RUNYON v. MCCRARY 427 U.S. 160 (1976)

The civil rights act of 1866 gives all persons "the same right … to make and enforce contracts … as is enjoyed by white persons." In the Runyon case the Supreme Court, following its 1968 decision in jones v. alfred h. mayer co. , relied on the thirteenth amendment as a source of congressional power and upheld the application of this provision to two private schools' exclusion of qualified black applicants.

Justice potter stewart, writing for the Court, made clear that several issues concerning the act's coverage were being left open. The Court was not deciding whether the act forbade a private social organization to impose a racial limitation on its membership; nor was it deciding whether a private school might limit its students to boys or girls, or to members of some religious faith. Runyon itself involved "private, commercially operated, non-sectarian schools."

Although Congress is empowered to enforce the Thirteenth Amendment, the provisions of the bill of rights limit congressional power here as elsewhere. The school operators argued unsuccessfully that the application of the 1866 act to their admissions practices violated rights of association, parental rights, and the right of privacy.

In responding to the associational freedom claim, Justice Stewart came close to saying that the freedom to practice racial discrimination in the choice of one's associates is not entitled to constitutional protection—a view that surely would not survive in the context of marriage or other intimate association. Concurring specially, Justice lewis f. powell remarked on the strength of the associational freedoms that would be involved if the 1866 Act were applied to a racially discriminatory selection of a home tutor or babysitter.

The Court dismissed the parental rights claim with the comment that parents and school operators retained the right to use the schools to inculcate the values of their choice. The privacy claim was similarly rejected; parents had a right to send their children to private schools, but the schools remained subject to reasonable government regulation.

Justices byron r. white and william h. rehnquist dissented, arguing that Jones was wrongly decided and that the 1866 act had not been intended to forbid a private, racially motivated refusal to contract. Justice john paul stevens, in a special concurrence, agreed with the dissenters' view of the 1866 act's purposes. However, he concluded, "for the Court now to overrule Jones would be a significant step backwards" in the process of eliminating racial discrimination; thus he joined the Court's opinion. It was ever so; today's history almost always prevails in a contest with yesterday's.

Kenneth L. Karst
(1986)