Desegregation of Private Schools: Section 1981 as an Alternative to State Action
![handle is hein.journals/glj62 and id is 1375 raw text is: NOTES
DESEGREGATION OF PRIVATE SCHOOLS:
SECTION 1981 AS AN ALTERNATIVE TO
STATE ACTION
In Jones v. Alfred H. Mayer Co. the Supreme Court awakened sec-
tion one of the Civil Rights Act of 18662 from over a century of slum-
ber. The Court held that the portion of section one now codified at
section 1982 of title 42 of the United States Code bars all racial
discrimination, public or private, in the sale or rental of property, and
that the statute, thus construed, is a valid exercise of Congress' power
under the thirteenth amendment to eradicate all vestiges of slavery.4
In subsequent decisions lower courts have utilized a companion statute,
section 1981,1 in order to reach other forms of private racial discrimi-
nation. Recently, the United States District Court for the Eastern
District of Virginia in Gonzales v. Fairfax-Brester School, Inc.6 ex-
tended section 1981 to prohibit discrimination by private schools. The
court held that a private school's refusal to admit a black child, solely
on the basis of race, was an infringement of the section 1981 guarantee
that blacks have the same right to make or enforce contracts as is
enjoyed by whites.7 This decision, if upheld on appeal, portends signifi-
cant changes in the sphere of private racial discrimination.
1392 US. 409 (1968).
2 Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27, reenacted, Civil Rights Act of
1870, ch. 114, 15 16, 18, 16 Star. 144, codified at, 42 U.S.C. 5§ 1981, 1982 (1970).
8 Civil Rights Act of 1866, § 1, 42 U.S.C. § 1982 (1970). All 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. Id.
4 392 U.S. at 413.
5 Civil Rights Act of 1866, § 1, 42 U.S.C. § 1981 (1970). 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. Id.
6 363 F. Supp. 1200 (E.D. Va. 1973), appeal docketed, No. 73-2351, 4th Cir., Nov. 13,
1973.
7Id. at 1203; see Civil Rights Act of 1866, § 1, 42 U.S.C. § 1981 (1970).
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Desegregation of Private Schools: Section 1981 as an Alternative to State Action
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