Until recently, 42 U.S.C. §§ 1981 and 1982 were virtually useless as instruments with which to combat purely private racial discrimination. Certainly, one of the principal reasons behind this was the Supreme Court's decision in the Civil Rights Cases wherein the Court restrictively applied the thirteenth amendment, under which the Civil Rights Act of 1866 was enacted. However, in 1968, the Supreme Court ruled that the intention of Congress in enacting the Civil Rights Act of 1866 was to prohibit private racial discrimination as well as racial discrimination under color of law, and thereby vastly broadened the scope of the thirteenth amendment. The decision was based upon the Court's finding that 42 U.S.C. § 1982 was originally a part of section one of the Civil Rights Act of 1866. As a result of this decision, a number of actions were brought in an effort to combat private racial discrimination." However, many of these cases involved a contract issue," and were decided under 42 U.S.C. § 1981. The trend of judicial decisions involving Section 1981 indicates that it also is being interpreted as derived from the Civil Rights Act of 1866, and is therefore applicable to private acts of racial discrimination.
Civil Rights-No State Action Necessary To Prohibit Racial Discrimination By "Private" School,
U. Rich. L. Rev.
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