|City of Memphis v. Greene
[ Stevens ]
[ White ]
[ Marshall ]
City of Memphis v. Greene
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
JUSTICE WHITE, concurring in the judgment.
In this civil rights action, respondents sought relief under the Thirteenth and Fourteenth Amendments as well as under 42 U.S.C. §§ 1982 1983. The District Court held that, while the closure of West Drive in Memphis, Tenn., would have a disproportionate impact upon certain black residents of Memphis, the evidence did not support a finding of a purpose or intent to discriminate. Neither was the disparate impact "so stark that a purpose or intent of racial discrimination" could be inferred. As a consequence, and following instructions from the initial remand, the District Court concluded that respondents had failed to prove a violation of either § 1982 or § 1983. [n1] The District Court did not specifically address the alleged constitutional violations, but implicitly those allegations fell on the same basis. The Court of Appeals for the Sixth Circuit reversed the District Court's ultimate conclusion that there was no violation of § 1982, but the appellate court did not disturb the trial court's finding that there was no purposeful discrimination. Without [p130] explicitly saying so, the Court of Appeals necessarily held that a violation of § 1982 could be established without proof of discriminatory intent. [n2] The petition for a writ of certiorari sought review of that precise point.
We granted review to answer the question presented in the petition for a writ of certiorari. The parties in their briefs proceeded on the same assumption. However, instead of addressing the question which was explicitly presented by the findings and holdings below, raised by the petitioners, granted review by this Court and briefed by the parties, the Court inexplicably assumes the role of factfinder, peruses the cold record, rehashes the evidence, and, sua sponte, purports to resolve questions that the parties have neither briefed nor argued. It is not surprising that the dissent has taken this same record and interpreted it in quite another way. In any event, rather than becoming involved in the imbroglio between the majority and the dissent, I much prefer, as a matter of policy and common sense, to answer the question for which we took the case. There is no good reason here to disregard our own Rule 21.1(a), which states that "[o]nly the questions set forth in the petition or fairly included therein will be considered by the Court."
We are called upon to determine whether a nonintentional adverse impact upon black citizens is a sufficient basis for relief under 42 U.S.C. § 1982. That statute declares that
[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.
Under that language, a person's [p131] race is irrelevant to the existence of the declared rights. No person is to be denied the enumerated rights merely because that person is not white. Purposeful racial discrimination is quite clearly the focus of the proscription, and this understanding of § 1982 is supported by the legislative history of the Civil Rights Act of 1866, the enactment from which § 1982 was derived.
The Civil Rights Act of 1866 was enacted pursuant to § 2 of the Thirteenth Amendment. That Amendment had been adopted by the States in 1865, after the close of the Civil War. It announced the legal demise of slavery. [n3] Section 2 of the Amendment provides: "Congress shall have power to enforce this article by appropriate legislation." Although slavery was legally abolished, the Amendment foresaw that specific implementation of its command would be required to eradicate completely the deep-seated institution of slavery. The Civil Rights Act of 1866 was explicitly designed as such a practical measure.
When the 39th Congress undertook consideration of the proposed Civil Rights Act of 1866, there was a growing perception that the plight of the southern blacks had not been resolved by the adoption of the Thirteenth Amendment. [n4] In [p132] the words of one contemporary observer:
The general government of the republic has, by proclaiming the emancipation of the slaves, commenced a great social revolution in the south, but has, as yet, not completed it. Only the negative part of it is accomplished. The slaves are emancipated in point of form, but free labor has not yet been put in the place of slavery in point of fact.
S.Exec.Doc. No. 2, 39th Cong., 1st Sess., 38 (1865). Individual Southern States had begun enacting the so-called Black Codes, [n5] which, although not technically resurrecting the institution of slavery, were viewed by the Republican Congress as a large step in that direction. See generally H. Flack, Adoption of the Fourteenth Amendment 11-54 (1908). In addition, there was evidence that former slaves were being subjected to serious abuses at the hands of the white majority. See Joint Committee on Reconstruction, H.R.Rep. No. 30, 39th Cong., 1st Sess., xvii and passim (1866). The proposed Civil Rights Act was specifically designed to stem this tide of oppression. See Jones [p133] v. Alfred H. Mayer. Co., 392 U.S. 409, 426-429, and nn. 34-45 (1968). Senator Trumbull, sponsor of the bill, made this precise purpose of the Act abundantly clear:
Since the abolition of slavery, the Legislatures which have assembled in the insurrectionary States have passed laws relating to the freedmen, and, in nearly all the States, they have discriminated against them. They deny them certain rights, subject them to severe penalties, and still impose upon them the very restrictions which were imposed upon them in consequence of the existence of slavery, and before it was abolished. The purpose of the bill under consideration is to destroy all these discriminations, and to carry into effect the constitutional amendment.
Cong.Globe, 39th Cong., 1st Sess., 474 (1866).
The theme sounded by Senator Trumbull was repeated on numerous occasions during the lengthy floor debates which took place in both Houses of Congress. The supporters of the bill emphasized time and again that the measure was designed to eradicate blatant deprivations of civil rights. See, e.g., id. at 322, 339-340, 474-475, 516-517, 1123, 1151-1152, 1159-1160, 1833-1835. The purpose of the Act was to insure that the abolition of slavery was accomplished in fact, as well as theory:
[The Thirteenth Amendment] declared that all persons in the United States should be free. This measure is intended to give effect to that declaration, and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be affected by them have some means of availing themselves of their benefits. . . . And of what avail will it now be that the Constitution of the United States has declared that slavery shall not exist if, in the late slaveholding States, laws [p134] are to be enacted and enforced depriving persons of African descent of privileges which are essential to freemen?
It is the intention of this bill to secure those rights.
Id. at 474 (remarks of Sen. Trumbull).
The Civil Rights Act of 166 thus was a response to the perception held by Congress that former slaves were being denied basic civil rights. The Act would give practical effect to the Thirteenth Amendment.
The bill under consideration is intended only to carry into practical effect the amendment of the Constitution. Its object is to declare not only that slavery shall be abolished upon the pages of your Constitution, but that it shall be abolished in fact and in deed. . . .
Id. at 1152 (remarks of Mr. Thayer). But nothing in the legislative history of this Act suggests that Congress was concerned with facially neutral measures which happened to have an incidental impact on former slaves. [n6] [p135] On the contrary, the theme of the debates surrounding this statute is that the former slaves continued to be subject to direct, intentional abuses at the hands of their former masters. That was the problem Congress intended to address, and that focus should determine the reach and scope of this statute. We have no basis for concluding anything other than that a violation of § 1982 requires some showing of racial animus or an intent to discriminate on the basis of race. The Court of Appeals proceeded on a contrary basis, and reversed the District Court's judgment without disturbing the District Court's conclusion that no discriminatory purpose had been found. This was error, and, for that reason, I concur in the judgment of reversal, but would remand for further proceedings consistent with this opinion.
1. The initial opinion of the Court of Appeals instructed the District Court as follows:
To establish a section 1982 or 1983 claim on remand, Greene must prove his allegations that city officials conferred the closed street on West Drive residents because of their color; he must prove racial motivation, intent or purpose, in the absence of such egregious differential treatment as to in itself violate equal protection or, alternatively, to command an inference of racial motivation.
535 F.2d 976, 979. In the opinion rendered by the Court of Appeals following the initial remand, the above language was described as dicta.
2. Respondents' § 1983 claim based on the Fourteenth Amendment necessarily fell on the District Court's conclusion that respondents had failed to meet their burden of establishing discriminatory intent. See Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252"]429 U.S. 252 (1977); 429 U.S. 252 (1977); Washington v. Davis, 426 U.S. 229 (1976). The Court of Appeals did not hold otherwise. Nor is the reach of the Thirteenth Amendment properly before us. The Court of Appeals' judgment was based on § 1982.
3. Section I of the Thirteenth Amendment provides:
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.
4. The fear that the former slaves were doomed to second-class citizenship was supported by the report submitted by Major General Carl Schurz to President Andrew Johnson. S.Exec.Doc. No. 2, 39th Cong., 1st Sess. (1865). President Johnson had assigned Schurz the task of traveling through a number of Southern States for the purpose of gathering information and making observations as to the postwar conditions to be found in that region. The report is a detailed and lucid account of these journeys. In it, Schurz describes the precarious social position of the freedmen as well as the numerous abuses to which those individuals were being subjected. The report expressed the general view that the South was having difficulty adjusting to the abolition of slavery, and that, in the absence of federal intervention, a substitute for slavery was not unlikely. Schurz' report concludes with the admonition:
As to the future peace and harmony of the Union, it is of the highest importance that the people lately in rebellion be not permitted to build up another "peculiar institution" whose spirit is in conflict with the fundamental principles of our political system; for as long as they cherish interests peculiar to them in preference to those they have in common with the rest of the American people, their loyalty to the Union will always be uncertain.
Id. at 46. The themes sounded in this report were repeated in the debates over the Civil Rights Act.
5. Apropos of the effect of these Black Codes, Major General Schurz commented:
But while accepting the "abolition of slavery," they think that some species of serfdom, peonage, or some other form of compulsory labor is not slavery, and may be introduced without a violation of their pledge. . . . What particular shape the reactionary movement will assume it is at present unnecessary to inquire. There are a hundred ways of framing apprenticeship, vagrancy, or contract laws which will serve the purpose.
Id. at 35. The Codes are collated and described in E. McPherson, The Political History of the United States of America During the Period of Reconstruction 29-44 (1871).
6. Respondents suggest that certain of the discriminations with which Congress was concerned arose out of facially neutral vagrancy laws, applicable equally to blacks and whites. From this we are to infer the creation of a disparate impact standard. But this argument overlooks the congressional view that these ostensibly neutral statutes were intentionally being used to oppress blacks.
Vagrant laws have been passed; laws which, under the pretense of selling these men as vagrants, are calculated and intended to reduce them to slavery again; and laws which provide for selling these men into slavery in punishment of crimes of the slightest magnitude. . . .
Cong.Globe, 39th Cong., 1st Sess., 1123 (1866) (remarks of Mr. Cook); see also id. at 1151 (remarks of Mr. Thayer), 1160 (remarks of Mr. Windom). For example, General Terry ordered nonenforcement of the Virginia Vagrant Act, since he had concluded that white farmers had entered into combinations fixing the wages to be paid former slaves at an unreasonably low level, forcing the freedmen to either accept the unfair wage or risk criminal conviction under the Vagrant Act. General Terry observed:
"The effect of the statute in question will be, therefore, to compel the freedmen, under penalty of punishment as criminals, to accept and labor for the wages established by these combinations of employers. It places them wholly in the power of their employers, and it is easy to foresee that, even where no such combination now exists, the temptation to form them offered by the statute will be too strong to be resisted, and that such inadequate wages will become the common and usual wages throughout the State. The ultimate effect of the statute will be to reduce the freedmen to a condition of servitude worse than that from which they have been emancipated -- a condition which will be slavery in all but its name."