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The Civil Rights Act of 1866 was a very special statute, designed at minimum to eliminate all "badges and incidents of slavery" and to ensure that the freed slaves would be provided with civil rights equal to those of white persons. Its enforcement depends on the availability of a neutral public system of justice. Private arbitration cannot assure these characteristics. Thus, courts should not enforce agreements to arbitrate future disputes that may arise under this statute. This Article, however, does not argue that arbitration of claims under the Civil Rights Act of 1866 should be prohibited altogether. Disputants who mutually prefer arbitration to litigation should be afforded the opportunity to arbitrate. If they do so agree, courts may enforce the arbitrator's award to the extent enforcement would otherwise be appropriate. This Article only contends that a party cannot be compelled by a court to arbitrate such a claim merely because the party agreed in advance to arbitrate future disputes that might arise. Specifically, the Article argues that Congress intended that such claims be resolved in court, and that Congress has at no time since 1866 demonstrated a contrary intent. To the contrary, in its 1991 amendments to the 1866 Act, Congress reiterated that it did not intend to allow employers to use mandatory arbitration clauses to deprive their employees of a judicial forum within which to challenge allegedly discriminatory acts. This article also argues that mandating arbitration of such claims would be inconsistent with the spirit of the Civil Rights Act, in that whereas the abolition of slavery was intended to ensure that people are not treated like commodities, the FAA applies only to the extent that individuals' transactions are found to be elements of interstate commerce.

Publication Citation

47 U. Kan. L. Rev. 273 (1999).