Also known as: badge or incident of slavery · badges and incidents of slavery · badge and incident of slavery · badges of slavery · incidents of slavery · 13th Amendment badges · badges of slavery doctrine
Written by attorneys — see sources below.
An effect or practice associated with the historical system of chattel slavery that Congress possesses authority to eradicate through legislation under the Thirteenth Amendment. The enforcement power reaches private conduct when Congress reasonably treats the conduct as perpetuating racial subordination in areas such as property transactions.
Brendan Burns, a Black engineer, applied to purchase a home in a subdivision developed by Blue Horizon Industries. The developer refused the sale solely because of his race and steered him toward inferior tracts. Congress had enacted a statute barring private racial discrimination in property sales. The statute supplies a valid cause of action because the refusal qualifies as conduct Congress may address.
Benjamin Brooks and other Black residents challenged a city's decision to close public swimming pools rather than integrate them. They argued the closure imposed a badge or incident of slavery. The claim failed because the action did not replicate the legal disabilities historically tied to chattel slavery in a manner that triggers the enforcement power.
In 1962 Negro citizens of Jackson, Mississippi, brought a class action in the United States District Court against the city and its officials, including Mayor Allen C. Thompson and Parks Director George Kurts, challenging the city's maintenance of racially segregated public recreational facilities. At that time the city operated five swimming pools on a segregated basis, with four reserved for white use and one for Negro use, along with segregated parks, golf courses, auditoriums, and a zoo. The district court entered a declaratory judgment that enforced segregation denied equal protection of the laws but declined to issue an injunction; the Court of Appeals affirmed and this Court denied certiorari. Following the district court's judgment the city desegregated its public parks, auditoriums, golf courses, and zoo. The city council, however, surrendered its lease on one pool and closed the four pools it owned outright rather than operate any of them on an integrated basis, and no municipal swimming facilities have operated since that time. In 1965 Negro citizens filed the present class action seeking declaratory and injunctive relief to compel the city to reopen and operate the pools on a desegregated basis. The district court, relying on affidavits from Mayor Thompson and Parks Director Kurts stating that the pools could not be operated safely, peacefully, or economically on an integrated basis, found the closings justified to preserve peace and order and dismissed the complaint. On appeal the Court of Appeals for the Fifth Circuit, sitting en banc, affirmed the dismissal by a vote of seven to six. The Supreme Court granted certiorari to review the equal protection claim arising from the pool closings.
View caseYes. Congress may prohibit private racial discrimination in the sale or rental of property when it determines that the discrimination constitutes a badge or incident of slavery. The power applies even without state action.
The conduct must be one that Congress reasonably views as perpetuating the system of racial subordination associated with chattel slavery, such as exclusion from property ownership on the basis of race. Isolated or attenuated bias lacking that historical tie falls outside the category.
Yes. The Thirteenth Amendment enforcement power supplies an independent and sufficient basis for statutes that bar private racial discrimination in property transactions. Courts need not assess substantial effects on interstate commerce when the legislation targets badges or incidents of slavery.
Yes. Congress may treat racial exclusion from nonsectarian private schools as a badge or incident of slavery and prohibit it through appropriate legislation.
No. The conduct must bear a sufficient connection to the historical incidents of slavery. Courts examine whether Congress could reasonably conclude that the practice perpetuates racial caste in fundamental civil rights such as property ownership.