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Hastings Race and Poverty Law Journal

Abstract

Plaintiffs who have been discriminated against in retail stores on the basis of race or national origin have historically turned to the contracts clause of 42 U.S.C. § 1981, which guarantees to all people within the United States the same right "as is enjoyed by white citizens" to "make and enforce contracts." In 1991, Congress amended the statute, extending the requirement of equality beyond the "making and enforcement" of contracts to include the "performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." However, many courts have continued to apply the statute narrowly, despite the 1991 amendments that broadened its scope. This narrowing of the statute places many clear cases of discrimination by retailers outside § 1981's coverage. This article examines and critiques courts' narrow § 1981 jurisprudence, and offers a model for improved § 1981 decisionmaking. Author Charlotte H. Sanders argues that as a matter of statutory interpretation, legislative history and contract law, the "right to contract" protected by § 1981 is a process rather than a moment and was intended to protect the entire contractual relationship between the customer and the store. Sanders also asserts that because stores provide services as well as goods, § 1981 demands that those services be provided equally to all customers regardless of their race or national origin. Finally, she argues that § 1981 cannot be interpreted as mandating equal access, while simultaneously permitting unequal treatment at all points except the checkout counter. Congress attempted to broaden § 1981 in 1991 to correct this very mistake in logic, vet today's courts have continued to interpret the statute, and the retail contracts on which the statute pivots, narrowly and improperly.

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