Griffin v. Maryland Brief for Petitioners

    I N  T H E

S U P R E M E  COU RT OF T H E  U N I T E D  S TAT ES
OCTOBER TERM, 1962

No. 26

WILLIAM L. GRIFFIN, ET AL.,
vs. Petitioners,

MARYLAND,
Respondent.

OK W RIT OF CERTIORARI TO T H E  COURT OF APPEALS OF T H E  STATE

OF MARYLAND

BRIEF FOR PETITIONERS

J o se ph  L . B a u h , J r ., 
J o h n  S ilard ,

1625 K Street, A7.IF., 
Washington 6, D. C.

J o se ph  I I .  S h a r l it t ,
L ee  M. H ydbm an ,
C laude  B. K a h n ,

1001 Connecticut Avenue, N.W., 
Of Counsel: Washington 6, D. C.
J ack  G reen b er g ,
J a m es  M. N a bbit , III,

10 Columbus Circle,
New York 19, New York.



I N D E X
Page

Opinions Below..........................................................  (1)
Jurisdiction ...............................................................  (1)
Question Presented....................................................  2
Statutes Involved ......................................................  2
Statement ...................................................................  2
Summary of Argument.............................................  7
Argument ...................................................................  13

I. The State’s Supportive Involvement in the 
Racial Discrimination of Glen Echo Park 
Transgresses the Equal Protection Clause of
the Fourteenth Amendment...........................  14

II. States May Not, Consistent With the Equal 
Protection Guarantee, Permit Racial Dis­
crimination At Public Accommodations.......  30

Conclusion...................................................................  39

Table of Cases
Barrows v. Jackson, 346 U.S. 249....................... 8,15, 29, 30
Boynton v. Virginia, 364 U.S. 454............................... 16, 25
Burton v. Wilmington Parking Authority, 365 U.S.

715 ........................................................ .'..11,18,20,23,33
Civil Rights Cases, 109 U.S. 3 ...........12,13,14, 20, 31, 32, 38
Cooper v. Aaron, 358 U.S. 1 ........................................  32-33
Ex Parte Virginia, 100 U.S. 339...................................  15
Fitzgerald v. Pan American World Airways, 229 F.

2d 499 .....................................................................  28
Garner v. Louisiana, 368 U.S. 157....................11,14,16, 31
Gomillion v. Lightfoot, 364 U.S. 339...........................  23
Griffin v. Collins, Civil Action No. 12308, D. C. Md.

(1960) ..................................................................... 20
Henderson v. United States, 339 U.S. 816.................. 28, 32
Lochner v. New York, 198 U.S. 45............................... 37
Marshy. Alabama, 326 U.S. 501...............................10,19, 25
Mitchell v. United States, 313 U.S. 81.........................  28
Morgan v. Virginia, 328 U.S. 373............................... 28
Munn v. Illinois, 94 U.S. 113........................................ 36
Nash v. Air Terminal Services, 85 F. Supp. 545......... 28

-3979-2



11 IN D E X

Page
Nebbia v. New York, 291 IT.S. 502............................... 12, 37
Nixon v. Condon, 286 U.S. 73......................................  32
Nixon v. Herndon, 273 U.S. 536..................................  32
Pennsylvania v. Board of Trusts, 353 U.S. 230.........  20, 32
Public Utilities Com’n. v. Poliak, 343 U.S. 451....... 25, 26, 36
Shelley v. Kraemer, 334 U.S. 1 ..................................  8,15,

16, 22, 23, 24, 30, 32
Smith v. Allwright, 321 U.S. 649................................  32
Steele v. Louisville & Nashville R. Co., 323

U.S. 192 ............................................................... 18-19,32
Valle v. Stengel, 176 F. 2d 697....................................  15
Virginia v. Rives, 100 U.S. 313..................................  15
Williams v. Zimmerman, 172 Md. 563.........................  22

Miscellaneous
Civil Rights Act of 1871..............................................  36
Constitution of the United States, Fourteenth Amend­

ment, Section 1 ......................................................  2
Laws of Maryland 1951 Chapter 22, p. 58..................  21
Maryland Code 1939, Art. 27, §510...........................  21
Maryland Code 1957, Art. 27, Sec. 577, §§ 646-648;

Art. 52, Sections 13-25, 99; Art. 65A, §§ 1-4;
Art. 49B, § 5; Art. 77, §§ 226, 279; Art. 27, § 393,
§§ 398, 655 .........................................................2,5,19,21

New York Times, The, August 11, 1960, p. 14, col. 5; 
October 18, 1960, p. 47, col. 5; February 7, 1962,
p. 40, col. 5 .............................................................  27

Ordinance 2-120, adopted by County Council, Janu­
ary 26, 1962 ............................................................ 28

Pollitt, Dime Store Demonstrations, I960 Duke L.J.
315 ..........................................................................  3

Pollitt, The President’s Powers in Areas of Race Re­
lations, 39 N.C. L.Rev. 238................................... 28

St. Antoine, Private Racial Discrimination, 59 Mich.
L.Rev. 993 ...............................................................  37

28 U.S.C. § 1257(3)....................................................  (1)
1957 and 1962 Annual Reports of the Commission on 

Interracial Problems and Relations to the Gover­
nor and General Assembly of Maryland, p. 13.......  22



IN  T H E

S U P R E M E  COU RT OF T H E  U N I T E D  S TATES
OCTOBER TERM, 1962

No. 26

WILLIAM L, GRIFFIN, ET AL.,
vs. Petitioners,

MARYLAND,
Respondent.

o n  w e .i t  o f  c e r t i o r a r i  t o  t h e  c o u r t  o f  a p p e a l s  o f  t h e  s t a t e

OF MARYLAND

BRIEF FOR PETITIONERS

Opinions Below

The opinions of the Circuit Court for Montgomery County 
and of the Court of Appeals of Maryland (225 Md. 422, 
171 A. 2d 717) appear at R. 72 and R. 76.

Jurisdiction

The judgment of the Court of Appeals of the State of 
Maryland was entered on June 8, 1961. The petition for 
a writ of certiorari was filed on August 4, 1961 and was 
granted on June 25, 1962 (R. 84). The jurisdiction of 
this Court is invoked under 28 U.S.C. § 1257(3).

( 1)



2

Question Presented
Whether, consistent with the Fourteenth Amendment, 

the State of Maryland may utilize its police powers of 
enforcement, arrest, accusation, and prosecution and its 
judicial powers of trial and conviction, to administer and 
effectuate racial discrimination at a licensed accommoda­
tion which caters to the general public.

Statutes Involved
This case involves Section 1 of the Fourteenth Amend­

ment to the Constitution of the United States, and Article 
27, Sec. 577 of the Maryland Code (1957) which provides:

“ Any person . . . who shall enter upon or cross over 
the land, premises or private property of any person 
. . . after having been duly notified by the owner or 
his agent not to do so shall be deemed guilty of a mis­
demeanor . . . provided [however] that nothing in this 
section shall be construed to include within its pro­
visions the entry or crossing over any land when such 
entry or crossing is done under a bona fide claim of 
right or ownership of said land, it being the intention 
of this section only to prohibit any wanton trespass 
upon the private land of others.”

Statement
The instant case had its origins in Greensboro, North 

Carolina, on February 1, 1960 in the attempt of Negro 
citizens to obtain equal treatment with that afforded to 
w’hites in such public accommodations as food, transporta­
tion, entertainment and recreation. On that day, four 
Negro students at the North Carolina A. & T. College, who 
had grown increasingly impatient with prevailing practices 
under which Negro students could not obtain food and re­



3

freshment served at local stores, determined to seek service 
at a local lunch counter in Greensboro. This modest inci­
dent marked the beginning of widespread efforts in a num­
ber of states, including Maryland, to open service for 
Negroes in places of public accommodation. See Pollitt, 
Dime Store Demonstrations, I960’ Duke L. J. 315. One of 
those efforts, from which this case arose, took place at the 
amusement park serving the Nation’s Capital.

Glen Echo Amusement Park, the major amusement facil­
ity in the District of Columbia area, is located in Mont­
gomery County, Maryland. The Park is operated by a 
corporation licensed to do business in the State of Mary­
land (R. 3; 78, n. 1). In the years up to 1960, Glen 
Echo Park was frequented by white customers only 
(R. 46-47), with the exception of Negro maids accompany­
ing white children (as long as they “ didn’t do anything in 
the park” (R. 41)).

On June 30, 1960, a number of persons, including peti­
tioners, gathered outside the main entrance of the Park to 
urge publicly that Negro patrons be permitted to use the 
Park’s facilities and to seek service for Negro patrons by 
peaceable means (R. 59-71). A picket line protesting 
racial segregation was set up outside the main entrance to 
the Park (R. 62-63). No tickets of admission were re­
quired for entry into the Park (R. 17) and petitioners, 
young Negro students participating in the Glen Echo pro­
test, entered the Park through the open main gates at about 
8:15 p.m. (R. 6-7). While petitioners were generally 
aware of Glen Echo’s long-standing discriminatory policy, 
they were hopeful that the management would not refuse 
them service (R. 61-63, 69). Having entered the Park 
without difficulty, petitioners took seats on the horses and 
other animals of the carousel and sought to enjoy a merry-



4

go-round ride (R. 7-8), for ’which they had in their pos­
session valid tickets of admission (R. 17, 59).1

Petitioners, as we have said, were hopeful that the Park 
would not refuse them the service which it advertised and 
rendered to the general public. Their attempts at service 
were not unreasonable, considering that no tickets were 
required for admission to the Park itself (R. 17), that none 
of the signs around the Park indicated any discrimination 
against Negro customers (R. 60), and that in its press, 
radio and television advertising in the District of Columbia 
area the management invited “ the public generally” with­
out distinction of race or color (R. 45-46).

It soon developed, however, that petitioners were not 
going to be able to ride the carousel on which they had 
taken places. While the carousel remained stationary, peti­
tioners were approached by one Francis J. Collins, (R. 8). 
Collins was employed by the Glen Echo management as 
head of the special police force at the Park under arrange­
ment with a private detective service, the National De­
tective Agency (R. 5, 14-15) and was deputized as a Special 
Deputy Sheriff of Montgomery County on the request of the 
Park management (R. 14) ,2 Collins was dressed in the uni­
form of the National Detective Agency and ivas wearing 
the Special Deputy Sheriff’s badge representing Ms state

1 Friends of the petitioners had purchased these tickets and had given 
them to petitioners (R. 60). There is no suggestion that the management 
placed any restriction upon the transfer of tickets to friends and relatives; 
indeed, it was conceded by an agent of the Park that transfers frequently 
occurred in his presence (R. 17). No offer to refund the purchase price 
was made to petitioners (R. 17).

2 The private force at the Park included at least two employees deputized

(R. 55)- pursuant to Montgomery County Code (1965) See. 2-91, which
provides that the sheriff “on application of any corporation or individual, 
may appoint special deputy sheriffs for duty in connection with the 
property of . . . such corporation or individual; . . .  to be paid wholly 
by the corporation or person on whose account their appointments are 
made.”



5

authority (R. 14). On the orders of and on behalf of the 
Glen Echo management (R. 7, 54), but wearing* the badge 
of his office under the State, Collins “ gave them five min­
utes to get off the property” (R. 7), explaining that it 
was “ the policy of the park not to have colored people 
on the rides, or in the park” (R. 8). Petitioners declined 
to obey Collins’ order, remaining on the carousel for 
which they tendered their tickets of admission (R. 8, 17). 
Having unsuccessfully directed petitioners to leave the 
premises, and still acting pursuant to his employers’ in­
structions (R. 7, 54) but exercising his police authority 
(R. A), Collins now arrested petitioners (R. 12) for tres­
pass in violation of Art. 27, Sec. 577 of the Code (R. A). 
There was no suggestion that petitioners were “ disorderly 
in any manner” (R. 77).

At the Montgomery County Police precinct house where 
petitioners were taken after their arrest (R. 12), once more 
acting upon his employers’ instructions but exercising his 
public office, Collins preferred sworn charges for trespass 
against petitioners by executing an “ Application for War­
rant by Police Officer” (R. A). Upon Collins’ charge, a 
“ State W arrant” was issued by the justice of the peace 
(R. B), leading to petitioners’ trial under the Maryland 
“ wanton trespass” statute, Code Art. 27, Sec. 577.®

Petitioners’ trial in the Circuit Court for Montgomery 
County on September 12, 1960, elicited the circumstances 
under which petitioners were warned off Glen Echo prem­
ises and arrested and accused of trespass by Collins, acting 3

3 Apparently the State had difficulty deciding, in view of the continuous 
commingling of Collins’ functions, whether Collins had been exercising his 
public or his private powers in enforcing segregation at Glen Echo 
Amusement Park. The State Warrant filed on August 4, 1960 (E. B) 
alleging that petitioners had refused to leave the Park “after having been 
told by the Deputy Sheriff for Glen Echo Park” to leave the property, 
was replaced by an Amended State Warrant of September 12, 1960 (R. C) 
alleging that they had refused to leave “after having been duly notified 
by an agent of Kebar, Inc.” not to remain on the property.



6

on the orders of the private management and contempo­
raneously exercising the powers of his public police office 
as a Deputy Sheriff. At the trial, Collins, Park co-owner 
Abram Baker, and Park Manager Woronoff, all elaborated 
upon the orders given by the management to Collins with 
respect to his enforcement of racial discrimination. Co­
owner Abram Baker admitted that from the first day of 
Collins’ employment, management had instructed him to 
enforce segregation (R. 37). Baker candidly described 
his use of private-employee-deputy-sheriff Collins to en­
force racial discrimination:

“ Q. Did you instruct Lieutenant Collins to arrest all 
negroes who came on the property, if they did not 
leave ?
“ A. Yes.
“ Q- That Was your instructions?
“ A. Yes.
“ Q. And did you instruct him to arrest them because 
they were negroes?
“ A. Yes” (R. 39-40).

Deputy Sheriff Collins equally affirmed that he arrested 
petitioners “ because they were negroes,” and explained 
that “ I arrested them on orders of Mr. Woronoff, due to 
the fact that the policy of the park was that they catered 
just to white people . . .” (R. 16). Park Manager Woronoff 
also testified that Glen Echo’s policy was “ to maintain 
the park on a segregated basis” (R. 53) and that when he 
learned of petitioners’ presence in the Park, “ I instructed 
Lieutenant Collins to notify them that they were not wel­
come in the park, and we didn’t want them there, and to 
ask them to leave, and if they refused to leave, within a 
reasonable length of time, then they were to be arrested 
for trespass” (R. 54).

Petitioners’ constitutional objections to the State’s par-



7

ticipation in and support of racial discrimination, were 
repeatedly rejected by the trial court (R. 4, 12, 55, 71, 
72-75). Petitioners were convicted and fined (R. F ; 72-75). 
The Maryland Court of Appeals affirmed the convictions 
(R. 76), holding that, under the wanton trespass statute, 
petitioners’ refusal to leave the premises upon instruc­
tions of management agent Collins, constituted unlawful 
“ entry or crossing over’’ the property “ after having been 
duly notified by the owner or his agent not to do so” . The 
Court dismissed petitioners’ arguments that State support 
of racial discrimination by a public commercial enterprise 
violated the Fourteenth Amendment, finding the case to 
be “ one step removed from State enforcement of a policy 
of segregation” (R. 82).

This Court has granted review in this and a number of 
other cases which involve similar or related questions re­
garding the conviction for crime of jmung Negroes and 
their white associates seeking to utilize facilities licensed 
to provide accommodations to the general public. In ad­
dition to the cases granted review, a number of other pe­
titions are pending in this Court and numerous cases are 
before state courts, all raising related constitutional ques­
tions. Because of the importance of the issues presented 
and the impact of this Court’s ruling, which will necessarily 
have effect beyond the individual cases now before the 
Court, we enlarge in the Argument on the various legal con­
siderations involved in racial discrimination at public ac­
commodations and its enforcement by the authority of the 
state.

Summary of Argument 

I

The State of Maryland’s supportive involvement in the 
racial discrimination of Glen Echo Park transgresses the 
equal protection clause of the Fourteenth Amendment.



What the State has done here falls well within the area of 
State action interdicted by this Court’s rulings in Shelley 
v. Kraemer, 334 U.S. 1 and Barrows v. Jackson, 346 U.S. 
249.

In Shelley, and later in Barrows, this Court ruled that 
judicial recognition or enforcement of private undertak­
ings to practice segregation constitutes denial by the state 
of the equal protection guaranteed by the Fourteenth 
Amendment. In the instant case it is clear that no less 
than in Shelley and Barrows, the courts of the State of 
Maryland have become the means for enforcing racial dis­
crimination. Indeed, the instant case is far stronger than 
Shelley, for here the State’s judicial process, indeed its 
criminal process, has been made available to enforce dis­
crimination not by merely private parties as in Shelley, 
but rather by proprietors of an important accommoda­
tion catering to the public at large.

Actually, there is far more in the instant case than 
mere judicial enforcement of racial discrimination—here 
the closest interplay existed at every stage between the 
discrimination at Glen Echo Park and the authority of 
the State, which was loaned to the owners for the en­
forcement of their discrimination. Not only the judicial 
and prosecutory power of the State of Maryland has been 
employed to enforce discrimination, but the State’s police 
authority was handed to the Glen Echo management on 
a formalized basis for the continuing administration and 
enforcement of its discriminatory policy. As regards en­
forcement of segregation, there was absolutely no severance 
at any time between public and private authority at Glen 
Echo Park.

Moreover, in addition to the direct involvement of the 
State in segregation at Glen Echo Park through its police 
and judicial powers, the State of Maryland was also in-



9

extrieably involved in the surviving community custom of 
segregation fostered by decades of statutory segregation. 
We do not believe that Maryland’s belated abandonment 
of compulsory segregation serves to extricate the State 
from responsibility for a public practice which has sur­
vived beyond the era when it was official State policy.

Petitioners’ convictions for “ trespass” , which serve to 
enforce the racial practice of a licensed business catering 
to the general public, clearly offend the mandate of the 
Fourteenth Amendment under authoritative rulings of this 
Court. None of the arguments advanced in support of 
the State court rulings in this or the companion cases 
deny that the practice of segregation is supported and 
buttressed by the States’ involvement in all these cases. 
Rather, reliance is placed upon three “ confession and 
avoidance” arguments to justify or excuse the admitted 
State involvement in the discriminatory practices at hand. 
None of these defensive contentions justifies or excuses 
the State action here involved in support of racial dis­
crimination.

The State’s first contention is that this prosecution and 
conviction is a neutral manifestation of Maryland’s gen­
eral interest in enforcing “ property rights” and that the 
Fourteenth Amendment is not violated unless the State’s 
purpose, as well as its effect, is to give support to dis­
crimination. But discriminatory “ motivation” by the 
State can hardly be the sine qua non of the Fourteenth 
Amendment’s applicability when as a matter of fact the 
exercise of the State’s power supports and abets racial 
discrimination. In any event, in the instant case it is 
clear that not only the effect but also the purpose of the 
State’s “ neutral” action has been to give support to Glen 
Echo’s racial policy. Having put its police authority under 
the orders and control of the Park for enforcement of



10

racial discrimination, the State cannot now be heard to 
disavow the owners’ racial purpose.

To the second contention, that application of the Shelley 
principle in the instant cases would leave states helpless 
to defend the sanctity of the home and the privacy of its 
owner, the direct answer is that these cases do not involve 
the home. Far from seeking privacy, the establishments 
involved in these cases are open to and cater to the trade 
of the public at large. See Marsh v. Alabama, 326 IT.S. 
501. There is no privacy to be protected in a place of pub­
lic accommodation catering to thousands of amusement- 
seekers.

To the third argument, that proprietors will utilize forci­
ble self-help to eject Negroes if they cannot do so through 
the police, we submit that the public record demonstrates 
the unlikelihood of any such action. For it is not the habit 
of proprietors seeking the trade of the public to engage in 
the dirty business of self-help ousters of Negroes seeking 
to give their patronage; rather they rely upon police forces 
to oblige in the enforcement of the “ unwritten law.” There 
is every reason to believe that the removal of state support 
for discrimination will be the occasion not for the advent 
of forcible self-help but for the demise of segregation in 
public accommodations. And all apart from the fact that 
there is no issue of self-help directly involved in this case 
and from the overwhelming public record that racial dis­
crimination in places of public accommodation will not out­
live the withdrawal of state supports, it should be noted 
that there is at least grave doubt whether a proprietor 
could legally engage in self-help to remove Negro would-be 
patrons.

The Fourteenth Amendment does not permit the State of 
Maryland to utilize its police powers of enforcement, ar­
rest, accusation and prosecution and its judicial powers of



11

trial and conviction to administer and effectuate racial dis­
crimination at an amusement park catering to the gen­
eral public. None of the hypothetical or practical argu­
ments advanced in support of the state court rulings in this 
and the companion cases permits a state by police or judi­
cial action to aid in the enforcement of a policy of segrega­
tion at places of public accommodation.

II

States may not, consistent with the equal protection guar­
antee, permit racial discrimination at public accommoda­
tions. Only a few months ago, Mr. Justice Douglas, in a 
concurring opinion in Garner v. Louisiana, 368 U.S. 157, 
176, pointed to the intimate contacts between the state and 
a restaurant authorized to cater to the general public, and 
concluded (182) that “ those who run a retail establishment 
under permit from a municipality operate, in my view, 
a public facility in which there can be no more discrimina­
tion based on race than is constitutionally permissible in 
the more customary types of public facility.”

The equal protection clause applies wdien “ to some sig­
nificant extent the State in any of its manifestations has 
been found to have become involved” with a private enter­
prise engaging in racial practices. Burton v. Wilmington 
Parking Authority, 365 U.S. 715. Analysis demonstrates 
that the State of Maryland is intimately involved in such 
public accommodations as Glen Echo. In its varied licens­
ing and inspection requirements for the protection of the 
public interest and welfare, the State of Maryland has man­
ifested its high concern regarding the operation of Glen 
Echo. In its many regulatory measures relating to the en­
terprise, the State further demonstrates its concern for 
the public interest in the operation of the public accommo­
dation involved. But the State’s involvement does not



12

end with licensing, inspection and regulation; in a myriad 
of ways governments provide assistance to public accommo­
dations. These varying measures of governmental assist­
ance once more demonstrate the state’s consciousness of 
the public interest involved—the enterprise may be pri­
vately owned but the interest served is public and receives 
the active supportive energies of government.

The State has obviously “ become involved” in the opera­
tion of public accommodations licensed, regulated and sup­
ported by its agencies. The “ private property” concepts 
which underlay this Court’s refusal in the 1883 Civil Rights 
Cases to give necessary scope to the Fourteenth Amend­
ment’s guarantee of equal protection, cannot today remain 
dispositive of the question whether the State of Maryland 
may permit public accommodations to discriminate against 
Negroes. No reason appears why this Court should de­
cline to give controlling significance in equal protection 
cases to the public interest consideration it finds disposi­
tive in economic due process cases. Cf. Nebbia v. New York, 
291 U.S. 502.

One hundred years after Emancipation, the effort at true 
emancipation cannot succeed while great public enterprises, 
operating with the license, approval, assistance and control 
of the states, remain beyond the constitutional obligation 
to afford Negro citizens equal participation in the life of 
the community. As history has proved Justice Harlan 
correct in his dissent in Plessy, it has also corroborated his 
forebodings in the Civil Rights Cases about a ruling which, 
under the guise of “ proprietor’s rights,” carved from the 
promise of equal protection the area of public life domi­
nated by “ corporations and individuals wielding power 
under the States” to supply public services and accommo­
dations. Any reappraisal today leads inexorably to the



13

conclusion that state law must afford the Negro public 
equal service at places of public accommodation.

Argument

In this case members of the general public, wrhich the 
Glen Echo Amusement Park is licensed to and purports 
to serve, were refused accommodation and treated as tres­
passers by the Park solely because they were Negroes. 
The State of Maryland freely lent its authority for the 
administration and enforcement of the discriminatory pol­
icy at the Glen Echo premises, and prosecuted and convicted 
petitioners of the crime of refusing to leave the establish­
ment. There are thus presented two fundamental ques­
tions under the equal protection clause: First, assuming 
that Glen Echo was legally and constitutionally free to 
discriminate against Negro members of the public, may 
the State actively support Glen Echo’s discriminatory 
practice in the manner and to the degree it did here? 
Second, consistent with the Fourteenth Amendment, may 
Maryland law, statutory or common, permit Glen Echo, 
a licensed place of public accommodation catering to the 
general public, to discriminate against Negro members of 
the public and to refuse them service solely because of their 
race?

We believe the Court need go no further than the first 
of these two questions. In the light of the State’s very 
clear involvement in the administration and enforcement of 
segregation at Glen Echo, there is presented here a direct 
state transgression of the equal protection clause, which 
requires no broad ruling nor reconsideration of this Court’s 
decision in the Civil Rights Cases, 109 U.S. 3. Since a 
narrow constitutional issue under Shelley and related de­
cisions is presented by the first question concerning the 
State’s supportive involvement in racial discrimination



14

at Glen Eclio, it is unlikely that the Court will reach the 
second and larger question. We note, however, that one 
member of the Court (see opinion of Mr. Justice Douglas 
in Garner v. Louisiana, 368 U.S. 157, 176) recently dealt 
in a concurring opinion with the broader question whether 
a public accommodation is legally and constitutionally per­
mitted to discriminate against the Negro public. For this 
reason, as well as for the sake of completeness and because 
the answer to the second question may serve to illuminate 
the first, we advance for the Court’s consideration the 
reasons why state law cannot permit exclusion of persons 
because of their race from a licensed place of public ac­
commodation which caters to and renders an important 
service to the general public. This ground of decision 
would, of course, require critical reappraisal of the Court’s 
rationale in its 1883 opinion in the Civil Rights Cases. How­
ever, if this second question were resolved in petitioners’ 
favor as we believe it would have to be, such a ruling would 
provide a uniform resolution of the pending cases, for it 
would require establishments purporting to serve the pub­
lic equally to serve Negro members of the public. The 
Constitution, in our view, not only permits Negro mem­
bers of the public to sit on the carousel free of state inter­
ference, but also requires management to operate it for 
their benefit as it does for whites. For these reasons we 
have deemed it important to brief both questions for the 
Court’s consideration.

I

The State’s Supportive Involvement in the Racial Discrim­
ination of Glen Echo Park Transgresses the Equal Protec­
tion Clause of the Fourteenth Amendment.
The instant case is one of a number of proceedings 

challenging state prosecutions of Negro patrons and white 
associates at places of public accommodation. The first



15

premise of the challenge against the criminal proceed­
ings involved in the pending cases is that such exertions 
of state power in support of the racially discriminatory 
practices of enterprises serving the public, constitute £ ‘ state 
action” forbidden by the Fourteenth Amendment. What 
the states have done in all these cases falls well within 
the area of state action interdicted by this Court’s 
rulings. See Shelley v. Kraemer, 334 U.S. 1, and Barrows 
v. Jackson, 346 U.S. 249.

(1) Long before Shelley, this Court emphasized that the 
Fourteenth Amendment’s requirement of equal treatment 
by the state, reaches “ state action of every kind”—legis­
lative, executive and judicial. See Virginia v. Rives, 
100 U.S. 313, 318; Ex Parte Virginia, 100 U.S. 339. In Shel­
ley and later in Barrows, the Court ruled that judicial rec­
ognition or enforcement of private undertakings to practice 
segregation constitutes denial by the state of the equal 
protection guaranteed by the Fourteenth Amendment. In 
the instant case it is clear that no less than in Shelley and 
Barrows, the courts of the State of Maryland have be­
come the means for enforcing racial discrimination. Nor 
is it any answer to say that the State courts are merely 
vindicating “ property rights” ; for this Court has ex­
plicitly answered that contention in Shelley, ruling that the 
Fourteenth Amendment circumscribes “ the power of the 
state to create and enforce property rights.” We submit 
that Shelley controls the instant case and precludes the 
affirmance of criminal convictions for ‘ ‘ trespass ’ ’ of persons 
ordered off premises and arrested and accused “ because 
they were Negroes.” 4

(2) Moreover, the instant case is far stronger than

; 4 This was the holding of the Third Circuit, one directly contrary to the 
ruling below under similar factual circumstances, in Valle v. Stengel, 176 
P. 2d 697.



16

Shelley, for here the State’s judicial process, indeed its 
criminal process, has been made available to enforce 
discrimination not by merely private parties as in Shelley, 
but rather by proprietors of an important accommodation 
catering to the public at large. If, as this Court’s Shelley 
ruling held, state courts may not lend their powers to the 
enforcement of discrimination as between merely private 
parties, they may do so even less to enforce discrimination 
at premises licensed for, advertised, and dedicated to the 
custom of the public.5 6

This is the position well articulated and elaborated be­
fore this Court in a brief amicus for the United States 
two terms ago. In Boynton v. Virginia, 364 U.S. 454, the 
Solicitor General urged reversal of a Virginia trespass con­
viction upon the ground being urged in the pending cases, 
that the Fourteenth Amendment precludes a state’s en­
forcement of racial discrimination by a business catering

5 The ease here is rendered particularly strong by the fact that a state- 
licensed enterprise of public accommodation has been the beneficiary of 
state support in its discrimination. Thus it would hardly be argued that 
a state may license public accommodations expressly to serve the white 
public. Yet, while the State’s license here may in form be neutral, when 
the State through its courts enforces racial segregation at the licensed 
premises, then in effect the State has licensed and authorized an enterprise 
to provide accommodations to the white public alone.

This the State clearly may not do. As Mr. Justice Douglas stated in 
his concurring opinion in Garner v. Louisiana, 368 U.S. 157, 184: “I do 
not believe that a State that licenses a business can license it to serve only 
whites or only blacks or only yellows or only browns. Race is an imper­
missible classification when it comes to parks or other municipal facilities 
by reason of the Equal Protection Clause of the Fourteenth Amendment. 
By the same token, I do not see how a State can constitutionally exercise 
its licensing power over business either in terms or in effect to segregate 
the races in the licensed premises. The authority to license a business 
for public use is derived from the public. Negroes are as much a part 
of that public as the whites. A municipality granting a license to operate 
a business for the public represents Negroes as well as all other races who 
live there. A license to establish a restaurant is a license to establish a 
public facility and necessarily imports, in law, equality of use for all 
members of the public.”



17

to the public. In the Government’s Brief before this Court 
(at p. 17), the Solicitor General emphasized that “ The ap­
plication of a general, nondiscriminatory, and otherwise 
valid law to effectuate a racially discriminatory policy of 
a private agency, and the enforcement of such a discrimina­
tory policy by state governmental organs, has been held 
repeatedly to be a denial by state action of rights secured 
by the Fourteenth Amendment.” Pertinent judicial rul­
ings, the Solicitor General pointed out, demonstrate that 
“where the state enforces or supports racial discrimination 
in a place open for the use of the general public . . . it in­
fringes Fourteenth Amendment rights notwithstanding the 
private origin of the discriminatory conduct” (at p. 20). 
The Solicitor General concluded that the conviction for 
“ trespass” of a Negro seeking service at a Richmond, Vir­
ginia, restaurant constituted unlawful state support to pri­
vate discrimination, and that

“ When a state abets or sanctions discrimination 
against a colored citizen who seeks to patronize a busi­
ness establishment open to the general public, the col­
ored citizen is thereby denied the right ‘to make and 
enforce contracts’ and ‘to purchase personal property’ 
guaranteed by 42 U.S.C. 1981 and 1982 against depriva­
tion on racial grounds” (at p. 28).

Since in the instant case the State court judgment of con­
viction constitutes direct enforcement at a public accommo­
dation of segregation against members of the public treated 
as trespassers “ because they are Negroes” , the authori­
tative rulings of this Court preclude an affirmance of the 
judgment below.6

6 An additional ground for reversal may inhere in the fact that the 
highest court of Maryland has here construed the Maryland enactment 
“as authorizing discriminatory classification based exclusively on color.” See



18

(3) Actually there is far more in the instant case than 
mere judicial enforcement of racial discrimination—here 
the closest interplay existed at every stage between the 
discrimination at Glen Echo Park and the authority of the 
State, which was loaned to the owners for the enforcement 
of their discrimination. Not only the judicial and prosecu- 
tory power of the State of Maryland has been employed to 
enforce discrimination, but the State’s police authority was 
handed to the Glen Echo management on a formalized basis 
for the continuing administration and enforcement of its dis­
criminatory policy. Deputy Sheriff Collins, not upon the 
mere request but upon the orders of the private manage­
ment which employed him, and wearing the badge of his pub­
lic office, informed and instructed petitioners that because 
they were Negroes they would have to leave the premises. 
Collins and his associates were thus administering the 
Park’s policy of racial discrimination on a day to day basis. 
Collins’ direction to the petitioners to leave the premises 
constituted unconstitutional state involvement in the “ pri­
vate” practice of discrimination.* 7

concurring opinion of Mr. Justice Stewart in Burton v. Wilmington Park­
ing Authority, 365 U.S. 715, 726. But for the State trespass statute, 
petitioners’ conduct would not have been a crime. As construed below, 
the statute requires the conviction of one who remains on property “after 
having been duly notified by the owner or his agent not to do so” because 
he is a Negro. Thus, as construed below, the statute clearly authorizes a 
discriminatory classification based exclusively on color.

7 The court below found Deputy Sheriff Collins’ involvement in adminis­
tering segregation at Glen Echo no different than that of a regular police 
officer casually called upon for assistance by management (R. 83). While 
in our view the Constitution precludes either type of police involvement 
in administering racial segregation at public accommodations, it must be 
noted that the two situations are not identical. Unlike the policeman 
requested to make an arrest for trespass, the police power here was under 
the pay and control of the private management which ordered Deputy 
Sheriff Collins to administer its discriminatory policy (R. 16). In this 
commingling of public and private powers at Glen Echo, there was irre­
trievably surrendered the discretion and integrity ordinarily attaching to 
the policeman’s badge. It seems clear (Cf. Steele v, Louisville & Nashville



19

Indeed, it was officer Collins who created the crime of 
which petitioners were convicted. His direction to peti­
tioners to leave the premises was a necessary ingredient 
of the offense under the statute, which is committed only 
“after having been duly notified by the owner or his agent.’’ 
Then, to add even further state support, still following the 
orders of his employers and in his capacity as an officer of 
the State, Collins arrested petitioners and filed warrants 
under oath against them, bringing into play the prosecu­
torial machinery of the State.* 8

B. Co., 323 U.S. 192; Marsh V. Alabama, 326 U.S. 501) that the loan of 
the State's police badge is accompanied by a constitutional prohibition 
on its use for the enforcement of “private” racial practices.

8 Collins, who was under the orders of his private employers to accuse 
petitioners of trespass, did so in his public capacity. This is reflected in 
the “Application for Warrant by Police Officer” (R. A), filed by Collins 
on his sworn allegation “that he is a deputy sheriff . . . and as such 
. . . did observe” the alleged offense, and in the State Warrants (R. B, C) 
reciting that “complaint hath been made upon the information and oath 
of Lieutenant Collins, Deputy Sheriff . . .”

While the court below points out (R. 82) that Collins might have filed 
his accusation in his private capacity, it is significant that he did not. 
Maryland employs an accusatory system in petty offenses based upon the 
discretionary authority of justices of the peace to arraign persons for trial 
upon complaint to them of an offense having been committed. Code 
Article 52, Sections 13 to 25. One who persuades a justice of the peace 
“in his discretion” (Art. 52, Sec. 23) to issue a state warrant, has pro­
cured the trial of the accused in the absence of further affirmative action 
to amend or dismiss the warrant, by the justice of the peace (Art. 52, 
Sec. 22) or the trial court (Art. 52, Sec. 13; in Montgomery County Art. 
52, Sections 25 and 99). That the justice of the peace is influenced in 
the exercise of his discretionary accusatory power by the fact that a police 
official is the complainant, is indicated by his maintenance of a separate 
form of “Application for Warrant by Police Officer” which, unlike the 
form used by private applicants, requires no listing of other witnesses, 
is issued in part on the basis of unsworn verbal representations to the 
justice by the officer of the law, and on his oath that “as a member of the 
Montgomery County Police Department,” he believes the accused guilty 
(R. A). In these circumstances, it cannot be said that in the exercise of 
the justice of the peace’s discretionary power to accuse petitioners and 
thus to bring them to trial, it was inconsequential that the complaint made 
by Collins, pursuant to his employers’ orders, was in his official capacity 
as a police officer.



20

It could hardly be more obvious, we submit, that as re­
gards enforcement of segregation there was absolutely no 
severance at any time between public and private authority 
at Glen Echo Park. The Park’s policy of racial dis­
crimination was at all times being administered and en­
forced by the State through Deputy Sheriff Collins and his 
colleagues. Here the State of Maryland was not merely 
enforcing racial discrimination through prosecution in the 
courts, but was itself administering that discrimination on 
a day to day basis at the premises of the largest public 
amusement facility in the District of Columbia area. Cf. 
Pennsylvania v. Board of Trusts, 353 U.S. 230. Indeed, 
but for the State’s ready support, the management might 
not have discriminated against the Negro patrons. Actually, 
shortly after that State support was challenged in the in­
stant case and in a Federal suit filed by Negro patrons to 
bar further arrests at Glen Echo (Griffin v. Collins, Civil 
Action No. 12308, D. C. Md. (I960)), the Park abandoned its 
practice of segregation (see Washington Post, March 15, 
1961, p. 1, col. 2).

As this Court recently phrased the presently applicable 
principle in Burton v. Wilmington Parking Authority, 365 
U.S. 715, 722, the equal protection clause comes into play 
when “to some significant extent the State in any of its 
manifestations has been found to have become involved” 
in private conduct abridging individual rights. The appli­
cability of this rule is clear and direct where, as here, the 
State has become involved through police administration 
and enforcement of the day to day operation of the Park’s 
discriminatory policies.9

0 It is also plain that the decision in the Civil Bights Cases, 109 U.S. 3, 
has no bearing’ upon the issue of such police administration and enforce­
ment of racial segregation at public places. As the Court there took pains 
to point out (pp. 19, 21), that case was resolved “on the assumption that 
a right to enjoy equal accommodation and privileges in all inns, public



21

(4) Moreover, in addition to the direct involvement of 
the State in segregation at Glen Echo Park through its 
police powers of enforcement, arrest, accusation and prose­
cution and its judicial powers of trial and conviction, the 
State of Maryland was also inextricably involved in the 
surviving community custom of segregation fostered by 
decades of statutory segregation. In the companion cases 
coming from Southern States, there are urged strong con­
stitutional considerations arising from the involvement of 
those States in the prevailing custom of segregation at 
public establishments through a variety of existing segre­
gation statutes and ordinances. While Maryland, with its 
more “ Northern” orientation, has repealed some segre­
gation statutes and has ceased to enforce others, it is rele­
vant that not too long ago the State still required segre­
gation in many areas of public life and even yet has not 
fully desegregated its public schools. We do not believe 
that Maryland’s belated abandonment of compulsory segre­
gation serves to extricate the State from responsibility 
for a public practice which has survived beyond the era 
when it was official State policy.* 10

conveyances, and places of public amusement, is one of the essential rights 
of the citizen which no State can abridge or interfere with,” and that it 
was not presented with the issue whether denial of equal service at such 
establishments “might not be a denial of a right which, i f  sanctioned by 
the state laiv, would be obnoxious to the prohibitions of the Fourteenth 
Amendment” (emphasis supplied).

10 Maryland was a slave-holding, border State. Its code of segregation 
laws historically has not been materially distinguishable from the Jim Crow 
laws of Southern States. A number of these segregation statutes have 
been repealed. (See Ann. Code of Maryland 1939', Art. 27 § 510-526, 
segregation on railroads and steamboats; Laws of Maryland, 1951, Chapter 
22, p. 58.) There remain on the books however a number of segregation 
statutes. See e.g. Ann. Code of Maryland 1957, Art. 65A, § 1-4; Art. 
49B, §5; Art. 78A, §11; Art. 77, §279; Art. 27, § 655; Art. 77, §226; 
Art. 27, § 646-648; Art. 27, § 303; and Art. 27, § 398. As recently as 1937 
the Court of Appeals of Maryland held that “separation of the races is



22

(5) Petitioners’ convictions for “ trespass” , which serve 
to enforce the racial practice of a licensed business cater­
ing to the general public, clearly offend the mandate of 
the Fourteenth Amendment under authoritative rulings of 
this Court. None of the arguments advanced in support 
of the State court rulings in this or the companion cases 
deny that the practice of segregation is supported and 
buttressed by the States’ involvement in all these cases. 
Rather, reliance is placed upon three “ confession and 
avoidance” arguments to justify or excuse the admitted 
State involvement in the discriminatory practices at hand: 
First, it is asserted that the state’s support to discrimina­
tion by criminal actions and convictions for trespass, is 
merely the state’s “ neutral” vindication of property rights 
for whatever cause the owner may invoke them; second, it 
is urged that Shelley should not be applied to trespass 
situations because states would otherwise be powerless to 
protect the sanctity of the home and its privacy; third, 
it is argued that if this Court holds states powerless to 
enforce discrimination at public accommodations, private 
proprietors will resort to forcible self-help for continued 
discrimination against Negroes. We turn to a brief an­
swer to each of these defensive contentions.

(a) “Neutral” Vindication of Property Rights. The

normal treatment in this state” (Williams V. Zimmerman, 172 Md. 563, 
192 A. 353).

The 1957 Annual Report of the Commission on Interracial Problems 
and Relations to the Governor and General Assembly of Maryland (p. 13) 
portrayed a pattern of segregation in Baltimore by which Negroes were 
excluded or segregated a.t 91% of all public facilities. The Baltimore 
picture, the Commission held, “would certainly reflect a pattern which 
exists in greater degrees of discrimination throughout Maryland’s twenty- 
three counties.” In its 1962 Report (at p. 23) the Commission reported 
that “the process of voluntary desegregation, in the absence of lawful 
regulation, has proved slow and inconsistent.” Today’s custom, though 
it may be attenuated and though it may no longer have the full force of 
law, is certainly derived from recently-enforced statutory enactments of 
the State of Maryland.



23

court below ruled that the arrest and conviction of peti­
tioners “ as a result of the enforcement by the operator 
of the park of its lawful policy of segregation,” could 
not “ fairly be said to be” the action of the State. In so 
doing, the court below apparently accepted the conten­
tion of the State that this prosecution and conviction is 
a neutral manifestation of Maryland’s general interest in 
enforcing “ property rights”, devoid of any racial con­
notation. This contention does not question that the exer­
cise of the State’s power has had the effect of supporting 
the practice of racial discrimination; rather, it suggests 
that the Fourteenth Amendment is not violated unless the 
State’s purpose is to give support to discrimination.

But discriminatory “ motivation” by the State can hardly 
be the sine qua non of the Fourteenth Amendment’s ap­
plicability when as a matter of fact the exercise of the 
State’s power supports and abets racial discrimination. 
The courts of Maryland convicted petitioners with clear un­
derstanding that racial discrimination was being enforced. 
Nowhere in the restrictive convenant decisions or in the 
formulation in Wilmington Parking Authority is a motive 
requirement suggested; recently, in Gomillion v. Lightfoot, 
364 U.S. 339, this Court rejected a similarly confining moti­
vational interpretation of the Fourteenth Amendment’s 
equality guarantee. The contention that the state is neu­
trally enforcing property rights rather than intending to 
assist discrimination, was explicitly rejected in Shelley (334 
U.S. 1, 22), this Court emphasizing that “the power of the 
State to create and enforce property interests must he exer­
cised within the boundaries defined by the Fourteenth 
Amendment.” 11

11 There may be some concern that this Court’s ruling- in Shelley would 
give constitutional import, outside the area of racial discrimination, to 
situations where state courts enforce private relationships characterized 
by unfairness which would offend the due process clause were the state its



24

In any event, in the instant case it is clear that not only 
the effect but also the purpose of the State’s “ neutral” 
action has been to give support to Glen Echo’s racial policy. 
The State surrendered its police authority to the use and 
control of a private corporation for its enforcement of 
racial discrimination. Armed with police authority, Deputy 
Sheriff Collins obeyed the orders of his employers in seek­
ing to expel and thereafter in arresting and charging pe­
titioners for trespass. Acting under color of law, Collins 
had as his sole purpose the administration of discrimina­
tion; he admittedly ordered petitioners off the premises 
and arrested and accused them “ because they vrere Ne­
groes” (E. 16; 39-40). The State’s police authority was 
thus prostituted to the management’s racial purpose. Hav­
ing put its police authority under the orders and control of 
the Park for enforcement of racial discrimination, the State 
cannot now be heard to disavow the owners ’ racial purpose.

(b) Protecting the Privacy of the Home. To the con­
tention that application of the Shelley principle in the in­
stant cases would leave states helpless to defend the 
sanctity of the home and the privacy of its owner, the 
direct answer is that these cases do not involve the home. 
Far from seeking privacy, the establishments involved in 
these cases are open to and cater to the trade of the public 
at large. This Court has had occasion to emphasize pre­

initiator. While the question is not, of course, presently before the Court, 
it might be noted that in contrast to its flexible approach to due process 
under the Fourteenth Amendment, this Court has accorded categorical 
significance to the racial prohibition of the equal protection clause. The 
Court may validly make the same distinction as regards state judicial 
enforcement of “private” racial discrimination, on the one hand, and of 
“private” relationships characterized by arbitrariness or unfairness, on 
the other. Such a distinction would do no violence to the intention of the 
Fourteenth Amendment, which may he said in the area of race to seek the 
achievement of a desegregated social order (see infra, pp. 30 to 39), hut 
to address itself in matters of fairness only to the “due process” of the 
state itself rather than to legislate a fair or just society.



25

cisely this distinction. In Marsh v. Alabama, 326 U.S. 501, 
the Court ruled that the exertion of state criminal authority 
on behalf of a proprietor’s restriction on the liberties of a 
member of the general public on his premises was pre­
cluded by the Fourteenth Amendment. As the Court 
pointed out (at 505-506) : “ The State urges in effect that 
the corporation’s right to control the inhabitants of Chicka­
saw is coextensive with the right of a homeowner to regulate 
the conduct of his guests. We cannot accept that contention. 
Ownership does not always mean absolute dominion. The 
more an owner, for his1 advantage, opens up his property for 
use by the public in general, the more do his rights become 
circumscribed by the statutory and constitutional rights 
of those who use it.’’ See also Public Utilities Com’n v. 
Poliak, 343 U.S. 451, 464, where the Court dismissed the 
contention that the Constitution secures to a passenger on a 
public vehicle “ a right of privacy substantially equal to 
the privacy to which he is entitled in his own home.” Pri­
vacy, said the Court, “ is substantially limited by the rights 
of others when its possessor travels on a public thorough­
fare or rides in a public conveyance. ’ ’

Marsh and Poliak highlight the significance attaching to 
the fact that in the pending cases racial discrimination is 
being enforced by states on behalf of public establishments 
rather than on behalf of individuals, homeowners or associa­
tions seeking protection of rights of private possession or 
personal privacy. As the Government ’s brief affirmed with 
respect to a similar trespass prosecution in the Boynton 
case (at pp. 20, 22), the Fourteenth Amendment is infringed 
where the state “ enforces or supports racial discrimination 
in a place open for the use of the general public,” for the 
issue

“ is not whether the right, for example, of a home-
owner to choose his guests should prevail over peti-



26

tioner’s constitutional right to be free from the state 
enforcement of a policy of racial discrimination, but 
rather whether the interest of a proprietor who has 
opened up his business property for use by the general 
public—in particular, by passengers travelling in 
interstate commerce on a federally-regulated carrier— 
should so prevail.”

Glen Echo Amusement Park is a licensed business enter­
prise owned and operated by corporations chartered by the 
State of Maryland. It caters to the general public as the 
major amusement park in the District of Columbia area 
and none of its numerous advertisements through various 
means of public communication reflected any discrimina­
tion against Negro members of the public and no signs 
around the Park proclaimed any restriction upon the cus­
tom of Negro patrons. These factors underline the critical 
consideration in the instant case that the State’s power has 
been invoked to enforce not personal privacy but public 
discrimination—to assist a business catering to the general 
public in its refusal of service to Negro members of that 
public. But he who seeks privacy must practice privacy. 
To the argument that rights of “ privacy” must be given 
predominant standing here, the simple answer is that there 
is no privacy to be protected in a place of public accommo­
dation catering to thousands of amusement-seekers. Cf. 
Public Utilities Gom’n v. Poliak, 343 U.S. 451, 464.

(c) Segregation By Forcible Self-TIelp.12 In its public

12 The Supreme Court of North Carolina suggested in the Avent case 
that if an owner cannot bar Negroes “by judicial process as here, be­
cause it is State action, then he has no other alternative but to eject 
them with a gentle hand if he can, with a strong hand if he must.” There 
is no issue of self-help directly involved in these cases and what we sug­
gest in the text is that the contention is not only legally irrelevant but



school desegregation decisions this Court evidenced its con­
cern regarding the impact of a constitutional ruling requir­
ing widespread changes in local custom and practices. On 
this score, we submit that the public record demonstrates 
the unlikelihood of serious disturbance or danger attend­
ing the removal of state support to discrimination in public 
accommodations. For it is not the habit of proprietors 
seeking the trade of the public to engage in the dirty busi­
ness of self-help ousters of Negroes seeking to give their 
patronage; rather they rely upon police forces to 
oblige in the enforcement of the “ unwritten law.” The 
recent wholesale abandonment of racial practices of the 
business community in many Southern localities, demon­
strates that these practices are less the product of public 
attitudes or business necessity than the vestigial remains of 
former conditions, succored by the willingness of public 
authorities to enforce segregation. There is every reason 
to believe that the removal of state support for discrimina­
tion will hasten the demise of segregation in public accom­
modations.

Prior to February, 1960, lunch counters throughout the 
South denied normal service to Negroes. Six months later, 
lunch counters in sixty-nine cities had abandoned discrimi­
natory practices (The New York Times, August 11, 1960, 
p. 14, col. 5); by October of 1960, the number of recently de­
segregated municipalities had mounted to more than one 
hundred (The New York Times, Oct. 18, 1960, p. 47, col. 5). 
During 1961 and 1962, desegregation has steadily 
continued.13

There is also direct evidence that removal of legal sanc­

factually baseless. Indeed, in Durham, North Carolina, where Avent arose, 
the dime stores have since quietly abandoned discrimination.

18 See e.g. The New York Times, Feb. 7, 1962, p. 40, col. 5 (Memphis) ; 
The Washington Post, April 9, 1962, p. 5, col. 2 (Houston); The Wash­
ington Post, Sept. 13, 1962, p. 18, col. 1 (New Orleans).



28

tions supporting segregation in public places effectively 
obviates further conflict or difficulty. When state segrega­
tion laws were struck down, public libraries in Danville, 
Virginia, and Greenville, South Carolina, were closed 
to avoid desegregation; they reopened a short time 
later, first on a “ stand up only” basis and then on a normal 
basis, all without incident. When public swimming pools 
were judicially ordered to desegregate, those in San 
Antonio, Corpus Christi, Austin, and others integrated with­
out difficulty. See Pollitt, The President’s Powers in Areas 
of Race Relations, 39 N.C.L. Rev. 238, 275. Similarly, 
Miami Beach, Houston, Dallas and other communities in­
tegrated their public golf courses without incident. Ibid. 
And experience has likewise disproved the in terrorem argu­
ment against desegregation suggested in cases involving 
Pullman cars (Mitchell v. United States, 313 TT.S. 81), 
dining cars (Henderson v. United States, 339 U.S. 816), 
buses (Morgan v. Virginia, 328 U.S. 373), and air travel and 
terminal service (Fitzgerald v. Pan American World Air­
ways, 229 F. 2d 499; Nash v. Air Terminal Services, 85 
F. Supp. 545).

In the instant case, no possible difficulty could arise from 
this Court’s invalidation of State support for segregation 
at Glen Echo.14 The Park abandoned its prior racial prac­
tices in 1961 (see The Washington Post, March 15,1961, p. 1, 
col. 2) and Montgomery County recently adopted a public 
places law (Ordinance 4-120, adopted by County Council, 
January 16, 1962). Unquestionably, an element in the man­

14 As the trial judge himself observed in his opinion (R. 74):
“If the Court of Appeals of Maryland decides that a negro has the 
same right to use private property as was decided in the school cases, 
as to State or Government property, or if the Supreme Court of the 
United States so decides, you will find that the places of business in 
this County will accept that decision, in the same manner, and in the 
same way that public authorities and the people of the County did 
in the School Board decision . .



29

agement’s abandonment of discrimination was petitioners’ 
challenge to the State’s enforcement of discrimination. The 
national evidence equally demonstrates that state enforce­
ment provides the essential buttress for continued racial 
discrimination at places of public accommodation.15

The Fourteenth Amendment does not permit the State of 
Maryland to utilize its police powers of enforcement, ar­
rest, accusation and prosecution and its judicial powers of 
trial and conviction to administer and effectuate racial dis­
crimination at an amusement park catering to the general 
public. None of the hypothetical or practical arguments 
advanced in support of the state court rulings in this 
and the companion cases permits a state, by police or judi­
cial action, to aid in the enforcement of a policy of segrega­
tion where broad public interests are involved. The quan­
tum of state action here far exceeds that which this Court 
found adequate to bring into play the Equal Protection 
clause in earlier cases. We submit that under the Fourteenth 
Amendment Maryland cannot convict Negro youngsters of 
criminal trespass merely because they have sought to ride 
the merry-go-round in a place of public accommodation.

15 All apart from the fact that there is no issue of self-help directly 
involved in this case and from the overwhelming public record that racial 
discrimination in places of public accommodation will not outlive the 
withdrawal of state supports, it should be noted that there is at least 
grave doubt whether a proprietor could legally engage in self-help to 
remove Negro would-be patrons. A court would not afford equal protec­
tion of the laws if it gave effect to the defense of self-help in an action 
for assault where the use of force was predicated upon racial discrimina­
tion. As this Court said in Barrows v. Jackson, 346 U.S. 249 at 256, 
“The result of that sanction [damage awards] by the State would be to 
encourage the use of restrictive covenants.” By the same token, giving 
effect to the legal defense of self-help would be to encourage discrimina­
tion at accommodations open to the public. Furthermore, since any power 
or right of self-help is necessarily derived from the state, its exercise 
on grounds of race would appear questionable to say the least.



30

II
States May Not, Consistent With the Equal Protection

Guarantee, Permit Racial Discrimination At Public Ac­
commodations.

In the preceding section of the Argument we have de­
veloped the considerations which preclude the State from 
enforcing, through its police powers of enforcement, arrest, 
accusation, and prosecution and its judicial powers of 
trial and conviction, racial discrimination at places of public 
accommodation. The discussion under Point I has pro­
ceeded on the assumption, arguendo, that the State may 
legally and constitutionally permit the proprietor of an 
establishment serving the public to discriminate against 
the Negro public so long as the State by police or judi­
cial action does not aid in the enforcement of such dis­
crimination. But the assumption that State law, statutory 
or common law, can consistent with the Fourteenth Amend­
ment permit a public accommodation to pursue a “ lawful 
policy of segregation” (R. 82) is itself subject to the most 
serious question. We submit that if this Court should 
reach this question in the present cases, it would be con­
fronted with the ultimate issue lurking in the background 
of our developing law of equal protection: Whether state 
lam which permits or authorises racial discrimination by 
establishments providing public accommodations is con­
sistent with the constitutional mandate of equal protection,16

16 The court below refers to the enforcement of 'Glen Echo’s “lawful 
policy of segregation” (R. 82)—a phrase which sharply points up the 
truly state-derived foundation of the so-called “right” to discriminate. 
For, if a public accommodation may “lawfully” discriminate against the 
Negro public, it is only because the state has permitted it so to do by 
its substantive law of proprietors’ rights. But it is the teaching of Shelley, 
and even more clearly of Barrows, that the law of the state (whether 
statute or common law) may not give recognition to racial discrimination, 
except in areas clearly within the personal domain such as the privacy



31

Only a few months ago, a member of this Court found this 
ultimate issue presented for adjudication in Garner v. Loui­
siana■, 368 U.S. 157, 176. Mr. Justice Douglas, in a concur­
ring opinion, pointed to the intimate contacts between the 
state and a restaurant authorized to cater to the general 
public, and concluded (182) that “ those who run a retail 
establishment under permit from a municipality operate, in 
my view, a public facility in which there can be no more 
discrimination based on race than is constitutionally per­
missible in the more customary types of public facility.” 
We submit that no other conclusion can properly be reached, 
and that if the Court should review the question, it must 
rule that Maryland cannot permit Glen Echo to discriminate 
against petitioners because of their color and refuse them 
service at its premises.

The constitutional mandate for applying equal protec­
tion guarantees to places of public accommodation, was 
brilliantly set forth eighty years ago in Justice Harlan’s 
historic dissent in the Civil Rights Cases, 109 U.S. 3. A 
review of the status of such establishments under law and 
in the social order led Justice Harlan to the view that the 
moving purpose of the Emancipation Amendments would be 
subverted were their ambit to exclude carriers, inns and 
similar public accommodations:

“ In every material sense applicable to the practical 
enforcement of the Fourteenth Amendment, railroad 
corporations, keepers of inns and managers of places

of the home. In our view, expanded in the text above, it matters not 
whether the question arises in an owner-instigated prosecution or suit to 
expel Negroes, in a suit by Negroes to obtain admission to the premises, 
or in the day-to-day operation of the establishment without judicial inter­
vention. Where genuine public interests are involved, as they are in each 
of these situations, under the Fourteenth Amendment the substantive law 
of the state cannot tolerate segregation and must require that accommo­
dations chartered for and catering to the service of the public, refrain 
from discrimination against Negro customers.



32

of public amusement are agents or instrumentalities of 
the State, because they are charged with duties to the 
public, and are amenable, in respect of their duties 
and functions, to governmental regulation. It seems 
to me that, within the principle settled in Ex parte 
Virginia, a denial, by these instrumentalities of the 
State, to the citizen, because of his race, of that equal­
ity of civil rights, secured to him by law, is a denial 
by the State, within the meaning of the Fourteenth 
Amendment. If it be not, then that race is left, in re­
spect of the civil rights in question, practically at the 
mercy of corporations and individuals wielding power 
under the States” (109 U.S. 3, 58).

However, a majority of the members of the Court in that 
era took a narrower view and, dividing persons into im­
mutable categories of ‘ ‘ official ’ ’ and ‘ ‘ private ’ ’, found pro­
prietors of public accommodations to fall within the latter 
category for purposes of the Equal Protection guarantee.

The mechanistic approach of the Court’s majority in 
the Civil Rights Cases (and soon after in Plessy) has not 
survived modern exigencies evoking this Court’s more re­
cent adjudications. Beginning with the landmark voter 
discrimination cases (Nixon v. Herndon, 273 U.S. 536; 
Nixon v. Condon, 286 U.S. 73; Smith v. Allwright, 321 U.S. 
649) and going on through Steele v. Louisville & Nashville 
R. Co., 323 U.S. 192, and a series of subsequent rulings, 
this Court has applied the rule that when government has 
its “ thumb on the scales,” private conduct may become 
infused with the requirement of equal treatment. Such 
infusion has been found by the Court in areas of contracts 
(Steele, supra; Shelley, supra), transportation (Hender­
son v. United States, 339 U.S. 816), education (Pennsyl­
vania v. Board of Trusts, 353 U.S. 230'; and see Cooper



33

v. Aaron, 358 U.S. 1, 19) and most recently in the case 
of a state-assisted public accommodation (Burton v. Wil­
mington Parking Authority, 365 U.S. 715). In the case 
last named, the Court warned that the equal protection 
requirement would apply when “the State in any of its 
manifestations has been found to have become invloved” 
with a private enterprise engaging in racial practices.

In the present more refined formulation of the degree 
of state action necessary to bring “ private action” within 
the reach of the Fourteenth Amendment, we respectfully 
submit that the State in many of its manifestations is indeed 
involved in public accommodations. Analysis demonstrates 
that the State is intimately involved in such public accom­
modations, which are licensed to perform valued public 
services upon a showing of capacity to serve the public 
interest, and are governmentally regulated and supported 
to further the serious public concern in the availability of 
the services provided. This is illustrated by a brief re­
view of the applicable statutes of Maryland respecting the 
operation of an establishment such as Glen. Echo Amuse­
ment Park:

(i) License. Under Section 15-7 of the Montgomery 
County Code (1960), it is made “ unlawful for any per­
son to hold in the county any picnic, dance, soiree or other 
entertainment for gain or profit to which the general pub­
lic are admitted,” without first having obtained a permit 
or license. By Section 15-8, the County Council is em­
powered to issue such permit or license upon payment 
of a reasonable fee, and to adopt “ such rules and regula­
tions in connection with such permit, license and fee as 
are necessary to protect the public health, safety and wel­
fare.” By Section 15-11, the Council is empowered to 
“ inspect, license, regulate or limit as to location within 
the limits of the county any place of public amusement,



34

or recreation . . . and in order to safeguard the public 
health, safety, morals and welfare, to pass rules, regula­
tions or ordinances . . . ”

In Chapter 75 of the Montgomery County Code the Coun­
cil has promulgated specific regulations (in addition to gen­
eral rules applicable to matters such as health, fire and 
sanitation) relative to the licensing and operation of amuse­
ment parks, theatres, dance halls, restaurants, cafes, inns, 
taverns, public swimming pools, etc. These rules prescribe 
the hours of operation (Section 75-1, 75-2) and other de­
tailed matters. Operation without a license of “ amusement 
parks operated for profit” (Section 75-9) is forbidden (Sec­
tion 75-5, 75-16). Licenses are issuable by the Director of 
the Department of Inspection and Licenses (Section 75-6) 
two weeks after a copy of the application has been published 
in a newspaper of general circulation (Section 75-7). But 
no amusement park license may be granted until the park 
submits proof “ of sufficient financial responsibility, 
or adequate liability insurance coverage, to protect the 
public using the park” (Section 75-9). Payment of the 
license fee “ entitles the operator of the amusement park” 
to operate all amusement devices not prohibited by law 
(Section 75-9). In these licensing and inspection require­
ments for the protection of the public interest and welfare, 
the State has manifested its high concern regarding the 
operation of the amusement accommodations involved. But 
even after the issuance of the State’s approval for the 
operation of the establishment, continuing State concern 
is reflected in the system of regulation in the public interest.

(ii) Regulation. Licenses issued expire within one year 
(Section 75-10). They may be denied, revoked or sus­
pended if the enterprise “ constitutes a detriment, is in­
jurious to, or is against the interests of, the public health,



35

safety, morals or welfare” (Section 75-11).17 While hear­
ings are provided in cases of revocation and suspension, 
there is specific authority for the summary closing of the 
premises to prevent manifest nuisance or danger (Section 
75-13). The County reserves its rights of visitation and 
inspection at the premises (Section 75-15). In these ways, 
by continual vigilance and inspection, the State further 
demonstrates its concern for the public interest in the 
operation of the public accommodation involved.

(iii) Support. In the creation and operation of its enter­
prise, the amusement facility also receives a variety of 
significant governmental supports. The State first gives it 
corporate existence and recognition, permitting it to exer­
cise the attributes of a natural person with the privilege 
of limited liability. Then, with the grant of a permit to 
operate a public business, the State authorizes the facility 
to cater and advertise to the general public.

But the State’s support does not end with the issuance 
of corporate charters and public licenses. In a myriad of 
ways governments provide assistance to public accommo­
dations. Special supports are made available through 
urban renewal, fair trade protections, anti-trust laws and 
the like. And assistance is given by outright subsidies 
and supportive services of Departments of Commerce and 
Labor. Then, too, there is the vast area of local govern­
ment assistance—the special zoning and license dispensa­
tions, the police protections, and the many daily manifes­
tations of local concern for adequate public facilities. These

17 Such grounds of disqualification encompass among others (a) defects 
in the character of the owner or operator, (b) noncompliance with 
applicable laws and regulations, (c) excessive noise, traffic congestion or 
other nuisance on the premises, and (d) occurrence or repeated occurrence 
on the premises of crimes or misdemeanors such as drunkenness or im­
morality.



36

varying measures of governmental assistance once more 
demonstrate the State’s consciousness of the public interest 
involved—the enterprise may be privately owned but the 
interest served is public and receives the active supportive 
energies of government.

In view of these manifold contacts just reviewed, can it 
possibly be said that the State has not “ become involved” 
in the operation of public accommodations licensed, regu­
lated, and supported by its agencies? We submit that the 
points of State involvement are too many and too intimate 
to allow an affirmative answer in the light of twentieth cen­
tury relationships between government and public enter­
prise. Cf. Public Utilities Com’n v. Poliak, 343 U.S. 451, 
462. But as important as their “ state involvement” aspect, 
these contacts also express the State’s recognition of the 
constitutionally relevant fact that public accommodations 
are clothed with a vital public interest.18 Once that fact be 
recognized, as urged by Justice Harlan in 1883, then vital 
constitutional principles come into play—those which this 
Court emphasized in a line of adjudications foreshadowed 
in Munn v. Illinois, 94 U.S. 113, and brought to full standing

18 This point was aptly put by Senator Sumner during- the debate on 
an 1871 Civil Rights Act amendment. Senator Sumner stated:

“Each person, -whether Senator or citizen, is always free to choose 
who shall be his friend, his associate, his guest. And does not the 
ancient proverb declare that a man is known by the company he 
keeps? But this assumes that he may choose for himself. His house 
is his 'castle’; and this very designation, borrowed from the common 
law, shows his absolute independence within its walls; nor is there 
any difference, whether it be palace or hovel; but when he leaves his 
‘castle’ and goes abroad, this independence is at an end. He walks 
the streets; but he is subject to the prevailing law of Equality; nor 
can he appropriate the sidewalk to his own exclusive use, driving into 
the gutter all whose skin is less white than his own. But nobody 
pretends that Equality on the highway, whether on pavement or side­
walk, is a question of society. And, permit me to say, that Equality 
in all institutions created or regulated by law, is as little a question 
of society.” Cong. Globe, 42nd Cong., 2d Sess. 382.



37

in Nebbia v. New York, 291 TJ.S. 502, and succeeding due 
process rulings. In the resulting test of government con­
trols against the guarantees of due process, this Court’s 
inquiry no longer ends with the discovery that the enter­
prise is private, but proceeds on to the question whether the 
public interest warrants the restraint imposed. This Court 
has thus definitively accepted Mr. Justice Holmes’ view 
(Lochner v. New York, 198 U.S. 45, 75) that “ the Fourteenth 
Amendment does not enact Mr. Herbert Spencer’s Social 
Statics.’’ The “ private property’’ concepts which under­
lay this Court’s 1883 refusal to give necessary scope to the 
Fourteenth Amendment’s guarantee of equal protection, 
cannot today remain dispositive of the presently pending 
question.

No reason appears why this Court should decline to give 
controlling significance in equal protection cases to the pub­
lic interest consideration it finds dispositive in economic 
due process cases.19 Considerations of the highest order 
of public interest are involved in the availability of public 
services and accommodations without discrimination or seg­
regation—their magnitude is measured by the cataclysmic 
struggle in which they were forged and the great Emanci­
pation Amendments in which they are enshrined. Yet as 
long as these guarantees are thought to permit the whole­
sale denial to Negroes of public accommodations and the 
amenities of daily life which they provide, the Amendments 
remain, in Justice Harlan’s prophetic words, merely “splen­
did baubles.” For it cannot be gainsaid that in many 
states and localities vital areas of public life still remain 
foreclosed to Negro citizens. One hundred years after

19 Cf. St. Antoine, Private Racial Discrimination, 59 Mich. L.Rev. 993, 
1008-1016.

We are not, of course, suggesting that the due process clause mil be 
applicable in all circumstances and to the same degree as the racial 
prohibition of the equal protection clause. See note 11, p. 23, supra.



38

Emancipation there is presented in America the spectacle 
of apartheid communities where Negro citizens are neither 
truly free nor nearly equal. True, commendable progress 
is being made to render them free and equal “ before the 
law” ; but the effort at true emancipation cannot succeed 
while great public enterprises operating with the license, 
approval, assistance and control of the states, remain be­
yond the constitutional obligation to afford Negro citizens 
equal participation in the life of the community.

* * # # # # #

Plessy and the Civil Rights Cases are twin rulings horn 
in an era of retreat from the guarantees of the Emanci­
pation Amendments. After decades of damage to the 
moving purpose of those guarantees, this Court was in­
duced to abandon the “ separate but equal” doctrine, to 
restore the integrity of governmental involvement in public 
schooling and to remove a major obstacle to the achieve­
ment of a desegregated society. As history has proved 
Justice Harlan correct in Plessy, it has also corroborated 
his forebodings in the Civil Rights Cases about a ruling 
which, under the guise of “ proprietors’ rights”, carved 
from the promise of equal protection the area of public 
life dominated by “ corporations and individuals wielding 
power under the States” to supply public services and 
accommodations.

Today the moving purposes of the Emancipation Amend­
ments are yet to be fulfilled, while Negro Americans remain 
social outcasts in the economic and public life of their 
localities, relegated to the back of the bus in their ride to 
work and the back alley in their search for lunch hour 
refreshment. The default on a profound constitutional 
promise which these realities expose to view, compels a 
reappraisal of concepts which define Equal Protection so



39

narrowly as to rob it of its vitality. Such a reappraisal 
points inexorably to the conclusion that state law must 
afford the Negro public equal service at places of public 
accommodation.

Conclusion

For the reasons herein set forth, the judgment below 
should be reversed with instructions to dismiss the pro­
ceedings against petitioners.

Respectfully submitted,
J o se ph  L . R atth, J r .,
JOHH SlLARD,

1625 K  Street, N.W., 
Washington 6, D. C.

J o se ph  H . S h a r l it t ,
L ee  M. H y d em a n ,
C laude  B. K a h h ,

1001 Connecticut Avenue, N.W., 
Washington 6, D. C.

Of Counsel:
J ack Greenberg ,
J am es  M. N abrit , III,

10 Columbus Circle,
New York 19, New York.

(3979-2)