Runyon v. McCrary, 427 U.S. 160 (1976)

MR. JUSTICE STEWART delivered the opinion of the Court.

The principal issue presented by these consolidated cases is whether a federal law, namely 42 U.S.C. § 1981, prohibits private schools from excluding qualified children solely because they are Negroes.

I

The respondents in No. 762, Michael McCrary and Colin Gonzales, are Negro children. By their parents, they filed a class action against the petitioners in No. 75-62, Russell and Katheryne Runyon, who are the proprietors of Bobbe’s School in Arlington, Va. Their complaint alleged that they had been prevented from attending the school because of the petitioners’ policy of denying admission to Negroes, in violation of 42 U.S.C. § 1981{1} and Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U.S.C. § 2000a et seq.{2} They sought declaratory and injunctive relief and damages. On the same day, Colin Gonzales, the respondent in No. 75-66, filed a similar complaint by his parents against the petitioner in No. 75-66, Fairfax-Brewster School, Inc., located in Fairfax County, Va. The petitioner in No. 75-278, the Southern Independent School Association, sought and was granted permission to intervene as a party defendant in the suit against the Runyons. That organization is a nonprofit association composed of six state private school associations, and represents 395 private schools. It is stipulated that many of these schools deny admission to Negroes.

The suits were consolidated for trial. The findings of the District Court, which were left undisturbed by the Court of Appeals, were as follows. Bobbe’s School opened in 1958 and grew from an initial enrollment of five students to 200 in 1972. A day camp was begun in 1967, and has averaged 100 children per year. The Fairfax-Brewster School commenced operations in 1955, and opened a summer day camp in 1956. A total of 223 students were enrolled at the school during the 1972-1973 academic year, and 236 attended the day camp in the summer of 1972. Neither school has ever accepted a Negro child for any of its programs.

In response to a mailed brochure addressed "resident" and an advertisement in the "Yellow Pages" of the telephone directory, Mr. and Mrs. Gonzales telephoned and then visited the Fairfax-Brewster School in May, 1969. After the visit, they submitted an application for Colin’s admission to the day camp. The school responded with a form letter, which stated that the school was "unable to accommodate [Colin’s] application." Mr. Gonzales telephoned the school. Fairfax-Brewster’s Chairman of the Board explained that the reason for Colin’s rejection was that the school was not integrated. Mr. Gonzales then telephoned Bobbe’s School, from which the family had also received in the mail a brochure addressed to "resident." In response to a question concerning that school’s admissions policies, he was told that only members of the Caucasian race were accepted. In August, 1972, Mrs. McCrary telephoned Bobbe’s School in response to an advertisement in the telephone book. She inquired about nursery school facilities for her son, Michael. She also asked if the school was integrated. The answer was no.

Upon these facts, the District Court found that the Fairfax-Brewster School had rejected Colin Gonzales’ application on account of his race, and that Bobbe’s School had denied both children admission on racial grounds. The court held that 42 U.S.C. § 1981 makes illegal the schools’ racially discriminatory admissions policies. It therefore enjoined Fairfax-Brewster School and Bobbe’s School and the member schools of the Southern Independent School Association{3} from discriminating against applicants for admission on the basis of race. The court awarded compensatory relief to Mr. and Mrs. McCrary, Michael McCrary, and Colin Gonzales.{4} In a previous ruling the court had held that the damages claim of Mr. and Mrs. Gonzales was barred by Virginia’s two-year statute of limitations for personal injury actions, "borrowed" for § 1981 suits filed in that State. Finally, the court assessed attorneys’ fees of § 1,000 against each school. 363 F.Supp. 1200 (ED Va.1973).

The Court of Appeals for the Fourth Circuit, sitting en banc, affirmed the District Court’s grant of equitable and compensatory relief and its ruling as to the applicable statute of limitations, but reversed its award of attorneys’ fees. 515 F.2d 1082 (1975). Factually, the court held that there was sufficient evidence to support the trial court’s finding that the two schools had discriminated racially against the children. On the basic issue of law, the court agreed that 42 U.S.C. § 1981 is a

limitation upon private discrimination, and its enforcement in the context of this case is not a deprivation of any right of free association or of privacy of the defendants, of the intervenor, or of their pupils or patrons.

515 F.2d at 1086. The relationship the parents had sought to enter into with the schools was in the court’s view undeniably contractual in nature, within the meaning of § 1981, and the court rejected the schools’ claim that § 1981 confers no right of action unless the contractual relationship denied to Negroes is available to all whites. 515 F.2d at 1087. Finally, the appellate court rejected the schools’ contention that their racially discriminatory policies are protected by a constitutional right of privacy.

When a school holds itself open to the public . . . or even to those applicants meeting established qualifications, there is no perceived privacy of the sort that has been given constitutional protection.

Id. at 1088.

We granted the petitions for certiorari filed by the Fairfax-Brewster School, No. 766; Bobbe’s School, No. 75-62; and the Southern Independent School Association, No. 75-278, to consider whether 42 U.S.C. § 1981 prevents private schools from discriminating racially among applicants. 423 U.S. 945. We also granted the cross-petition of Michael McCrary, Colin Gonzales, and their parents, No. 75-306, to determine the attorneys’ fees and statute of limitations issues. Ibid.

II

It is worth noting at the outset some of the questions that these cases do not present. They do not present any question of the right of a private social organization to limit its membership on racial or any other grounds.{5} They do not present any question of the right of a private school to limit its student body to boys, to girls, or to adherents of a particular religious faith, since 42 U.S.C. § 1981 is in no way addressed to such categories of selectivity. They do not even present the application of § 1981 to private sectarian schools that practice racial exclusion on religious grounds.{6} Rather, these cases present only two basic questions:{7} whether § 1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are Negroes, and, if so, wether that federal law is constitutional as so applied.

A. Applicability of § 1981

It is now well established that § 1 of the Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C. § 1981, prohibits racial discrimination in the making and enforcement of private contracts.{8} See Johnson v. Railway ExpressAgency, 421 U.S. 454, 459-460; Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431, 439-440. Cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, 441-443, n. 78.

In Jones, the Court held that the portion of § 1 of the Civil Rights Act of 1866 presently codified as 42 U.S.C. § 1982 prohibits private racial discrimination in the sale or rental of real or personal property. Relying on the legislative history of § 1, from which both § 1981 and § 1982 derive, the Court concluded that Congress intended to prohibit "all racial discrimination, private and public, in the sale . . . of property," 392 U.S. at 437, and that this prohibition was within Congress’ power under § 2 of the Thirteenth Amendment "rationally to determine what are the badges and the incidents of slavery, and . . . to translate that determination into effective legislation." 392 U.S. at 440.

As the Court indicated in Jones, supra, at 441-443, n. 78, that holding necessarily implied that the portion of § 1 of the 1866 Act presently codified as 42 U.S.C. § 1981 likewise reaches purely private acts of racial discrimination. The statutory holding in Jones was that the

[1866] Act was designed to do just what its terms suggest: to prohibit all racial discrimination, whether or not under color of law, with respect to the rights enumerated therein -- including the right to purchase or lease property,

392 U.S. at 436. One of the "rights enumerated" in § 1 is "the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens. . . ." 14 Stat. 27. Just as, in Jones, a Negro’s § 1 right to purchase property on equal terms with whites was violated when a private person refused to sell to the prospective purchaser solely because he was a Negro, so also a Negro’s § 1 right to "make and enforce contracts" is violated if a private offeror refuses to extend to a Negro, solely because he is a Negro, the same opportunity to enter into contracts as he extends to white offerees.{9}

The applicability of the holding in Jones to § 1981 was confirmed by this Court’s decisions in Tillman v. Wheaton-Haven Recreation Assn., supra, and Johnson v. Railway Express Agency, Inc., supra. In Tillman, the petitioners urged that a private swimming club had violated 42 U.S.C. §§ 1981, 1982, and 2000a et seq. by enforcing a guest policy that discriminated against Negroes. The Court noted that "[t]he operative language of both § 1981 and § 1982 is traceable to the Act of April 9, 1866, c. 31, § 1, 14 Stat. 27." 410 U.S. at 439. Referring to its earlier rejection of the respondents’ contention that Wheaton-Haven was exempt from § 1982 under the private club exception of the Civil Rights Act of 1964, the Court concluded:

In light of the historical interrelationship between § 1981 and § 1982, [there is] no reason to construe these sections differently when applied, on these facts, to the claim of Wheaton-Haven that it is a private club.

410 U.S. at 440. Accordingly the Court remanded the case to the District Court for further proceedings "free of the misconception that Wheaton-Haven is exempt from §§ 1981, 1982, and 2000a." Ibid. In Johnson v. Railway Express Agency, supra, the Court noted that § 1981 "relates primarily to racial discrimination in the making and enforcement of contracts," 421 U.S. at 459, and held unequivocally "that § 1981 affords a federal remedy against discrimination in private employment on the basis of race." Id. at 459-460.

It is apparent that the racial exclusion practiced by the Fairfax-Brewster School and Bobbe’s Private School amounts to a classic violation of § 1981. The parents of Colin Gonzales and Michael McCrary sought to enter into contractual relationships with Bobbe’s School for educational services. Colin Gonzales’ parents sought to enter into a similar relationship with the Fairfax-Brewster School. Under those contractual relationships, the schools would have received payments for services rendered, and the prospective students would have received instruction in return for those payments. The educational services of Bobbe’s School and the Fairfax-Brewster School were advertised and offered to members of the general public.{10} But neither school offered services on an equal basis to white and nonwhite students. As the Court of Appeals held,

there is ample evidence in the record to support the trial judge’s factual determinations . . . [that] Colin [Gonzales] and Michael [McCrary] were denied admission to the schools because of their race.

515 F.2d at 1086. The Court of Appeals’ conclusion that § 1981 was thereby violated follows inexorably from the language of that statute, as construed in Jones, Tillman, and Johnson.

The petitioning schools and school association argue principally that § 1981 does not reach private acts of racial discrimination. That view is wholly inconsistent with Jones’ interpretation of the legislative history of § 1 of the Civil Rights Act of 1866, an interpretation that was reaffirmed in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, and again in Tillman v. Wheaton-Haven Recreation Assn., supra. And this consistent interpretation of the law necessarily requires the conclusion that § 1981, like § 1982, reaches private conduct. See Tillmanv. Wheaton-Haven Recreation Assn., 410 U.S. at 439-440; Johnson v. Railway Express Agency, 421 U.S. at 459-460.

It is noteworthy that Congress in enacting the Equal Employment Opportunity Act of 1972, 86 Stat. 103, as amended, 42 U.S.C. § 2000e et seq. (1970 ed., Supp. IV), specifically considered and rejected an amendment that would have repealed the Civil Rights Act of 1866, as interpreted by this Court in Jones, insofar as it affords private sector employees a right of action based on racial discrimination in employment. See Johnson v. Railway Express Agency, supra at 459.{11} There could hardly be a clearer indication of congressional agreement with the view that § 1981 does reach private acts of racial discrimination. Cf. Flood v. Kuhn, 407 U.S. 258, 269-285; Joint Industry Board v. United States, 391 U.S. 225, 228-229. In these circumstances, there is no basis for deviating from the well settled principles of stare decisis applicable to this Court’s construction of federal statutes. See Edelman v. Jordan, 415 U.S. 651, 671 n. 14.{12}

B. Constitutionality of § 1981 as Applied

The question remains whether § 1981, as applied, violates constitutionally protected rights of free association and privacy, or a parent’s right to direct the education of his children.{13}

1. Freedom of Association

In NAACP v. Alabama, 357 U.S. 449, and similar decisions, the Court has recognized a First Amendment right "to engage in association for the advancement of beliefs and ideas. . . ." Id. at 460. That right is protected because it promotes and may well be essential to the "[e]ffective advocacy of both public and private points of view, particularly controversial ones" that the First Amendment is designed to foster. Ibid.See Buckley v. Valeo, 424 U.S. 1, 15; NAACP v. Button, 371 U.S. 415.

From this principle it may be assumed that parents have a First Amendment right to send their children to educational institutions that promote the belief that racial segregation is desirable, and that the children have an equal right to attend such institutions. But it does not follow that the practice of excluding racial minorities from such institutions is also protected by the same principle. As the Court stated in Norwood v. Harrison, 413 U.S. 455, "the Constitution . . . places no value on discrimination," id. at 469, and while

[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment . . . it has never been accorded affirmative constitutional protections. And even some private discrimination is subject to special remedial legislation in certain circumstances under § 2 of the Thirteenth Amendment; Congress has made such discrimination unlawful in other significant contexts.

Id. at 470. In any event, as the Court of Appeals noted,

there is no showing that discontinuance of [the] discriminatory admission practices would inhibit in any way the teaching in these schools of any ideas or dogma.

515 F.2d at 1087.

2. Parental Rights

In Meyer v. Nebraska, 262 U.S. 390, the Court held that the liberty protected by the Due Process Clause of the Fourteenth Amendment includes the right "to acquire useful knowledge, to marry, establish a home and bring up children," id. at 399, and, concomitantly, the right to send one’s children to a private school that offers specialized training -- in that case, instruction in the German language. In Pierce v. Society of Sisters, 268 U.S. 510, the Court applied "the doctrine of Meyer v. Nebraska," id. at 534, to hold unconstitutional an Oregon law requiring the parent, guardian, or other person having custody of a child between 8 and 16 years of age to send that child to public school on pain of criminal liability. The Court thought it

entirely plain that the [statute] unreasonably interferes with the liberty of parents and guardians to direct the upbringing and education of children under their control.

Id. at 534-535. In Wisconsin v. Yoder, 406 U.S. 205, the Court stressed the limited scope of Pierce, pointing out that it lent

no support to the contention that parents may replace state educational requirements with their own idiosyncratic views of what knowledge a child needs to be a productive and happy member of society,

but, rather,

held simply that, while a State may posit [educational] standards, it may not preempt the educational process by requiring children to attend public schools.

Id. at 239 (WHITE, J., concurring). And in Norwood v. Harrison, 413 U.S. 455, the Court once again stressed the "limited scope of Pierce," id. at 461, which simply "affirmed the right of private schools to exist and to operate. . . ." Id. at 462.

It is clear that the present application of § 1981 infringes no parental right recognized in Meyer, Pierce, Yoder, or Norwood. No challenge is made to the petitioner schools’ right to operate or the right of parents to send their children to a particular private school, rather than a public school. Nor do these cases involve a challenge to the subject matter which is taught at any private school. Thus, the Fairfax-Brewster School and Bobbe’s School and members of the intervenor association remain presumptively free to inculcate whatever values and standards they deem desirable. Meyer and its progeny entitle them to no more.

3. The Right of Privacy

The Court has held that, in some situations, the Constitution confers a right of privacy. See Roe v. Wade, 410 U.S. 113, 152-153; Eisenstadt v. Baird, 405 U.S. 438, 453; Stanley v. Georgia, 394 U.S. 557, 564-565; Griswoldv. Connecticut, 381 U.S. 479, 484-485. See also Loving v. Virginia, 388 U.S. 1, 12; Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541.

While the application of § 1981 to the conduct at issue here -- a private school’s adherence to a racially discriminatory admissions policy -- does not represent governmental intrusion into the privacy of the home or a similarly intimate setting,{14} it does implicate parental interests. These interests are related to the procreative rights protected in Roe v. Wade, supra, and Griswold v. Connecticut, supra. A person’s decision whether to bear a child and a parent’s decision concerning the manner in which his child is to be educated may fairly be characterized as exercises of familial rights and responsibilities. But it does not follow that, because government is largely or even entirely precluded from regulating the childbearing decision, it is similarly restricted by the Constitution from regulating the implementation of parental decisions concerning a child’s education.

The Court has repeatedly stressed that while parents have a constitutional right to send their children to private schools and a constitutional right to select private schools that offer specialized instruction, they have no constitutional right to provide their children with private school education unfettered by reasonable government regulation. See Wisconsin v. Yoder, supra at 213; Pierce v. Society of Sisters, supra at 534; Meyer v. Nebraska, 262 U.S. at 402.{15} Indeed, the Court in Pierce expressly acknowledged "the power of the State reasonably to regulate all schools, to inspect, supervise and examine them, their teachers and pupils. . . ." 268 U.S. at 534. See also Prince v. Massachusetts, 321 U.S. 158, 166.

Section 1981, as applied to the conduct at issue here, constitutes an exercise of federal legislative power under § 2 of the Thirteenth Amendment fully consistent with Meyer, Pierce, and the cases that followed in their wake. As the Court held in Jones v. Alfred H. Mayer Co., supra:

It has never been doubted . . . "that the power vested in Congress to enforce [the Thirteenth Amendment] by appropriate legislation" . . . includes the power to enact laws "direct and primary, operating upon the acts of individuals, whether sanctioned by State legislation or not."

392 U.S. at 438 (citation omitted). The prohibition of racial discrimination that interferes with the making and enforcement of contracts for private educational services furthers goals closely analogous to those served by § 1981’s elimination of racial discrimination in the making of private employment contracts{16} and, more generally, by § 1982’s guarantee that "a dollar in the hands of a Negro will purchase the same thing as a dollar in the hands of a white man." 392 U.S. at 443.

III

A. Statute of Limitations

The District Court held that the damages suit of the petitioners in No. 7306, Mr. and Mrs. Gonzales, which was initiated 3 1/2 years after their cause of action accrued, was barred by the statute of limitations. This ruling was affirmed by the Court of Appeals. The petitioners contend that both courts erred in "borrowing" the wrong Virginia statute of limitations.

Had Congress placed a limit upon the time for bringing an action under § 1981, that would, of course, end the matter. But Congress was silent. And "[a]s to actions at law," which a damages suit under § 1981 clearly is, "the silence of Congress has been interpreted to mean that it is federal policy to adopt the local law of limitation." Holmberg v. Armbrecht, 327 U.S. 392, 395. See Johnson v. Railway Express Agency, 421 U.S. at 462; Rawlings v. Ray, 312 U.S. 96; O’Sullivan v. Felix, 233 U.S. 318; Chattanooga Foundry v. Atlanta, 203 U.S. 390. As the Court stated in Holmberg, supra at 395:

The implied absorption of State statutes of limitation within the interstices of the federal enactments is a phase of fashioning remedial details where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles.

At the time of this litigation Virginia had not enacted a statute that specifically governed civil rights suits. In the absence of such a specific statute, the District Court and the Court of Appeals held that the first sentence of Va.Code Ann. § 8-24 (1957) provides the relevant limitations period for a § 1981 action: "Every action for personal injuries shall be brought within two years next after the right to bring the same shall have accrued." The petitioners assert that this provision applies only to suits predicated upon actual physical injury, and that the correct limitation period is five years, by virtue of the second sentence of § 8-24, which comprehends all other "personal" actions:

Every personal action, for which no limitation is otherwise prescribed, shall be brought within five years next after the right to bring the same shall have accrued, if it be for a matter of such nature that in case a party die it can be brought by or against his representative; and, if it be for a matter not of such nature, shall be brought within one year next after the right to bring the same shall have accrued.

The petitioners’ contention is certainly a rational one, but we are not persuaded that the Court of Appeals was mistaken in applying the two-year state statute. The issue was not a new one for that court, for it had given careful consideration to the question of the appropriate Virginia statute of limitations to be applied in federal civil rights litigation on at least two previous occasions. Allen v. Gilford, 462 F.2d 615; Almond v. Kent, 459 F.2d 200. We are not disposed to displace the considered judgment of the Court of Appeals on an issue whose resolution is so heavily contingent upon an analysis of state law, particularly when the established rule has been relied upon and applied in numerous suits filed in the Federal District Courts in Virginia.{17} In other situations in which a federal right has depended upon the interpretation of state law,

the Court has accepted the interpretation of state law in which the District Court and the Court of Appeals have concurred even if an examination of the state law issue without such guidance might have justified a different conclusion.

Bishop v.Wood, 426 U.S. 341, 346, and n. 10, citing, inter alia, United States v. Durham Lumber Co., 363 U.S. 522; Propper v. Clark, 337 U.S. 472; Township of Hillsborough v. Cromwell, 326 U.S. 620.

Moreover, the petitioners have not cited any Virginia Court decision to the effect that the term "personal injuries" in § 24 means only "physical injuries." It could be argued with at least equal force that the phrase "personal injuries" was designed to distinguish those causes of action involving torts against the person from those involving damage to property. And whether the damages claim of the Gonzaleses be properly characterized as involving "injured feelings and humiliation," as the Court of Appeals held, 515 F.2d at 1097, or the vindication of constitutional rights, as the petitioners contend, there is no dispute that the damage was to their persons, not to their realty or personalty. Cf. Carva Food Corp. v. Dawley, 202 Va. 543, 118 S.E.2d 664; Travelers Ins. Co. v. Turner, 211 Va. 552, 178 S.E.2d 503.

B. Attorneys’ Fees

The District Court, without explanation or citation of authority, awarded attorneys’ fees of § 1,000 against each of the two schools. The Court of Appeals reversed this part of the District Court’s judgment. Anticipating our decision in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, the appellate court refused to adopt the so-called private attorney general theory under which attorneys’ fees could be awarded to any litigant who vindicates an important public interest. And it could find no other ground for the award: no statute explicitly provides for attorneys’ fees in § 1981 cases,{18} and neither school had evinced "`obstinate obduracy’" or bad faith in contesting the action. 515 F.2d at 1089-1090.

Mindful of this Court’s Alyeska decision, the petitioners do not claim that their vindication of the right of Negro children to attend private schools alone entitles them to attorneys’ fees. They make instead two other arguments.

First, the petitioners claim that the schools exhibited bad faith, not by litigating the legal merits of their racially discriminatory admissions policy, but by denying that they in fact had discriminated. To support this claim, the petitioners cite a number of conflicts in testimony between the McCrarys, the Gonzaleses, and other witnesses, on the one hand, and the officials of the schools, on the other, which the District Court resolved against the schools in finding racial discrimination. Indeed, the trial court characterized as "unbelievable" the testimony of three officials of the Fairfax-Brewster School. 363 F.Supp. at 1202. By stubbornly contesting the facts, the petitioners assert, the schools attempted to deceive the court and, in any event, needlessly prolonged the litigation.

We cannot accept this argument. To be sure, the Court has recognized the "inherent power" of the federal courts to assess attorneys’ fees when the losing party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons. . . ." F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116, 129. See Alyeska, supra at 258-259; Vaughan v. Atkinson, 369 U.S. 527. But in this case, the factual predicate to a finding of bad faith is absent. Simply because the facts were found against the schools does not, by itself, prove that threshold of irresponsible conduct for which a penalty assessment would be justified. Whenever the facts in a case are disputed, a court perforce must decide that one party’s version is inaccurate. Yet it would be untenable to conclude ipso facto that that party had acted in bad faith. As the Court of Appeals stated, 515 F.2d at 1090:

Faults in perception or memory often account for differing trial testimony, but that has not yet been thought a sufficient ground to shift the expense of litigation.

We find no warrant for disturbing the holding of the Court of Appeals that no bad faith permeated the defense by the schools of this lawsuit.

The petitioners’ second argument is that, while 42 U.S.C. § 1981 contains no authorization for the award of attorneys’ fees, 42 U.S.C. § 1988 implicitly does. In relevant part, that section reads:

The jurisdiction in civil . . . matters conferred on the district courts by the provisions of this chapter and Title 18, for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are not adapted to the object, or are deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause. . . .

The petitioners assert, in the words of their brief, that § 1988

embodies a uniquely broad commission to the federal courts to search among federal and state statutes and common law for the remedial devices and procedures which best enforce the substantive provisions of Sec.1981 and other civil rights statutes.

As part of that "broad commission," the federal courts are obligated, the petitioners say, to award attorneys’ fees whenever such fees are needed to encourage private parties to seek relief against illegal discrimination.

This contention is without merit. It is true that, in order to vindicate the rights conferred by the various Civil Rights Acts, § 1988

authorize[s] federal courts, where federal law is unsuited or insufficient "to furnish suitable remedies," to look to principles of the common law, as altered by state law. . . .

Moor v. County of Alameda, 411 U.S. 693, 702-703. See Sullivan v. Little Hunting Park, Inc., 396 U.S. at 239-240. But the Court has never interpreted § 1988 to warrant the award of attorneys’ fees. And nothing in the legislative history of that statute suggests that such a radical departure from the long-established American rule forbidding the award of attorneys’ fees was intended.

More fundamentally, the petitioners’ theory would require us to overlook the penultimate clause of § 1988: "so far as the same is not inconsistent with the Constitution and laws of the United States." As the Court recounted in some detail in Alyeska, supra at 247, passim, the law of the United States, but for a few well recognized exceptions not present in these cases,{19} has always been that, absent explicit congressional authorization, attorneys’ fees are not a recoverable cost of litigation. Hence, in order to "furnish" an award of attorneys’ fees, we would have to find that, at least as to cases brought under statutes to which § 1988 applies, Congress intended to set aside this longstanding American rule of law. We are unable to conclude, however, from the generalized commands of § 1988, that Congress intended any such result.

For the reasons stated in this opinion, the judgment of the Court of Appeals is in all respects affirmed.

It is so ordered.

* Together with No. 75-66, Fairfax-Brewster School, Inc. v. Gonzales et al.; No. 75-278, Southern Independent School Assn. v. McCrary et al.; and No. 75-306, McCrary et al. v. Runyon et ux., dba Bobbe’s School, et al., also on certiorari to the same court.

1. Title 42 U.S.C. § 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and 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 is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

2. The respondents withdrew their Title II claim before trial.

3. The District Court determined that the suit could not be maintained as a class action.

4. For the embarrassment, humiliation, and mental anguish which the parents and children suffered, the Court awarded Colin Gonzales $2,000 against the Fairfax-Brewster School and $500 against Bobbe’s School. Michael McCrary was awarded damages of $1,000, and Mr. and Mrs. McCrary $2,000, against Bobbe’s School.

5. See generally Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431, 439-440; Moose Lodge No. 107 v. Irvis, 407 U.S. 163.

6. Nothing in this record suggests that either the Fairfax-Brewster School or Bobbe’s Private School excludes applicants on religious grounds, and the Free Exercise Clause of the First Amendment is thus in no way here involved.

7. Apart, of course, from the statute of limitations and attorneys’ fees issues involved in No. 75-306, and dealt with in Part III of this opinion.

8. The historical note appended to the portion of the Civil Rights Act of 1866, presently codified in 42 U.S.C. § 1981, indicates that § 1981 is derived solely from § 16 of the Act of May 31, 1870, 16 Stat. 144. The omission from the historical note of any reference to § 18 of the 1870 Act, which reenacted § 1 of the 1866 Act, or to the 1866 Act itself reflects a similar omission from the historical note that was prepared in connection with the 1874 codification of federal statutory law. The earlier note was appended to the draft version of the 1874 revision prepared by three commissioners appointed by Congress.

On the basis of this omission, at least one court has concluded, in an opinion that antedated Johnson v. Railway Express Agency, 421 U.S. 454, that § 1981 is based exclusively on the Fourteenth Amendment and does not, therefore, reach private action. Cook v. Advertiser Co., 323 F.Supp. 1212 (MD Ala.), aff’d on other grounds, 458 F.2d 1119 (CA5). But the holding in that case ascribes an inappropriate significance to the historical note presently accompanying § 1981, and thus implicitly to the earlier revisers’ note.

The commissioners who prepared the 1874 draft revision were appointed pursuant to the Act of June 27, 1866, 14 Stat. 74, reenacted by the Act of May 4, 1870, c. 72, 16 Stat. 96. They were given authority to "revise, simplify, arrange, and consolidate all statutes of the United States," Act of June 27, 1866, § 1, 14 Stat. 74, by

bring[ing] together all statutes and parts of statutes which, from similarity of subject, ought to be brought together, omitting redundant or obsolete enactments. . . .

§ 2, 14 Stat. 75 (emphasis added). The commissioners also had the authority under § 3 of the Act of June 27, 1866, to "designate such statutes or parts of statutes as, in their judgment, ought to be repealed, with their reasons for such repeal." 14 Stat. 75.

It is clear that the commissioners did not intend to recommend to Congress, pursuant to their authority under § 3 of the Act of June 27, 1866, that any portion of § 1 of the Civil Rights Act of 1866 be repealed upon the enactment of the 1874 revision. When the commissioners were exercising their § 3 power of recommendation, they so indicated, in accordance with the requirements of § 3. See 1 Draft Revision of the United States Statutes, Title XXVI, §§ 8, 13 (1872). No indication of a recommended change was noted with respect to the section of the draft which was to become § 1981. It is thus most plausible to assume that the revisers omitted a reference to § 1 of the 1806 Act or § 18 of the 1870 Act either inadvertently or on the assumption that the relevant language in § 1 of the 1866 Act was superfluous in light of the closely parallel language in § 16 of the 1870 Act.

We have, in past decisions, expressed the view that § 16 of the 1870 Act was merely a reenactment, with minor changes, of certain language in § 1 of the 1866 Act. E.g., Georgia v. Rachel, 384 U.S. 780, 790-791. If this is so, then an assumption on the part of the revisers that the language of the 1866 Act was superfluous was perfectly accurate. But even assuming that the purpose behind the enactment of § 16 of the 1870 Act was narrower than that behind the enactment of relevant language in § 1 of the 1866 Act -- and thus that the revisers’ hypothetical assumption was wrong -- there is still no basis for inferring that Congress did not understand the draft legislation which eventually became 42 U.S.C. § 1981 to be drawn from both § 16 of the 1870 Act and § 1 of the 1866 Act.

To hold otherwise would be to attribute to Congress an intent to repeal a major piece of Reconstruction legislation on the basis of an unexplained omission from the revisers’ marginal notes. Such an inference would be inconsistent with Congress’ delineation in § 3 of the Act of June 27, 1866, of specific procedures to be followed in connection with the submission of substantive proposals by the revisers. It would also conflict with the square holding of this Court in Johnson v. Railway Express Agency, supra, that § 1981 reaches private conduct.

9. The petitioning schools and school association rely on a statement in Norwood v. Harrison, 413 U.S. 455, 469, that

private bias [in the admission of students to private schools] is not barred by the Constitution, nor does it invoke any sanction of laws, but neither can it call on the Constitution for material aid from the State.

(Emphasis added.) They argue that this statement supports their contention that § 1981 does not proscribe private racial discrimination that interferes with the formation of contracts for educational services. But Norwood involved no issue concerning the applicability of § 1981 to such discrimination. The question there was rather whether a state statute providing free textbooks to students attending private segregated schools violated the Equal Protection Clause of the Fourteenth Amendment. Indeed, Norwood expressly noted that "some private discrimination is subject to special remedial legislation in certain circumstances under § 2 of the Thirteenth Amendment. . . ." 413 U.S. at 470.

10. These cases do not raise the issue of whether the "private club or other [private] establishment" exemption in § 201(e) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a(e), operates to narrow § 1 of the Civil Rights Act of 1866. As the Court of Appeals implied, that exemption, if applicable at all, comes into play only if the establishment is "not in fact open to the public. . . ." 42 U.S.C. § 2000a(e). See 515 F.2d 1082, 1088-1089. Both Bobbe’s School and the Fairfax-Brewster School advertised in the "Yellow Pages" of the telephone directory, and both used mass mailings in attempting to attract students. As the Court of Appeals observed, these

schools are private only in the sense that they are managed by private persons and they are not direct recipients of public funds. Their actual and potential constituency, however, is more public than private. They appeal to the parents of all children in the area who can meet their academic and other admission requirements. This is clearly demonstrated in this case by the public advertisements.

Id. at 1089.

The pattern of exclusion is thus directly analogous to that at issue in Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, and Tillman v. Wheaton-Haven Recreation Assn., 410 U.S. 431, where the so-called private clubs were open to all objectively qualified whites -- i.e., those living within a specified geographic area.

Moreover, it is doubtful that a plausible "implied repeal" argument could be made in this context in any event. Implied repeals occur if two Acts are in irreconcilable conflict. Radzanower v. Touche Ross & Co., 426 U.S. 148, 154-155. Title II of the Civil Rights Act of 1964, of which the "private club" exemption is a part, does not by its terms reach private schools. Since there would appear to be no potential for overlapping application of § 1981 and Title II of the 1964 Act with respect to racial discrimination practiced by private schools, there would also appear to be no potential for conflict between § 1981 and Title II’s "private club" exemption in this context. See Note, The Desegregation of Private Schools: Is Section 1981 the Answer?, 48 N.Y.U.L.Rev. 1147, 1159 (1973).

11. Senator Hruska proposed an amendment which would have made Title VII of the Civil Rights Act of 1964 and the Equal Pay Act the exclusive sources of federal relief for employment discrimination. 118 Cong.Rec. 3371 (1972). Senator Williams, the floor manager of the pending bill and one of its original sponsors, argued against the proposed amendment on the ground that "[i]t is not our purpose to repeal existing civil rights laws" and that to do so "would severely weaken our overall effort to combat the presence of employment discrimination." Ibid. Senator Williams specifically noted:

The law against employment discrimination did not begin with title VII and the EEOC, nor is it intended to end with it. The right of individuals to bring suits in Federal courts to redress individual acts of discrimination, including employment discrimination was first provided by the Civil Rights Acts of 1866 and 1871, 42 U.S.C. sections 1981, 1983. It was recently stated by the Supreme Court in the case of Jones v. Mayer, that these acts provide fundamental constitutional guarantees. In any case, the courts have specifically held that title VII and the Civil Rights Acts of 1866 and 1871 are not mutually exclusive, and must be read together to provide alternative means to redress individual grievances. Mr. President, the amendment of the Senator from Nebraska will repeal the first major piece of civil rights legislation in this Nation’s history. We cannot do that.

Ibid. The Senate was persuaded by Senator Williams’ entreaty that it not "strip from [the] individual his rights that have been established, going back to the first Civil Rights Law of 1866," id. at 3372, and Senator Hruska’s proposed amendment was rejected. Id. at 3372-3373.

12. The Court in Edelman stated as follows:

In the words of Mr. Justice Brandeis: "Stare decisis is usually the wise policy, because, in most matters, it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. . . ."

415 U.S. at 671 n. 14 (citation omitted).

13. It is clear that the schools have standing to assert these arguments on behalf of their patrons. See Pierce v. Society of Sisters, 268 U.S. 510, 535-536.

14. Seen. 10, supra.

15. The Meyer-Pierce-Yoder "parental" right and the privacy right, while dealt with separately in this opinion, may be no more than verbal variations of a single constitutional right. See Roe v. Wade, 410 U.S. 113, 152-153 (citing Meyer v. Nebraska and Pierce v. Society of Sisters for the proposition that this Court has recognized a constitutional right of privacy).

16. The Court has recognized in similar contexts the link between equality of opportunity to obtain an education and equality of employment opportunity. See McLaurin v. Oklahoma State Regents, 339 U.S. 637; Sweatt v. Painter, 339 U.S. 629.

17. See, e.g., Van Horn v. Lukhard, 392 F.Supp. 384, 391 (ED Va.); Edgerton v. Puckett, 391 F.Supp. 463 (WD Va.); Wilkinson v. Hamel, 381 F.Supp. 768, 769 (WD Va.); Cradle v. Superintendent, Correctional Field Unit #7, 374 F.Supp. 435, 437 n. 3 (WD Va.); Taliaferro v. State Council of Higher Education, 372 F.Supp. 1378, 1383 (ED Va.); Landman v. Brown, 350 F.Supp. 303, 306 (ED Va.); Sitwell v. Burnette, 349 F.Supp. 83, 85-86 (WD Va).

18. Cf., e.g., Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a-3(b). See Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 260-262, and n. 33.

19. See, e.g., Trustees v. Greenough, 105 U.S. 527 (allowance of attorneys’ fees out of a common fund); Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399 (assessment of fees as part of the fine for willful disobedience of a court order); F. D. Rich Co. v. United States ex rel. Industrial Lumber Co., 417 U.S. 116 (assessment of attorneys’ fees against party acting in bad faith).