VIII. PROHIBITING PRIVATE DISCRIMINATION

As we have seen in an earlier chapter, the equal protection clause of the Fourteenth Amendment prohibits most discrimination on the basis of race and gender (and also alienage and national origin), but only when practiced by the government. The Supreme Court held in The Civil Rights Cases in 1883, that Congress did not have the power under the Fourteenth Amendment to prohibit discrimination practiced by private parties. Similarly, it would be illegal for a state to discriminate on the basis of a person’s religious belief, but this prohibition under the First Amendment (which was made applicable to the states under the Fourteenth Amendment), would not apply to private conduct.

Therefore, as late as 1960, an employer could refuse to hire a woman, a restaurant owner could refuse service to a black person, and a landlord could refuse to rent an apartment to a Jewish person. Although individual states were free, using their general police power, to prohibit these kinds of discrimination, very few had done so. Starting in the 1960’s, however, Congress has been able to prohibit many forms of private discrimination using its power under other sections of the Constitution.

The three main sources of power that Congress has used to this effect have been: its power under the Thirteenth Amendment (which prohibited slavery), its power over the federal purse, and its power to regulate interstate commerce. Congress’s powers under each of these sections is different, both in terms of who may be prohibited from discriminating and also what kind of discrimination may be prohibited. Some of the statutes passed by Congress under each of these powers have overlapped, so that certain conduct is controlled by several different statutes. There are also certain kinds of private discrimination which Congress either may not constitutionally reach, or has chosen not to. The next sections will examine the coverage of various statutes passed under each of these powers.

A. Power Under the Thirteenth Amendment

The Thirteenth Amendment, passed shortly after the American Civil War, prohibited “slavery and involuntary servitude.” This is one of the few sections of the United States Constitution that applies to private conduct. An employer who forced someone to work until the employee had paid off a debt would violate the Thirteenth Amendment.

Section 2 of the amendment gives Congress the “power to enforce this article by appropriate legislation.” Shortly after passage of the Thirteenth Amendment, Congress passed several statutes providing every citizen “the same right, in every State or Territory, as enjoyed by white citizens” to engage in various activities. These activities included, among others, the right to purchase and lease property and the right to make and enforce contracts. For many years, the Supreme Court held that Congress did not have power under the Thirteenth Amendment to regulate private conduct.

In the 1960’s however, the Court reversed itself and held that Section 2 of the Amendment gave Congress the power to abolish “all badges and incidents of slavery.” Since private discrimination based on race was viewed as a continuation of the harms of slavery, Congress had the power to prohibit private discrimination based on race. The Court held that under the two statutes passed pursuant to the Thirteenth Amendment, a landlord could not refuse to rent to a black person, Jones v. Alfred H. Mayer Co., and a private school could not refuse to admit a black child, Runyon v. McCrary.

In one sense, Congressional power under the Thirteenth Amendment is very broad, in that it can cover almost all kinds of private activities. But it is also narrow, in that it may only be used against racial discrimination, and not against other forms of discrimination, such as gender or age.

B. Power of the Purse

Article I, Section 8, gives Congress the power to collect taxes and spend money “for the general Welfare of the United States.” Some of the money Congress spends goes to private parties. This can take the form of government contracts, for example, to build airplanes. It can also take the form of government aid, for example, grants to private universities or grants to students attending private universities. Congress may attach almost any restrictions on the receipt of such money, as long as the restrictions themselves are not unconstitutional.

Congress has passed several statutes prohibiting discrimination by those receiving federal funds. In 1964 Congress prohibited discrimination on the basis of race, religion or national origin in any “program or activity” receiving federal financial assistance. In Title IX of the Educational Amendments of 1972, it prohibited discrimination on the basis of sex by any educational program or activity receiving federal funds. In 1988, the Supreme Court interpreted “program or activity” narrowly, so that if one department of a university received federal money only that department would be bound by the prohibition and not the whole university. Congress responded by amending the law to make clear that if any part of an organization received funds, the whole organization was bound.

Title IX has been particularly important in providing equal educational opportunity for women, especially in the area of sports. The only remedy specifically provided in this statute was termination of federal funds to the offending organization. The government was hesitant to use this onerous “all or nothing” punishment. The Supreme Court, however, has held that persons who have been discriminated against may also sue under this statute to receive whatever benefits they were denied.

The power of the purse is very broad in that it may be used to prohibit any kind of discrimination. But it will only cover those institutions that receive federal funds. If an organization is willing to forego this funding, then it is not bound by the law.

C. Power to Regulate Interstate Commerce

Congress has the power to regulate commerce “among the several states.” At various times, the Supreme Court has broadened or narrowed the scope of this “commerce clause.” In 1964, when Congress was considering important civil rights legislation, its power under the interstate commerce clause was very broad, so it used this power to address several problems involving private discrimination.

Two very important sections (titles) of the 1964 Civil Rights Act were passed using the commerce power. One section prohibits discrimination on the basis of race in places of public accommodation, such as restaurants and hotels. The Supreme Court upheld the application of this statute to a small, family owned restaurant with a mostly local clientele. The Court first noted that that even such a small restaurant had interstate connections, since it bought almost half of its meat from another state. But the court also noted the cumulative, negative impact on interstate travel and business of many such restaurants refusing to serve blacks.

The part of the 1964 Civil Rights Act that probably had the greatest impact nationwide was Title VII, which prohibited discrimination in employment on the basis of race, gender or religion. This act has revolutionized the labor market in the United States, giving women and minorities access to many kinds of employment that had been denied to them. It is important enough to deserve its own chapter and will be the subject of the next chapter.

Congress’s power under the interstate commerce clause is probably the broadest of the three covered in this chapter. It may be used to cover any form of discrimination and may be applied to a very wide range of organizations and activities. It is not, however, unlimited.

Before 1937, the Supreme Court took a narrow view of the commerce clause, and many federal statutes were struck down in part because they exceeded this limited power. Starting in 1937, the Court greatly expanded Congressional power under this clause to the point where almost any statute could be justified no matter how small or indirect the effect on interstate commerce. In fact, during the period from 1937 until 1995, the Supreme Court did not invalidate a single statute on the ground that Congress had exceeded its power under the commerce clause.

In the 1995 case of United States v. Lopez, the Supreme Court held that Congress had exceeded its commerce clause power by making it a federal crime to have a gun within 1,000 feet of a school. The Court held that any possible effect of such a law on interstate commerce was too tangential and insubstantial. The Court has since invalidated several other laws on this ground. These recent opinions signaled the end of Congress’s almost unlimited power under the clause, but at this point do not threaten the basic coverage of most of the important anti-discrimination statutes, such as Title VII.