427 U.S. 160 (1976)
The Fairfax-Brewster School commenced operations in 1955 and opened a summer day camp in 1956.1 Bobbe's School opened in 1958 and grew from an initial enrollment of five students to 200 in 1972.2 Neither school has ever accepted a Negro child for any of its programs.3
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 1969.4 After the visit, they submitted an application for Colin's admission to the day camp.5 The school responded with a form letter stating that it was "unable to accommodate [Colin's] application."6 Fairfax-Brewster's Chairman of the Board explained that the reason for rejection was that the school was not integrated.7 Mr. Gonzales then telephoned Bobbe's School, from which the family had also received a brochure addressed to "resident."8 He was told that only members of the Caucasian race were accepted.9
In August 1972, Mrs. McCrary telephoned Bobbe's School in response to an advertisement in the telephone book.10 She inquired about nursery school facilities for her son, Michael, and asked if the school was integrated.11 The answer was no.12 The suits were consolidated for trial.13
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.14 The court held that 42 U.S.C. § 1981 makes illegal the schools' racially discriminatory admissions policies.15 It therefore enjoined the schools and the member schools of the Southern Independent School Association from discriminating against applicants on the basis of race.16 The court awarded compensatory relief to Mr. and Mrs. McCrary, Michael McCrary, and Colin Gonzales.17 Finally, the court assessed attorneys' fees of $1,000 against each school.18
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 on the statute of limitations, but reversed the award of attorneys' fees.19 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.20 The court agreed that 42 U.S.C. § 1981 is a limitation upon private discrimination.21 We granted certiorari to consider whether § 1981 prevents private schools from discriminating racially among applicants and to address the attorneys' fees and statute of limitations issues.22
Whether 42 U.S.C. § 1981 prohibits private schools from denying admission to prospective students on the basis of race?23
Section 1981, derived from the Civil Rights Act of 1866, prohibits all racial discrimination in the making and enforcement of private contracts, reaching private conduct as held in Jones v. Alfred H. Mayer Co., 392 U.S. 409.24
Yes. The Fairfax-Brewster School and Bobbe's School maintained policies of denying admission to black students.25 They rejected Colin Gonzales after his parents responded to a brochure and visited the school, and rejected Michael McCrary after his mother telephoned in response to an advertisement, solely because of race.26 These actions interfered with the formation of contracts for educational services offered to the general public, violating the equal right to make contracts under § 1981.27
Section 1981 prohibits the private schools from denying admission on the basis of race.28
Related opinions on this issue
Justice Stevens joined the Court's opinion while acknowledging that Jones v. Alfred H. Mayer Co. was wrongly decided on the original understanding of the 1866 Act.29
He concluded that the interest in stability and the national policy of eliminating racial segregation favor adherence to precedent rather than overruling it.30 The construction of § 1981 accords with the prevailing sense of justice today, and the net result of the 1866 enactment, 1870 re-enactment, and 1874 codification rests on both Thirteenth and Fourteenth Amendment foundations.31
Joined by Justice Rehnquist
Justice White dissented on the ground that § 1981 on its face and in its legislative history confers only the same legal capacity to make contracts as white citizens enjoy and does not prohibit private racially motivated refusals to contract.32
The majority's construction threatens to launch the judiciary on a course of balancing sensitive policy considerations never addressed by Congress.33 Section 1981 was enacted under the Fourteenth Amendment to reach state action, not private conduct.34
Joined by Chief Justice Burger
Justice Rehnquist dissented on the ground that Section 1981 was enacted to enforce the Thirteenth Amendment and eradicate the incidents of slavery but was not intended to reach private conduct unconnected with state action.35
The Court's decision in Jones v. Alfred H. Mayer Co. should not be extended to this context.36 The application of § 1981 to private schools raises serious constitutional questions under the First and Fifth Amendments.37 The rights of parents to direct the education of their children and to send them to private schools that reflect their values are entitled to constitutional protection.38 The Court's decision today erodes those rights.39
Whether application of § 1981 to private schools violates the First Amendment right of free association?40
The First Amendment protects the right to associate for the advancement of beliefs, but does not protect invidious private discrimination or the practice of excluding racial minorities from institutions open to the public.41
No. The schools advertised in telephone directories and sent brochures to residents, holding themselves open to the public on racially neutral terms except for their exclusion of black applicants such as Colin Gonzales and Michael McCrary.42 No showing was made that ending the discriminatory admissions would inhibit the teaching of any ideas or dogma at the schools.43
Application of § 1981 does not violate the First Amendment right of free association.44
Related opinions on this issue
Joined by Justice Stevens
Justice Powell joined the opinion of the Court but wrote separately to emphasize that the decision does not undermine the right of parents to send their children to private schools or to direct their children's education.45
The schools extended a public offer open on its face to any child meeting minimum academic, financial, and other qualifications and operated strictly on a commercial basis.46 Their open-end invitations could fairly be construed as offers that matured into binding contracts when accepted by those meeting racially neutral conditions.47
Personal contractual relationships such as those with a private tutor, babysitter, or housekeeper would present a different case reflecting a purpose of exclusiveness other than race.48 The schools here appealed to the parents of all children in the area, making their constituency more public than private.
Whether application of § 1981 to private schools violates parents' or students' constitutional right to privacy?49
The constitutional right to privacy does not extend to a parent's choice of a private school that discriminates on the basis of race.50 The right to direct a child's education recognized in Meyer and Pierce does not include a right to provide education unfettered by reasonable government regulation.51
No. The schools' racially discriminatory admissions policies, applied to deny Colin Gonzales and Michael McCrary enrollment after public advertising, do not implicate the privacy of the home or an intimate setting.52 Parents retain the right to send children to private schools offering specialized instruction, but no constitutional right exists to select schools that discriminate on race.53
Application of § 1981 does not violate the constitutional right to privacy.54
Whether application of § 1981 to private schools violates the Free Exercise Clause when the schools' policies rest on religious beliefs?55
The Free Exercise Clause does not exempt private schools from complying with a neutral law of general applicability such as § 1981 even if the law has the incidental effect of burdening a religious practice.56
No. The record contains no suggestion that either the Fairfax-Brewster School or Bobbe's School excludes applicants on religious grounds, and the schools have not shown that their religious beliefs require racial discrimination in admissions.57 Section 1981 is a valid neutral statute enacted under the Thirteenth Amendment.58
Application of § 1981 does not violate the Free Exercise Clause.
Whether the District Court correctly applied Virginia's two-year statute of limitations to the damages claims under § 1981?59
When Congress is silent on the time limit for a federal cause of action, federal courts borrow the most analogous state statute of limitations; here, Virginia's two-year statute for personal injury actions applies to § 1981 claims.60
Yes. The District Court and Court of Appeals correctly selected the first sentence of Va. Code Ann. § 8-24, which governs actions for personal injuries, because the damages sought for embarrassment, humiliation, and mental anguish from the racial denials to the Gonzales and McCrary families were injuries to the person rather than to property.61 The Court of Appeals had previously applied the same rule in other federal civil rights cases arising in Virginia.62
The District Court correctly applied Virginia's two-year statute of limitations.63
Whether the District Court abused its discretion by awarding attorneys' fees to the prevailing plaintiffs?64
Absent explicit congressional authorization or a finding of bad faith, attorneys' fees are not recoverable in § 1981 actions under the American rule.65
Yes. The Court of Appeals correctly reversed the $1,000 fee award against each school because no statute authorizes fees in § 1981 cases and the schools' defense, though unsuccessful on the facts, did not constitute bad faith or obstinate obduracy.66 Disputed testimony resolved against the schools does not by itself establish the threshold of irresponsible conduct required for a fee award.67
The District Court abused its discretion in awarding attorneys' fees.68