Sullivan v. Little Hunting Park Brief Amicus Curiae

    Jn fte djourt of the Wimtd

October Term, 1969

P aul E. Sullivan, et al., petitioners

v.
L ittle H unting P ark, I nc., et al.

ON W RIT  OF CERTIORARI TO THE SUPREME COURT OF APPEALS
OF VIRGINIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

E R W IN  N. GRISW OLD,
Solicitor General, 

JE R R IS  LEONARD,
Assistant Attorney General.

LOUIS F. CLAIBORNE,
PE T E R  L. STRAUSS,
JOSEPH J. CONNOLLY,

Assistants to the Solicitor General,
G A R Y  J. GREENBERG,

Attorney,
Department of Justice, 

Washington. D.C. 20530.



I N D E X
Page

Opinions below_____________________________- __________  1
Jurisdiction_______________________________________________  2
Statutory provisions involved______________________________ 2
Questions presented_______________________________________  2
Interest of the United States----------------------------------------------- 3
Statement________________________________________________  4
Summary of argument---------------------------------------------------  7
Argument:

I. Racial Discrimination in the assignment of mem­
berships in Little Hunting Park, Inc., violates 
Section 1 of the Civil Rights Act of 1866---------  10

A. Section 1982 bars respondent’s conduct.- 12
1. The share is an incident of real

property covered by Section 
1982_________________________  12

2. The share, as personal property,
is covered by Section 1982------ 18

B. Subsequent enactment of a Public Ac­
commodations Law in 1875 does not 
indicate that the rights claimed here 
were beyond the scope of the 1866 
legislation___________________________  20

C. This Court’s decision in the Civil Rights
Cases is not a viable obstacle to our 
conclusion-----------------------------------------  25

D. The Public Accommodations Law of 1964
does not affect the coverage of the
1866 Act____________________________  28

II. Petitioner Sullivan has standing to seek relief 
under the statute in consequence of the in­
juries he suffered in obeying it------------------------ 33

III. Petitioners are entitled to compensatory dam­
ages as relief under Section 1982--------------------  35

Conclusion_____________________________________________  38
(i)

363 - 010— 69- •1



II

CITATIONS
Cases:

Alabama, State of v. United States, 304 F. 2d 583, Page
affirmed, 371 U.S. 37____________________________  36

Baird v. Tyler, 185 Va. 601, 39 S.E. 2d 642__________ 19
Barrows v. Jackson, 346 U.S. 249_____________ 9, 13, 20, 33
Bell y . Hood, 327 U.S. 678__________________________  36
Bell v. Maryland, 378 U.S. 226___________________ 3, 21, 27
Boynton v. Virginia, 364 U.S. 454___________________ 3
Brewer v. Hoxie School District No. 46, 238 F. 2d 91__ 10, 36
Buchanan v. Worley, 245 U.S. 60___________________  34
Burton v. Wilmington Pkg. Auth., 365 U.S. 715______  3
Civil Rights Cases, 109 U.S. 3___________ 8, 21, 25, 26, 27, 28
Clearfield Trust Co. v. United States, 318 U.S. 363___  19
Coger v. North West. Union Packet Co., 37 Iowa 145__ 22
Contract Buyers League v. F & F  Investment, 300 F.

Sapp. 210________________________________________ 18
Curtis Publishing Co. v. Butts, 388 U.S. 130_________  13
Daniel v. Paul, 395 U.S. 298_._:_________ 3, 8, 12, 15, 16, 17
Davenport v. United States, 260 F. 2d 591__________  19
Deckert v. Independence Shares Corp., 311 U.S. 282_ 37
Donnell v. State, 48 Miss. 661_______________________  22
Erie R. Co. v. Tompkins, 304 U.S. 64_______________  19
Evans v. Newton, 382 U.S. 296______________________ 3
Ferguson v. Gies, 82 Mich. 358______________________ 22
Garner v. Louisiana, 368 U.S. 157__________________  3
Hamm v. City of Rock Hill, 379 U.S. 30 6 ___________  13
Heart of Atlanta Motel v. United States, 379 U.S. 241 _ 28
Hodges v. United States, 203 U.S. 1__.______________  26
Howard v. Lyons, 360 U.S. 593_____________________  19
Hunter v. Erickson, 393 U.S. 385____________________ 3
Hyde v. TFoocfe, 94 U.S. 523________________________  19
J. I. Case Co. v. Borak, 377 U.S. 426_______________  36, 37
Jones v. Mayer Co., 392 U.S. 409___________ 3, 8, 9, 11, 12,

13, 14, 18, 19, 22, 24, 26, 27, 28, 29, 30, 31, 32, 35
Mitchell v. DeMario Jewelry, 361 U.S. 288__________  36
Nesmith v. YMCA of Raleigh, N.C., 347 F. 2d 96____  16
Page v. Edmunds, 187 U.S. 596_____________________  19
Peterson v. Greenville, 373 U.S. 244_________________  3
Porter v. Warner Co., 328 U.S. 395__________________ 36
Reitman v. Mulkey, 387 U.S. 369___________________  3



I l l

Cases—Continued
Rockefeller Center Luncheon Club, Inc. v. Johnson, 131 Page

F. Supp. 703____________________________________  16
Securities and Exchange Commission v. Universal Serv­

ice Association, 106 F. 2d 232--------------------------------- 19
Shelley v. Kraemer, 334 U.S. 1----------------------------------  3
Texas cfc N.O.R. Co. v. Ry. Clerks, 281 U.S. 548_____  36
Texas & Pacific Ry. Co. v. Rigsby, 241 U.S. 33—  10, 36, 37
Textile Workers v. Lincoln Mills, 353 U.S. 448----------- 19
Travelers Health Association v. Commonwealth, 188 Va.

877, 51 S.E. 2d 263, affirmed, 339 U.S. 643_______  19
United States v. Guest, 383 U.S. 745--------------------------  26
United States v. Johnson, 390 U.S. 563---------------------- 33
United States v. Mosley, 238 U.S. 383------------------------ 23
United States v. Price, 383 U.S. 787--------------------------  24
United States v. Republic Steel Cory., 362 U.S. 482------ 36
United States v. Richberg, 398 F. 2d 523--------------------  16
United States v. Standard Oil Co., 332 U.S. 301---------  19
United States v. The Schooner Peggy, 1 Cranch 103___ 13
United States v. Williams, 341 U.S. 70----------------------  23
Virginia, Ex Parte, 100 U.S. 339------------------------------  21
Wyandotte Co. v. United States, 339 U.S. 191------------- 37

Constitution and statutes:
United States Constitution:

Thirteenth Amendment____________  9, 25, 26, 28, 31, 33
Fourteenth Amendment _ - 9,10, 21, 22, 23, 25, 26, 31, 34

Civil Rights Act of 1866, 14 Stat. 27, Section 1--------- 3,
9, 10, 11, 20, 21, 22, 23, 25, 28, 29, 30, 31, 32, 33, 35

42 U.S.C. 1981_____________________ 2, 9, 11, 12, 19, 31
42 U.S.C. 1982_ 2,3,7,8,9,10,11,12,13,14,15,18,19,31

Enforcement Act of 1870, 16 Stat. 140 et seq-----9, 12, 22, 23
Section 16_____________________________________ 11
Section 18_____________________________________ 12

Civil Rights Act of 1875, 18 Stat. 335_______________ 8,
9,21,22, 23, 24, 25, 28, 29,31

Section 1__________________________________________ 21,24
Section 2 (now 18 U.S.C. 242)------------------------ 21, 23, 24, 25
Section 3__________________________________________ 21, 25
Section 4 (now 18 U.S.C. 243)---------------------------------- 21, 23
Section 5__________________________________________  21



IV

Civil Rights Act of 1964, Title II, 42 U.S.C. 2000a et Pase
seq________________________________________ 3,9,28,29,31,33

Section 201(a)_____________________________________  30
Section 201(b)________________________________*------  30
Section 201(c) -------------------------------------------------------- 30
Section 204(a)_____________________________________  30
Section 204(d)_____________________________________  30
Section 206________________________________________  30
Section 207 (b)_______________________________________32,33
Title X , Sections 1001-1004________________________  30

Civil Rights Act of 1968, Title VIII, 82 Stat. 81, 42 U.S.C.
3601 et seq__________________________________________ 3, 9, 13

Section 804(b)_____________________________________  14
Fair Housing Law of 1968, 42 U.S.C. 3801 et seq--------- 29, 30, 31
United States Code:

18 U.S.C. 241______________________________________ 23
28 U.S.C. 1343(4)__________________________________  10,36
42 U.S.C. 1988____________________________________  37

Virginia Code:
 ̂Sec. 13-105 (1950)_________________________________  19
Sec. 8-610 (1957)__________________________________  35
Sec. 13.1-211 (1964)_______________________________  19

Miscellaneous:
2 Cong. Rec. 340__________________________________  23
2 Cong. Rec. 4082_________________________________  24
Cong. Globe, 39th Cong., 1st Sess__________________  14, 22
Cong. Globe, 42d Cong., 2d Sess____________________  22
Hearings on S. 1732 before the Senate Committee on

Commerce, 88th Cong., 1st. Sess-----------------------------  31
Flack, The Adoption ojthe Fourteenth Amendment 11-54

(1908)___________________________________________  22
Frank & Munro, The Original Understanding of “ Equal

Protection oj the Laws," 50 Colum. L. Rev. 131-------  21
Freedmen’s Bureau Bill____________________________  22
Gressman, The Unhappy History oj Civil Eights Legis­

lation, 50 Mich. L. Rev. 1323______________________ 22



Jn the $xt$nm  d[<rort of tfo ®nM $tnm
Octobee Teem, 1969

No. 33

P aul H. Sullivan, et al., petitionees 
v.

L ittle H unting P aek, I nc., et al.

ON W R IT  OF CERTIORARI TO THE SUPREME COURT OF APPEALS
OF VIRGINIA

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The decision of the trial court in the Sullivan case 
(A. 232-234), which is in the form of a letter to coun­
sel, is not officially reported but is printed in 12 Race 
Rel. L. Rep. 1008. The trial court’s opinion in the 
Freeman case (A. 235-236), also contained in a letter 
to counsel, is unreported. The orders of the Supreme 
Court of Appeals of Virginia rejecting the appeals 
from the trial court (A. 242, 243) are not reported. 
The opinion of this Court (A. 244) granting the pre­
vious petition for a writ of certiorari and A’acating 
the judgments of the Virginia Supreme Court is re-

U)



2

ported at 392 U.S. 657. The opinion of the Supreme 
Court of Virginia on remand (A. 247-249) is reported 
at 209 Va. 279,163 S.E. 2d 588.

JU RISD ICTIO N

The judgment of the Supreme Court of Appeals of 
Virginia was entered on October 14, 1968 (A. 249- 
250). The petition for a writ of certiorari was filed 
on January 10, 1969, and granted on April 1, 1969 
(A. 251; 394 U.S. 942). The jurisdiction of this Court 
rests on 28 U.S.C. 1257(3).

QUESTIONS PRESENTED

Although the parties have briefed additional issues, 
we address ourselves only to the following questions, 
involving the proper construction and application of 
the Civil Rights Act of 1866 (42 U.S.C. 1981, 1982) :

1. Whether a leasehold interest in membership in 
privately owned community recreational facilities 
located in the community where a Negro citizen makes 
his home is “property” which may not be withheld 
from him solely on the basis of his race under 42 
U.S.C. 1982.

2. Whether a white person may secure judicial 
relief from the retaliatory acts of parties affected by 
his compliance with 42 U.S.C. 1982 in dealings with a 
Negro.

3. Whether, in appropriate circumstances, plain­
tiffs prevailing in actions arising under 42 U.S.C. 
1982 may recover monetary damages.

STA TU T O R Y  PROVISION S IN VO LV ED

Section 1982 of Title 42 of the United States Code, 
Revised Statutes § 1978, provides as follows:



3

All citizens of the United States shall have 
the same right, in every State and Territory, 
as is enjoyed by white citizens thereof to in­
herit, purchase, lease, sell, hold, and convey 
real and personal property.

IN TE R E ST OF TH E U N ITED  STATES

The United States has a continuing- interest in eradi­
cating discriminatory practices which deny to the mem­
bers of any group, on account of their race, access to 
certain residential communities, to places of public 
accommodation or to community recreational facil­
ities— especially those practices which tend to fence 
out the Negro from an entire area, and to segregate 
housing arrangements. The laws of the Nation attest 
that concern—including the Civil Rights Act of 1866 
invoked here, Title I I  of the Civil Rights Act of 1964 
and Title V III  of the Civil Rights Act of 1968. The 
appearance here is consistent with the government’s 
participation in such cases as Shelley v. Kraemer, 334 
U.S. 1; Boynton v. Virginia, 364 U.S. 454; Burton v. 
Wilmington Pkg. Auth., 365 U.S. 715; Garner v. Lou­
isiana, 368 U.S. 157; Peterson v. Greenville, 373 U.S. 
244 ; Bell v. Maryland, 378 U.S. 226; Evans v. Newton, 
382 U.S. 296; Beitman v. Midkey, 387 U.S. 369; Jones 
v. Mayer Co., 392 U.S. 409; Hunter v. Erickson, 393 
U.S. 385; Daniel v. Paul, 395 U.S. 298.

This particular case, however, presents a special and 
more direct federal concern. Dr. T. R. Freeman, Jr., 
one of the petitioners and the victim of the discrimina­
tion charged, was an employee of the federal govern­



4

ment, necessarily living in the Washington area, when 
he and his family were refused membership in a com­
munity recreational facility available to all other resi­
dents. In these circumstances, the United States, as the 
largest employer in the region affected, has a more im­
mediate interest in the problem, and, also, a more 'ob­
vious responsibility for attempting to offer a solution.

STATEM EN T

Little Hunting Park, Inc., was incorporated as a non­
stock corporation in 1954 principally for the purpose, 
set forth in its certificate of incorporation, o f organiz­
ing and maintaining “  community park and play­
ground facilities,” including a swimming pool, for 
“ community recreation purposes”  (A. 24, 120-121), 
Currently, swimming, tennis and other recreational 
activities are made available to the residents of four 
specified subdivisions (Bucknell Manor, Bucknell 
Heights, Beacon Manor and White Oaks) and certain 
adjacent areas in Fairfax County, Virginia (A. 28, 
121, 143). Subject to a 600-share maximum, the cor­
poration’s bylaws provide that membership shares 
entitling the holder, his family and guests to use its 
facilities, are available to all adult persons who “  re­
side in, or who own, or who have owned housing 
units,”  within the specified geographic areas (A. 28, 
121-122)! No other qualification requirement, such 1

1 The number of persons living within the four specified sub­
divisions who are shareholders varies from 115 out of the 750- 
800 families residing in the Bucknell Manor and Bacon Manor 
subdivisions to 136 out of the 174 families residing in Bucknell 
Heights. There are no statistics on White Oaks (A. 148-149, 
163).



5

as nomination or recommendation by existing mem­
bers, is mentioned. There are no limits on the number 
of shares an individual may hold; shares have been 
held by institutions and corporations owning property 
in the prescribed areas (A. 28, 46, 121, 123-124, 216- 
218). Shares may be acquired either by purchase di­
rectly from the corporation or from a previous holder 
(at prices ranging from $150-$230), or by lease from 
a landlord to his tenant (A. 28-29, 45-46,122-123,128). 
The bylaws provide that the issuance and assignment 
of shares is subject to approval o f the Board o f Di­
rectors of Little Hunting Park, but in the first 12 
years of its operation, 1,183 shares were issued and 
322 shares assigned without there being any record of 
any assignment having been denied approval, prior to 
the attempt o f Sullivan to assign a share to Freeman 
(A. 29, 40-50, 125-128, 148).2

Petitioner Paul E. Sullivan owns two houses within 
the geographic areas served by the recreational facili­
ties of Little Hunting Park. From 1962 until 1965, he 
held a membership share for each (A. 45-46, 78-79). 
During those years he rented one o f the houses to 
various tenants, including the Little Hunting Park 
share for that house as part o f the leasehold interest 
(A. 46, 49). On February 1, 1965, he leased the house 
to Dr. T. R. Freeman, Jr., for a term o f one year, 
subject to renewal. He included the membership share 
in Little Hunting Park as part of the leasehold inter­

2 There was testimony that an assignment of a share was dis­
approved by the Board of Directors in May 1961. Since there 
are no records of the incident, details of the transaction and 
the reason for any disapproval are not now known. (A. 127).

363-010— 69------2



6

est to which the rental fee, $129 per month, applied 
(A. 46-47, 177). Dr. Freeman and his family are 
Negroes. They moved into the house (and remained 
there into 1967), but the assignment of the Little 
Hunting Park share membership was not approved by 
the Board o f Directors. It is clear from the record 
that they rejected it solely because Freeman is a 
Negro (A. 48, 51-52, 55,112-113,130-131,145-146,155- 
156, 188-189).

Following the Board’s disapproval, Sullivan met 
with various members of the Board, other share­
holders, and community leaders in an effort to have 
the decision reversed. He organized a members’ peti­
tion to the Board for a membership meeting to hear 
Freeman and reconsider the decision to keep him out. 
The Board met on June 11, 1965, and decided Sullivan 
had given “ due cause”  for expulsion from the corpo­
ration by his refusal to accept the Board’s decision 
and his allegedly intemperate criticism of the Board’s 
action (A. 59, 130, 138-139, 190). Neither the Board 
nor the membership ever met with Dr. Freeman. 
On August 24, 1965, after giving Sullivan a brief 
hearing, the Board voted unanimously to expel him 
(A. 67, 71-72, 77, 97-98, 143, 157-158). Sullivan was 
notified of this action by a letter from the president 
of the corporation which also included a check tender­
ing to him the then current sale price of his two 
shares (A. 72, 116, 200-201).

Sullivan and Freeman then commenced separate 
civil actions against Little Hunting Park and its di­
rectors. Both sought orders declaring the corpora­
tion’s racially discriminatory admission policy invalid



7

and requiring it to approve Sullivan’s assignment to 
Freeman (A. 5-13, 15-19). Sullivan also sought re­
instatement of his membership shares and monetary 
damages for his wrongful explusion. Freeman also 
prayed for monetary damages to compensate him for 
Little Hunting Park’s unlawful interference with his 
contract with Sullivan and for depriving him of the 
full enjoyment of his leasehold estate.

The trial court, the Circuit Court of Fairfax 
County, Virginia, dismissed both complaints, holding 
Little Hunting Park to be a private social club with 
authority to determine the qualifications of those using 
its facilities, including the right to deny use on the 
basis of race (A. 232, 235). The court found that the 
expulsion of Sullivan was permitted by the relevant 
provisions of the corporate bylaws and justified by 
the evidence (A. 232).

The Virginia Supreme Court of Appeals rejected 
the petitions for appeal, citing plaintiffs’ failure to 
comply with a state procedural rule (A. 242, 243). 
This Court vacated that judgment and remanded the 
case to the Virginia Supreme Court for “ further 
consideration in light of Jones v. Alfred II- Mayer Co., 
392 H.S. 409”  (A. 244). On remand the Virginia 
Supreme Court disposed of the case on the same pro­
cedural ground (A. 247-249), and petitioners once 
again sought review in this Court.

SU M M A R Y  OF ARG U M EN T

I. The central question in this case is whether the 
“property” clause of Section 1 of the Civil Rights Act 
of 1866, 42 U.S.C. 1982, prohibits a corporate com­



8

munity recreational association from discriminating 
with respect to membership on the basis of race, where 
access to the facilities involved is available to all other 
residents in a stated geographic area. The question is 
largely settled by Jones v. Mayer Co., 392 U.S. 409. 
Under that decision, it seems clear that the developer 
of a comprehensive community such as Reston, V ir­
ginia, or the apartment-town house complexes of 
Southwest Washington, D.C., would not satisfy the 
statute if he sold or leased living quarters to all, 
but permitted only whites to use the community’s other 
facilities. Even though the corporation here wras not 
part of a larger development plan and all houses in 
the neighborhood concerned were not automatically 
members, this case is essentially the same. Little Hunt­
ing Park is not a private social club; except for this 
case, membership in it has never been premised on 
anything other than living in the area and paying the 
necessary fees. There are none of the earmarks of 
exclusivity or choice traditionally associated with 
the private club; the case in this respect is just like 
Daniel v. Paul, 395 U.S. 298, decided last term. 
Whether viewed as an incident to real estate, or as 
personal property, the membership shares in Little 
Hunting Park are subject to the guaranties against 
racial discrimination embodied in Section 1982.

Neither enactment of a public acconunodations law in 
the Civil Rights Act of 1875 nor this Court’s decision 
in the Civil Rights Cases, 109 U.S. 3, stands as an ob­
stacle to our conclusion. There can be little doubt that 
the draftsmen of the 1866 Act believed that they were 
reaching places of public accommodation. The reach



9

of the 1866 Act was clearly shown by its reenactment 
in 187Q, after adoption of the Fourteenth Amendment 
had explicitly guaranteed to Negroes equal protection 
of the law. I f  any reason need be found why Congress 
again addressed itself to the subject in 1875, we think 
it may be found in a desire to provide a more effective 
means, through federal enforcement, to vindicate 
rights already recognized. The Civil Rights Cases have 
been substantially eroded by this Court’s subsequent 
decisions, particularly its broad reading o f the con­
gressional power to enforce the Thirteenth Amend­
ment in Jones.

Nor does the Public Accommodations Law of 1964 
affect the coverage of the 1866 Act. Here, also, Jones 
principally answers any question through its rejec­
tion of a comparable argument based on the Fair 
Housing Title of the Civil Rights Act of 1968. The 
1964 Act indicates nothing of the purpose of legisla­
tors a centuiy earlier; there are substantial differences 
between the new laws and the old ; and Avhile the 1964 
Act has limitations absent from that of 1866, there is no 
reason to treat these as a repeal sub silentio of the 1866 
Act (see Jones, 392 U.S. at 437). To the contrary, the 
1964 Act specifically saves prior legislation to the extent 
it is not inconsistent, and we show that this condition is 
met.

II. We discuss briefly objections raised to the stand­
ing of the white assignor of membership, Mr. Sulli­
van, and to the damages which both petitioners seek. 
Petitioner Sullivan’s standing is settled by Barrows v. 
Jackson, 346 U.S. 249, where a white seller was found



10

to have standing to assert a Negro’s rights under the 
Fourteenth Amendment in resisting a suit for damages 
which a co-covenantor claimed had been caused by the 
seller’s breach of a racially restrictive covenant. Here, 
also, the injury of which Mr. Sullivan complains has 
been inflicted upon him as a direct consequence of his 
attempt to recognize a Negro’s civil rights and for the 
purpose of punishing that attempt. While Section 
1982 states no explicit method of enforcement, courts 
have “ the power to afford all remedies necessary to 
the vindication of federal substantive rights defined in 
statutory and constitutional provisions except where 
Congress has explicitly indicated that such remedy is 
not available.”  Brewer v. Hoxie School District No. 46, 
238 F.2d 91, 98 (C.A. 8). No such indication has been 
given in this case, see 28 U.S.C. 1343(4), and the 
damages remedy is plainly appropriate, Texas and 
Pacific By. Co. v. Rigsby, 241 U.S. 33, 39. Both in order 
to compensate the Negro for any harm done and to 
deter disobedience of the law, this Court should hold 
that the damages are recoverable under 42 U.S.C. 1982.

A RG U M EN T

I

RACIAL DISCRIMINATION IN THE ASSIGNMENT OF MEMBER­
SHIPS IN LITTLE HUNTING PARK, INC., VIOLATES SEC­
TION 1 OF THE CIVIL RIGHTS ACT OF 1866

The central question in this case is whether the 
“ property”  clause of Section 1 of the Civil Rights 
Act of 1866, now codified as 42 U.S.C. 1982, prohibits 
the respondents’ conduct—conduct which has effec-



11

lively denied to the Freemans, on account of their 
race, access to the community recreational facilities 
available to all other residents as an incident o f their 
ownership or lease of property in the area. The matter 
is largely settled by Jones v. Mayer Co., 392 U.S. 409, 
which construed the statute as reaching wholly private 
discrimination with respect to the sale of real estate—- 
a ruling which necessarily applies to all transactions 
covered by 42 U.S.C. 1981 and 1982, since both pro­
visions derive from a single clause of Section 1 of the 
Act of 1866.3 In light of Jones, the only possible issue 
here is whether the assignment of the membership 
share in the Little Hunting Park is a transaction pro­
tected by that section. That is presumably an aspect

3 Section 1 of the Civil Eights Act of 1866 (14 Stat. 27) 
read as follows:

“ 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, 
o f every race and color, without regard to any previous con­
dition of slavery or involuntary servitude, except as a punish­
ment for crime whereof the party shall have been duly con­
victed, 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 sub­
ject to like punishment, pains, and penalties, and to none other, 
any law, statute, ordinance, regulation, or custom, to the con­
trary notwithstanding.”

The “property” clause became separated when the rest o f the 
provision, slightly expanded and made applicable to resident 
-aliens as well, was re-enacted in haec verba as Section 16 of the 
Enforcement Act of May 31, 1870 (16 Stat. 140, 144). The 
property guarantee remained available to citizens alone as part 
of the 1866 Act, the whole of winch was re-enacted (by refer­



12

of the question expressly left open by the Court’s opin­
ion in Jones. 392 U.S. at 413-414 n. 10.4 Because, in our 
view, Section 1982 clearly covers the case, we do not 
here invoke Section 1981.5 See, however, the govern­
ment’s brief amicus curiae in Daniel v. Paul, No. 488,
O.T., 1968, pp . 9-14.

A . SECTION 19 8 2  BARS RESPONDENT’S CONDUCT

1. The share is an incident of real property covered by 
Section 1982

We think there could be no doubt that had the 
membership shares in Little Hunting Park, Inc., been 
part of a unified development plan, as in communities 
such as Reston, Virginia, or the apartment-town house 
complexes o f Southwest Washington, D.C., Section

ence only) by Section 18 of the Enforcement Act o f 1870. 
This division was formalized in the Revised Statutes of 1878, 
the “property clause”  being codified as Section 1978, the rest 
as Section 1977, and persists today in Sections 1982 and 1981 
of Title 42 of the United States Code.

4 After pointing out that 42 U.S.C. 1982, unlike the recently 
enacted Fair Housing Law, “ does not deal specifically with dis­
crimination in the provision of services or facilities in connec­
tion with the sale or rental of a dwelling” (392 U.S. at 413-414), 
the Court added, in the margin (n. 10) :

In noting that 42 U.S.C. § 1982 differs from the Civil 
Rights Act of 1968 in not dealing explicitly and exhaus­
tively with such matters * * *, we intimate no view upon 
the question whether ancillary sendees or facilities of this 
sort might in some situations constitute “property” as that 
term is employed in § 1982. Nor do we intimate any view 
upon the extent to which discrimination in the provision of 
such services might be barred by 42 U.S.C. § 1981 * * *.

5 Although petitioners did not plead either Section 1982 or 
Section 1981 as a ground for relief, their suits were brought be­
fore this Court’s decision in Jones, and the Court therefore may



13

1982 would forbid the developer from selling or 
leasing quarters to whites with, and to Negroes with­
out, access to the community’s recreational facilities. 
The statute guarantees all citizens “ the same 
right * * * as is enjoyed by white citizens * * * 
to * * * purchase, lease * * * real property. ’ ’ (Em­
phasis added.) Implicit in that guarantee is the right 
to the same use and enjoyment of the property and 
all its incidents as a white citizen would receive. As 
the record shows, community recreational facilities, 
especially swimming pools, are a major factor affect­
ing the desirability and value of residential property. 
The routine exclusion of Negroes from such facilities 
would both discourage them from buying in that com­
munity, and make any purchase they did make a 
poorer bargain than that a white citizen could obtain. 
“ Solely because of their race, non-Caucasians will be 
unable to purchase, own [rent] and enjoy property 
on the same terms as Caucasians.”  Barrows v. Jack- 
son, 346 IT.S. 249, 254. It would be inconsistent with 
this Court’s interpretation of § 1982 hi Jones for the 
statute to be interpreted as meaning that a Negro has 
the same right to buy or lease property as a white 
citizen but can be precluded from enjoying some of 
the incidents thereof on the basis of his race.6
consider issues arising under the statute, United States v. The 
Schooner Peggy, 1 Cranch 103, 110, as it recognized by its 
prior disposition of this case, 392 U.S. 657. See Curtis Publish­
ing Co. v. Butts, 388 U.S. 130, 112-143; Hamm v. City of Rock 
Hill, 379 IT.S. 306.

6 Evidence that the contemporary Congress does not distinguish 
between discriminating in the leasing of real property and the 
incidents thereof may be found in the Civil Rights Act of 1968,

363-010— 69- -3



14

The legislative history cited by this Court in Jones 
makes it reasonably clear that the Congress which 
originally enacted § 1982 in an effort to eliminate the 
badges of slavery did not intend to preclude discrimi­
nation only in the actual sale or rental of the dwelling- 
involved, allowing it to continue with reference to the 
incidents of ownership or possession. Thus, in his 
speech of January 5, 1866, Senator Trumbull said:

This measure is intended to give effect to that 
declaration [the Thirteenth Amendment] and 
secure to all persons within the United States 
practical freedom. There is very little impor­
tance in the general declaration of abstract 
truths and principles unless they can be carried 
into effect, unless the persons who are to be af­
fected by them have some means of availing 
themselves of their benefits.7 

Such language negatives any attempt to read the 
statute narrowly. So here, there is no reason to sup­
pose that Section 1982 makes an empty promise (see 
Jones, 392 U.S. at 443), which is satisfied if Negroes 
are allowed to buy or rent homes but are, in practical 
effect, banned from the neighborhood by being denied 
access to a community recreation facility which is, 
for white persons, a valuable incident of the posses­
sion of real property. The present case involves, at 
least, an obvious abridgement or dilution of the right 
to acquire a home, when the Negro is told: You may

Section 804(b), which makes it unlawful to “ discriminate 
against any person in the * * * sale or rental of a dwelling, 
or in the provision of services or facilities in connection there­
with, because of race, color * *

7 Cong. Globe, 39th Cong., 1st Sess., p. 474, quoted at 392 U.S. 
at 431-432; emphasis supplied.



15

buy or rent a bouse, but you may not acquire the 
right to use any of the community facilities which are 
open to your white neighbors. It seems plain that 
this result cannot be condoned without breaking the 
statutory pledge to the Negro that he shall enjoy “ the 
same right * * * as white citizens.”

Section 1982 is no less applicable here because the 
facilities are provided by a separate and ostensibly 
private membership corporation to which only some 
of the houses in the communities served belong, but 
which has as its only expressed standard for mem­
bership the geographic location of the house con­
cerned. We cannot accept the trial court’s view that 
Little Hunting Park is a private social club, and 
therefore free to discriminate on racial grounds in 
membership matters. Every adult owning or leasing 
a house in the prescribed geographic area is eligible, 
without further qualification, recommendation, or 
nomination, to become a member. Save for this in­
stance and possibly one other—-which for all the record 
shows may have been like it—the assignment or sale 
of shares from owner to tenant or purchaser has 
always been routinely approved; 322 such assignments 
were made between 1955 and 1966 (A. 125-126). Ac­
cess to the pool is simply as aspect of living in the 
area, subject only to paying for the privilege.

The case is in this respect much like the situation 
this Court confronted last Term in Daniel v. Paul, 
395 IJ.S. 298. The “ club”  involved there was a large 
one, serving people from miles around; visitors pur­
chased a low-cost “ membership”  each season and also



16

paid to use certain facilities on each visit; such member­
ships were routinely issued to all whites who sought 
them, but refused to Negroes. Little Hunting Park is 
much smaller in size, intended for the use and enjoy­
ment of a limited number of families in a smaller 
geographic area; the initial membership charge is 
high and yearly fees are assessed so that it may meet 
expenses. But the administration of its membership 
policies precisely tracks that which characterized 
Daniel v. Paul: subject to the availability of member­
ships,8 any white adult living in the community could 
join ; Negroes could not.

Just as in Daniel v. Paul, such a policy does not 
justify characterization of the facility as a private 
club. “ Membership”  which may be conveyed, assigned, 
and held by a corporation, and which is based on geog­
raphy alone, aew the very antithesis of the private social 
club. Thus, the Fourth Circuit has held that an estab­
lishment’s “ serving or offering to serve all members of 
the white population within a specified geographical 
area is certainly inconsistent with the nature of a truly 
private club.”  Nesmith v. YMCA of Raleigh, N.G., 397 
F.2d 96, 102. See also Rockefeller Center Luncheon 
Club, Inc. v. Johnson, 131 F. Supp. 703 (S.D.N.Y.) ; 
United States v. Richberg, 398 F.2d 523 (C.A. 5). The 
hallmarks of the private club are missing here: member­
ship is not even personal to any individual; nor is 
any attempt made to achieve any sort of compatibility 
of background or interest, save geography. There is

8 In 1965, the year in question, 36 memberships were avail­
able. Memberships were available in 7 of Little Hunting Park’s 
first 12 years (see A. 144).



17

thus no more occasion in this case than there was in 
Daniel v. Paul to consider whether the Civil Rights 
Act of 1866 applies to bona fide private clubs; our 
submission is only that when a privilege which for all 
others is incident to housing has been denied for rea­
sons of race, the statute is brought into play.

Nor do we think the fact that not all houses in the 
eligible community belonged to Little Hunting Park 
impeaches our conclusion that the membership Dr. 
Freeman was denied was an incident of the real prop­
erty he had leased. For individuals free to join or not 
as they chose, the availability of the facilities still 
adds value to the land which cannot be realised by 
persons barred from membership on racial grounds. 
As a matter of regular practice, shares in Little Hunt­
ing Park do run with titles to realty and with lease­
hold interests on houses for which membership shares 
are outstanding. The record shows (A. 99-108) that 
northern Virginia generally lacks governmentally 
owned and operated recreational facilities; there are 
only a few privately owned establishments open to the 
general public. The record also supports the con­
clusion that a community swimming pool facility is a 
major factor affecting the desirability and value of 
residential property.

Moreover, once an individual has purchased mem­
bership in Little Hunting Park, its racially discrim­
inatory membership policy exercises considerable 
leverage over his future transactions involving his own 
home. The purchase is a considerable investment, 
which enhances the value of his home and which he 
will wish to protect. Sale of the home to a Negro, who



18

could not purchase the share, is distinctly less ad­
vantageous to him than sale to a white.9 Similarly, 
since the corporation prohibits assignments to anyone 
other than a tenant and requires annual payment of 
assessments to keep memberships valid whether or not 
they are used, rental of a home to a Negro is less 
advantageous than to a white willing to pay the as­
sessment for the privilege of using the facilities. 
Given the absence of alternative public facilities, 
Negroes are discouraged from living in the commun­
ity. Any Negro who does purchase or rent such a 
home must pay a “ race tax” for the membership 
rights lie is forbidden to use. See Contract Buyers 
League v. F & F Investment, 300 F. Supp. 210, 215- 
216 (N.D. 111.).

We conclude that the action of Little Hunting 
Park constitutes a violation of § 1982 relative to Dr. 
Freeman’s right to rent real property and enjoy the 
use of the appurtenance privileges.

2. The share, as personal property, is covered by Section 1982.

In Jones the Court held that Section 1982 not only 
proscribed racial discrimination denying the Negro 
“ the right to live wherever a white man can live,”  
but also conduct denying the Negro “ the freedom to 
buy whatever a white man can buy.”  392 U.S. at 443. 
Apart from its intimate connection with real property, 
a Little Hunting Park share is a chattel which has an 
inherent value, is freely transferable among whites

9 Little Hunting Park’s bylaws do not obligate it to repur­
chase membership shares except in cases of expulsion. A. 29, 
125.



19

by sale or assignment,10 and carries with it the privi­
lege and land benefits incident to its possession, namely 
membership in Little Hunting Park. As such, it has 
all the attributes generally associated with personal 
property and, we submit, should be regarded as per­
sonalty similar to a share of stock in a corporation. 
See Hyde v. Woods, 94 U.S. 523; Page v. Edmunds, 
187 IJ.S. 596; Baird v. Tyler, 185 Ya. 601, 39 S.E. 
2d 642, 645-646; cf. Travelers Health Association v. 
Commonwealth, 188 Ya. 877, 51 S.E. 2d 263, affirmed 
on other grounds, 339 U.S. 643; Securities and Exchange 
Commission v. Universal Service Association, 106 F. 2d 
232 (C.A. 7) ; Davenport v. United States, 260 F. 2d 591 
(C.A. 9).11

10 Again, the fact that any transfer or assignment must be 
“ approved” by the Board of Directors before it becomes effec­
tive against the corporation does not, in the circumstances here, 
impair the conclusion of free transferability. So far as the 
record shows, denial of approval is used only to preserve the 
racial homogeneity of Little Hunting Park. A  device thus lim­
ited to what the statute forbids is clearly not to be considered 
is determining whether or not the statute applies.

11 We do not consider dispositive the fact that under Virginia 
law a Little Hunting Park share is deemed a security and, as such, 
is regarded as personal property (Code of Virginia, § 13-105 
(1950), 13.1-211 (1964)). In light of Jones, the federal courts will 
be called upon to develop a body of law as to what, for example, 
constitutes “property” under Section 1982 and “contracts” under 
Section 1981. That determination should not be made subject to 
the laws of the 50 State jurisdictions. Erie R. Co. v. Tompkins, 
304 U.S. 64, notwithstanding, it is clear that regarding ques­
tions within the area of federal legislative jurisdiction, the 
federal courts are authorized to develop federal law, in order 
to assure the necessary uniformity of disposition. E.g., dear- 
field Tt'ust Co. v. United States, 318 U.S. 363; Textile Workers 
v. Lincoln Mills, 353 U.S. 448, 457; Howard v. Lyons, 360 U.S. 
593, 597. See also United States v. Standard Oil Co., 332 U.S. 
301, 307.



20

For the reasons elaborated above, Little Hunting 
Park’s refusal to approve Sullivan’s assignment to 
Freeman should be held to be violative of the statute. 
The right to purchase or lease is surely meaningless 
unless the statute also reached the conduct of those 
who have it within their power to prevent the Negro 
from enjoying the rights transferred. Otherwise, the 
Negro buys nothing. Unless one is prepared to assume 
that Negroes will continue to buy even when apprised 
that their money will purchase only a certificate and 
not also the rights that generally run with it, Little 
Hunting Park will be able to subvert the purpose and 
intention of the statute. Cf. Barrows v. Jackson, 346 
U.S. 249.

B. SUBSEQUENT E N A C T M E N T  OF A  PU BLIC ACCOM MODATIONS L A W  

IN  18  7 5 DOES NOT IN DICATE T H A T  TIIE  RIGH TS CLAIM ED HERE 

W ERE BEYOND T H E  SCOPE OE TH E  18  66  LEGISLATION

What has been said sufficiently shows that Section 1 of 
the Civil Rights Act of 1866, on its face, reaches the dis­
criminatory policy of Little Hunting Park. A  question 
arises, however, whether the right to equal enjoyment of 
facilities like those involved here must be deemed ex­
cepted from the coverage of the 1866 Act because that 
matter is governed by special laws dealing with “places 
of public accommodation.”  We confront the issue be­
cause it seems to us the facilities of Little Hunting 
Park do, indeed, serve the role of places of public 
accommodation.

The argument that the Civil Rights Act of 1866 
does not embrace places of public accommodation



21

would focus initially on the Civil Rights Act of 1875 12 
(18 Stat. 335) held unconstitutional in the Civil 
Rights Cases, 109 U.S. 3. The suggestion would be 
that this roughly contemporaneous statute must be 
looked to as exclusively regulating this subject.

1. At the outset, we stress that there can be little 
doubt that the draftsmen of the 1866 Act believed 
they were reaching places of public accommodation. 
The 39th Congress, which passed the First Civil 
Rights Act and framed the Fourteenth Amendment, 
legislated against a background of common law rules 
affording members of the public not suffering from 
racial disability a legal right to use public convey­
ances and to obtain service in inns and hotels. See, 
e.g., Frank and Munro, The Original Understanding 
of “ Equal Protection of the Laws”  50 Colum. L. 
Rev. 131, 149-153; Civil Rights Cases, 109 TLS. 3, 
37-43 (Harlan J., dissenting) ; Bell v. Maryland, 378 
U.S. 226, 295-299 (Goldberg, J., concurring). Ac­
cordingly, it may be supposed that the declaration 
of citizenship and of the right to purchase property 
and to make and enforce contracts in Section 1 of the 
1866 Act was meant, at the least, to confer on Negroes 
the “ same right”  to the services of public accom­
modations as white citizens had enjoyed. Compare

12 In speaking of the Civil Eights Act of 1875 we refer to 
Sections 1 and 2, which dealt exclusively with places of public 
accommodation. Section 4 of the Act, outlawing racial discrim­
ination in jury selection, was vindicated in Ex Parte Virginia, 
100 U.S. 339, and is today codified as 18 U.S.C. 243. Sections 
3 and 5 were jurisdictional provisions, presumably applicable to 
the whole of the Act.



22

Ferguson v. Gies, 82 Mich. 358, 365; Donnell v. State, 
48 Miss. 661. Indeed, opponents of the Freedmen’s 
Bureau bill and the Civil Bights Act argued, without 
contradiction, that those measures would afford Ne­
groes the right to equal treatment in places of public 
accommodation. See Cong. Globe, 39th Cong., 1st Sess., 
541, 936; id. App. 70, 183 (Representatives Dawson 
and Rousseau, Senator Davis) ; Jones v. Mayer Co., 
supra, 392 IT.S. at 433, 435 n. 68. Presumably, the pro­
ponents of the Act offered no denial because they rec­
ognized that this was, indeed, one inevitable conse­
quence of granting Negroes equality before the law, 
even in the narrowest sense. See Coger v. North West. 
Union Packet Co., 37 Iowa 145 (1873) ; Flack, The 
Adoption of the Fourteenth Amendment 11-54 (1908). 
See also Supplemental Brief for the United States as 
Amicus Curiae, Nos. 6, 9, 10, 12, and 60, O.T. 1963, 
pp. 119-130.

This reach of the 1866 Act was made clearer by the 
re-enactment of the measure in 1870, after the adop­
tion of the Fourteenth Amendment, which had con­
firmed the grant of citizenship to Negroes and ex­
plicitly guaranteed “ equal protection of the laws.” See 
Jones v. Mayer Co., supra, 392 U.S. at 436-437. That 
understanding is reflected in the protracted congres­
sional debates on the proposals which culminated in 
the Civil Rights Act of 1875, debates premised on the 
same concept of “ civil’’ rights which underlay the 
declaration o f rights in the 1866 Act. See Cong. Globe, 
42d Cong., 2d Sess., pp. 381-383 (Senator Sumner) ; 
Gressman, The Unhappy History of Civil Bights Leg­
islation, 50 Mich. L. Rev. 1323-1336. There was, in­



23

deed, specific reference to an existing duty to afford 
Negroes equal treatment in places of public accom­
modation. As the Chairman of the House Judiciary- 
Committee, Representative Butler of Massachusetts 
told his colleagues, the bill which ultimately was en­
acted as the Civil Rights Act o f 1875 13—

* * * gives to no man any rights which he has 
not by law now, unless some hostile State stat­
ute has been enacted against him. He has no 
right by this bill except what * * * every 
man * * * has by the common law and civil 
law of the country.

2. The question remains: I f  freedom from racial 
discrimination in places o f public accommodation was 
already a federal right—secured by the Civil Rights 
Act of 1866, re-enacted in 1870—why then did Con­
gress address itself to the subject again in 1875?

We might simply offer the short answer given for 
the Court by Mr. Justice Holmes in United States v. 
Mosley, 238 H.S. 383, 387, rejecting the argument 
that 18 H.S.C. 241 should not be read as reaching 
interference with voting rights because they were 
specifically dealt with elsewhere: “ Any overlapping 
that there may have been well might have escaped 
attention, or if noticed have been approved.”  Redun­
dancy is not rare in legislation of the period. See, e.g., 
the overlap of Sections 241 and 242 of the Criminal 
Code as applied to rights protected by the Fourteenth 
Amendment, noticed in United States v. Williams, 341 
IT.S. 70, 78 (opinion of Frankfurter, J .), 88 n. 2 
(opinion of Douglas, J .), and condoned in United

13 2 Cong. Eec. 340.



24

States v. Price, 383 TT.S. 787, 800-806, 802 n. 11. This 
may be no more than another instance of duplication. 
But there is another explanation for the Civil Rights 
of 1875.

It is most likely, we think, that the 1875 law was 
enacted not to afford a new guarantee of equality in 
public accommodations, but to provide a more effec­
tive means, through federal enforcement, of vindicat­
ing rights which already had been recognized. The 
1866 law provided no specific civil remedy for viola­
tion of the rights enumerated in Section 1, and its 
criminal provisions were applicable only to conduct 
done “under color of law.”  See Section 2 of the Act, 
now 18 TT.S.C. 242. Negroes who were denied equal 
treatment in places of public accommodation were 
thus forced to seek redress under State law or through 
the uncertain remedies which might be available in 
the federal courts. See Jones v. Mayer Co., supra, 392 
U.S. at 414 n. 13. The debates on the 1875 law dem­
onstrated an awareness of the need for more effective 
enforcement of the right: “ the remedy is inadequate 
and too expensive, and involves too much loss of time 
and patience to pursue it. When a man is traveling, 
and far from home, it does not pay to sue every inn­
keeper who, or railroad company which, insults him 
by unjust discrimination” (2 Cong. Rec. 4082 (Sen­
ator P ratt)).

The congressional response to this problem was the 
dramatically enlarged federal role assumed by Sec­
tion 2 of the 1875 Act. Although earlier laws had con­
fined criminal penalties for interference with civil 
rights (other than voting) to official conduct or con­



25

spiracies, Section 2 made it a federal offense (a mis­
demeanor) for any person, even acting privately and 
alone, to deny equal treatment in public accommoda­
tions. And Section 3 directed federal officials to ini­
tiate prosecutions under the Act. Section 2 also pro­
vided for a fixed penalty of $500 which the aggrieved 
person could recover from the violator in a civil 
action exclusively in a federal court. In short, the 
apparent purpose and effect of the Civil Rights Act 
of 1875 was to focus particularly on one of the many 
rights secured by the 1866 Act which was appropri­
ate for especially stringent federal enforcement. That 
is, of course, a fully adequate basis for the enactment 
of supplementary legislation.

C. TH IS COURT’S DECISION IN THE CIVIL RIGH TS CASES IS NOT A

v i a b l e  o b s t a c l e  t o  o u r  c o n c l u s i o n

A question remains whether the decision in the 
Civil Rights Cases, 109 U.S. 3, does not foreclose our 
conclusion that the Civil Rights Act of 1866 outlaws 
racial discrimination in places of public accommoda­
tions. There are two possible difficulties: the first 
premised on the holding that the Act of 1875 was un­
constitutional; the second on the distinction drawn in 
the opinion between the 1875 Act and the Civil Rights 
Act of 1866.

1. Insofar as the Civil Rights Cases denied the 
power of Congress under the Thirteenth and Four­
teenth Amendments to reach racial discrimination in 
privately owned places of public accommodation, we 
think it plain that the authority of that ruling has 
been eroded by later decisions. The underlying premise



26

of the Fourteenth Amendment holding in the Civil 
Rights Cases—that legislation enforcing the Equal 
Protection Clause can only reach discriminatory con­
duct by persons invoking the shield of State law—was 
rejected by a majority of the Court in United States 
v. Guest, 383 U.S. 745, 762 (Clark, J., concurring), 
781-784 (opinion of Brennan, J .). But, for present 
purposes, it is enough to notice that the narrow view 
taken in the Civil Rights Cases with respect to con­
gressional power under the Thirteenth Amendment is 
inconsistent with Jones v. Mayer Co., supra.

W e recognize that the Court in Jones did not, in 
terms, overrule the Thirteenth Amendment holding 
of the Civil Rights Cases, there being no occasion to 
confront the ruling directly. See 392 U.S. at 441 n. 
78. But the Court did expressly hold that Section 2 
of the Thirteenth Amendment authorizes legislation 
which does more than merely restore legal capacity 
to former slaves. Thus, it was stated that “ Congress 
has the power under the Thirteenth Amendment ra­
tionally to determine what are the badges and the 
incidents of slavery, and the authority to translate 
that determination into effective legislation” (392 
U.S. at 440). Accordingly, the Court expressly over­
ruled Hodges v. United States, 203 U.S. 1, a decision 
holding— on the authority of the Civil Rights Cases— 
that Section 1981 could not validly bar racial dis­
crimination affecting a contract of employment (392 
U.S. at 441-443 n. 78). And, in language fully appli­
cable here, the Court broadly held (392 U.S. at 443) ;

Negro citizens North and South, who saw in 
the Thirteenth Amendment a promise of free­



27

dom—freedom to “ go and come at pleasure” 
and to “ buy and sell when they please”—would 
be left with “ a mere paper guarantee” if Con­
gress were powerless to assure that a dollar in 
the hands of a Negro will purchase the same 
thing as a dollar in the hands of a white man. 
At the very least, the freedom that Congress is 
empowered to secure under the Thirteenth 
Amendment includes the freedom to buy what­
ever a white man can buy, the right to live 
wherever a white man can live. * * * [Notes 
omitted.]

The thrust of the Jones opinion, we submit, is that 
it is not “ running the slavery argument into the 
ground”—as the majority hi the Civil Rights Cases 
supposed (109 U.S. at 24)—to concede congressional 
power to attempt to eradicate the vestiges of the 
slave system wherever they persist in the public life 
of the community. Whatever the validity in 1883 of 
viewing admission to places of public accommodations 
as a mere matter of “ social rights”  (109 U.S. at 22) 
and characterizing the discriminatory exclusion by 
the proprietor as involving only a discretionary deci­
sion “ as to the guests he will entertain” (109 U.S. at 
24), that approach does not conform to the present 
reality. Cf. the opinion of Mr. Justice Douglas, con­
curring, in Bell v. Maryland, 378 U.S. 226, 245—246, 
252-283. In light of the old common law obligation, 
imposed on at least some operators of public accom­
modations, it is difficult to appreciate that the privilege 
of obtaining entry and service without arbitrary dis­
crimination was ever a mere “ social ' matter. But, at 
all events, it is today more properly deemed a “ civil



28

right.” Cf. Heart of Atlanta Motel v. United States,. 
379 U.S. 241, 251. In sum, we believe the constitu­
tional power of Congress under the Thirteenth 
Amendment to reach racial discrimination in modern 
places of public accommodations is no longer open to 
doubt.

2. W e have already elaborated our view that the 
Congress of 1866 meant to outlaw the kind of dis­
crimination revealed by this record. Even assuming 
the constitutionality of such an effort, however, the 
Civil Rights Cases may be invoked as apparently 
reaching the opposite conclusion, as a matter of stat­
utory construction.

The objection, once again, is largely answered by 
the decision in Jones v. Mayer Co. Insofar as the pre­
vailing opinion in the Civil Rights Gases characterizes 
the Civil Rights Act of 1866—in contrast to the Act 
o f 1875—as merely removing legal “ disabilities”  (see 
109 U.S. at 22), without in any way controlling the 
freedom of sellers to discriminate on racial grounds, 
that view has been squarely rejected by the Court. 
E.g., 392 U.S. at 418-419, 436. We add only that, 
assuming the 1866 Act can properly be read as im­
pliedly exempting certain personal transactions, and 
assuming further there was once a basis for consider­
ing a right of access to a. place of recreation as out­
side the scope of the Act, present circumstances would 
now justify treating such a transaction as covered.

D. T H E  PU BLIC ACCOM MODATIONS L A W  OF 19  64  DOES N OT AFFECT 

T H E  COVERAGE OF T H E  1 8 6 6  A CT

One final objection suggest itself: that enactment 
in 1964 of a Public Accommodations Law as Title II



29

of the Civil Rights Act of that year (42 U.S.C. 2000a 
et seq.), in some way supersedes the provisions of the 
1866 Act insofar as they deal with the same subject 
matter. Here, too, Jones v. Mayer Co. indicates the 
answer by rejecting a comparable argument premised 
on an interpretation of the Fair Housing Title o f the 
Civil Rights Act of 1968 (42 U.S.C. 3601 et seq.) as 
repealing or qualifying the “ property”  provision of 
the 1866 statute.

1. Of course, the understanding of the legislators of 
1964 as to the intent of their predecessors a century 
earlier is only very remotely relevant. Certainly, it 
cannot override the clear indications given in 1866 and 
in 1875 that the original Civil Rights Act reached 
places of public accommodations. Accordingly, just as 
the Court did not look to the drafters of the Fair 
Housing Law of 1968 to determine the scope of the 
1866 Act with reference to the issues before it in Jones, 
here the Court’s construction of the Act should not be 
affected by the views prevailing in the 88th Congress. 
Nor is it even important to know what those views 
were: whether one assumes that the A ct’s full scope 
was or was not appreciated in 1964, it is clear that 
Title I I  of the Civil Rights Act of that year was 
not intended to repeal or supersede or amend the 
old statute.

2. We note first—as the Court did in Jones (392 
U.S. at 413—417) ——that there are substantia] differ­
ences between the new laws and the old. For example, 
Title I I  of the 1964 Act prohibits discrimination on 
the basis of “ race, color, religion, or national origin”



30

(Section 201(a)), while the 1866 Aet presumably ap­
plies only to race or color discrimination. Although 
the 1866 Act, on its face, prohibits all racially moti­
vated denials of the rights it protects, Title I I  applies 
only to certain types of establishments having some 
nexus with interstate commerce (Sections 201(b), 
201(c)). The 1866 Act is couched in declaratory 
terms, without reference to any particular mode 
of enforcement, whereas Title I I  embodies a specific 
remedy provision (Section 204(a)). Significantly, the 
new law—unlike the old—expressly provides for en­
forcement at the instance of the Attorney General 
(Section 206), and the 1964 Act also created a Com­
munity Relations Service to assist in the private set­
tlement of disputes relating to discriminatory prac­
tices (Title X , Sections 1001-1004, 42 IT.S.C. 2000g- 
2000g-3) to which the courts may refer cases brought 
under Title I I  for the purpose of achieving voluntary 
compliance (Section 204(d)).

In many respects the differences are comparable 
to those between the 1866 Act and the 1968 housing 
law which the Court noticed in Jones. Here, too, the 
old law is “ a general statute applicable only to racial 
discrimination * * * and enforceable only by pri­
vate parties acting on their own initiative,” while 
the new legislation is a “ detailed” and specialized 
enactment “ enforceable by a complete arsenal of fed­
eral authority” (392 U.S. at 417). Accordingly, if 
we assume that the Congress of 1964 recognized the 
vitality and applicability of the Civil Rights Act of 
1866—an assumption apparently indulged by the 
Court in Jones with respect to the drafters of the



31

1968 housing law— Title I I  can properly be viewed 
as special supplementary legislation, replacing the 
nullified Act of 1875, but leaving the 1866 Act un­
touched.

3. It may be objected that our conclusion is sound 
only insofar as it focuses on those provisions of Title 
I I  which add substantive guarantees or remedial 
machinery and ignores the fact that the new law in 
some respects retrenches on the broad coverage o f 
the 1866 Act. The answer is that, confronted with 
the same situation with respect to the 1968 housing 
law, the Court in Jones did not on that account find 
a pro tanto repeal; the same result is compelled here.

There are of course many possible explanations 
for the limitations of the 1964 Act. Some were merely 
responsive to the Commerce Clause approach of the 
legislation and then prevailing constitutional doubts 
concerning the scope of congressional power under 
the Thirteenth and Fourteenth Amendments. Most 
likely, the full reach of the 1866 Act in this area was 
not then appreciated.14 But it does not follow that 
the Act repealed sub silentio. On the contrary, Title 
I I  expressly preserves pre-existing rights under 
Federal law and that provision must of course be 
honored whether or not it was then recognized that

14 42 U.S.C. 1981 and 1982 were briefly noted in the hearings 
on the Civil Eights Act as at least prohibiting State-sanctioned 
discrimination in places of public accommodation (Hearings on 
S. 1732 before the Senate Committee on Commerce, 88th Cong., 
1st Sess., p. 134 (Senator Prouty and Attorney General Ken­
nedy)). It does not appear, however, that Congress understood 
those infrequently-used statutes to have the reach which has 
been confirmed by this Court’s construction in Jones.



32

the 1866 Act was operative with respect to public 
accommodations. Cf. Jones v. Mayer, supra, 392 U.S. 
at 437.

4. The savings clause is as follows (Section 207(b) 
of the Act, 42 U.S.C. 2000a-6(b)) :

* * * [NJothing in this title shall preclude any 
individual or any State or local agency from 
asserting any right based on any other Federal 
or State law not inconsistent with this title, 
including any statute or ordinance requiring 
nondiscrimination in public establishments or 
accommodations, or from pursuing any remedy, 
civil or criminal, which may be available for 
the vindication or enforcement of such right.

It will be noticed that only rights under laws “ not 
inconsistent” with Title I I  remain enforceable. That 
is no obstacle here, however. To the extent that the 
1866 Act prohibits racial discrimination by establish­
ments which are not covered by Title II, it is not 
“ inconsistent”  with the 1964 Act in the ordinary 
sense that it contradicts the basic purpose of the new 
law; it obviously is designed to vindicate the same 
right. Moreover, the reference to State statutes and 
local ordinances makes it clear that a law with a more 
generous coverage was not “ inconsistent”  in the sense 
used here. For it goes without saying that Congress 
did not intend to invalidate State provisions which 
reach places of public accommodation left unregulated 
by the new federal law. It would be turning the stat­
ute on its head to read into it a purpose to confer on 
owners of non-covered establishments a federal right 
to practice racial discrimination, notwithstanding local 
legislation prohibiting it.



33

The conclusion that the Civil Rights Act of 1866, 
which implements the Thirteenth Amendment, was 
repealed insofar as it applies to establishments not 
covered under Title I I  can rest only on the premise 
that Congress deliberately determined in 1964 that 
the Commerce Clause was to be the exclusive basis 
for all federal regulation in respect to racial dis­
crimination in public accommodations. There is no 
evidence of any such determination. Cf. United States 
v. Johnson, 390 U.S. 563, 566-567.15 Nor is there any 
other indication that Congress meant to repeal the 
Civil Rights Act of 1866 in this respect. The result 
is that the 1866 Act stands unimpaired.

II

PETITIONER SULLIVAN HAS STANDING TO SEEK RELIEF 
UNDER THE STATUTE IN CONSEQUENCE OF THE INJURIES 
HE SUFFERED IN OBEYING IT

W e submit that petitioner Sullivan’s standing to 
maintain this action is governed by Barrows v. Jack- 
son, 346 U.S. 249. In that case a white seller of real 
estate was sued by co-covenantors under a racially 
restrictive covenant for damages they alleged to have 
been caused by her breach of the covenant through 
sale to a Negro. She attacked the resulting damage 
judgment against her as state action enforcing the 
restrictive covenant, and, therefore, denying equal

16 We note that our interpretation of Section 207(b), since it 
relates to the enforcement by individuals of rights not specifi­
cally provided by Title II, is also fully consistent with the posi­
tion taken in the dissenting opinion in United States v. John­
son, see 390 U.S. at 568 n. 1.



34

protection of the laws to Negroes in violation of the 
Fourteenth Amendment. This Court was required to 
decide, inter alia, whether the seller had standing to 
assert that claim, since the right apparently ran only 
to a third party, the Negro purchaser. The holding 
was that she did. The Court found the direct pocket- 
book injury to her, and the necessary effect of an 
award of damages in giving vitality to the restrictive 
covenant through the agency of the state, together 
sufficient to support her claim of another’s right.

Petitioner Sullivan’s right to rely on the statute 
in this case is a fortiori. The statute involved is not 
limited in terms to apply to non-white citizens, nor 
does it confer protection solely on the person directly 
discriminated against. This Court has acted under it 
to strike down a zoning ordinance on the ground, 
inter alia, that it offended “ the civil right of a white 
man to dispose of his property if he saw fit to do so to 
a person of color.” Baclianan v. Warley, 245 U.S. 60, 81. 
Here, as the Court emphasized was not the case in 
Barrows, the private action involved in refusing to 
honor the assignment was itself illegal. To discourage 
such activity, relief should be available to all persons 
injured by it, or as a consequence of their efforts to 
resist it. A  contrary holding would put an unfair 
burden on the white man who seeks to deal with the 
Negro in conformity to the statutory command, and 
ultimately impede Negroes’ ability to enforce their 
rights in the marketplace.



35

I I I

PETITIONEES ARE ENTITLED TO COMPENSATORY DAMAGES 
AS RELIEF UNDER SECTION 1982

The provisions of Section 1 of the Civil Rights 
Act of 1866 are couched in declaratory terms, stating 
no explicit method of enforcement. To the extent in­
junctive relief on the complaints is still appropriate, 
Jones makes clear that it is within the authority of a 
federal court to grant it, 392 U.S. at 414 n. 13; since 
that is an established federal remedy, it is available in 
any state court where protection of the federal right 
is sought, if that court is empowered to grant injunc­
tive relief generally. See Code of Virginia § 8-610 
(1957). Petitioner Freeman, however, limited his 
request for injunctive relief to his own particular cir­
cumstances (A. 18-19). Since he is no longer pos­
sessed of the premises, that request now appears to 
be moot. It is thus necessary for the Court to reach a 
second question which it put aside in Jones, whether 
compensatory damages may be had for violation of 
the rights guaranteed by the Act.16 392 U.S. at 414-415 
n. 14.

W e think it plain that compensatory damages are 
available. As a general rule, federal district courts 
have jurisdiction over any action to “ recover damages 
or to secure equitable or other relief under any Act 
o f Congress providing for the protection of civil

16 Here, as in -Jones, any question of punitive damages under 
the statute is foreclosed; the action complained of predated by 
several years the interpretation of the statute announced in 
Jones.



36

rights,”  28 U.S.C. 1343(4). While this jurisdictional 
provision does not create a damage remedy, it indi­
cates that Congress anticipated such awards would 
be made under the civil rights acts generally. Further, 
courts have “ the power to afford all remedies neces­
sary to the vindication of federal substantive rights 
defined in statutory and constitutional provisions ex­
cept where Congress has explicitly indicated that such 
remedy is not available.”  Brewer v. Hoxie School 
District No. 46, 288 F.2d 91, 98 (C.A. 8 ); Bell v. 
Hood, 327 U.S. 678, 684; see also Texans <& N. 0. B. 
Co. v. By. Clerks, 281 U.S. 548, 569-570; Porter v. 
Warner Co., 328 U.S. 395, 398; Mitchell v. DeMario 
Jewelry, 361 U.S. 288, 291-292; State of Alabama v. 
United States, 304 F.2d 583, 590-591 (C.A. 5), af­
firmed, 371 U.S. 37; J. I. Case Co. v. Borah, 377 U.S. 
426, 433. Were the judicial responsibility viewed 
otherwise, the courts would “ impute to Congress a 
futility inconsistent with the great design of this legis­
lation.” United States v. Be public Steel Corp., 362 
U.S. 482, 492.

In a word, the existence of the statutory right im­
plies the existence of all necessary remedies. Texas A 
N.O.B. Co. v. By. Clerks, supra, 281 U.S. at 569-570. 
Thus, if  a statute proscribes specified acts and those 
acts are nonetheless committed, this Court’s decisions 
support the view that the party injured shall have 
available all recognized avenues of relief in order that 
he be made whole. As this Court explained in Texas & 
Pacific By. Co. v. Bigsby, 241 U.S. 33, 39:

A disregard of the command of the statute 
is a wrongful act, and where it results in dam-



37

age to one of the class for whose especial bene­
fit the statute was enacted, the right to recover 
the damages from the party in default is im­
plied, according to a doctrine of the common 
law * * *, in these words: “ So, in every case, 
where a statute enacts, or prohibits a thing for 
the benefit o f a person, he shall have a remedy 
upon the same statute for the thing enacted for 
Pis advantage, or for the recompense of a wrong 
done to him contrary to the said law. ’ ’ 17 

And see 42 TT.'S.C. 1988.
Both for purposes of realistically compensating the 

Negro for any harm done, and for purposes of deter­
ring disobedience of the law, this Court should hold 
that damages are recoverable. We suggest that while 
the rules governing damage awards under these provi­
sions must be federal rules, not dependent upon the 
laws of the various states, see n. 11 supra, p. 19, the 
matter should be left for initial resolution to the trial 
court. That court should, however, be instructed to 
consider the matter within the proper context, i.e., 
within the context of the overall statutory purpose, 
and with an eye to fully vindicating the federally pro­
tected rights without reference to the limitations or 
peculiarities of Virginia law.

17 In Rigsby the Court held that injury suffered as the result 
of the violation o f a criminal statute could be redressed in 
civil, injunctive proceedings. Accord, J. I. Case Go. v. Borah, 
supra. See also Wyandotte Co. v. United States, 389 U.S. 191, 
202, Similarly, the Court has held that when a statute provides 
that damage awards to injured parties will be available for 
violation of the law, the right of such persons to seek equitable, 
injunctive relief is implied. Deckert v. Independence Shares 
Corp., 311 U.S. 282.



38

CONCLUSION

For the foregoing reasons, we urge that the judgment 
be reversed and the case remanded to the state courts 
for the entry of an order granting appropriate relief. 
the-casg^emahded~ixrdhc appropriate ■ cotirt—fur--tlie

Erwin  N. Griswold,
Solicitor General.

Jerris Leonard,
Assistant Attorney General.

Louis F. Claiborne,
P eter L. Strauss,
Joseph J. Connolly, 

Assistants to the Solicitor General.
Gary J. Greenberg,

Attorney.
September 1969.

U.S. GOVERNMENT PRINTING OFFICE: 1969