Daniel Givelber

Treating Blacks As If They Were White: Problems of Definition and Proof in Section 1982 Cases

Immediately after the Civil War, the United States Congress enacted, over presidential veto, a statute popularly known as the 1866 Civil Rights Act. In 1870 that statute was reenacted, and a major part is presently codified as sections 1981 and 1982 of title 42 of the United States Code. Those sections lay virtually moribund for a hundred years, until they were reviewed in 1968 as a judicial contribution to the mid-twentieth century civil rights movement. Passed in the wake of Union victory, the 1866 Civil Rights Act represented an attempt by the victors to crystallize the metaphysics of emancipation into the perquisites of citizenship and to give “real content to the freedom guaranteed by the Thirteenth Amendment.” The language of section 1982 is deceptively simple: “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property. Since 1968 there has been considerable litigation under this statute, but little appreciation of the ambiguity of the words “same right … as is enjoyed by white citizens.” Decisions tend to discuss the evidence presented in great detail without relating that evidence to a carefully drawn definition of the statutory language and the elements of the prima facie case which that definition should supply. Until we know what the plaintiff must prove, however, evidentiary analysis lacks direction, and until we know what the statutory language means, there will be no consistent approach to what the plaintiff must prove. In this Article we shall attempt to define the words “same right … as is enjoyed by white citizens,” to set forth the elements of the prima facie case derived therefrom, and to consider what evidence, inferences, and presumptions would permit a plaintiff to establish those elements. Our inquiry is pertinent not only to section 1982 cases: Section 1981 contains parallel language with respect to contract actions, and Title VIII of the Civil Rights Act of 1968 (as well as several state and local statutes) is directed to similar ends. Therefore, while our definition of the “same right” language is most relevant to sections 1982 and 1981, our discussion of evidentiary considerations is also applicable to civil rights litigation in general.