Vanderbilt Law Review

First Page



In 1987 the Supreme Court unanimously extended the protections of 42 U.S.C. sections 19811 and 19822 to ethnic groups, citing "Runyon v. McCrary. Runyon reinterpreted the legislative history of section 1981 to create a cause of action for blacks against both public and private discrimination in the making and enforcement of contracts. One year later a sharply divided Supreme Court ordered the parties in Patterson v. McLean Credit Union, a case in which the Court already had heard argument, to brief the Court anew and make arguments on an issue that none of the parties had raised--whether to overrule Runyonv. McCrary.'The Supreme Court's request reminded the legal community that the constitutional authority for Runyon is and always has been in dispute. Yet Justice White, who with Justice Rehnquist wrote the vehement and widely cited dissent to Runyon, authored the unanimous opinions for the Court in Saint Francis College v. Al-Khazraji and Shaare Tefila Congregation v. Cobb, which permit ethnic groups to employ sections 1981 and 1982 in order to reach private acts of discrimination. The justices of the Supreme Court accomplished this expansion of Runyon without examining precedent or establishing a constitutional foundation. Rather, the Court defined the term "race" to include ethnic minorities for the purposes of sections 1981 and 1982."The American media overwhelmingly endorsed the Supreme Court's decision, believing it to be a significant expansion of civil rights--a reflection of the modern belief that all ethnic minorities equally deserve freedom from discrimination. The New York Times declared that the decisions created an opportunity for many Americans to fight ethnic discrimination. If the decisions, however, are as significant an expansion of civil rights as the press perceived them to be, the Supreme Court should have based its analysis on the United States Constitution.

Included in

Law and Race Commons