Patterson v. McLean Credit Union

After hearing oral arguments on the issue of whether section 1981 prohibits on the job harassment, however, Justices Rehnquist, White, O'Connor, Scalia, and Kennedy concluded that the Court should reconsider its earlier decision that section 1981 covers private discrimination. As Charles Fried, U.S. solicitor general at the time, recalled in his book Order and Law: "In the spring of 1988 the civil-rights community was shocked when, instead of deciding the Patterson case, the Court ordered reargument on whether Runyon v. McCrary, the 1976 case that proclaimed the extension of Section 1981 to discrimination in private contracting, should be overruled." The four other justices strongly criticized this decision, including Justice Stevens, who had himself questioned whether Runyon was correctly decided. The decision to reconsider Runyon galvanized the civil-rights community. By the time the Court heard reargument in the case, the NAACP had entered the case on behalf of Patterson, and briefs supporting Patterson's case had been filed by the American Bar Association, 47 state attorney generals, 66 U.S. Senators, and Solicitor General Fried on behalf of the Reagan administration.

Civil-rights advocates received a partial victory when the Court issued its decision on 15 June 1989. All nine justices agreed that the Runyon decision should not be overturned. Even those justices who thought that Runyon had been incorrectly decided concluded that the decision must be allowed to stand under the doctrine known as "stare decisis." This doctrine provides that previous decisions should not be overturned frequently because to do so would cause uncertainty in the law and would not be fair to other litigants. The Court, in an opinion written by Justice Kennedy, "reaffirm[ed] that [section] 1981 prohibits racial discrimination in the making and enforcement of private contracts."

As tremendous as the victory was for civil rights advocates, however, their defeat was equally as devastating. Addressing the initial issue presented in the case, a majority of the justices held that section 1981 does not prohibit racial harassment suffered by employees. The justices reasoned that section 1981 prohibits only discrimination in the making and enforcement of contracts, and that discrimination which occurs after a person has been hired does not relate to either the "making" or "enforcement" of a contract. Recognizing, however, the limitation that its decision would place on civil rights claims, the Court reminded Congress that it could amend the law to cover the type of harassment suffered by Patterson:

The law now reflects society's consensus that discrimination based on the color of one's skin is a profound wrong of tragic dimension. Neither our words nor our decisions should be interpreted as signaling one inch of retreat from Congress' policy to forbid discrimination in the private, as well as in the public, sphere. Nevertheless, in the area of private discrimination . . . our role is limited to interpreting what Congress may do and has done. The statute before us, which is only a part of Congress' extensive civil rights legislation, does not cover the acts of harassment alleged here.