dissenting in part:
I join in Parts I, II, IV and V of the opinion of the court, but dissent from the holding in Part III that a plaintiff relying on 42 U.S.C. § 1981 must establish a racially discriminatory purpose by direct evidence rather than a racially disparate impact in order to make out a prima facie case. Judge Aldisert’s dissenting opinion makes the point that in interpreting an ambiguous statute judges should follow a “sound law” approach. It seems to me that the judges in the majority are doing just that. The difference between us is not in jurisprudential approach to the task of statutory interpretation, but in our respective enthusiasms for advancing the policy underlying both section 1981 and Title VII of the Civil Rights Act of 1964. Faced with an ambiguity, we chose to attribute to the legislators of 1866 an intention respecting the advancement of that policy consistent with our own views on it. The majority opinion, conceding ambiguity, concludes:
We think that it is more likely than not that the statute was addressed to such intentional conduct.
*1003(P. 988). The wish, grounded in the majority’s view of what the public policy concerning employment discrimination ought to be, is father to the thought. Judge Aldisert candidly acknowledges that his different interpretation proceeds from a different view of what that public policy ought to be. I share his viewpoint, and therefore acknowledge that I am not a completely unbiased observer of the legislative record of that revolutionary assembly, the first session of the Thirty Ninth Congress. Even acknowledging my own preconceptions about what the law ought to be, it seems to me unlikely that that first session intended to afford less protection against the exclusion of Blacks from opportunities for employment than the intention attributed, thus far, to the second session of Eighty Eight. Griggs v. Duke Power Co., 401 U.S. 424 (1971). The majority asserts:
We acknowledge that the legislative history does not reveal a direct refusal to extend section 1981 to nonpurposeful conduct. Given the absence of a congressional declaration of intent to extend the 1866 Act to the effects of facially neutral conduct, however, we believe that it is more consistent with the language of and impetus behind that statute to conclude that the statute is directed only at purposeful conduct. We reach this conclusion fully aware that neither the language nor the legislative history provides certain guidance in interpreting section 1981.
(P. 988). Thus the majority relies both on statutory language and on presumed impetus. Reliance on statutory language does not advance the argument even a step, however, since it is conceded that the language is at best ambiguous.1 In those circumstances it is certainly fair to look, as an aid to statutory construction, at the impetus behind the statute. But the majority opinion, rather than examining evidence of that impetus, relies on ipse dixit:
The employees have not directed our attention to any legislative history that reveals a contrary intent. We doubt that they could.
(P. 988). This expression of doubt is buttressed by reference to a similar ipse dixit in a concurring opinion by Justice White. But before one can rely on the supposed impetus for a statute’s enactment as an aid to statutory construction, more is required than a statement of the conclusion.
When Congress convened in December, 1865, the Thirteenth Amendment had been ratified. The amendment borrowed the language of the Article VI of the Northwest Territories Ordinance of 1787,2 thus overruling so much of Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1857), as held Article VI of the 1787 ordinance unconstitutional. The better part of the first session of the Thirty Ninth Congress was devoted to discussion, in one connection or another, of the manner in which a new social order would be constructed to replace the one which the slavery compromises of the 1787 Constitution had safeguarded in the South for 78 years. While in the abstract slavery as a legal status was abolished, in the concrete, Adam Smith’s free labor principles still were not applicable to Blacks in the South. A new Congress, considerably more radical than that which sent the Thirteenth Amendment to the states, fell under the effective domination of the Joint Committee on Reconstruction, popularly known as *1004the Committee of Fifteen.3 That Committee was in turn dominated by a combination of radical and moderate Republicans bent on changing the actual as well as the theoretical status of Black laborers in the South. The session dealt with four interrelated matters, all directed in one way or another toward that end. These proposals were the Freedman’s Bureau bill, which the Committee of Fifteen could not pass over President Johnson’s veto; the Civil Rights Act of 1866,4 passed over his veto, a constitutional amendment sponsored by John A. Bingham of Ohio but not recommended; and the Fourteenth Amendment, which Johnson could not veto. Both temporally and politically the four measures were related. The 1866 Civil Rights Act was not an isolated technical enactment on a narrow specific subject, but a statute intended by those in control of the levers of political power in Congress to effect a major revolution in the Southern social order.5 One cannot consider the impetus behind the Civil Rights Act separately from the impetus behind the whole program of the majority of the Committee of Fifteen. In light of that whole program it seems a bit farfetched to suggest, as the majority does, that the statute was not intended to reach facially neutral conduct having a disproportionate impact upon the job opportunities of Blacks. A more rational conclusion is that the Congressmen and Senators who passed the Act despite President Johnson’s effort to preserve the existing Southern social order, would, if they specifically addressed the issue, intend that Blacks need show no more than disparate impact to make out a prima facie case.
There is more evidence, however, than the general climate of the session. The working paper for the Committee of Fifteen was the Report of Maj. Gen. Carl Schurz on the Condition of the South.6 That report dealt extensively with the difficulties federal officials were encountering in their effort to change to a free labor system. General Schurz noted:
That the result of the free labor experiment made under circumstances so extremely unfavorable should at once be a perfect success, no reasonable person would expect. Nevertheless, a large majority of the southern men with whom I came into contact announced their opinions with so positive an assurance as to produce the impression that their minds were fully made up. In at least nineteen cases out of twenty the reply I received to my inquiry about their views on the new system was uniformly this: “You cannot make the negro work without physical compulsion.” I heard this hundreds of times, heard it wherever I went, heard it in nearly the same words from so many different persons, that at last I *1005came to the conclusion that this is the prevailing sentiment among the southern people. There are exceptions to the rule, but, as far as my information extends, far from enough to affect the rule. In the accompanying document you will find an abundance of proof in support of this statement. There is hardly a paper relative to the negro question annexed to this report which does not, in some direct or indirect way, corroborate it.7
In face of the attitude described by General Schurz, access to employment opportunity, other than as a dependent plantation field hand, was a central concern of the majority of the Committee of Fifteen and of the Congressmen and Senators who voted to override Johnson’s veto. They were not in the least ignorant of the manner in which facially neutral practices could mask the intent to confine Blacks to the status of field hand. Schurz attributed this intent to the overwhelming majority of Southerners and described at length statutes and ordinances, some of which were on their face discriminatory, and others of which were facially neutral. Addressing the problem of facially neutral measures, he noted:
What peculiar shape the reactionary movement will assume it is at present unnecessary to inquire. There are a hundred ways of framing apprenticeship, vagrancy, or contract laws, which will serve the purpose. ... 8
Considering the central importance of Schurz’ report in the deliberations of the first session of the Thirty Ninth Congress, and especially his explicit warning that facial neutrality could mask less than neutral purposes, the majority’s reliance on the presumed impetus for the Civil Rights Act is, to put it mildly, misplaced. Certainly Schurz’ warning about the ability of the reactionary movement to resort to facially neutral job requirements was a part of the overall impetus for the legislation.
The language of the statute as enacted is also significant when compared with its language as first introduced. As enacted, Section 1 provides:
That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.9
In the version introduced in the Senate by Senator Lyman Trumbull of Illinois, before the language substantially as quoted above, an additional clause was included:
That there shall be no discrimination in civil rights or immunities among the inhabitants of any State or Territory of the United States on account of race, color, or previous condition of slavery.10
That clause remained in the bill as passed by the Senate. On March 13, 1866, Congressman James F. Wilson reported the bill with an amendment striking out the first clause and in that form it passed in the House of Representatives.11 The Senate accepted the amendment.12 There is no legislative history pointing clearly to the intention of *1006the House in striking out the clause dealing with discrimination.13 Had the discrimination clause been retained, the argument that direct evidence of discriminatory intention was required for a prima facie case would be considerably stronger, textually at least. Unfortunately, so far as I know there is no hard evidence of the reasons for its deletion. It is at least arguable that the deletion was intended to strengthen Section 1 by emphasizing Congressional interest in effects rather than subjective intentions. Thus, the majority’s ipse dixit about the absence of legislative history ignores some history that is troublesome for its thesis that Congress must have intended to require direct evidence of subjective intention in order to make out a prima facie case.
But I do not rely on either the Schurz Report or the amendment to Section 1 as certain guides to congressional intention on what constitutes a prima facie case, for even with them the ambiguity remains. The subject was not dealt with specifically. What I do rely on, and what is absolutely inescapable, is the plain fact that Sumner, Stevens, et aI. intended to accomplish the result of a change from' a centuries old social system based on involuntary labor, with all the notions of racial unsuitability for the performance of anything but menial labor under close supervision, to the free labor system. Since the publication of Adam Smith’s The Wealth of Nations in 1776 the free labor system had become the norm worldwide. There was opposition, of course, even among the Republicans.14 The Committee of Fifteen was unable to pass the Freedman’s Bureau bill over Johnson’s veto, although a clear majority favored it. That bill would have placed accomplishment of the result in the hands of a federal agency. The willingness of the majority in Congress to go as far as proposed in the Freedman’s Bureau bill speaks thunderously about the impetus behind the companion Civil Rights Act. If the judges in the majority do not hear that thunder today they have chosen to place cotton in their ears since the time this court decided Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971). In Young v. International Telephone & Telegraph Co., this1 court held that section 1981 was not affected by the enactment of Title VII of the Civil Rights Act of 1964, 438 F.2d at 760, and that the conciliation feature of Title VII could be utilized by a court fashioning relief in a section 1981 case. 438 F.2d at 764. Thus far, the majority does not purport to overrule completely Young v. International Telephone & Telegraph Co., which until today was the law of the circuit, although its holding is a major departure from the case’s reconciliation of the 1866 and 1964 statutes. As Judge Aldisert points out, introduction of disharmony between the two statutes, in place of our former policy of reconciling them, is a disservice to the courts which must enforce them.
Section 1981 is a difficult statute to deal with in the present context for several reasons. The first reason is that although the social changes which were intended are crystal clear, the draftsmanship could have been better. To the announcement of na*1007tional policy in Section 1, the 1866 draftsmen of the Civil Rights Act added criminal sanctions,15 and an enforcement mechanism modeled on the Fugitive Slave Act of 1850.16 When the codification movement gained a following in Congress, the substantive provisions, the criminal sanctions, and the enforcement mechanisms were distributed to different titles of the United States Code.17 The distribution made it easy for courts to do what the majority has done: lift the text from its context and confine the search for meaning to specific words rather than overall intent. Moreover, the combination in a single statute of a substantive federal standard of conduct with a criminal enforcement mechanism created the possibility of confusion on issues such as prima facie case and burden of proof. In this case we are not dealing with what the government would have to show in order to avoid a directed verdict under 18 U.S.C. § 242, the criminal code descendant of the 1866 Act. The Act contemplated private civil as well as criminal enforcement. Issues such as the form of action for such private cases, and the quantity of proof sufficient to make out a prima facie ease were not dealt with, for the good and sufficient reason that those questions were dealt with in the Process Act,18 the Judiciary Act,19 and the common law. The 1866 Congress expected that in filling in the interstices in civil litigation, the courts would do so mindful of the social purpose of the legislation. The majority ignores that purpose. Free to choose a rule with respect to the contents of a prima facie case of a Section 1981 violation, it chooses the one most likely to inhibit rather than advance that purpose.
The majority s decision is not, of course, the first time a federal court has chosen to give a less than generous reading to the social legislation of the Thirty Ninth and succeeding reconstruction era Congresses. When, following the election of 1876, a con-census emerged among those in control of the Executive and Legislative branches to give up on the great experiment of eliminating feudalism in the South, and to permit the restoration of most of the status quo ante bellum, the Supreme Court went along, interring the Civil Rights Acts in the tumulus of neglect.20 They were not rediscovered for generations and the purpose of the Thirty Ninth Congress failed of accomplishment. The history of the Civil Rights Act from the 1880’s to the 1960’s serves to illuminate another unfortunate feature of the majority opinion. As a makeweight justification for its hostile interpretation of Section 1981, the opinion relies on Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), which holds that proof of discriminatory purpose is required for claims predicated upon the Fourteenth Amendment. For several reasons that reliance is peculiar. In the first place, Washington v. Davis does not deal with the question whether Congress may, in a statute enacted on the authority of Section 2 of the Thirteenth Amendment, or on the authority of the necessary and proper clause, or even on the authority of Section 2 of the Fourteenth Amendment, provide for liability based on proof of effects rather than intention. As recently as June 29, 1981, this court in banc, in National Association for the Advancement of Colored People v. The Medical Center, Inc., 657 F.2d 1322 (3d Cir. 1981), expressly rejected the contention that Congressional authority was so *1008limited. The opinion of the court ignores that holding, despite the fact that all the judges in the majority except one joined in it.21 The vivid contrast in approach to the interpretation of these fairly analogous federal statutes underscores the point that Judge Aldisert makes. The majority’s view of sound policy on access by the aged and the handicapped to medical services is different from its view of sound policy on access by minorities to employment opportunities. Thus it relies on Washington v. Davis as the beginning of the second post-reconstruction era, and a harbinger for the reinterment of the Civil Rights Acts. As a matter of prediction he may be right that the second reconstruction is over.22 But sufficient to the day is the evil thereof. In National Association for the Advancement of Colored People v. The Medical Center, Inc., we refused to anticipate dire predictions about Supreme Court dismantling of statutes protecting the aged and the handicapped. I would do the same here.
In light of the clear purpose of the first session of the Thirty Ninth Congress of achieving the result of a change from a feudal to a free labor system, I would construe Section 1 of the Civil Rights Act of 1866 as permitting the establishment of a prima facie case of violation by a showing of disparate impact. Such a reading requires a reversal of the dismissal of the Section 1981 class action and a remand for reconsideration under the appropriate standard of proof.
The district court’s award of damages and attorney’s fees to plaintiffs Croker, Davis and Travis, based on a finding of intentional discrimination, should, of course, remain undisturbed.
. The majority, asserting that the language of section 1981 is “far less susceptible of an interpretation permitting an impact standard than is the language of title VII” (p. 986), highlights the difference between title VII’s “adversely affect” language and that of section 1981. This language distinction is not as strong as it might seem. Section 703(a)(1) makes it an unlawful employment practice for an employer “to discriminate . . . because of’ an employee’s race, sex, religion, color or national origin. 42 U.S.C. § 2000e-2(a)(l). Although it is true that the development of the disparate impact test had its beginning in the “adversely affect” language of section 703(a)(2), the disparate impact standard has not been confined to that statutory language. Cases under section 703(a)(1) as well as section 703(a)(2) have applied the disparate impact test. See General Electric Co. v. Gilbert, 429 U.S. 125, 153-55 & n.6, 97 S.Ct. 401, 416-17, 50 L.Ed.2d 343 (Brennan, J., dissenting).
. 1 Stat. 53 (1789).
. Joint Resolution of December 4, 1865, Cong. Globe, 39th Cong., 1st Sess. 6 (1865); Joint Resolution of December 12, 1865, Cong.Globe, 39th Cong., 1st Sess. 30 (1865).
. Act of April 9, 1866, ch. 31, 14 Stat. 27 (1866).
. One of the specific changes Congress hoped to achieve as a result of the 1866 Civil Rights Act was elimination of the infamous Black Codes. Congress was primarily concerned with portions of these state laws relating to vagrancy and' regulation of terms and conditions of employment. Among other things, many of these Black Codes made it a crime for a contract laborer to abandon, refuse to perform or to disobey his employer, provided for forfeiture of wages if the employee did not fulfill the terms of his contract, and made it a crime to induce an employee away from his employer. In some states, these oppressive regulations literally applied to all laborers regardless of race. Various state vagrancy laws defined vagrant broadly to include virtually all unemployed Black adults, and punished convicted vagrants by providing that they could be bound out for periods of up to a year. Several vagrancy statutes contained no reference to race, and in some states applied literally to whites as well as Blacks. See, e. g., E. McPherson, Political History of the United States During the Period of Reconstruction 30-44 (1871). These Black Codes were frequently discussed during the debates on the 1866 Civil Rights Act, and Congress clearly understood that passage of the Act would abrogate the Codes. E. g., Cong.Globe, 39th Cong., 1st Sess. 39^11, 118-25, 1151-60, 1838-39 (1866).
. Senate Executive Document No. 2 (Dec. 19, 1865), 39th Cong. 1st Sess., reprinted in Virginia Commission on Constitutional Government. The Reconstruction Amendments’ Debates 87 (1967).
. Id. at 88.
. Id. at 92.
. Act of April 9, 1866, ch. 31, § 1, 14 Stat. 27.
. Cong.Globe, 39th Cong., 1st Sess. 474 (1866).
. Id. at 1366-67.
. Id. at 1413-16.
. It has been unsuccessfully argued that the intention of the House was to limit the Civil Rights Bill to cases involving state action. That view was tacitly, and I think correctly, rejected in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 (1968), which involved 42 U.S.C. § 1982. Section 1982, like section 1981, is derived from section 1 of the Civil Rights Act of 1866. In Young v. International Telephone & Telegraph Co., 438 F.2d 757 (3d Cir. 1971), this court held that section 1981 applies to actions by private employers. Compare, however, C. Fairman, Reconstruction and Reunion 1864 — 88, Part One, VI History of the Supreme Court of the United States 366 et seq. (1971). Since for our purposes the application of section 1981 to private actions is settled by Jones v. Alfred H. Mayer Co. and Young v. International Telephone & Telegraph Co., there is no reason for burdening this opinion with the reasons why I believe Professor Fairman’s historical argument against Jones v. Alfred H. Mayer Co. is unpersuasive.
. Senator Cowan of Pennsylvania, a Republican, was in the opposition, and his racist expressions often matched those of the most outspoken Democrat, Senator Willard Saulsbury of Delaware.
. Act of April 9, 1866, ch. 31, § 2, 14 Stat. 27.
. See Act of September 18, 1850, ch. 60, 9 Stat. 462. Compare Act of April 9, 1866, ch. 31, §§ 3-6, 14 Stat. 27.
. As the majority concedes, 42 U.S.C. § 1981 is the direct lineal descendant of Section 1 of the 1866 Act. The descent of the criminal sanction is set out in an appendix to Justice Frankfurter’s opinion in United States v. Williams, 341 U.S. 70, 83 (1951).
. Act of Sept. 29, 1789, as amended, 1 Stat. 93.
. Act of Sept. 24, 1789, 1 Stat. 73.
. The most egregious example is The Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883).
. Chief Judge Seitz did not participate in National Association for the Advancement of Colored People v. The Medical Center, Inc.
. Many of us mark Chief Judge Seitz’ opinion in Belton v. Gebhart, 32 Del.Ch. 343, 87 A.2d 862 (1952), aff’d sub nom. Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) as the beginning of the second reconstruction.