Justices Reaffirm 1866 Law on Bias but Reduce Scope

The Supreme Court, acting in the most closely watched civil rights case of the year, Thursday cut back the reach of the nation’s oldest law barring racial discrimination, but stopped short of overturning it entirely.

On a 5-4 vote, the conservative majority said a black person who is harassed on the job because of his race cannot sue his employer for damages under the Civil Rights Act of 1866.

However, in a unanimous finding, the justices did not follow through on a prospect raised last year to rule that the bedrock civil rights law cannot be used at all against racial discrimination in private schools and businesses.

Draws Angry Reaction

Civil rights lawyers nevertheless reacted angrily, citing the ruling as the fifth high court setback so far this year for minority protections against discrimination.

“It is another underhanded way to erode a settled civil rights law,” said Penda Hair, an attorney for the NAACP Legal Defense Fund, who represented a black bank teller involved in the case. “They haven’t explicitly overruled (the post-Civil War doctrine), but we’re left with a shell of a law.”

Writing for the court, Justice Anthony M. Kennedy asserted that the decision to reject the case of Brenda Patterson, who claimed longstanding mistreatment by her employer, should not be “interpreted as signaling one inch of retreat” against racism.

“Discrimination based on the color of one’s skin is a profound wrong of tragic dimension,” Kennedy wrote.

However, he said the scope of the 1866 law as written was limited. In forbidding that race be used as a factor in “making private contracts” or denying them, he said, the law bars employers or schools from denying jobs, promotions or enrollment to blacks, Latinos or others because of their race. But it does not cover general discrimination or abusive treatment once they are on the job or in school, he added.

In narrowing the interpretation of the 1866 law, the court did not totally eliminate Patterson’s chances of pursuing her case. If she can convince a jury she was denied a promotion because of her race, she can still win damages, Kennedy said.

But civil rights experts said the narrowing was crucial because the 1866 law has been considered the broadest prohibition against various forms of racial discrimination across the span of American life.

Newer civil rights laws specifically cover bias in employment, housing and public education, but leave gaps in such areas as private school enrollment, admission to nightclubs and treatment of customers by businesses.

Awards Limited

Also, the newer laws generally limit awards that can be collected to actual damages, such as back pay.

Under the 1866 law, plaintiffs sued for almost any type of racial discrimination, and could seek large punitive damage awards as well as “pain and suffering” compensation. For the past 20 years, courts have tended to allow such expansive use of the law.

With Thursday’s ruling, civil rights experts said, more plaintiffs may see their complaints fall through the cracks between anti-discrimination laws or find their options for awards more limited.

The high court’s liberals disagreed sharply with the new interpretation.

Said Justice William J. Brennan Jr. for the four dissenters, “What the court declines to snatch away with one hand, it takes with the other.”

Calling the majority’s view “needlessly cramped,” he said an employer, in imposing unfair terms on blacks on the job, “has not allowed blacks to make a contract on an equal basis.”

While the ruling outraged civil rights lawyers, it did not surprise them.

So far this year, the court, with its new conservative majority, has ruled that cities may not set aside a fixed percentage of public contracts for minorities; that civil rights plaintiffs may not use statistics on job segregation to prove illegal discrimination; that white males may file reverse discrimination challenges against court-approved affirmative action programs, and that minorities or women may not challenge an unfair seniority policy after it has been in force for 300 days.

“It’s bothersome that this comes at a time when we are seeing ugly aspects of racism reappearing in this country,” said Washington civil rights attorney John Payton.

The law at issue took shape in the months after the Civil War ended in 1865. Alarmed by reports that newly freed slaves were being harassed, beaten and intimidated by their former masters, the Reconstruction-era Congress passed a law saying that “citizens of every race and color . . . shall have the same rights” as whites to buy and sell property and “to make and enforce contracts.” Victims were given the right to sue violators in federal court.

For more than 100 years, the Civil Rights Act of 1866 went largely unused. But in 1968, the Supreme Court revived it by upholding a black person’s lawsuit against a white housing developer who refused to sell to blacks. The clear language of the law, the court said then, bars racial discrimination across the board.

Centers on 1982 Suit

Thursday’s case centered on a suit filed in 1982 by Patterson, a black bank teller from North Carolina, who alleged that for more than 10 years she had been insulted by her supervisor, given menial duties, and told that “blacks are known to work slower.”

The bank denied that she was racially harassed and contended the law did not apply to her complaint.

A federal judge in North Carolina ruled that her case could not go before a jury because the 1866 law did not cover harassment. But when Patterson appealed to the Supreme Court, attorneys for the Ronald Reagan Administration sided with her. Such “racially motivated” mistreatment, if true, violates the 1866 law, the Justice Department said.

However, two months after hearing Patterson’s appeal last year, the Supreme Court issued a stunning announcement. The five conservatives said they wanted to reconsider the entire landmark 1968 interpretation covering virtually all forms of racial discrimination.

The announcement set off a storm of protest in Congress and among civil rights groups. Two-thirds of the U.S. Senate, 47 of the 50 state attorneys general and dozens of civil rights organizations filed briefs urging the justices to leave the law as it was.

Hirings, Promotions

In one sense, the court did just that Thursday. “We now reaffirm that (the 1866 law) prohibits racial discrimination in the making and enforcement of private contracts,” Kennedy said. To the relief of the civil rights community, the majority did not restrict it to literally only contracts and granted that it applied to hiring and promotions by private businesses and admission by private schools.

But it drew the line there. Nothing that can be construed as the making of a contract exists in conditions at the job or school after that point, the majority said.

Kennedy’s opinion in Patterson vs. McLean Credit Union, 87-107, was joined by Chief Justice William H. Rehnquist and Justices Byron R. White, Antonin Scalia and Sandra Day O’Connor.

Thursday’s ruling supplied new impetus to civil rights advocates and liberal members of Congress hoping to pass new laws to counter the effects of the court’s recent race-related rulings.