(Un)Masking Race-Based Intra-Corporate Conspiracies Under the Ku Klux Klan Act

Abstract

Drafted during the Reconstruction era to counter white resistance to blacks' civil rights, § 2 of the Ku Klux Klan Act of 1871, now codified as § 1985(3), prohibits two or more persons from conspiring to deprive any person or class of persons of the equal protection of the laws. It is the only federal statute enacted to address race-based civil conspiracies.

A majority of federal courts have emasculated the Ku Klux Klan Act by applying a legal fiction from anti-trust law, the intra-corporate conspiracy doctrine. The intracorporate conspiracy doctrine shields corporations from liability for internal conspiracies. A corporation's employees cannot conspire with each other or with the corporation because the acts of the agents of the corporation are attributed to the corporation itself, making both the agent and corporation one jural person.

This article argues that the federal courts' failure to compare the drastically different objectives of anti-trust law and civil rights law leads to the intra-corporate conspiracy doctrine's application to race-based conspiracies, thereby masking racist actors and casting a cloak over racial discrimination and its resulting harms within corporations.