This is a good thing and will hopefully thwart any possibility of a Virginia Tech type incident on the CU campus.

If it’s of interest, here’s the background. As you note, section 1981 came out of the Civil War. It prohibited race discrimination and specifically said so in the context of making and enforcing contracts. So, you basically had three concepts: a contract, making and enforcing, and discrimination. As to the first part, contracts include employment generally.

The concept of making and enforcing was more difficult. In a famous case, Patterson v. Maclean, the Supreme Court cut back on 1981 and said that a worker can’t file a 1981 claim for termination. Discharge cases don’t involve making or enforcing contracts; by their nature, somebody claiming they were fired because of discrimination is saying he suffered a termination of his so-called contract. Congress didn’t like that and almost immediately reversed that with a new law, which it included in the Civil Rights Act of 1991.

So, at that point, it was clear that 1981 applied to employment cases, and that it did so in terms of hiring, employment (harassment), and firing. In all three phases of employment, it prohibits discrimination.

This case, CBOCS, asked the next question: What about retaliation? What if you aren’t suing for discrimination, as such; what if you’re suing saying that you were retaliated against? Is that covered by 1981? And, you’re exactly right, the dissent said, no, because 1981 doesn’t say anything about retaliation.

On the same day it decided CBOCS, the Supreme Court also decided Gomez-Perez v. Potter. That case held that the ADEA (Age Discrimination in Employment Act) also prohibts retaliation (in the context of government employees) despite the lack of anti-retaliation language. In the dissent there (by Justice Scalia this time), Justice Scalia explained in more detail that the reason he and Justice Thomas had dissented in both cases is because, as you say, discrimination is different than retaliation.

But, in both cases, the majority disagreed. They held retaliation is included in the concept of discrimination. When Congress prohibited discrimination, it automatically prohibited retaliation as well.

What really made the cases interesting is that at least some of the justices in the majority seemed like they would have rather ruled with the dissent but felt bound to join the majority by the Court’s prior case law. That’s called stare decisis. Stare decisis requires courts to follow precedent. It’s interesting here because the Supreme Court is the one (and only) court that is not bound by stare decisis. The Supreme Court can decide not to follow old law. The majority’s adherence to stare decisis in these cases is likely to be something Supreme Court scholars debate for years to come, especially because here it arguably resulted in the Supreme Court reading into the statutes language that wasn’t there. Usually stare decisis is one of the things that does the opposite; it keeps the courts from engaging in so-called judicial legislation.