Article by Randolph M. Scott-McLaughlin
In recent years, the Supreme Court's approach to civil rights law has engendered trepidation in the civil rights community. The most glaring example of the Court's approach to civil rights law was its sua sponte re-argument order in Patterson v. McLean Credit Union. The only issue that was presented by the Court's re-argument order was whether 42 U.S.C. § 1981 was enacted pursuant to Congress's Thirteenth or Fourteenth Amendment powers. Ultimately, the Court affirmed its ruling in Runyon v. McCrary, despite the view of certain members that Runyon had been decided incorrectly, and held that § 1981 was enacted pursuant to Congress's Thirteenth Amendment powers.
Notwithstanding the reaffirmance of Runyon, civil rights scholars and lawyers are still concerned about the Court's approach to civil rights. Their anxiety over the Court's approach may increase during the October 1991 Term of the Court. During that term, the Court will again have the opportunity to unsettle an entire body of civil rights law when it reexamines another post-Civil War civil rights statute—42 U.S.C. § 1985(3)—the Ku Klux Klan Act of 1871. Bray v. Alexandria Women's Health Clinic presents the Court with the opportunity to revisit that statute in a slightly unusual context. In Bray, several abortion clinics and abortion rights organizations applied for permanent injunctions to enjoin an anti-abortion organization and its members from “trespassing on, blockading, impeding, or obstructing ingress to or egress from” facilities providing abortion services. The district court held that the blockading of abortion facilities by the defendants infringed upon the constitutional right to travel of women seeking to obtain abortions at clinics in the Washington, D.C., metropolitan area in violation of 42 U.S.C. § 1985(3). The Fourth Circuit affirmed the district court's issuance of a permanent injunction on the ground that the activities of the defendants “had crossed the line from persuasion into coercion and operated to deny the exercise of rights protected by law.” The court also affirmed the district court's holdings that “gender-based animus satisfied the ‘purpose’ element of § 1985(3)” and that blocking abortion facilities which serve an interstate clientele violates the constitutional right to travel.
The Court in Bray will have the opportunity to decide several key issues regarding the coverage of § 1985(3). One issue is whether women or women seeking an abortion constitute a class under the statute. Another issue is whether private actors can violate the federal constitutional right to interstate travel when they hinder access to abortion clinics. Those are the nominal issues that the Court can be expected to address; however, there are broader issues that an activist Court may reach out to answer, as the current Court attempted to do in Patterson. Those issues could involve a question similar to the one raised in the Patterson re-argument order: whether or not the interpretation of 42 U.S.C. § 1985(3) adopted by the Court in Griffin v. Breckenridge should be reconsidered.
In Griffin, the Court effectively reversed its prior determination of the elements needed for a claim under § 1985(3) and the source of Congress's power to enact the statute. Previously, in Collins v. Hardyman, the Court held that § 1985(3) was enacted pursuant to Congress's Fourteenth Amendment powers and thus could only reach deprivations of constitutional rights by state actors. In Griffin, the Court stated that private actors could be held liable under § 1985(3) and that Congress had the power to sanction private discrimination under the Thirteenth Amendment. Given the apparent conflict between the two cases regarding the scope of § 1985(3) and the constitutional power that Congress exercised when it enacted the statute, the Court in Bray may be presented with another opportunity to thwart the Reconstruction Congress's efforts to provide a federal remedy for the deprivation of constitutional rights by private citizens or organizations.
A review of the legislative history of § 1985(3) reveals that Congress's purpose in enacting the statute was to provide a federal remedy for the deprivation of the newly acquired constitutional rights of the freed slaves and other classes of persons whose rights were being denied by terrorist organizations because of their political views. The debates are replete with references to the violence and brutality directed at these classes of citizens and the complete failure of state or local officials to take any steps to remedy this situation. In addition, the members of the forty-second Congress were concerned about the rights and safety of southern-born white citizens who had supported the federal government and of northerners who had moved to the South after the Civil War in an effort to rebuild that war-torn region. The legislative record is full of examples of violence and intimidation directed at those two classes of white citizens. In short, the evil that Congress sought to address was wanton violence directed at black and white citizens at the hands of private, marauding, masked organizations. With respect to which rights Congress sought to protect under the statute, the legislative history reveals that when Congress used the term “privileges and immunities” in § 1985(3), it intended that all rights which the Constitution afforded to United States citizens were to be included within the penumbra of § 1985(3). As to the source of Congress's power to enact this law, the debates show that the Thirteenth, Fourteenth, and Fifteenth Amendments were looked to as authorization for the enactment of the Ku Klux Klan Act of 1871.
Finally, an analysis of the legislative history demonstrates that both Collins and Griffin unduly restricted the scope of § 1985(3). Collins restricted the statute to incidents solely involving state actors. Griffin limited the statute to cases in which a racially discriminatory, class-based animus was present, thereby making it uncertain whether classes other than racial groups could sue under the statute. The Court in Bray will have the chance to address these issues and to resolve the questions left unanswered in Griffin.
In Part II of this Article, the legislative history of the Act is scrutinized to determine the factual predicate that led to the enactment of § 1985(3) and the classes Congress sought to protect under its provisions. The legislative history is also analyzed to determine which rights Congress sought to protect in § 1985(3). Part III discusses the Supreme Court's misinterpretation of the statute and attempts to provide guidance as to the proper outcome in Bray.
About the Author
Randolph M. Scott-McLaughlin. Professor of Law, Pace University. B.A., Columbia University, 1975; J.D., Harvard University, 1978. Chief Counsel to plaintiffs in Crumsey v. Justice Knights of the Ku Klux Klan, No. 80-287 (E.D. Tenn. Mar. 1, 1982). Editor of Racially-Motivated Violence: Litigation Strategies (1984).
Citation
66 Tul. L. Rev. 1357 (1992)