Private discrimination and the Supreme Court

DESCRIPTION: The concept that unequal and unfair treatment based on characteristics such as race, sex, religion, national origin, and disability is legal when committed not by the government but by individuals and nongovernmental organizations.

SIGNIFICANCE: The Constitution prohibits only governmental, not private, discrimination. In 1883, the Supreme Court held that Congress could not prohibit private discrimination on the basis of race. Beginning in the 1960s, the Court greatly expanded congressional power to remedy discrimination by private persons using the Thirteenth and Fourteenth Amendments, the commerce clause, and congressional spending powers.

The Civil Rights Act of 1875 was legislation passed by Congress that prohibited racial discrimination in hotels, conveyances, theaters, and other public places. In 1883, the Supreme Court, however, held that Congress did not have the power to prohibit private discrimination. According to the Court, the Fourteenth Amendment applied only to governmental actions, that is, legislation passed by the government or actions of federal officers or agents. The Court held that the Thirteenth Amendment did not support the act because racial discrimination by private individuals did not constitute slavery or a badge of slavery, though later interpretations expanded this view.

Although the Court’s ruling that Congress may address only public, not private, discrimination under the Fourteenth Amendment remained largely intact, the Court allowed some application of this amendment to private actors when they act in concert with or in place of the state. It also greatly expanded its view of what constitutes a badge of slavery, giving Congress the power to remedy racial discrimination under the Thirteenth Amendment. In addition, it allowed Congress to attack private discrimination through its spending and commerce clause powers.

The Fourteenth and Thirteenth Amendments

The Equal Protection Clause of the Fourteenth Amendment prohibits governments from discriminating based on race, sex, and certain other characteristics. Although private actors are not normally covered, the Court held that the Equal Protection Clause may apply if the private actor performed a state function or significantly involved the state in the activity. It ruled that when political parties bar African Americans from participating in the primary process (Smith v. Allwright, 1944) or when a company-owned town bars access to its streets in a manner akin to a municipality (Marsh v. Alabama, 1946), they are performing essentially governmental functions and are covered by the Fourteenth Amendment. The Court kept the public function doctrine narrow, however, and refused to extend it to shopping malls in Lloyd Corp. v. Tanner (1972) and a privately owned electric company in Jackson v. Metropolitan Edison Co. (1974).

Private actors may also be prohibited from discrimination if the government encourages or becomes significantly involved in their activities. In Burton v. Wilmington Parking Authority (1961), the Court held that a privately owned coffee shop that leased space in a publicly owned garage was involved in a joint enterprise with the state and could not refuse to serve African Americans. The Court also kept this doctrine very narrow, refusing to extend it to private groups that merely received funding from the state in Rendell-Baker v. Kohn (1982) or are regulated by the state in Moose Lodge v. Irvis (1972).

After the Civil War, Congress passed statutes giving African Americans “the same right as White persons” to own or lease property and to enter into contracts. Because of the restrictive interpretation given to the Thirteenth Amendment in the Civil Rights Cases, these statutes did not apply to private discrimination until the 1960s. In Jones v. Alfred H. Mayer Co. (1968), the Court reversed itself and held that Congress had the power under the Thirteenth Amendment to abolish all “badges and incidents of slavery,” including private discrimination based on race in the sale of housing. The Court applied this reasoning in Runyon v. McCrary (1976), holding that section 1981 prohibited a private nonsectarian school from refusing to admit Black people. In 1989, the Court tried to restrict the effect of Runyon by holding that section 1981 applied only to the formation of a contract and not its performance in Patterson v. McLean Credit Union (1989). This judgment was nonetheless effectively overruled by Congress in the Civil Rights Act of 1991.

The Commerce Clause

The most important piece of antidiscrimination legislation passed in the modern civil rights era was probably the Civil Rights Act of 1964. It prohibited many kinds of discrimination, both public and private. Several of its most important titles were directed at private discrimination. Title II prohibited discrimination on the basis of race, color, religion, or national origin in hotels, restaurants, and other places of public accommodations. Title VII prohibited discrimination in employment on the basis of race, color, religion, sex, and national origin. Congress used its power under the commerce clause to pass the act, finding that private discrimination in these areas had a substantial effect on interstate commerce. In Katzenbach v. McClung (1964), the Court agreed that this was a valid use of congressional power under the commerce clause.

The Court’s very broad interpretation of Congress’s commerce clause power proved extremely useful in passing legislation prohibiting many types of private discrimination. Unlike its power under the Thirteenth Amendment, Congress is not limited to prohibiting only racial discrimination. In addition to prohibiting employment discrimination under Title VII, Congress also used its commerce clause power in passing the Age Discrimination in Employment Act of 1967 and the Americans with Disabilities Act of 1990. In 2025, the Supreme Court clarified that Title VII protects all individuals equally and eliminated stricter proof requirements for majority-group discrimination claims. Federal policy changes reduced reliance on “disparate impact” theory, potentially weakening protections against indirect discrimination.

Congressional Spending Power

Congress may also use its spending power to prohibit certain kinds of private discrimination by organizations receiving federal funds. For example, Title IX of the Education Amendments of 1972 prohibits sex-based discrimination in any educational program or activity receiving federal financial assistance. The Court, in Grove City College v. Bell (1984), gave a narrow interpretation to the word “program,” which would have applied the prohibition only to the department that was receiving the funds. Congress, in the Civil Rights Restoration Act of 1987, responded by making clear that the entire operations of a college would be covered if any part of the institution received federal funds.

In the 2020s, many of the highest-profile cases regarding private discrimination have been based on sexual orientation or access to higher education. In 2022, the Roberts Court appeared inclined to scale back affirmative action programs seeking to diversify college student populations. Several members have articulated opinions that racial diversity is not a sufficient reason to allow race-based preferences in admission processes. In a 2023 landmark decision, the Supreme Court effectively ended affirmative action in college admissions. The ruling reversed decades of precedent and prohibited race-conscious admissions programs in higher education. Federal policy has further restricted affirmative action in private employment, particularly by ending affirmative action requirements for federal contractors under Executive Order 11246.

Bibliography

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