mr. Louis Koutoulakos: Well 1980 --

Justice Potter Stewart: I would think you would, because I think it might help your case.

Mr. Louis Koutoulakos: Yes it does but I am saying though that the Justices went into the history of private and non-private discrimination and its application.

Now that set out the dissent was brilliant.

I like it very much.

Well, in any event, I do take the position and there is a recent case that the Cook case that came up from Alabama, the Federal Court distinguishes even the decision of Jones and comes down very hard at least on the argument that I am trying to make.

Justice Potter Stewart: That case arose under Section 1982.

This is quite a different Section, worded quite differently.

Mr. Louis Koutoulakos: 981 is what is discussed in the Cook case.

Justice Potter Stewart: Yes but Jones against Mayer was 19 –-

Mr. Louis Koutoulakos: 1982.

Justice Potter Stewart: That is all it is got to do.

Mr. Louis Koutoulakos: That is all it is and it is exactly right that 1981 only comes in by illusion, you are absolutely correct and I would like to leave it with that and leave 1981 exactly, I would like to argue.

Now I am only going to touch briefly on the fact that I think the Court was correct in the statute of limitations application and attorney’s fees I think absent -- of course the general was rather clear, in this country any how absent any contractual, any contract between the parties or any statutory amended, the attorney’s fees are not awarded.

And in this case, I certainly agree with the findings of the Court of Appeals, there is certainly no bad faith and as the dissent again, the plaintiff, I am repeating myself, indicated, there is a serious question in their mind, and it was in my mind as to whether or not the case was proved because we certainly do have selective admissibility standards that logically met that test, it just was overlooked and at least it brought the issue head on to this Honorable Court to be decided.

And with reference to the statute of limitations, I think that is rather clear state law applies into the statute was the applicable one.

Thank you.

Chief Justice Warren E. Burger: Very well.

Mr. Lipscomb.

Argument of Andrew A. Lipscomb

Mr. Andrew A. Lipscomb: Mr. Chief Justice and may it please the Court.

I would like first to point out that the Fairfax-Brewster School that I represent has been in operation to more than 20 years.

It is a small school than the school here in question tha had 177 pupils.

It is a private school that receives no public funds or resistance of any kind.

Justice Potter Stewart: The pupils are boys and girls?

Mr. Andrew A. Lipscomb: Boys and girls, Your Honor.

Justice Potter Stewart: In what classes or grades?

Mr. Andrew A. Lipscomb: From pre-kindergarten up through the sixth grade.

It has a plan or purposes of exclusiveness that practice selectivity on the admission of pupils on the basis of such criteria as rareness, previous school records, age, mental, physical and emotional maturity, intelligence and achievement potential.

Chief Justice Warren E. Burger: Does it now have other than white children?

Mr. Andrew A. Lipscomb: Yes sir.

As a matter of fact Your Honor, it has always had non-white pupils, many Orientals, natives of Asia, India.

It now, as a result of the position below, it now, on my advice, has been accepting all Negro applicants and leaning over backwards to accept them even when there is some doubt as to whether they are qualified.

It has rejected --

Justice Potter Stewart: You better be careful with that advice.

Mr. Andrew A. Lipscomb: What is that sir?

Justice Potter Stewart: You better be a little careful with that advice and otherwise too.[Laughter]

Mr. Andrew A. Lipscomb: Your Honor, it is a problem getting back into court again on this and we do not want to get back in the court again on it and we believe in being careful.

The school rejects all unqualified applicants including whites.

In its enrolment contract it reserves the right to accept or deny the application of any child for any reason whatever.

It does not advertise in newspapers, magazines, on radio or television.

It carries an advertisement in the yellow pages of the telephone book, which states that it is a private school.

Most of the parents learn about the school from other parents.

In May 1969, the Gonzales applied for admission of their child of the summer camp.

Their main purposed being to get the child on the camp, getting accustomed to the environment, so that he could continue school in the fall on the first grade.

And it was the Negroes ever to apply in the school.

They were given an application to fill out and returned but failed to provide records of its previous educations as required.

And the only previous training that the child was in, the day nursery school which did not provide kindergarten training including the reading and numbers writing, which was required by Fairfax-Brewster for admission to its first grade.

The child was rejected while a letter dated May 16, this action was filed three years and seven months later.

Mr. Gonzales testified that when he got the rejection notice he called the school, he talked to a person identified as Captain Reece (ph) who said the school is not integrated.

Captain Reece denied having made the call, having had the conversation.

There was no collaboration of that call.

And Mrs. Bryant (ph) who turned out to be a neighbor of the Gonzales and also of the McCrarys who are plaintiffs in the other action here, testified that she had telephoned the school in January of 1972 and upon inquiry had been told by a woman or man, she was not sure that she could not remember which, that the school did not admit Negro children.

There was no collaboration of that conversation.

The witnesses for the school denied that the school a policy of not accepting Negroes.

Mrs. Gonzales testified that at all times, there was a public school available for her child.

About a week after rejection by Fairfax-Brewster and her inquiry at Bobbe’s School, the child was immediately accepted to another private school in the area where he stayed for two years and it went to a private parochial school for two years.

A month before the trial, the family moved out of the county and the child was attending public school in that new county at the time of trial.

District Court found that, as a fact that the Gonzales child had been rejected because of his race stating that the school could have given him an examination, even though he had not abide that the educational -- did not have the background they had required.

It also found that it was the policy of the school not to accept Negroes.

There was no finding or conclusion or even any implication of bad faith, perjury or untruthfulness under oath as to any.

The Court concluded that school had violates Section 1981, it avoid compensatory damages on behalf of the child and attorney’s fees to the plaintiffs.

It had previously ruled that the claim of the parents was barred by the Virginia’s two-year statute of limitations which is expressly made applicable to every action for personal injuries.

It also ordered a permanent injunction enjoining Fairfax-Brewster from discriminating on the basis of color in its admissions policies.

We contend first that Section 1981 does not prohibit or in anyway affect the right of private schools to reject applicants because of race.

First because it was clearly the intent of the 39th Congress when they enacted the Civil Rights Act of 1866 from which Section 1981 as well as Section 1982 is derived, that the Act should be construed, that the Act should not be construed, it seems their clearly expressed intent during the legislative debates that the Act should not been construed to require white children and black children to attend the same schools.

The Bill was introduced in the House by Congressman Wilson, Chairman of the Judiciary Committee, co-author of the Bill and its Floor Manager point out to the Court that the members of 39th Congress did not mean by the terms Civil Rights, what that term may mean today.

Wilson said or rather asked, what do these terms mean in speaking of Civil Rights and immunities? What do these terms mean?

Do they mean that in all things civil, social, political, all citizens without distinction of race or colors shall be equal?

By no means can they be so construed.

Do they mean that all citizens shall vote in the sovereign states?

No, he said.

Then he went on to say, nor do they mean that all citizens shall sit on the juries or that children shall attend the same schools.

These are not Civil Rights or immunities.

Wilson defines Civil Rights, as the absolute rights of individuals, the natural rights of man, the right of personal security, the right of personal liberty and the right to acquire and enjoy property.

Though he said but a great fundamental right which ti was the object of the Bill to Protect.

And he said --

Justice Thurgood Marshall: But then they caught nearest to that to, the Supreme Court in 100 in Ex parte Virginia, Strauder versus Virginia and Virginia against Rives did not understand that at all, did they?

Mr. Andrew A. Lipscomb: Perhaps not, if they did -- I do not think those cases apply to schools

Justice Thurgood Marshall: They were closer than you were?

Mr. Andrew A. Lipscomb: I do not recall -- I do not believe Your Honor that they apply to school.

Justice Thurgood Marshall: No, juries, that is what you said.

It did not apply to juries?

Mr. Andrew A. Lipscomb: That is not what these men intended.

That was the intent of Congress.

Justice Thurgood Marshall: And so the Supreme Court, in that time, did not quite understand well?

Mr. Andrew A. Lipscomb: The Supreme Court later –-

Justice Thurgood Marshall: Because they said they did have a right to juries?

Mr. Andrew A. Lipscomb: Your Honor, I am talking about the intent of Congress.

They could have been wrong.

The question is what did this bill mean?

What was their intent?

They intent was that it would not apply.

And that I think is what this Court has to consider in construing and interpreting this law.

Now, he said, this bill merely affirms the existing law.

We are following the Constitution.

We are reducing to statute form, the spirit of the Constitution.

We are establishing no new right, declaring no new principle.

It is not the object to this bill to establish new right but to protect and enforce those which already belong to every citizen.

If the Court please, it understand the Act that is helpful to look at its historical context and the mischief was intended to remedy.

The Thirteenth Amendment abolishing slavery was the law of the land.

Chief Justice Warren E. Burger: We will resume there at 1 o’clock.

Mr. Lipscomb, you may proceed.

Mr. Andrew A. Lipscomb: Thank you sir. Mr. Chief Justice and may it please the Court.

There was -- When the Bill was introduced in the 39th Congress, it contained a clause declaring that there shall be no discrimination in Civil Rights or immunities among the inhabitants of any state or territory of United States on account of race, color or previous conditions slavery.

In both houses, this clause create consternation, there were an intense objections to it, and they were tied in, the objections were tied often to the problem of schools and whether this language could be construed, so as to require the white children and the Negro children to attend the same school.

In fact, the objections were so strong that eventually Congress and Wilson in order to obtain passage of this bill amended the bill to delete that clause.

Justice Potter Stewart: Were they talking, do you think, about public schools or private schools?

Mr. Andrew A. Lipscomb: Your Honor, they did not distinguish, I think they were talking, but they were concerned with the idea that the objected to was the children attending the same school.

They did not distinguish, did not differentiate between public and private.

Justice Potter Stewart: In many parts of the country, there were not public schools in those days.

Mr. Andrew A. Lipscomb: That may be true.

There were some of the south I know, and I say that they did not distinguish and they make no distinction.

Now, I did not -- when the plaintiffs below filed the supplemental brief about a week ago and it squared me to some additional research.

I found some statements made by Senator Trumbull in the 42nd Congress, second session in connection with the Supplemental Civil Rights then introduced by Senator Schuyler, which would have prohibited racial discrimination in all common schools and other public institutions of learning.

Senator Trumbull’s remarks are extremely interesting and revealing.

Permission of the Court, I would like to open.

This is the 42nd Congress, second session at Page 3189 he said, may I say Your Honors, if that Senator Trumbull with the Chairman of Judicially Committee, he was the chief sponsor of the Bill on the Senate side; he was the co-author of the bill.

At Page 3189 of the Congressional Law stated that the right to go to school is not a civil right and never was, it is a privilege.

The senator may try; I deny his right as a member of Congress to force anybody into a school or to force anybody to take anybody into a school.

At Page 3190 he said, why so we passed years ago a Civil Rights bill confirming upon the colored people all the Civil Rights which white people have and they have them to the same extent.

At Page 3191, he made remarks which I will not read here but refer the Court to.

At Page 3426 he said, I do not believe in legislation forcing member of the same school or undertaking to control how they should go to school by act of Congress.

It was the idea Mr. Justice Stewart that they are requiring children of the two races to go to school they objected to.

They considered schools and education to be within the domain of the states and not a civil right at all.

So therefore, they did not consider that going to school, or the requirement of going to the same schools was comprehended within the language right to make enforced contracts which is contained in Section 1981 that Mr. Justice Stewart questioned my Koutoulakos with.

Chief Justice Warren E. Burger: Well, would the issue of contract come up with respect to public school attendance?

Mr. Andrew A. Lipscomb: Well Your Honor, it is a property right.

I think this Court has held that the right to attend public school is a property right and so that we can get under Section 1982.

Justice Potter Stewart: It is a statutory entitlement in those states and I supposed that includes now all the 50 states where there is an absolute statutory right to go to a public school, but it is only by reason of that.

Mr. Andrew A. Lipscomb: Your Honor, when the Congress enacted that language and they selected that language, of course, they were trying -- the mischief they were seeking to correct or is the reenactment, in effect, the reenactment of the Slave Codes or new Black Codes which simply continued the disabilities that the slaves had had before the abolition of slavery.

The disability to make it enter into contracts, to own property, to acquire it.

So they were seeking to eliminate those disabilities and that is what they meant when they said to make enforced contracts.

Chief Justice Warren E. Burger: In that setting Mr. Lipscomb, would sophisticated people such as you would have in the Congress, including lawyers speak of the right to attend the public school in contract terms?

Mr. Andrew A. Lipscomb: I do not think they would.

No sir.

I do not think -- I really think not.

I do not think that that is the kind of situation which they had any intention would be comprehended in the clause.

Chief Justice Warren E. Burger: They might conceivably do that with respect to higher education on that day that is colleges and universities where you pay a large tuition or you have admission requirements, conceivably that would be embraced in terms of contract?

Mr. Andrew A. Lipscomb: Conceivably Your Honor and I would not quarrel with that, but I wanted to move if I might to the Thirteenth Amendment very briefly and to point out to the Court that the Section 2 of the Thirteenth Amendment and Section 5 of the Fourteenth Amendment are virtually identical in language, are really quite different in scope, and that is because the subject matter of two amendments is so vastly different.

The Fourteenth Amendment contains those magnificent generalities and great ideas and concepts like equal protection of the law, due process, the Thirteenth Amendment.

Those ideas are capable of growth and wealth.

Justice Potter Stewart: But the Fourteenth Amendment does confront itself to restrictions upon the states.

Mr. Andrew A. Lipscomb: That is correct Your Honor.

That is correct.

Now taking the Thirteenth Amendment Your Honor, it is a (Inaudible) subject matter.

It cannot grow.

It abolished slavery.

That was the end of slavery; 110 years ago it abolished slavery.

That was the end.

That could be both for the growth or development, the incidents of slavery that existed then cannot be added to or enlarged under Thirteenth Amendment and to do so --

Justice Potter Stewart: But they could be retained as they were in the Black Codes?

Mr. Andrew A. Lipscomb: No, I mean to say they could be -- the authority of Congress to enact appropriate legislation could not enlarge the incidents and add to them to those that existed and which were abolished when slavery was abolished.

That is what I meant.

Justice Potter Stewart: But the Congress had the power under Section 2 of the Thirteenth Amendment to eliminate the vestiges of slavery?

Mr. Andrew A. Lipscomb: I do not know about the word vestiges Your Honor.

The vestiges is very -- The incidents I would accept Your Honor, but vestiges and badges are very loose, very modular term.

Justice Potter Stewart: Why do you think Section 2 of the Thirteenth Amendment did mean then?

Mr. Andrew A. Lipscomb: That they might enforce the abolition of slavery by appropriate legislation and not go beyond slavery itself in voluntary service and necessary incidents that were understood by the people at that time to be part slavery.

Discrimination for example was not regarded by the people at that time as an incident of slavery.

Justice Potter Stewart: Well how about the ability to leave a capacity to own property?

Mr. Andrew A. Lipscomb: Yes, Your Honor, they did mean that.

Justice Potter Stewart: And to make contract?

Mr. Andrew A. Lipscomb: Yes, they did mean that Your Honor.

I think therefore that so construed the Civil Rights Act of 1866 is quite proper.

I wanted to point out to the Court the --

Mr. Andrew A. Lipscomb: Mr. Lipscomb if you are contemplating reserving any time for rebuttal, you are now in your last five minutes.

Mr. Andrew A. Lipscomb: I do not think I am going to be able to reserve any time.

Chief Justice Warren E. Burger: Very well.

Mr. Andrew A. Lipscomb: That private schools and public schools are quite different.

Private Schools have not yet been held to be a public accommodation along with inns, common carriers, theaters and similar places of amusement and restaurants.

No reasonable member of the public would expect that he could demand admission into a private school and force his way in simply because they carried an advertisement in the yellow pages.

Lawyers are listed in the classified pages.

They may have their cards in Martindale-Hubbell, but I do not think they can be compelled to accept clients they do not want except those unusual situations where they are appointed to represent a person that has not been attorney by the Court, as an officer of the Court.

About private schools, they may do things that public schools may not.

They may provide the religious instruction.

They may propagate a sectarian viewpoint and they do many things including discipline that the public schools are inhibited from doing.

Now, not like private clubs, private schools are different form or mode of private association or private club.

The relationships are personal and intimate.

The management provides the expertise, the professional staff and the facilities in which the children associate with the teachers and other children and where parents also get into the act.

Parents who place their children in private schools undergo great sacrifice to do it.

Thank you.

Chief Justice Warren E. Burger: Mr. Leonard.

Argument of Geo S. Leonard

Mr. Geo S. Leonard: Mr. Chief Justice and may it please the court.

My name is George Leonard.

I represent an intervenor on the District Court by the name of the Southern Independent School Association, approximately 375 schools and approximately 175,000 children.

The factual discussions which the Court has heard up to this point do not affect this particular intervenor.

We stipulated with Mr. Brown in the lower court that these schools do in fact, without any question, discriminate against Negroes because of their color.

And exactly the same sets that a black school may discriminate against whites because of his color or a Chinese or a French school or any other kind of school.

We do it.

We have stipulated that the majority of the schools represented by this particular association actually have that particular limitation on their admission.

So the factual question of whether we do or do not is not in this case as far as the intervenor is concerned.

The issue as it was stated by both the majority and minority in the Fourth Circuit, we believe to be too narrow.

They said the issue was, is an otherwise qualified black child entitled to be admitted to any school of his choice, a private school.

The actual issue in this case is much broader than that.

It comes up under 1981 and involves the First Amendment and the freedom of association.

The actual issue in this case is whether any child of any color may attend any school of his choice.

If he is a boy, may he attend the girls’ school?

If he is a Jew, may he attend the Catholic School?

If he is a Chinese, may he attend the school for Mexican-Americans?

The question is truly and about as broad as this Court sought to be back in the Pierce case.

Namely just how far do the options of a parent go in trying to decide what kind of education that child will have?

Now I hold no brief here.

This intervenor does not make any claim that its parents are right and other parents are wrong.

That white children alone should gather and all other should be mixed.

We stand for the proposition and we claim it before this Court and we have claimed that before courts below that every parent with a school child in this country may select a school that that parent believes, given some basic mathematical and reading ability, that that parent believes will develop the child into the kind of person that the parent wants it to be.

Justice William H. Rehnquist: There are certainly some limitations on that though?

I mean, could the state then require accreditation and that sort of thing.

Mr. Geo S. Leonard: Well, as I said, there is a minimum requirement.

This Court had, not this Court, the Supreme Court of Tennessee in I think of a very illustrative case held that the use of poisonous snakes in religious -- well, it does have an analogy Mr. Justice Rehnquist.

Stop and think of at this way, how far must religion be allowed to go?

How far must race be allowed to go?

There was a Zionist Church and school in Illinois many, many years ago and they taught that the earth was flat and the question was whether they could so teach?

At that time, as a matter of fact, it was upheld.

Since then, this Court has issued its holdings on the question of evolution cannot be stopped by a State.

The teacher must be allowed to teach evolution.

Certain basic mathematics, we have in the Rodriguez opinion from this Court for example, the question of whether education itself is not a constitutional right but there is some sort of amorphous beginning of education, probably the ability to read and write and do simple sums which every child is entitled to.

If a school does not provide that, I think it would be completely and utterly proper for the state to say we will not qualify you, we will not justify you.

But if you give them the basic education then what you give them in addition to that whether it is religious training, whether it is training for home economics for girls in the girls school, whether it is bricklaying for boys in the boys school, it makes no difference provided that the fundamental education at the core is given.

Justice William H. Rehnquist: Well, why is the state not or this case, Congress if indeed Congress did say so, free to say that just as important as reading and writing arithmetic is learning in an integrated environment?

Mr. Geo S. Leonard: You are quite right Mr. Justice Rehnquist and if they said so, what I am trying to address myself to at this moment is exactly that point.

Justice William H. Rehnquist: I will not distract you.

Mr. Geo S. Leonard: This point was made in point five of the brief of this intervenor.

It has never been answered by any responding brief.

I do not believe it can be answered and it goes directly to Mr. Justice Rehnquist’s question.

If a person wants an integrated education, public, private or otherwise, is he entitled to get it?

And the answer is clearly yes.

If we had schools which we was so located in the United States for the child who could not get into them could not be educated, I think we would have a very difficult case on our hands.

Justice William H. Rehnquist: But you concede that even though a parent might want education for his children which was totally deficient in the three I’s.

The state can tell that parent, no, you may not acquire that kind of education even in a private school, do you not?

Mr. Geo S. Leonard: No, I do not go that far at all.

I do feel that there is some fundamental type of education that every child in the United States is entitled to.

How far does it go?

Justice William H. Rehnquist: But it is not some a question of what the child is entitled to, it is the question of what limits the state can put on the choice of the parents?

Mr. Geo S. Leonard: How far can the state go?

For example, some states have passed laws; I believe Wisconsin is one of them, that every private school in the state must be integrated.

Let us take that as an example.

Suppose they have a law which says that every private school in the state must be racially integrated but not otherwise, would that be valid?

I really do not know the answer because it is not the case which arises on the facts on this record.

I think it is a very difficult question to raise as to whether you can take one particular form of discrimination and say that you cannot have like the teaching of Germany.

The Court will recall, you had a decision many years ago in Burgos (ph) when the State of Iowa tried to prevent the teaching of German in schools, because of World War I presume, and this Court held that you could not prevent that type of teaching.

Justice William H. Rehnquist: Do you think that is still good law?

Mr. Geo S. Leonard: As a matter of fact, yes; I do believe it is good law Mr. Justice Rehnquist.

I believe that there are certain things of a fundamentally academic nature which a state cannot take away.

Now, if we look at the Yoder decision for example, the state insisted that these children go on beyond a certain degree of time and this Court held that when they were returned to the Mennonite Community, the Amish Community there, they did in fact received equivalent instruction.

Now it might be Amish instruction, it might be Mennonite instruction but it was equivalent instruction so that for all practical purposes, the state could not take the position that education shall be vest itself.

It is like the pregnancy case, you cannot fix an absolute line and say above or below that is valid unless there is a good reason for it.

Now, I think the German; there would be no good reason for.

German is a fairly well used language.

Evolution, this Court held, there was no good reason to stop its teaching.

Now we come down to the question of whether a child is entitled to an integrated education.

250,000 black children in the United States attend private schools, quarter of a million of them.

How many attend all black schools?

I do not know.

Justice Thurgood Marshall: Do you know of any private “all black” school that excludes people?

Mr. Geo S. Leonard: Yes your honor.

It is in Sedalia, North Carolina.

Justice Thurgood Marshall: Where?

Mr. Geo S. Leonard: The Academy of Sedalia, North Carolina, very good one it is too.

Justice Thurgood Marshall: It is a Negro School?

Mr. Geo S. Leonard: To the best of my knowledge it is a 100% black school.

Justice Thurgood Marshall: But it does not -- it excludes white students?

Mr. Geo S. Leonard: Well, like the gentleman who we were with up this morning, I do not know what exclusion means that nobody makes an application?

Justice Thurgood Marshall: Well, have any applied or not?

I asked you one that excluded.

That is my question.

Mr. Geo S. Leonard: Alright, then the Black Muslim -- I think the Black Muslim Schools would do for that.

Justice Thurgood Marshall: You are wrong, as of today.

Mr. Geo S. Leonard: Not as of a month ago.

Justice Thurgood Marshall: Well as of today, you are wrong.

Mr. Geo S. Leonard: As of today, they now have one white member I believe.

Justice Thurgood Marshall: Well, they did.

Mr. Geo S. Leonard: The Black Muslim Movement, but they do have schools and those --

Justice Thurgood Marshall: Is that a Church School?

Mr. Geo S. Leonard: hmm?

Justice Thurgood Marshall: Is that a Church School?

Mr. Geo S. Leonard: I do not know.

All I know is --

Justice Thurgood Marshall: Well, what are you talking about?

It is a religious school.

Can you give me any private Negroes Academy School?

Mr. Geo S. Leonard: You mean non-religious?

Justice Thurgood Marshall: Non-religious, private school that excludes anybody on the grounds of race?

Mr. Geo S. Leonard: I do not really know that I can.

The eleven schools in Mississippi that were all black that we talked about in the case down there, were I believe Parochial schools.

I believe the ones that were spoken off in Philadelphia, in the Lemon brief were again Parochial School.

Justice Thurgood Marshall: Can you imagine a white student applying to an all-Negro School in Mississippi?

Mr. Geo S. Leonard: I can imagine that Your Honor because they do seem to attend.

I cannot say that I am in favor of it, but they do.

I think that any child who goes into a school which is 99.9% of a different color is really expressing something.

Justice Thurgood Marshall: All I am objecting to you sir is comparing your school with the average Negro private school; there is no comparison?

Mr. Geo S. Leonard: I believe there is.

Justice Potter Stewart: Mr. Leonard, do you rely on your argument on the religion either of the two Religion Clauses of the First Amendment?

Mr. Geo S. Leonard: The second point I wanted to come to if I may, if I find the time Your Honor is that the decisions in this country, and I may say frankly of this Court, have divided discrimination into malign and benign.

I believe that the word of this Court in one case was invidious discrimination and another case was benevolent.

Mr. Justice White as a matter of fact of took a case and note, I think it was in Wheeler versus Barrera and Mr. Justice Douglas did as well that the decision in that case which gave government funding to Parochial schools, which is essentially a total denial of the situation which existed in the tuition grant cases.

In this particular Court in which tuition grants cases by the states were denied white schools.

Are these forms of discrimination on the same level, they arise from essentially the same thing, if you read --

Justice Potter Stewart: I still am not sure.

I wonder if you could just answer my question so I will be sure I follow you right.

Mr. Geo S. Leonard: I am sorry.

Justice Potter Stewart: Do you rely in your argument on the Religion Clauses of the First Amendment?

Mr. Geo S. Leonard: Well, I do not.

Justice Potter Stewart: Do not?

One of the amicus briefs, I think it does because of this religious school but you do not represent --

Mr. Geo S. Leonard: We do not.

Justice Potter Stewart: That is what I asked.

That is what I understand --

Mr. Geo S. Leonard: The Bob Jones University situation which you had before you –-

Justice Potter Stewart: Was different.

Mr. Geo S. Leonard: And the Dave Christian situations are the ones where the exclusion of other colors has done for religious grounds.

Justice Potter Stewart: Right, but that is no part of your argument?

Mr. Geo S. Leonard: That is no part of my argument.

Justice Potter Stewart: Thank you.

Mr. Geo S. Leonard: The question is whether just the parent has the right any way.

So if I may come back for the moment. We have an amicus in this case by the name of the Council for American Private Education.

It claims to represent 90% of all the private schools in the United States.

Those 90% of private schools in the United States are, according to that brief, totally integrated.

We have 16,000 private schools roughly speaking in the United States.

90% of all children attend integrated public Schools, 10% of all children in the United States attend private schools.

Of the 10% of the private schools, 90% go to Religious Schools.

I do not know whether they are integrated or not in a racial sense.

They are certainly integrated in a religious sense.

Justice Potter Stewart: Did you mean they are integrated in a religious sense?

Mr. Geo S. Leonard: I do not believe that a practicing Roman Catholic would make a good Jewish rabbi and there are schools for both.

Justice Potter Stewart: So they are segregated religious schools and not integrated religiously.

Mr. Geo S. Leonard: Religiously, they are very definitely segregated.

They maybe I think -- I believe the Catholic Church takes the position is totally integrated racially.

Of the 10% of children that go to private schools, 90% of them go to religious schools, 10% go to everything else there is.

Now we have Indian Schools, we have Chinese Schools, we have Black Schools, we have French Schools, and we have German Schools.

I would like to call the Court’s attention if I may to the list which we put into the record appearing at Page 168 of the Appendix.

Now, we just took the 33,000 names in the tax exempt lists and picked out the first hundred we came to, which apparently would definitely educational organizations catering to one particular ethnic religious or other type of group.

Chief Justice Warren E. Burger: What Page of the Appendix is that on Mr. Leonard.

Mr. Geo S. Leonard: Page 168 of the Appendix.

In short gentlemen, 99% of all schools in the United States are totally integrated in a racial sense.

1% is not and that is divided up into every form that you can think of.

Yet there are enough of these schools, one place or another that every single parent still has some control over the education of a child.

If she believes in a particular type of association she can find it.

I have already broached on the subject of the division between the courts which is growing.

The Second Circuit was very frank about.

In the Whites and Jackson case they said, let everybody know we used a double standard for determining state action.

If it is religious discrimination, we do not find state action, if it is racial discrimination, we do find state action.

In the Workama (ph) case which was just reversed two weeks ago in the Third Circuit, they held that as long as the City of Philadelphia maintained the Co-Educational High Schools, it could maintain a public boys’ high school and girls’ high school.

Justice William H. Rehnquist: Your opponents were rely here at all on state action in effect saying --

Mr. Geo S. Leonard: None whatever as far as I know, it was never raised as a question below, and as far as I know even the tax exemption have been taken away from these particular schools.

So what we have in this particular case is, in every type of discrimination involved and discrimination at one time was a good word.

When I stand here to use it, I do not mean that this is necessarily a horrible thing in a country which is essentially a pluralistic country.

The discrimination between the subjects, between people, between the meals you eat, between the types of things you drink, the words you use, and the people you associate with.

Inevitably there is discrimination in virtually every element of life.

Now when we come down to the question of putting a child in school, if that child is Black, he can go to an integrated school, a black school or a public school which is always integrated.

If he happens to be Spanish surname, there are whole series of private schools which he can attend or he can attend an integrated school or he can attend a public school.

There is still a virtual choice for a parent in this country to find the school.

Now, there may exist situations where the only school in a given area, the only school there is within reachable area is a one particular type.

In that case, you have a different problem.

The whole question of reasonableness is gone.

Justice Potter Stewart: Mr. Leonard.

Is it not the only issue in this case, well at least the first issue in this case, whether this federal statute –-

Mr. Geo S. Leonard: Right.

Justice Potter Stewart: -- prohibits the policies –-

Mr. Geo S. Leonard: Correct.

Justice Potter Stewart: -- that your schools follow?

And secondly, if it does, is the statute constitutional as so applied?

There are the two issues, are they not?

And the only two, are they not?

Mr. Geo S. Leonard: Those are the only two issues?

Justice Potter Stewart: Yes.

Mr. Geo S. Leonard: But you see 19 –-

Justice Potter Stewart: It is not a question of philosophy or policy or --

Mr. Geo S. Leonard: No, it is not.

Justice Potter Stewart: Well, that is a matter of statutory construction, is it not?

Mr. Geo S. Leonard: Precisely.

Justice Potter Stewart: And if you construe it a certain way, then it is a matter of the constitutionality of the statute as applied, is it not?

Mr. Geo S. Leonard: We have two questions really.

First, 1981 and if that answers it, we have nothing more.

Justice Potter Stewart: Right.

Mr. Geo S. Leonard: Second, the First Amendment to the Constitution which 1981 cannot override.

Justice Potter Stewart: Right.

That is right.

Mr. Geo S. Leonard: So that if the right exist under either to have these schools -- Sorry, my time is up.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Leonard.

Mr. Brown, you may proceed whenever you are ready.

Argument of Brown

Mr. Brown: Mr. Chief Justice and may it please the Court.

I will be presenting the argument in the three cases in which the plaintiffs below are the respondents, those are number 75-62, 75-66 and 75-278.

My co-counsel Mr. Boggs will present argument in the case in which the plaintiffs below are the petitioners, that is number 75-306, the case -- the evasions are about a proceeding pertaining to the matter of attorney’s fees and the applicable statute limitations in this case.

In my argument concerning the question of whether private schools may discriminate on the basis of race, the matter really resolves itself as Mr. Justice Stewart has just indicated to two essential problems.

One, whether 42 U.S.C. 1981 applies as a matter statutory construction to the kinds of contracts that are at issue in this proceeding; and secondly, whether as if it does apply, it is a constitutional application of the statute or in other words, is there some kind of proscription in the First Amendment which restricts the applications in this instance.

With respect to the first issue of the statute, this Court has indicated previously of course that the two provisions of the 1866 Civil Rights Act should be read in a literal way.

That was a plain holding in Jones v. Mayer and it is been holding in the Sullivan versus Little Hunting Park and Tillman versus Wheaton-Haven Recreation Association and indeed it is the essence of the holding and Johnson versus Railway Express Agency.

Those are the four cases in which the Court has previously passed on the 1866 Civil Rights Act.

The claim words of course of Section 1981 are easy to understand.

They are simply that all persons shall have the same right to make and enforce contracts as white citizens.

The term making enforce contracts is the key expression.

It has been suggested earlier that this should not be in expansive term or term that has an expanded meaning as perhaps the Fourteenth Amendment has been construed, it does not need to have an expanding meeting.

It is clear what it said; it refers to contracts of all kinds and it does not matter whether it is a contract of a type that might have been foreseen or contemplated by the Congress in 1866 or not.

Now there obviously are some limitations when you get to the question of whether the First Amendment might limit it, but for the moment we are talking about the literal application of Section 1981.

Justice William H. Rehnquist: Do you not think that –- Mr. Brown, do you not think there might be some significance to the difference in the introductory language between 1981 and 1982, one saying, all persons within the jurisdiction in the United States as 1981 does and 1982 starting with different language?

Mr. Brown: The different language in 1982 -- The language which exists in 1981 was added in 1870 Your Honor as a result of the Civil Rights Act of 1870 which designed to encompass within the protection of 1981 non-citizens or aliens.

Justice William H. Rehnquist: Senator Stewart --

Mr. Brown: I beg your pardon?

Justice William H. Rehnquist: I said Senator Stewart of Nevada was the one who introduced this.

Mr. Brown: I am not certain about that Your Honor but that I think it is you are referring to with respect of different introductory line --

Justice William H. Rehnquist: And was he not thrusting basically at a Fourteenth Amendment type of right rather a Thirteenth amendment?

Mr. Brown: Well, Your Honor, if you are suggesting that -- if I understand you, you are suggesting that 1981 requires state action --

Justice William H. Rehnquist: Well, I am suggesting that that would be on a clean slate that might be a very logical inference where you would not get that sort of inference from 1982 based as it was held of in Jones on the Thirteenth Amendment?

Mr. Brown: Well, one yard of a clean slate because there are several decisions which we are building on; and secondly, this Court has examined that legislative history.

Mr. Justice Blackmun in writing the decision in Tillman versus Wheaton-Haven referred for example to the fact that in the 1870 Act, Congress reenacted the Section which is now in Section 1981 in verbatim and it also in another section said we are hereby adapting and reenacting all of the 1866 Act.

Now, it is been --

Justice Byron R. White: Was it ever reenacted in the revised statutes?

Mr. Brown: I am not sure that I understand your question.

So there has been an argument as to whether the codifiers of revised statutes may have made a mistake in failing to make that back reference to the 1866 statute.

Justice Byron R. White: Well, Section 18 of the 1870 Act was never reenacted in the revised statutes was it?

Mr. Brown: I am not sure if I can answer that Your Honor.

I am not certain --

Justice Byron R. White: And in what provision of the 1870 Act was the 1866 Act reenacted?

Mr. Brown: The 1981 was reenacted in Section 16 of the 1870 Act in a verbatim form and then the Section 18 --

Justice Byron R. White: Well, what is verbatim?

Mr. Brown: Well, with slight modifications because --

Justice Byron R. White: Well, it was not reenacted in verbatim form.

The 1866 Act was reenacted in a separate section of that statute.

Mr. Brown: Oh yes! In Section 18, yes.

Justice Byron R. White: Alright.

Was that Section 18 ever repeated in the revised statutes?

Mr. Brown: I am not sure if I can answer that Your Honor.

I am not certain.

Justice Byron R. White: Well, were the revised statutes, when they wee adapted, were they the law of the land of the statutory law of the land or were there some other statutes?

Mr. Brown: Well, I think the rule; the general construction to this approach that this Court has taken is that you look behind the revised statutes to do the original enactment.

Justice William H. Rehnquist: Not to the revised statute of 1875 because they contain a particular provision that they are the law and they supersede the one as a Repealer Section and repeals all other law?

Mr. Brown: Well, I cannot respond to this Your Honor, I am not certain to this. I did not anticipate this line of questioning because I thought the issue had been well settled by the opinions in the Tillman and Johnson versus Railway Express case.

Justice Potter Stewart: It has been settled; the question is whether it was well-settled?

Mr. Brown: Oh![Laughter]

Justice Byron R. White: There was a lot of thought that it has been well-settled before Jones against Meyer.

Justice Potter Stewart: Well, it involved 1982.

Justice Byron R. White: Well, similar -- it is a very similar question.

Mr. Brown: Yes Your Honor, I realize that.

Well, if I might proceed the -- as far as the application of Section 1981 as we say we think that to the contracts that are involved here, we do think that the matter has been settled by Jones and Tillman and Johnson cases and we think that it would be a surprising development indeed if it were not well-settled that the statute does apply here.

Now, the argument has been made by the schools here in their arguments before the Court that this involves a coercion making of a contract.

It is a matter of prohibiting the person who offers to make the contract from conditioning on the ground of race.

This Court however in upholding the 1964 is Civil Rights Act, for example, made it very clear that a person has no constitutional right to discriminate when Congress has said that patrons of a business establishment or another type of establishment may not be selected on the basis of race that this is not depriving individual of any constitutional rights, rights of due process or property or liberty.

There is no deprivation of Fifth Amendment rights by Congress enacting this type of statute.

The argument has also been made here in the brief by Fairfax-Brewster School and it has been repeated again today that in enacting the Civil Rights Act of 1866, Congress did not intend or that there is legislative history which would indicate that Congress did not intend the Act to cover private schools.

We submit that this is an erroneous reading of the legislative history.

We have discuss this in a -- this orange reply brief that we filed in the case where this issues had been raised, and we pointed out that there had been a clause that had been included in the original bill which prohibited that said there shall be no discrimination in Civil Rights.

Some of the persons or principally Congressman Ben, for example, of Ohio, who objected to this language and there were many others who argued that this would have the effect of interfering with various state segregation laws, that the state imposed segregation of schools, juries etcetera, that they had at that time.

He and others felt that -- that is Congressman Ben and others felt that the matter of discriminatory state action should be dealt with in another amendment to the Constitution and indeed at that time, the Fourteenth Amendment was then being drafted.

And so consequently, when this language that is been referred to by the counsel for Fairfax-Brewster was the statements that were being made by Congressman Wilson where he said we do not intend this amendment to apply to schools.

They were really saying they did not think the proponents of the 1866 Act did not -- they were trying to save it from these attacks, and we are trying to say we do not intend this Act to nullify state discrimination laws.

There is no evidence at all that they had any reference, any intention to have their language refer to private schools.

They were trying to say that, as I say, ultimately they agreed in the amendment that Congressman Ben was proposed which then eliminated this no discrimination in Civil Rights Clause.

The Thirteenth Amendment was added by the 1866 Act enacted in its present form, and there has been no -- there is really no evidence in the legislative of history as to exactly what kind of contracts Congress really had in mind.

It is a very generalized language, the legislative history itself, it takes up many pages of the congressional globe of that era, but it released very little evidence, it provided very little evidence of exactly what Congress was talking about.

However, this Court has held and other courts have held that this phrase, “giving blacks the same right to make and enforce contracts as white citizens”, that this language is broad enough to cover employment contracts that it will cover contracts concerning the admission to amusement parks or admission tickets to amusement parks.

Another case has held that it covers the guest privileges to private swimming club.

I am referring now to cases that are cited in our brief, it is been held and this is significant here that this statutory term covers a privately owned Barber Trade School.

It was held to cover a privately owned law school, the purchase of insurance policy, the admissions to --

Chief Justice Warren E. Burger: Mr. Brown you answer a hypothetical question referring to school.

Suppose a particular community, a diplomatic community in Washington establishes a school on property not covered by diplomatic community and the requirement for admission to the school is that one or both of the parents be nationals of the Spanish-speaking country and this will be obviously the diplomatic community’s means of preserving the culture and the background of their children.

Do you think 1981 reaches it?

Mr. Brown: Well, 1981 has been applied to cover --

Chief Justice Warren E. Burger: I am assuming you have an application of some person who does not fit that category and that --

Mr. Brown: If you just said Spanish-speaking, I would not think that 1981 proscribed it.

Now, where Spanish-speaking takes on a racial -- it is made and used in a racial context, it has been held to apply and indeed there was a case precisely like that we have cited in our brief involving in a tavern in Oregon that prohibited Spanish from being spoken there.

This was used as a basis for primarily, the owner argued, for memorizing the chances of racial antagonisms between Mexican-American and Caucasian-Americans.

And when the Spanish-speaking -- there was Spanish spoken by Mexican-Americans, the Court held this constituted racial discrimination when they were excluded from the tavern as a result.

What I am saying Your Honor is, in answer to your question, that when 1981 only applies to racial discrimination in its present form; that is all.

It does not cover any other kind of discrimination.

Chief Justice Warren E. Burger: But then assume further that the claim is made that in operative effect this excluded over racial groups.

Mr. Brown: Well, it is seems to me that it will be arguable but then it became within the proscription of 1981.

Justice Lewis F. Powell: Mr. Brown.

Mr. Brown: Yes sir.

Justice Lewis F. Powell: In light of your comment that you have construe 1981 as applying only to racial discrimination, does that suggest that you disagree with counsel for petitioner who stated here 15-20 minutes ago that if you prevail, the principle would apply to all girls’ schools and all boys’ schools?

Mr. Brown: No sir, not on the question we are talking about here, the question of construction of this statute.

The statute was enacted pursuant to the Thirteenth Amendment and aside from this question that Your Honors heard, argued last week in the McDonald case that involved the question whether whites have a cause of action under 1981.

This does not proscribe anything but racial discrimination so as far as any of the cases indicate or the legislative history would indicate.

Justice Lewis F. Powell: In your view of 1981 does not embrace whites or the rights of whites?

Mr. Brown: I do not know that.

I cannot give you that answer Your Honor, that was being McDonald case.

Justice Potter Stewart: But that was argued last week -- but in any event it is your -- as I understand it -- it is your submission and your understanding that you are parting to us that whoever may be the permissible plaintiff under the Section 1981, the only cause of action that can be stated under 1981 is one of racial discrimination?

Mr. Brown: Yes sir, no question about that in my view.

Justice Lewis F. Powell: So it would not apply in your view to all boys’ school and all girls’ school, so that the opposite sex would have a contractual right to enter?

Mr. Brown: I do not believe so Your Honor.

I could be wrong but I do not believe that case has been litigated.

It certainly the issue has been presented here whether somebody would bring a case proposing such a theory, I do not know.

Justice Potter Stewart: Do you know of any case, anywhere that has construed Section 1981 to be applicable in anything except to racial discrimination?

Mr. Brown: No, I do not know of any case.

It was a question at one time as to whether it covered aliens, I believe, Mexican-Americans, but I think that was resolved.

I think some case has been brought asserting the right of women but I do not think it has been successful that is asserting that women have a cause of action for sex discrimination, but I do know -- I cannot tell you what happened to it.

Justice Harry A. Blackmun: Well, that would be more broadly applicable than just to Negroes?

Justice Potter Stewart: Oh yes.

Mr. Brown: I beg your pardon sir?

Justice Potter Stewart: It has not been limited just to Negroes?

Mr. Brown: 1981?

Justice Potter Stewart: Yes, it has been held to applicable to --

Mr. Brown: Blacks and –-

Justice Potter Stewart: -- the people of Spanish ancestry.

Mr. Brown: Yes.

Yes, I am pretty certain that is.

Unknown Speaker: Despite the legislative history, which surely was directed to the two major races?

Mr. Brown: Well, yes.

Justice Harry A. Blackmun: Well, is it the Thirteenth Amendment piece of legislation there?

Mr. Brown: Well, it comes from the Thirteenth Amendment and I suppose --

Justice Harry A. Blackmun: If it applies to Mexican-Americans?

Mr. Brown: Well, it sounds like I am being asked the kind of questions that are involving McDonald case but I cannot --

Justice Harry A. Blackmun: Well, you said that was --

Mr. Brown: I think --

Justice Harry A. Blackmun: You said it was the Thirteenth Amendment piece of legislation?

Mr. Brown: I think it is Your Honor.

Justice William H. Rehnquist: Did Johnson not say it was the Fourteenth Amendment piece of legislation?

Did Johnson versus REA not say it was the Fourteenth Amendment piece of legislation?

Mr. Brown: Not according to my understanding of Johnson, and I am stating.

If I might go on Your Honors to the what I think is really the crucial question in this case --

Justice John Paul Stevens: Mr. Brown, before you get started again, let me just be sure I understood one point about your reply brief and the question of the elimination of the language trying to seek out the attention of Congress in 1866, the elimination of the language of the other Civil Rights claim.

As I understood, your position it is that you acknowledge that the elimination of that language evidences an intent not to have the statute apply to state operated integrated schools?

Mr. Brown: Yes sir.

Justice John Paul Stevens: But that leaves open the question whether it applies to privately operated schools?

Mr. Brown: Yes sir.

Justice John Paul Stevens: And do you think it is probable that Congress would have first legislated against private discrimination and secondly reserved the question of public integration?

I am just trying to get your position.

Mr. Brown: Your Honor, the fact was that in a historical context it happened concurrently because at the same time, the 1866 Act was in Congress. I think the code of the committee of reconstruction, a joint committee of Congress was actively engaged in drafting the Fourteenth Amendment.

So I think it is my view from reading the legislative history and I have read a fair amount of it that they were really sort of compartmentalizing what they were doing that they intended to reach private discrimination with the Thirteenth Amendment or with the 1866 Act, and that they intended the Fourteenth Amendment to cover state discrimination or state action.

Justice Potter Stewart: As Congressman Ben who proposed the amendment of this legislation was at the same time a member of that committee that was actively engaged in drafting the Fourteenth Amendment?

Mr. Brown: He was the principal voice on it; he was the principal voice on it.

Just one more thing I would like to call the Court’s attention to on the question of trying to discern the intent of Congress with respect to schools.

If you read Brown versus Board of Education, again the Court kind of threw up its hand at that point, after having been deluged with extensive briefs on this whole question.

What was the intent of Congress in enacting Fourteenth Amendment?

In fact, the Court issued these special questions to the litigants and saying what did Congress intend that it intended to cover schools?

And the Court said in its opinion that the intent of Congress of that period, very difficult to discern if not impossible.

Therefore, we have to resort to contemporary landmarks at this time in trying to find out whether we think it is permissible or not, that it is state imposed discrimination in schools.

But my only point is that this Court in a sense has already held that the intent of Congress is difficult, if not impossible, to discern these of the schools in that period.

Justice John Paul Stevens: Just to summarize it once more, what you are saying, I understand the point that the deliberation over the Fourteenth Amendment are focused on the state action and therefore that problem might have been reserved, but you must be saying if you understand it correctly that if we use the phrase “badge of slavery.”

That private discrimination in school -- the discrimination in private schools would be badge of slavery but discrimination in a public operated schools would not be a badge of slavery within the Thirteenth Amendment framework?

Mr. Brown: Yes.

I think that is the way you have to read it, yes sir.

Justice Potter Stewart: Were there in fact between 1865 and 1870 public schools systems in all of the states?

Mr. Brown: I do not know whether they were all in on all the state Your Honor.

There was public school system, of course.

Justice Potter Stewart: In some of the states?

Mr. Brown: Yes, and they were mostly, I guess in most instances operated on a segregated basis, and this was what some of the conservatives in the Congress at that time were objecting to about this language in the 1866 Act which --

Chief Justice Warren E. Burger: You do not mean in all of the states that they were segregated?

Mr. Brown: No, I do not really know.

I mean, I have not seen any clear evidence or survey at this whole case.

Justice Thurgood Marshall: The first case against segregated school was in Boston, Massachusetts in 1850s, Roberts against the City of Boston?

Justice Potter Stewart: Well, Massachusetts as we all know is one of the very first states to adapt the Public School System but --

Justice Thurgood Marshall: And to segregate?

Justice Potter Stewart: But am I not correct in understanding that not all of the states had Public School Systems in the 1860s, do they?

Justice Thurgood Marshall: I just really do not know the answer of that Your Honor.

If I might proceed to as I said what seems to me the second crucial question in the case namely, whether there is any white, a reason for exempting privately-owned schools, non-public schools from the thrust of Section 1981?

It seems to me this breaks down into two facets.

The first -- in a two identifiable points here.

The first one, it seems to me, concerns the matter of whether there is an institutional privacy that these schools can assert?

And then secondly, whether there is a right of privacy, a personal privacy that the parents can assert on the behalf of their children or on behalf of their -- that is an expression of their right to raise and control the education of their children the way they wish too.

With respect to the institutional privacy and the reason I break it down is because in the sense of Courts they come out -- it seems to me they come from two different frames of the law, of course two different lines of decisions, on the question to the institutional privacy and whether the schools are in fact selective and are, therefore, in position to ascertain this privacy and a right of exclusion.

I would point out first of all as the record shows that the schools, both of these schools advertised in the yellow pages, the phone book, that goes to defendant’s schools.

They have open enrolments, they solicit patrons, and enrolments in the community where they are located, and I would say in additions, the record does not show anything to the contrary so far as these schools that are represented by the Southern Independent Schools Association.

Indeed it is well-known that the reason these schools exist and are able to continue in existence is because they track and solicit or their enrolments are open, I should say, to everyone in communities where there was Court ordered desegregation of schools and that they have become and they have perpetuated because they have a constant in-flow of white students.

So as far as we know they are open to all white persons in the community.

The Court in the Sullivan versus Little Hunting Park and in Tillman versus Wheaton-Haven Recreation Association says it had a much more difficult question before it, it seems to me in this regard, because there you were concerned with neighborhood swimming pools, recreation associations which really conform much more closely to the conventional concept of what is a private institution.

But the Court held in Sullivan case and it held in the Tillman case that those two associations were not “truly private” because they had no plan or purpose of exclusiveness.

They were open to every white person in the areas they served.

They would be no selective element other than race.

Now, it seems to me that that language really covers the schools.

They have no plan or purpose of exclusiveness any of these schools, then they are open to everyone in the communities or the areas that they serve and race is the only factor that constitutes an absolute bar.

Now of course they do have other selective characteristics but then so did the swimming pools in the Sullivan and Tillman cases.

The memberships in those schools, those associations were subject to approval of the board of directors and they had various other kinds of geographic and financial qualifications, but race became the absolute bar.

Now, again with respect to schools, government regulations of schools is a very common thing, as Mr. Justice Rehnquist mentioned earlier in the course of the argument.

There are state regulations that have been in existence for years that govern such matters as curriculum teacher qualifications and various others in academic standards, and so forth.

Now the other very important and very significant thing is that in 1972 Congress, as we noted in our brief, Congress amended Title VII of the Fair Employment Provisions of the Civil Rights Act of the 1964 to apply them to private schools.

There had originally been exemption for Educational Institutions in Title VII.

The Congress repealed that in 1972 and made Title VII applicable to private schools.

Now it would certainly be in Congress, in the extreme for the Court to say that these schools could apply racial criteria in their selection of students, but the Congress at the same time said that they may not use race as a criteria in selecting faculty.

If any school has 15 or more employees, they are subject to Title VII of Civil Rights Act.

That is an important to consideration to be borne in mind and in considering the issue here, it seems to me.

I would also point out that and this we have in our brief, there are 16 states that have non-discrimination education laws.

16 states that have adapted laws which prohibit discrimination in admissions policies.

Many of these, a number of these are modeled, are fashioned after a model law that has been promulgated by the National Conference of Commissioners on Uniform State Laws.

So obviously it would be a surprise to the persons who drafted those laws and legislatures that have been enacted them for the Court to say that it is unconstitutional to somehow prohibit schools from discriminating on the basis of race.T

hat would of course be -- that, of course, would be the effect of a holding against the plaintiffs in this case.

Now, so it seems --

Justice William H. Rehnquist: (Inaudible) A constitution holding --

Mr. Brown: I beg your pardon sir?

Justice William H. Rehnquist: You mean it cannot be (Inaudible) effect of a constitutional holding against the plaintiffs?

I suppose, it would be possible for the Court to decide that 1981 did not reach this which would have no constitutional implications at all?

Mr. Brown: Yes sir.

Now, the next facet of the constitutional argument is the one I eluded to earlier which is I think what is really involved here.

There have been references made by opposing counsel to right of association and the freedom of persons to express their beliefs and right to privacy and so forth, which I do not think quite hit the real issue.

It seems to me that the proper term was, an appropriate term, let us say, an aped term was used by Professor Louis Henkin, and we do not refer to this in our brief but there is an interesting article by Professor Louis Henkin at 74 Columbia Law Review, at Page 1410 in which he refers to autonomy as being an accurate, perhaps description of what this Court has talked about in some of its privacy cases that what we really are talking about here perhaps is the matter of familiar autonomy.

I am saying this because I wanted to make clear, I think it might be helpful frame of reference for the Court in its analysis of the issue.

The cases from which the right of privacy flows which have been the basis for the constitutional right of privacy as it has been explicated by the Court of course are Griswold versus Connecticut, Eisenstadt v. Baird, Stanley versus Georgia, and Roe v. Wade.

Those are the basically the privacy cases, they deal with such matters as marriage, procreation, contraception what are essentially family relationships, but they are not all really privacy, they do not involve a necessarily an invasion of privacy so much as they involve the state’s interference with the ability to act freely, and according to one’s own personal dictates.

Now, added to that line of cases are the other two cases which the court has frequently referred to Pierce versus Society of Sisters and Meyer versus Nebraska.

Pierce versus Society of Sisters of course was a situation where the state had said that in effect private schools could not exist; all persons had to send their children to public schools.

And Meyer versus Nebraska of course was an attempt to restrict the teaching of foreign languages in private schools.

And those cases are the essence sort of basis I should say of what has been referred to as the right to liberty of the persons to direct the education in upbringing of their own children.

Now, we do not, in any way, dispute this that this right exists, we could not.

However in the case of the Norwood versus Harrison Mr. Chief Justice Burger writing the opinion referred to the Pierce case for example and at Page 461 of the Court’s opinion in Norwood.

The opinion says, as Mr. Justice White observed in his concurring opinion in the Yoder, Pierce held simply that while a state may posit educational standards, it may not preempt the educational process by requiring children to attend public schools.

And that is exactly the point in Pierce and in Meyer versus Nebraska the Court said very clearly that the state through its police powers has a right to posit educational standards and other kinds of regulations that are necessary to control the manner in which schools are operated.

Now parents do not have complete autonomy in how they raise their children.

This is and its well ingrained at our legal system today.

Compulsory school laws have been upheld everywhere that they have been challenged.

Parents have objected to compulsory school laws on religious and constitutional grounds, but they have never been successfully challenged that is such laws.

Chief Justice Warren E. Burger: Are these states that do not permit an equivalent education by private tutors?

Mr. Brown: I do not believe so.

I do not believe so Your Honor.

The other case which is an important one to bear in mind is Prince versus Massachusetts where a person used a child for the purpose of selling religious tracks and the State of Massachusetts prosecuted the parent on the ground that it is the violation of the State Child Labor Law and this Court held that notwithstanding the very sacred right, if you will, of the parent to control the child’s activity and to particularly there where the child was being used in a religious way or as an expression of religious belief that notwithstanding the importance in the high priority given these rights, the state still had a legitimate interest and the right to control a child’s upbringing and interfere -- I do not mean totally upbringing but to require the parent to abide by the child labor laws.

The Court said that the state had has a wide range of power for limiting parental freedom and authority and things affecting the child’s welfare and this includes to some extents, matters of conscience and religious conviction.

So we submit that notwithstanding the expressions of conscience, the expressions of that we have heard here about beliefs and segregated education is the superiority form of education that the state here may legitimately in a constitutional sense tell parents that if you are going to send your child to school and you will require to by the Compulsory Education Laws, they have to go to schools under the conditions that we, state have found to be most appropriate in a democratic society.

I would just, in closing, would like to add one word and that is that -- I think it is very significant that we have in this case the support of the Solicitor General of the United States and also the counsel for American Private Education, the National Association of Independent Schools and the Southern Association of Independent Schools.

This comprises the majority of the educational industry, if you will in the United States and they have a saying to this Court that they do not believe that the Court’s affirmance of the courts below would interfere with the way they operate the schools whether they will interfere, it will interfere with the right of parents who send their children to those schools to control the education of their children unduly.

Thank you.

Chief Justice Warren E. Burger: Very well Mr. Brown.

Mr. Boggs.

Argument of Roderic V. O. Boggs

Mr. Roderic V. O. Boggs: Mr. Chief Justice and may it please the Court.

There are two additional issues which i would like to address this afternoon.

The first concern is the award of attorney’s fees in this case are the District Court which is subsequently reversed by the Court of Appeals.

The second involves the appropriate statute of limitations to be applied to a 1981 action brought in the State of Virginia.

The Fourth Circuit Court of Appeals in this case applied a two-year personal injury statute of limitations and petitioners seek to apply the five-year statute of limitation.

Turning first to the question of attorney’s fees, we submit that there are two bases under which attorney’s fees could appropriately be supported as an award in this case.

The first involves the application of the bad faith exception of the American Rule and the second involves a finding of an explicit statutory authorization to award fees of the Section 1988 of 42 U.S. Code.

Before discussing the attorney fee issue, however, in detail with these theories, I would like to note briefly the matter in which the attorney fee question was raised in the course of this litigation.

We take it is quite important to note that in this case the District Court at the conclusion of the trial awarded $2,000.00 in attorney’s fees without however hearing argument on this question and without making any specific findings as to the basis for the awarded fees.

It is also of course, important to note that case arose before this Court’s decision in Alyeska.

On appeal, only the Private Attorney General theory was brief and argued.

Subsequently in the Fourth Circuit’s opinion on this case, the Private Attorney General theory was held in applicable and by 4:3 margin the Court of Appeals found that no bad faith was present on the record before.

I would think possibly important to the Court was the absence of any findings of bad faith, it made explicitly by the District Court.

We would note however that the general pattern which has been seen in cases considered by Circuit Courts since this Court’s decision in Alyeska has seen remand to District Courts and circumstances where the Private Attorney General theory had been utilized to award fees, but no basis for bad faith had been explicitly recognized and discussed by Courts of Appeals.

We would therefore suggest that at a minimum in this case based on the record, a remand would be necessary and should this Court be unable to agree with our conclusions in the record that bad faith is amply been made out before the District Court.

Justice Thurgood Marshall: I would be interested in your bad faith point.

Mr. Roderic V. O. Boggs: Excuse me Your Honor?

Justice Thurgood Marshall: I had difficulty in finding a bad faith point.

Mr. Roderic V. O. Boggs: I would like to turn now specifically to the question of bad faith in this case.

We believe that the bad faith in this case is constituted not by the defense by the schools of what they believe to be their constitutional rights to refuse admission to black students, but more by the matter in which they have asserted this defense.

Specifically by the repeated denials under oath of having it refused to admit these children on the basis of their race, the Court of Appeals has found it quite important in considering this question in finding and stating that they believe faults of perception and memory could have accounted for the testimony that was given on several occasions by the defendant’s witnesses.

We, however, submit that a review of a record of this case will show that there is no question of perception or memory in the conduct of the defendants.

Quite the contrary is true in the case of the Gonzales children and the Fairfax-Brewster School in particular.

There was testimony by three members of the staff of that school that they remember fully the circumstances under which Colin Gonzales applied.

They remembered that he had been rejected not because of his race because they claimed there was no policy of racial discrimination.

But rather they claimed that he was rejected because he had not had sufficient pre-school experience.

Justice Thurgood Marshall: Well that is witnesses?

Mr. Roderic V. O. Boggs: That is witnesses but it is also --

Justice Thurgood Marshall: Well, what about the bad faith of the parties?

Mr. Roderic V. O. Boggs: The parties I think in this instances mark the same, three individuals involved where the directors, in fact, constitute the administration entirely at the school.

We would submit Your Honor that this testimony under oath cannot be accounted for on the basis of perception in memory and in fact can only be seen as a deliberate attempt find the defendant to deceive the Court and to protract this litigation.

It must be remembered that as a result of that testimony or result of that position --

Justice Thurgood Marshall: But basically there was certain a constitutional right?

Mr. Roderic V. O. Boggs: No, we would disagree with that Your Honor, there certainly is --

Justice Thurgood Marshall: But did they assert a First Amendment right?

Mr. Roderic V. O. Boggs: They asserted a constitutional --

Justice Thurgood Marshall: They suppose to remember the constitutional right.

Mr. Roderic V. O. Boggs: Absolutely.

Justice Thurgood Marshall: Then they did assert a constitutional right?

Mr. Roderic V. O. Boggs: They did assert a constitutional right.

Justice Thurgood Marshall: And it is pretty hard to find any bad faith when you are asserting a constitutional right, is it not?

Mr. Roderic V. O. Boggs: We do not submit that there is any bad faith in their assertion of a constitutional right.

The bad faith in this case comes not from the constitutional defense but the manner in which they denied the underlying facts of discrimination under oath and in a way which cannot possibly in our judgment be caught by failures of perception in memory.

And we would submit that there was ample case authority from this Court and from the circuits which distinguish quite clearly between litigation and conduct to giving this ingenious testimony.

Chief Justice Warren E. Burger: About two other Federal Courts have already passed on this issue, have they not?

Mr. Roderic V. O. Boggs: I do not believe you could take two, Your Honor.

The Court of Appeals did review this record without th benefit of findings from the District Court.

The District Court has, you pointed out initially, made and reached its conclusions, we believe, on the basis of the Private Attorney General theory made no findings to the credibility at this point in explicit sense.

However, we would note that in commenting on this testimony of three witnesses, the three administrator people from the Fairfax-Brewster School, the District Court explicitly found that the Court rejects this testimony as unbelievable and finds that the reason for the rejection was because Colin Gonzalez was Black.

In other words, we are saying that this Court in fact that make quite clear in the case of Hall v. Cole several years ago, that in determining and looking at bad faith, we must distinguish between deceptive litigation conducts and the putting forward of a constitutional defense of some kind.

That distinction, we think is very clear in this case and if you review the record carefully I think we submit you will come to the same conclusion that we but there is a distinction here.

We are not questioning the right of either of these schools to make constitutional defense.

We have claimed though that they have not done just that.

They have extended this litigation unduly, put us through a necessity of interrogatories, a two-day trial on the question of discrimination itself, not the constitutional aspect to the case and required us beyond that to pursue this question of credibility onto the Fourth Circuit Court of Appeals, in fact, if listen to argument of counsel for the schools this morning, I would submit the question of credibility and still being argued to some extent by them.

Justice Potter Stewart: Well, at least three of the seven members of the Court of Appeals indicated that they were far from convinced that the District Court was right and its finding was a fact.

In other words, if they were far from convinced that your opponents were correct in the factual assertion of the defense that they made.

Now, that certainly detracts from any instance of bad faith, is it not?

Mr. Roderic V. O. Boggs: Well, I think if this Court is not convinced the way we are, Mr. Justice Stewart that the appropriate courts would be to send this case back to the Trial Court.

After all, bad faith, as in many cases, we cite some of them make it clear, when bad faith is an issue, the Court relies heavily upon Trial Court decision, in fact the cases has made clear that in the absence of clearly erroneous judgments by the Trial Court, a finding of bad faith must be sustained on appeal.

The problem here is simply that that was not made.

We suggest the record leads to that conclusion.

There was obviously difference of opinion on that question, and if this Court disagrees with us, we think of remand on that question would be required.

Justice Potter Stewart: Alyeska was decided after the Court of Appeals decision.

Mr. Roderic V. O. Boggs: Oh yes, it was decided at the initial Court of Appeals.

Justice Potter Stewart: How long?

Mr. Roderic V. O. Boggs: Almost simultaneously.

Justice Potter Stewart: Was there a petition for rehearing of any kind --

Mr. Roderic V. O. Boggs: There was petition for rehearing.

Justice Potter Stewart: -- in the Court of Appeals based on Alyeska?

Mr. Roderic V. O. Boggs: I am not sure it was based on Alyeska.

It was before Alyeska but during that time the petition was pending, Alyeska was handed down and for that reason the three judges in dissent who would raise the Private Attorney General theory withdrew that aspect of their opinion but maintained their position in regard to bad faith.

I would also suggest Your Honor that in looking at bad faith, this Court has, at least on one occasion, made it clear that it is particularly sensitive to questions of bad faith and matters of racial discrimination.

And I would call the Court’s attention to its decision in Newman versus Piggy Park Enterprises where the court in the footnote, footnote 5, I believe, specifically cited as an example of bad faith, the raising of a defense regarding the denial of discrimination which was subsequently withdrawn prior to trial and cited that is an example of vexatious litigation tactics.

Justice Potter Stewart: Court vindicated far from being withdrawn prior to trial, it is still been asserted here?

Mr. Roderic V. O. Boggs: That is right.

I think that this Court does not agree with our interpretation of that which in our judgment is in a fortiori situation.

In other words, maintaining a vexatious defense even to trial, the proper courses of remand on that issue.

The second theory which we would like to submit to the Court justifies the award of attorney’s fees in this case.

This is found in the examination of Section 1988 of 42 U.S. Code, the Section was originally the Third Section of the 1866 Civil Rights Act.

We submit that 1988 provides for this Court the specific legislative guidance which after Alyeska appears to be required in order to find the authority to grant attorney’s fees absent one of the generally recognized exceptions to the American Rule.

As this Court, I believe is familiar from its decisions in other case dealing with 1988, the language of that provisions speaks in terms of the jurisdiction of courts in Civil Rights cases being exercise in conformity with the laws of the United States.

So far as such laws are suitable to carrying the same into effect.

To the extent that those laws are not fully adapted, the Court may then look to state laws modified by Common Law as long as it is consistent with the Federal Law.

We believe that this Section provides an explicit invitation to seek remedies to make fully effective to the 1866 Act, and in fact other Civil Rights provisions of Chapter 21 of 42 U.S.C. We would also like to submit and state that this Court has recognized the ability that it possesses to apply the 1866 Act, Section 1988 to draw a confederal law to make fully whole victims of discrimination in determining appropriate relief and remedies.

And we would cite for that proposition the case of Sullivan versus Little Hunting Park in which the Court and I quote stated “as we read Section 1988, both federal and state rules on damages may be utilize whichever best serves the policies expressed in the federal statute.”

We, therefore, suggest that it is inappropriate course for this Court to follow to draw upon the Private Attorney General provisions of later inactive statutes which allow for the award of attorney’s fees in Civil Rights cases.

We think, no less is required to fully effectuate the purposes of the 1866 Civil Rights Act.

Finally, Your Honors I would like to turn my attention to the question of the statute limitations that had been applied in this case.

The Fourth Circuit Court of Appeals applied in this case, the two-year statute of limitations which is taken from the personal injury provisions of Virginia Code Section 8-24.

This Section which had first been applied in 1972 in the case of Almond versus Kent, that being a 1983 action involving a suit in which a citizen had been beaten allegedly by the police was in fact a personal injury case, a physical injury case as well as the constitutional case.

The Court in that instance was choosing between the application of the two-year limit for personal injuries and a one-year limit based on transitory torts.

It chose in a way that was quite helpful to the plaintiff in that case a the two-year limit.

Subsequently, the logic applied in that case to 1983 action has been applied to Section 1981 and 1982 actions.

Although of course they do not involved necessarily and normally do not involved explicit physical injury.

We submit that the classification --

Justice Potter Stewart: But neither is 1983, well, it might have been that case had involved personal injuries.

The cause of action is a violation of federal constitution or statutory laws, is it not?

Mr. Roderic V. O. Boggs: No, we absolutely agree with that Your Honor.

We think that is one reason --

Justice Potter Stewart: Physical injuries are only part of that cause of action?

Mr. Roderic V. O. Boggs: Precisely that is exactly the reason why we think neither 1981 nor 1982 nor 1983 action should be equated for purposes of analogy with the physical personal injury.

We would state here parenthetically that it is interesting to note that in Virginia, law application within the State of Virginia, that two-year limit to the best of our ability to research the question is only applied to the cases of physical bodily injury and there is no case that has been cited to us in opposing briefs or that we have been able to research which applies any place except in the area of Civil Rights.

Now, it is for that reason that we think that in searching for the most analogous statute of limitations, which is of course the federal courts are obliged to take and federal statutes are silent on that question.

The appropriate thing to do is to look at the Second Section of that Virginia Statute, which specifies that in personal actions for which no limit is otherwise prescribed, a five-year limit should be adapted if the cause of action is found to survive and a one-year limit is to be applied if the cause does not survive.

We would, applying that analysis, suggest that a five-year statute is dictated our virtual effect that even the opinion of the Fourth Circuit in Almond versus Kent in the first instance, there was no question but that the federal right under 1983, and we would suggest under 1981 and 1982 as well, would survive on the basis of generally accepted federal principles.

Because of that Your Honor, we suggest that the appropriate resolution of this case on the statute of limitations is to hold that for purposes of analogy in the State of Virginia, the five-year statute of limitations is the appropriate one to be applied.

Justice Potter Stewart: This goes just to the damages in just in one of the cases, is that not correct?

Mr. Roderic V. O. Boggs: That is right.

The way this issue arises Mr. Justice Stewart is that in the case of the Gonzalez family the parents were not entitled to rule, not able to bring this case, because statute limitations has barred them, and they filed the suit three-and-a-half years approximately after the cause of action arose.

Justice Potter Stewart: And there is just one of the cases?

Mr. Roderic V. O. Boggs: That is right.

We would suggest that in that case, the appropriate course of action would be a remand ruling not inconsistent with the finding.

Thank you, Your Honor.

Chief Justice Warren E. Burger: Thank you gentleman.

The case is submitted.