Also known as: badges or incidents of slavery · badge of slavery · incident of slavery · badges and incidents of slavery
Written by attorneys — see sources below.
A form of private racial discrimination or subordination that Congress may prohibit under its Thirteenth Amendment enforcement power as a vestige of slavery. The category reaches conduct that perpetuates racial caste through denial of fundamental civil rights such as property ownership, education, and employment.
Belinda Baxter, a Black engineer at Brighton Manufacturing, applied to buy a company-owned home near the plant. The company refused her application and steered Black employees to inferior trailers on the outskirts. A federal statute bars such private racial refusals in property sales. Baxter's suit under the statute proceeds because the refusal qualifies as conduct Congress may reach.
Benito Benitez sought to enroll his child at a private nonsectarian academy. The school rejected the application solely because the family is Latino. Federal legislation enacted under the Thirteenth Amendment prohibits such private racial exclusions from education. Benitez's claim against the school is actionable.
Benjamin Brooks attempted to use a city swimming pool reserved for white residents. City officials closed the facility rather than integrate it. The closure perpetuated racial separation in a manner tied to historical subordination. Legislation targeting the practice as a badge or incident of slavery applies.
Blake Butler, a Black citizen under twenty-one, was barred from registering to vote in a state election. Congress enacted a statute extending the franchise to eighteen-year-olds to eliminate lingering racial barriers. Butler's registration proceeds under the federal provision. The statute rests on authority to address badges or incidents of slavery.
Byron Bishop applied to enroll his children at a private academy that admitted only white students. The school denied admission on racial grounds. A federal statute prohibits such private racial discrimination in education. Bishop may sue the academy under the statute.
The Fairfax-Brewster School commenced operations in 1955 and opened a summer day camp in 1956. Bobbe's School opened in 1958 and grew from an initial enrollment of five students to 200 in 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 stating that it was "unable to accommodate [Colin's] application." Fairfax-Brewster's Chairman of the Board explained that the reason for rejection was that the school was not integrated. Mr. Gonzales then telephoned Bobbe's School, from which the family had also received a brochure addressed to "resident." 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, and asked if the school was integrated. The answer was no. The suits were consolidated for trial. 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 the schools and the member schools of the Southern Independent School Association from discriminating against applicants on the basis of race. The court awarded compensatory relief to Mr. and Mrs. McCrary, Michael McCrary, and Colin Gonzales. Finally, the court assessed attorneys' fees of $1,000 against each school. 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. 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. The court agreed that 42 U.S.C. § 1981 is a limitation upon private discrimination. 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.
View caseBoubacar Bah, a Black applicant, was rejected for a position at Benson Motors despite superior qualifications. The company followed a pattern of excluding Black candidates from hiring. Federal legislation bars such private racial discrimination in employment. Bah's claim under the statute is valid.
Brenda Patterson, a black woman, began her employment with McLean Credit Union in May 1972 as a teller and file coordinator in North Carolina. She remained in that position until July 1982, when the credit union laid her off. After her termination, Patterson commenced an action in the United States District Court for the Middle District of North Carolina, alleging that McLean Credit Union had harassed her, failed to promote her to an intermediate accounting clerk position, and discharged her, all because of her race, in violation of 42 U.S.C. § 1981. She also asserted a state-law claim for intentional infliction of emotional distress under North Carolina tort law. The District Court ruled that a claim for racial harassment is not actionable under § 1981 and declined to submit that portion of the case to the jury. The jury received and deliberated upon Patterson's § 1981 claims alleging discrimination in her discharge and the failure to promote her, returning verdicts for the employer on both claims. The District Court directed a verdict for the employer on the state tort claim, concluding that the employer's conduct did not rise to the level of outrageousness required under North Carolina law. In the Court of Appeals for the Fourth Circuit, Patterson challenged the District Court's refusal to submit her § 1981 racial harassment claim to the jury. She also argued that the District Court had erred in instructing the jury that she must show she was better qualified than the white employee promoted in her place. The Court of Appeals affirmed the District Court's judgment in full, holding that racial harassment does not abridge the right to make and enforce contracts under § 1981, while upholding the jury instruction on the promotion claim. The Supreme Court granted certiorari to decide whether Patterson's racial harassment claim is actionable under § 1981 and whether the jury instruction on her promotion claim was erroneous. After oral argument on these issues, the Court requested the parties to brief and argue an additional question whether or not the interpretation of 42 U.S.C. § 1981 adopted by this Court in Runyon v. McCrary, 427 U.S. 160 (1976), should be reconsidered.
View casePrivate racial discrimination in the sale or rental of property qualifies because it perpetuates historical patterns of racial subordination. Similar treatment applies to racial exclusions from private schools and employment. Congress may prohibit these practices through enforcement legislation even when no state action is involved.
Yes. The amendment contains no state action requirement, unlike the Fourteenth Amendment. Congress may therefore enact statutes that directly prohibit private racial discrimination when the conduct is treated as a badge or incident of slavery.
The Fourteenth Amendment enforcement power is limited to state action. The Thirteenth Amendment enforcement power extends to private conduct that constitutes a badge or incident of slavery, allowing Congress to reach private sellers, landlords, and employers.
…a public conveyance or place of amusement, refusing accommodations to colored people, cannot be justly regarded as imposing any badge of slavery or servitude upon the applicant, but only as involving an ordinary civil injury, properly cognizable by the laws of the State, and presumably subject to redress by those laws until the…