Daniel v. Paul Brief for the United States as Amicus Curiae

    .N o. 4 8 8

\n the Supreme (§mxt tff the ‘Suited States
October Term, 1968

Mrs. D oris D aniel and Mrs. R osalyn K yles,
PETITIONERS

V.

E tjell P aul, J r., I ndividually and as Owner, 
Operator or M anager op L ake N ixon Club

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

E R W IN  N. GRISWOLD,
Solicitor General, 

JE R R IS LEONARD,
Assistant Attorney General,

LOUIS E. CLAIBORNE,
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___________________________________  1
Questions presented____________________________  2
Statutory provisions involved___________________ 2
Statement_____________________________________ 4
Argument:

Introduction and summary_________________  6
I. Racial discrimination in the sale of admis­

sions to the Lake Nixon Club violates 
Section 1 of the Civil Rights Act of 1866
(now 42 U.S.C. 1981, 1982)___________ 9
A. Section 1981, on its face, bars re­

spondent’s conduct_____________  9
R. Section 1982, on its face, also bars

respondent’s conduct___________  13
C. Subsequent enactment of a public

accommodations law in 1875 does 
not indicate that the rights claimed 
here were beyond the scope of the 
1866 legislation_________________  14

D. This Court’s decision in the Civil
Rights Cases is not a viable obstacle 
to our conclusion_______________  19

E. The public accommodations law of
1964 does not affect the coverage
of the 1866 act_________________  22

as

-333- 097— 69 1



II

Argument—Continued Page
II. The exclusion of petitioners, by reason of 

their race, from the enjoyment of the 
facilities of Lake Nixon Club violates 
Title II of the Civil Rights Act of 1964__ 27
A. Section 201(b)(4) brings Lake Nixon

within the coverage of the 1964 
act____________________________  28

B. Section 201(b)(3) brings Lake Nixon
within the coverage of the 1964
act____________________________  34

Conclusion__________________ __________________ 40
Cases:

Amos v. Prom, Inc.. 117 F. Supp. 615_______  37
Bell v. Maryland, 378 U.S. 226_____________  15, 21
Bolton v. State, 220 Ga. 632,140 S.E. 2d 866_ _ 31
Civil Rights Cases, 109 U.S. 3______  15, 19, 20, 21, 22
Clearfield Trust Co. v. United States, 318 U.S.

363_____________________________________ 12
Coger v. North West. Union Packet Co., 37

Iowa 145________________________________ 16
Curtis Publishing Co. v. Butts, 388 U.S. 13Q__ 14
Donnell v. State, 48 Miss. 661_______________ 16
Drews v. Maryland, 381 U.S. 421___________  30
Erie R. Co. v. Tompkins, 304 U.S. 64_______  12
Evans v. Laurel Links, Inc., 261 F. Supp. 474__ 29
Fazzio Real Estate Co. v. Adams, 396 F. 2d 146,

affirming 268 F. Supp. 630_______________  29
Ferguson v. Gies, 82 Mich. 358_____________  16
Gray v. Sanders, 372 U.S. 368______________  34
Gregory v. Meyer, 376 F. 2d 509------------------- 31, 33
Hamm v. City of Rock Hill, 379 U.S. 306____  14,

30, 31, 33, 37
Heart of Atlanta Motel v. United States, 379

U.S. 241__________________________  9,21, 33, 37
Hodges v. United States, 203 U.S. 1_________  20



Ill

Cases— Continued PaSe
Howard v. Lyons, 360 U.S. 593___________  12
Jones v. Mayer Co., 392 U.S. 409___________  7,

9, 11, 12, 13, 14, 16, 18, 20, 21, 22, 23. 24, 
25, 37

Katzenbach v. McClung, 379 U.S. 294_______  40
Marrone v. Washington Jockey Club, 227 U.S.

633_____________________________________ 11
Miller v. Amusement Enterprises, Inc., 394 F.

2d 342, reversing 391 F. 2d 86___________  9,
35, 36, 39, 40

Nesmith v. YMCA of Raleigh, 397 F. 2d 96__  9, 30
Newman v. Piggie Park Enterprises, Inc., 377

F. 2d 433, affirmed as modified, 390 U.S.
400____________________________________  30

Scott v. Young, 12 Race Rel. L. Rep. 428__ 29
Sullivan v. Little Hunting Park, 392 U.S.

657_____________________________________ 14
Textile Workers v. Lincoln Mills, 353 U.S.

448_____________________________________ 12
United States v. All Star Triangle Bowl, Inc.,

283 F. Supp. 300_________________________ 29, 34
United States v. Beach Associates, Inc., 286 F.

Supp. 801_______________________________ 30, 34
United States v. Fraley, 282 F. Supp. 948____ 29
United States v. Guest, 383 U.S. 745_________ 20
United States v. Johnson, 390 U.S. 563________ 27, 36
United States v. Mosley, 238 U.S. 383________ 17, 36
United States v. Price, 383 U.S. 787_________ 17, 36
United States v. Schooner Peggy, 1 Cranch

103_____________________________________ 14
United States v. Standard Oil Co., 332 U.S.

301_____________________________________ 12
United States v. Williams, 341 U.S. 70_____  17
Valle v. Stengel, 176 F. 2d 697, reversing 75 

F. Supp. 543 12



XV

Cases—Continued Page
Virginia, Ex Parte, 100 U.S. 339____________  15
Watkins v. Oaklawn Jockey Club, 86 F. Supp.

1006, affirmed, 183 F. 2d 440_____________ 11
Williams v. Kansas City, Missouri, 104 F,

Supp. 848, affirmed, 205 F. 2d 47, certiorari
denied, 346 U.S. 826_______________________  11

Willis v. Pickrick Restaurant, 231 F. Supp.
196, appeal dismissed, 382 U.S. 18__________ 31

Woolen v. Moore, 400 F. 2d 239____________ 31, 33
Constitution and statutes:

U.S. Constitution:
Thirteenth Amendment_________ 14, 20, 21, 25
Fourteenth Amendment_________15, 16, 17, 25

Civil Eights Act of 1866, Act of April 9,
1866, 14 Stat. 27:

Section 1________________________ 9, 10, 14, 15
Section 2_____________________________  18

Enforcement Act of 1870, Act of May 31, 1870,
16 Stat. 140:

Section 16__________________________  10
Section 18__________________________  10

Civil Rights Act of 1875, Act of March 1,1875,
18 Stat. 335:

Section 1_____________________________  15
Section 2__________________________ 15, 18,19
Section 3_____________________________  15, 19
Section 4_____________________________  15
Section 5_____________________________  15



V

Constitution and statutes—Continued page
Civil Rights Act of 1964, Title II, 42 U.S.C.

2000a to 2000a-6:
Section 201(a), 42 U.S.C. 2000a(a)„__ 3, 23, 27
Section 201(b), 42 U.S.C. 2000a(b)-------- 2,

3, 6, 24, 27, 28, 29, 30, 33, 34, 35, 36, 37, 
38, 39

Section 201(c), 42 U.S.C. 2000a(c)--------  3,
24, 30, 33, 34, 35, 36, 37, 39, 40

Section 201(e), 42 U.S.C. 2QQQa(e)_____  6, 28
Section 203(a), 42 U.S.C. 2000a-2(a)_.-_ 27
Section 204(a), 42 U.S.C. 2000a-3(a)„_. 24, 27 
Section 204(d), 42 U.S.C. 2000a-3(d)____ 24
Section 206, 42 U.S.C. 2000a-5-------------  24
Section 207(b), 42 U.S.C. 2000a-6(b).___ 25, 27 

Title X, 42 U.S.C. 2000g et seq.;
Section 1001, 42 U.S.C. 20Q0g-------------  24
Section 1002, 42 U.S.C. 2Q00g-l------------ 24
Section 1003, 42 U.S.C. 2GQQg-"2------------ 24
Section 1004, 42 U.S.C. 20Q0g-3------------ 24

Civil Rights Act of 1968, Title VIII, 82 Stat.
81, 42 U.S.C. 3601 et seq_________________ 23, 24

42 U.S.C, 1981 (R.S. 1977)________________  2,
6, 9, 10, 13, 14, 22, 23, 24, 25, 26

42 U.S.C. 1982 (R.S. 1978)____________  2,
9, 10, 13,14, 23, 24, 25

18 U.S.C. 241_____________________________  17
18 U.S.C. 242_____________________________  17,18
18 U.S.C. 243_____________________________  15

Miscellaneous:
Congressional Globe, 39th Cong., 1st Sess----- 7, 16
Congressional Globe, 42d Cong., 2d Sess.------ 16
2 Cong. Rec.:

p. 340________________________________  17
p. 4082_______________________________  18



VI

Miscellaneous—Continued Page
109 Cong. Rec. 3248_______________________  7
110 Cong. Rec.:

p. 4856_______________________________  31
p. 6533_______________________________  8
pp. 7398, 7402________________________  38
pp. 7406-7407_________________________ 29
pp. 13915, 13912______________________  40

Flack, The Adoption of the Fourteenth Amend­
ment (1908)_____________________________  16

Frank and Munro, The Original Understanding 
of “ Equal Protection of the Laws,”  50 Coluni.
L. Rev. 131_____________________________  15

Gressman, The Unhappy History of Civil Rights
Legislation, 50 Mich. L. Rev. 1323_________  16

Hearings on Civil Rights before Subcommittee 
No. 5 of the House Committee on the
Judiciary, 88th Cong., 1st Sess___________  8, 30

Hearings on H.R. 7152 before the House Com­
mittee on Rules, 88th Cong., 2d Sess______ 8, 29

Hearings on S. 1732 before the Senate Com­
mittee on Commerce, 88th Cong., 1st Sess__ 25, 30

H. Rep. No. 914, 88th Cong., 1st Sess_______29, 37
S. Rep. 872, 88th Cong., 2d Sess____________  40
Webster’s New Third International Diction­

ary 37



Jit M ilitjtttme fymi of th ISitM JSMeii
October Term, 1968

No. 488

Mrs. D oris D aniel and Mrs. R osalyn K yles,
PETITIONERS

V.

E uell P all, J r., I ndividually and as Owner, 
Operator or M anager op L ake N ixon Club

•ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

OPINIONS BELOW

The opinion of the district court (A. 47-62) is 
reported at 263 P. Supp. 412. The majority and dis­
senting opinions of the court of appeals (A. 64-90) 
are reported at 395 P. 2d 118.

j u r i s d i c t i o n

The judgment of the court of appeals (A. 91) was 
entered on May 3, 1968. A  petition for rehearing en 
3banc (A. 92-102) was denied on June 10, 1968 (A. 
103). The petition for a writ of certiorari was filed 
on September 7, 1968, and granted on December 9, 
1968 (A. 105). The jurisdiction of this Court rests 
on 28 IT.S.C. 1254(1).

(i)



2
QUESTIONS PRESENTED

1. Whether 42 U.S.C. 1981 and 1982 guarantee to* 
Negroes the right to purchase admission to a pri­
vately owned place of amusement, such as the Lake 
Nixon Club, which is open to white members of the 
general public.

2. Whether the Lake Nixon Club is subject to the 
proscriptions of Title I I  of the Civil Rights Act of 
1964 under Section 201(b)(4) of the Act (42 U.S.C. 
2000a(b)(4)) by reason of the operation on its 
premises of an eating facility which is itself cov­
ered under Section 201(b)(2) of the Act (42 U.S.C. 
2000a(b)(2)).

3. Whether the Lake Nixon Club is a “ place 
of * * * entertainment”  within the meaning of Sec­
tion 201(b)(3) of the Civil Rights Act of 1964 (42 
U.S.C. 2000a(b)(3)) and is thereby subject to the* 
proscription of Title I I  of the Act.

STATUTORY PROVISIONS INVOLVED

Sections 1981 and 1982 of Title 42 of the United 
States Code provide in pertinent part:

§ 1981. All persons within the jurisdiction o f 
the United States shall have the same right in 
every State and Territory to make and enforce 
contracts * * * as is enjoyed by white citi­
zens * * *.

§ 1982. All citizens of the United States shall 
have the same right, in every State and Terri­
tory, as is enjoyed by white citizens thereof to 
inherit, purchase, lease, sell, hold, and convey 
real and personal property.



3

The relevant provisions of Title I I  of the Civil 
Rights Act o f 1964 (42 U.S.C. 2000 el seq.) are as 
follows:

§ 201(a) (42 U.S.C. 2000a(a)). All persons 
shall be entitled to the full and equal enjoy­
ment of the goods, services, facilities, privi­
leges, advantages, and accommodations of any 
place of public accommodation, as defined in 
this section, without discrimination or segre­
gation on the ground of race, color, religion, or 
national origin.

§ 201(b) (42 U.S.C. 2000a (b )) . Each of the 
following establishments which serves the public 
is a place of public accommodation within the 
meaning of this title if  its operations affect 
commerce * * *:

* * * * *
(2) any restaurant, cafeteria, lunch­

room, lunch counter, soda fountain, or 
other facility principally engaged in sell­
ing food for consumption on the prem­
ises * * *;

(3) any motion picture house, theater, 
concert hall, sports arena, stadium or 
other place of exhibition or entertain­
ment; and

(4) any establishment (A ) * * * (ii) 
within the premises of which is physi­
cally located any such covered establish­
ment, and (B ) which holds itself out as 
serving patrons of such covered estab­
lishment.

§ 201(c) (42 U.S.C. 2000a(c)). The opera­
tions of an establishment affect commerce with­

3 3 3 -0 9 7 — 69-------2



4

in the meaning of this title if  * * * (2) in the 
ease of an establishment described in paragraph 
(2) of subsection (b), it serves or offers to serve 
interstate travelers or a substantial portion of 
the food which it serves * * * has moved in 
commerce; (3) in the case of an establishment 
described in paragraph (3) of subsection (b ), 
it customarily presents films, performances, 
athletic teams, exhibitions, or other sources of 
entertainment which move in commerce; and 
(4) in the case of an establishment described 
in paragraph (4) of subsection (b) * * * 
there is physically located within its premises,, 
an establishment the operations of which affect 
commerce within the meaning of this subsec­
tion. For purposes of this section, “ commerce”  
means travel, trade, traffic, commerce, trans­
portation, or communication among the several 
States * * *.

STATEM ENT

Lake Nixon Club is a privately owned place of 
amusement located about 12 miles west of Little 
Rock, Arkansas. Approximately 100,000 persons 
patronize Lake Nixon each year (A. 43). The entire 
establishment contains about 230 acres and includes 
facilities for swimming, boating, pieknicking, sun 
bathing, miniature golf, and dancing (A. 28-30, 41). 
For the convenience of its patrons, Lake Nixon also 
maintains a snack bar on the premises which sells 
hamburgers, hot dogs, soft drinks, and milk pur­
chased from local suppliers (A. 12-13, 30-32; see 
note 12, infra). Gross income from the sale o f 
food was approximately $10,500 during the 1966 sea­



5

son, or about 23 percent of the total revenue for the 
entire establishment (A. 13, 63).

The district court took judicial notice of the fact 
that at least some of the ingredients of the bread 
products and soft drinks sold at Lake Nixon had 
moved in interstate commerce (A. 57). Fifteen paddle 
boats which were used on the Lake were rented on a 
royalty basis from an Oklahoma company (A. 28- 
29), and two juke boxes maintained on the premises 
were manufactured outside Arkansas (A, 62). Lake 
Nixon was advertised over a local radio station and 
in a monthly publication, designed to reach tourists 
and visitors, which listed available attractions in the 
Little Rock area (A. 55-56, see p. 32, infra). 
The district court found that although it is unlikely 
that an interstate traveler would break his trip to 
visit Lake Nixon, “ it is probably true that some out- 
of-state people spending time in or around Little 
Rock” have patronized Lake Nixon (A. 56-57).

Lake Nixon has been operated as a racially segre­
gated facility at least since respondent Euell Paul, 
Jr., and his wife purchased it in 1962 (A. 15, 41). 
Following the enactment of the 1964 Civil Rights Act, 
the Pauls began to refer to their establishment as a 
“ private club”  (A. 54). Patrons have thereafter been 
required to pay a 25-cent “ membership”  fee, which 
entitles them to enter the premises for an entire sea­
son, and, on payment of certain additional fees, to 
use the swimming, boating, and miniature golf facili­
ties (A. 27-28). Although white persons are routinely 
admitted to membership in the Lake Nixon Club,



6

Negroes are uniformly denied membership or admis­
sion, because respondent feared that “ business would 
be ruined”  (A. 16, 44).

Petitioners, Mrs. Doris Daniel and Mrs. Rosalyn 
Kyles attempted to use the facilities of Lake Nixon on 
July 10, 1966, but were denied admission because they 
are Negroes (A. 37, 44). Petitioners thereafter insti­
tuted this class action against respondent, alleging 
that his policy of refusing Negroes admission to Lake 
Nixon was in violation of Title I I  of the Civil Rights 
Act of 1964 and of 42 U.S.C. 1981. In their complaint 
petitioners prayed for an injunction requiring re­
spondent to abandon the recially discriminatory ad­
mission policy at Lake Nixon (A. 5).

Although finding that Lake Nixon was not a “ pri­
vate club” within the exemption for such facilities 
under Section 201(e) o f the 1964 Civil Rights Act, 
the district court denied relief, holding that the Lake 
Nixon Club was not a covered establishment under 
either Section 201(b)(3) or 201(b)(4) of the Act 
(A. 57-62). A  divided court of appeals affirmed on 
the ground that the evidence in the record failed to 
establish any connection between Lake Nixon and 
interstate commerce as required by the 1964 Act 
(A. 78). Neither the district court nor the court of 
appeals dealt with petitioners’ claim under 42 U.S.C. 
1981.

ARGUM ENT

Summary and I ntroduction

The central issue in this case is whether an amuse­
ment facility open to the general public may, con­
sonant with the provisions of the Civil Rights Acts



7

of 1866 and 1964, exclude Negroes solely on the basis 
of their race. Our submission is that it may not, be­
cause the two statutes, sometimes overlapping, but 
complementary, combine to outlaw all such discrimi­
nation.

1. In 1866, Senator Trumbull of Illinois, Chairman 
of the Senate Judiciary Committee, dealing with one 
of the problems which confronted the “ Reconstruc­
tion'’ Congress, spoke of the need to guarantee to the 
former Negro slaves, whose freedom had just been 
secured by the Thirteenth Amendment, the right “ to 
make contracts and enforce contracts.”  Cong. Globe, 
39th Cong., 1st Sess., 43. He described the bill he 
introduced on January 5, 1866—which later became 
the Civil Rights Act of 1866—as a measure designed 
affirmatively to secure for all men what he termed 
the “ great fundamental rights,” including the right 
“ to make contracts” {id. at 475). With reference to 
the rights enumerated in the proposed legislation, the 
Senator said the bill would “ break down all discrim­
ination between black men and white men”  {id. at 
599). Speaking for this Court in 1968, Mr. Justice 
Stewart said that, indeed, the 1866 Act “was meant to 
prohibit all racially motivated deprivations of the 
rights enumerated in the statute * * *.”  Jones v. 
Mayer Go., 392 U.S. 409, 426. We submit that the right 
to purchase entry to, and to enjoy the benefits of, a 
place of public amusement is among the rights pro­
tected by the statute. {Infra, pp. 9-27.)

2. Addressing the Congress 97 years after Senator 
Trumbull, President Kennedy, in his message of Feb­
ruary 28, 1963, said (109 Cong. Rec. 3248, emphasis, 
added):



8

No action is more contrary to the spirit of 
our democracy and Constitution—or more right­
fully resented by a Negro citizen who seeks 
only equal treatment—than the barring of 
that citizen from * * * recreational areas, and 
other public accommodations and facilities.

To correct this injustice the President called for leg­
islation “ to secure the right of all citizens to the full 
enjoyment of all facilities which are open to the gen­
eral public.”  (Hearings on Civil Rights before Sub­
committee No. 5 of the House Committee on the 
Judiciary, 88th Cong., 1st Sess., Part II, p. 14-18 
(Message of June 19, 1963)).

During the deliberations on the Administration’s 
proposals, Representative Celler told the House Rules 
Committee that Title I I  “ seeks to remove the daily 
affront and humiliation occasioned by discriminatory 
denials of access to facilities open to the general 
public.”  Hearings on II.R. 7152 before the House 
Committee on Rules, 88th Cong., 2d Sess., p. 91. 
In the Senate, Senator Humphrey told his colleagues 
(110 Cong. Ree. 6533) :

The grievances which most often have led to 
protest and demonstrations by Negro Ameri­
cans are the segregation and discrimination 
they encounter in the commonly used and nec­
essary places of public accommodation * * *. 
No amount of oratory and quibbling can ob­
scure the personal hardships and insults which 
are produced by discriminatory practices in 
these places. * * *

* * * We must make certain that every door 
in our public places of amusement and culture 
is open to men of black skin as well as white.



9

In surn, we must put an end to the shabby 
treatment of the Negro in public places which 
demeans him and debases the value of his 
American citizenship.

Title I I  of the 1964 Act, as finally passed, though 
not unlimited in its coverage, was a “ most compre­
hensive”  measure designed to achieve that end. See 
Heart of Atlanta Motel v. United States, 379 U.S. 
241, 246; Miller v. Amusement Enterprises, Inc., 394 
F. 2d 342, 349, 352-353 (C.A. 5) fen banc) ; Nesmith 
v. YMCA of Raleigh, 397 F. 2d 96, 100 (C.A. 4). 
We believe it, too, encompasses the facility in suit. 
{Infra, pp. 27-40.)

I. RACIAL D ISCRIM IN ATIO N  IN  TH E SALE OF ADMISSIONS

TO T H E  LAK E N IXO N  CLUB VIOLATES SECTION 1 OF TH E
CIVIL RIGH TS ACT OF 1 8 6 6  (N O W  4 2  U .S.C. 1 9 8 1 ,

1 9 8 2 )

A. SECTION 1981, ON ITS FACE, EARS RESPONDENT’S CONDUCT

Petitioners alleged in their complaint that respond­
ent’s refusal to admit them, by reason of their race, 
into membership in the Lake Nixon Club and to use 
its facilities deprived them of rights secured by 42 
U.S.C. 1981, which provides, in pertinent part, that 
“ All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts * * * as is 
enjoyed by white citizens * * We agree.

Whatever doubts may once have surrounded this 
provision were settled by this Court’s decision, last 
Term, in Jones v. Mayer Go., 392 U.S. 409, construing 
42 U.S.C. 1982. Since both Section 1981 and Section 1982



10

derive from a single clause of Section 1 of the Civil 
Rights Act of 1866 (14 Stat. 27),1 it seems evident 
the two provisions must be given comparable scope. 
Thus, like the right to “purchase [and] lease * * * 
real and personal property,”  the right to “ make and 
enforce contracts”  without discrimination on the basis 
of race is not limited to the legal capacity to engage 
in commercial transactions free from hostile state 
action. It, too, is an every-day right to equality of 
opportunity in business dealings—the “ same right”  
as is enjoyed by white citizens—which the 1866 Act

1 Section 1 o f the Act o f 1866 read as follow s:
“ That all persons bom  in the United States and not subject 

to any foreign power, excluding Indians not taxed, are hereby 
declared to be citizens o f the United States; and such citizens, 
of every race and color, without regard to any previous 
condition o f 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 o f 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 Jiaec verba as Section 16 o f the 
Enforcement Act o f May 31, 1870 (16 Stat. 140, 144). The 
property guarantee remained available to citizens alone as part 
o f the 1866 Act, the whole of which was re-enacted (by refer­
ence only) by Section 18 o f the Enforcement Act o f 1870. This 
division was formalized in the Revised Statutes o f 1874, the 
“property clause”  being codified as Section 1978, the rest as 
Section 1977, and persists today in Sections 1982 and 1981 o f 
Title 42 o f the United States Code.



11

secures against racial discrimination by private per­
sons as well as public authorities (392 TT.S. at 421- 
424). Here, also, Congress meant exactly what it 
said—that it intended “ to prohibit all racially moti­
vated deprivations of the rights enumerated in the 
statute * * * ”  (id. at 426, 436). And it would seem 
equally to follow that “ the statute, thus construed, is 
a valid exercise of the power of Congress to enforce 
the Thirteenth Amendment”  (id. at 413). See discus­
sion infra, pp. 19-21.

On its face, therefore, Section 1981 prohibits all 
private, racially motivated conduct which denies or 
interferes with the Negroes’ right to enter into con­
tracts to purchase that which is freely sold to white 
citizens. That membership in the Lake Nixon Club is 
a contractual relationship can hardly be denied. The 
record indicates that upon payment of the admittedly 
small membership fee, white persons (thereafter 
“ members” ) obtained the right for the remainder of 
the season to enter onto the premises at no additional 
charge and, on payment of additional fees, to make 
use of Lake Nixon’s amusement and entertainment 
facilities (A. 27-28). Even if the “ membership”  fee 
entitled a patron to admission on only one occasion, 
it is clear that under common law principles a ticket 
to a place of entertainment 6r recreation is regarded 
as a contract. Watkins v. Oaklawn Jockey Club, 86 
E. Supp. 1006, 1016 (W.D. Ark.), affirmed, 183 P. 2d 
440 (C.A. 8) ; Williams v. Kansas City, Missouri, 104 
P. Supp. 848, 859 (W.D. Mo.), affirmed, 205 P. 2d 
47, 51 (C.A. 8), certiorari denied, 346 U.S. 826. As 
Mr. Justice Holmes said in Marrone v. Washington

333- 097— 69 -3



12

Jockey Club, 227 U.S. 633, 636, with reference to a 
ticket of admission to a race track, “ the purchase of 
the ticket made a contract”  and gave rise to a right 
‘ ‘ to sue upon the contract for the breach. ’ ’ 2

It is of course unnecessary to decide here whether 
every transaction or relationship which could formally 
be characterized as “ contractual”  brings Section 1981 
into play. Thus, it may well be that membership in a 
bona fide private club—not involved here (see p. 6, 
supra, and n. 10, infra) —and other purely social or 
personal arrangements are beyond the intended reach 
of the statute. Our present submission is only that 
ordinary commercial contracts are covered, including 
those relating to privately-owned places of public ac­
commodation, which—except for the race barrier— 
admit all persons indiscriminately.

Indeed, that was the holding of Valle v. Stengel, 
176 F. 2d 697 (C.A. 3), in which the plaintiffs sought 
damages and injunctive relief, alleging that certain 
individuals and police officers had discriminatorily re­
fused to admit them to the swimming pool o f an

2 We do not consider whether an admission ticket is viewed 
as a contract under Arkansas law. In light o f Jones, the fed­
eral courts will be called upon to develop a body o f 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 o f the 50 State jurisdictions. Erie 
R. Co. v. Tompkins, 304 U.S. 64, notwithstanding, it is clear that 
in order that there be uniformity in the disposition o f such 
matters as are within the area o f federal legislative jurisdic­
tion, the federal courts are authorized to develop federal law. 
E.g., Clearfield Trust Co. v. United States, 318 U.S. 363; Tex­
tile 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.



13

amusement park in violation of rights secured to them 
by 42 U.S.C. 1981, 1982,3 and the Fourteenth Amend­
ment.4 In reversing the district court’s dismissal of 
the complaint (75 F. Supp. 543 (D. N .J .)), the court 
o f appeals said (176 F. 2d at 702 (emphasis sup­
plied.) ) :

[Plaintiffs] were ejected from the park, were 
assaulted and were imprisoned falsely, as al­
leged in the complaint, because they were Ne­
groes or were in association with Negroes, and 
were denied the right to make or enforce con­
tracts, all within the purview of and prohibited 
by the provisions of R. S. Section 1977 [42 
U.S.C. 1981].

Here white members of the general public were al­
lowed to make contracts giving them the right to enter 
and use Lake Nixon’s facilities, while petitioners, 
Negroes, were denied that right. We believe that con­
duct constitutes a violation of Section 1981.
B. SECTION 1982, OX ITS FACE, ALSO BARS RESPONDENT'S CONDUCT

Although, in our view, the case is clearly embraced 
by Section 1981, we believe respondent’s conduct also 
violates 42 U.S.C. 1982—the provision construed in 
Jones v. Mayer Co., supra, which guarantees all citi­
zens, regardless of race, “ the same right * * * 
to * * * purchase, lease * * * [and] hold * * * real

3 Then 8 U.S.C. 41 and 42; Sections 1977 and 1978 o f the 
Revised Statutes.

4 Both the amusement park and the swimming pool lo­
cated therein were private facilities open to the public upon 
the payment, o f  an admission fee. Plaintiffs, Negroes and their 
companions, alleged that, although they were admitted to*? he 
park, they were denied entry to the swimming pool because o f  
the application o f a “ white only” admission policy.



14

and personal property. ’ ’ 5 Indeed, nominal as it may 
be, the membership fee in Lake Nixon Club entitles 
the patron to enjoy the real and personal property o f 
the facility. Whether the benefit is viewed as a kind of 
temporary lease or right of use appertaining to those 
properties, or as a species of incorporeal personalty, 
the transaction involves a “ purchase.”

We do not press the point. Our submission is 
simply that the case is covered by Section 1981 or 
Section 1982, if  not both. Whatever may be the most 
appropriate characterization of the right to enjoy 
the benefits of the Lake Mxon facility, we have no 
doubt that a Negro who is excluded by reason of his 
race has suffered a loss of the freedom from racial dis­
crimination secured by Section 1 of the Civil Rights 
Act of 1866. As the Court said in Jones (392 U.S. at 
443), the Congress which acted to secure the Negroes’ 
freedom under the Thirteenth Amendment to “ go and 
come at pleasure”  and to “buy and sell when they 
please” did exactly what it intended to do—“ 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.”
C. SUBSEQUENT ENACTMENT OE A PUBLIC ACCOMMODATIONS LAW IN

187 5 DOES NOT INDICATE THAT THE RIGHTS CLAIMED HERE WERE
BEYOND THE SCOPE OP THE 186(3 LEGISLATION

What has been said sufficiently shows that the Civil 
Rights Act of 1866, on its faee, reaches the discrim­

5 Although petitioners did not plead 42 U.S.C. 1982 as a 
ground for, relief, the Court may consider issues arising under 
that provision, Curtis Publishing Company v. Butts, 388 U.S. 
130, 142-143; Sullivan v. Little Hunting Park, 392 U.S. 657, 
and decide the case on that basis. See United States v. Schooner 
Peggy, 1 Cranch 103, 110; cf. Hamm v. City of Roch Hill, 379 
U.S. 306.



15

inatory policy of the 'Lake Nixon Club—whether 
under the “ contract” clause of Section 1981 or the 
“ property”  clause of Section 1982. However, because 
we are dealing with a “ place of public accommoda­
tion,” which was the special subject-matter o f the 
Civil Rights Act of 1875 6 (18 Stat. 335), held uncon­
stitutional in the Civil Rights Cases, 109 U.S. 3, the 
question arises whether the right to equal enjoyment 
of such facilities must be deemed excepted from the 
coverage of the 1866 Act.

1. At the outset, we stress that there can be little 
doubt that the draftsmen o f 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 sendee in inns and hotels. See, 
e.g., Frank and Munro, The Original Understanding 
of “ Equal Protection of the Laws,”  50 Coluni. L. 
Rev. 131, 149-153; Civil Rights Cases, 109 U.S. 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 make and enforce 
contracts in Section 1 o f the Civil Rights Act was 
meant, at the least, to confer on Negroes the “ same

6 In speaking o f the Civil Eights Act o f 1875 we refer to 
Sections 1 and 2, which dealt exclusively with places o f public 
accommodation. Section 4 o f 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.



16

right”  to the services of public accommodations as 
white citizens had enjoyed. Compare Ferguson v. Gies, 
82 Mich. 358, 365; Donnell v. State, 48 Miss. 661. 
Indeed, opponents of the Freedmen’s Bureau bill and 
the Civil Rights Act argued, without contradiction, 
that those measures would afford Negroes the right 
to equal treatment in places o f public accommoda­
tion. See Cong. Globe, 39th Cong., 1st Sess., 541, 936; 
id. App. 70, 183 (Representatives Dawson and Rous­
seau, Senator Davis) ; Jones v. Mayer Co., supra, 392 
U.S. at 433, 435 n. 68. Presumably, the proponents of 
the Act offered no denial because they recognized that 
this was, indeed, one inevitable consequence of grant­
ing Negroes equality before the law, even in the nar­
rowest 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 Sup­
plemental 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 
confirmed the grant of citizenship to Negroes and 
explicitly 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 con­
gressional 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 of rights in the 1866 Act. See Cong. 
Globe, 42d Cong., 2d Sess., pp. 381-383 (Senator 
Sumner) ; Gressman, The Unhappy History of Civil



17

Mights Legislation, 50 Mich. L. Rev. 1323-1336. There 
was, indeed, specific reference to an existing duty 
to afford Negroes equal treatment in places of public 
accommodation. As the Chairman of the House Judi­
ciary Committee, Representative Butler of Massa­
chusetts, told his colleagues, the bill which ultimately 
was enacted as the Civil Rights Act of 18757—

* * * 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 of 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?

W e might simply offer the short answer given for 
the Court by Mr. Justice Holmes in United, States v, 
Mosley, 238 U.S. 383, 387, rejecting the argument that 
18 IT.S.C. 241 should not be read as reaching interfer­
ence 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.”  Redundancy is not 
rare in legislation of the period. See, e.g., the overlap 
of Sections 241 and 242 of the Criminal Code as ap­
plied to rights protected by the Fourteenth Amend­
ment, noticed in United States v. Williams, 341 U.S. 
70, 78 (opinion of Frankfurter, J .), 88 n. 2 (opinion 
o f  Douglas, J .), and condoned in United States v.

T 2 Cong. Rec. 340.



18

Price, 383 U.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 U.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 Pratt)).

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
spiracies, Section 2 made it a federal offense (a mis­



19

demeanor) for any person, even aeting 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 Eights 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.
D. THIS COURT’S DECISION IN  THE CIVIL RIGHTS CASES. IS NOT A

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 o f Congress under the Thirteenth and Four­
teenth Amendmer' '

it plain that the authority of that ruling has been 
eroded by later decisions. The underlying premise of 
the Fourteenth Amendment holding in the Civil 
Rights Cases—that legislation enforcing the Equal 
Protection Clause can only reach discriminatory con­

VIABLE OBSTACLE TO OUR CONCLUSION

privately owned



20

duct by persons invoking the shield o f 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 pur­
poses, it is enough to notice that the narrow view taken 
in the Civil Rights Cases with respect to congressional 
power under the Thirteenth Amendment is inconsistent 
with Jones v. Mayer Co., stipra.

W e recognize that the Court in Jones did not, in 
terms, overrule the Thirteenth Amendment holding 
o f 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 
o f 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 o f 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
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



21

the hands of a Negro will purchase the same 
thing as a dollar in the hands o f 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 o f the Jones opinion, we submit, is that 
it is not “ running the slavery argument into the 
ground” —as the majority in the Civil Bights 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 o f 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 
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



22

places of public accommodations is no longer open to 
doubt.

2. We have already elaborated our view that the 
Congress o f 1866 meant to outlaw the kind of dis­
crimination revealed by this record. Even assuming 
the constitutionality o f 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 Cases characterizes 
the Civil Rights Act of 1866—in contrast to the Act 
o f 1875—as merely removing legal “ disabilities”  (see 
109 TI.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 418AL19, 436. And there is no better 
reason to accept the apparently equally narrow view 
of the “ contract”  clause espoused in that opinion. We 
add only that, assuming Section 1981 can properly be 
read as impliedly exempting certain pei*sonal trans­
actions, and assuming further there was once a basis 
for considering the purchase of entry to a place of 
amusement as a purely “ private”  contract outside 
the scope of the provision, present circumstances 
would now justify treating such a transaction as a 
covered “ public”  contract.

E. THE PUBLIC ACCOMMODATIONS LAW 0|" 1964 DOES NOT AFFECT 
THE COVERAGE OF THE 18 66 ACT

One final objection suggests itself: that enactment 
of the Civil Rights Act of that year (42 II.S.C. 2000a 
et seq.), in some way supersedes the provisions of the



23

1866 Act insofar as they deal with the same subject 
matter. Here, too, Jones v. Mayer Co. indicates the 
answer in rejecting a comparable argument premised 
on an interpretation of the Pair Housing Title of the 
Civil Act of 1968 (42 U.S.C. 3601 et seq.) as repeal­
ing or qualifying the “ property”  provision of the 
1866 statute.

1. Of course, the Understanding of the legislators o f 
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 Pair 
Housing Law of 1968 to determine the scope Of Sec­
tion 1982, here our construction of Section 1981 can- 
hot 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 full scope 
of Section 1981 was or was not appreciated in 1964, it 
is dear that Title I I  o f the Civil Rights Act o f 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 substantial differ­
ences between the new law and the old. Title I I  of 
the 1964 Act prohibits discrimination on the basis of 
“ race, color, religion, or national origin” (Section 
201(a)), while 42 U.S.C. 1981 presumably is appli­
cable only to race or color discrimination. Although 
Section 1981, on its face, prohibits all racially moti­
vated denials of the right to enter into contracts, 
Title I I  applies only to certain types of establish­



24

ments having some nexus with interstate commerce 
(Sections 201(b), 201(c)). Section 1981 is couched 
in declaratory terms, without reference to any par­
ticular mode of enforcement, whereas Title II  embod­
ies a specific remedy provision (Section 204(a)). 
Significantly, the new law—unlike the old—-expressly 
provides for enforcement at the instance of the 
Attorney General (Section 206), and the 1964 Act 
also created a Community Relations Service to assist 
in the private settlement of disputes relating to dis­
criminatory practices (Title X , Sections 1001-1004, 
42 U.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 Section 1982 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 o f 
1866—an assumption apparently indulged by the 
Court in Jones with respect to the drafters of the 
1968 housing law—Title I I  can properly be viewed 
as special supplementary legislation, replacing the 
nullified Act o f 1875, but leaving Section 1981 
untouched.

3. It may be objected that our conclusion is sound 
only insofar as it focuses on those provisions of Title



25

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 of 
Section 1981. 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 of Section 1982. 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 Section 1981 in this area was 
not then appreciated.8 But it does not follow that 
Section 1981 was repealed sub silentio. On the con­
trary, 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 Section 1981 was an operative statute with re­
spect to public accommodations. Cf. Jones v. Mayery 
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)) :

8 42 U.S.C. 1981 and 1982 were briefly noted in the hearings' 
on the Civil Rights Act as at least prohibiting State-sanctioned' 
discrimination in places o f 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 of 42 U.S.C. 1982’ 
in Jones.



26

* * * [N] othing 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 Sec­
tion 1981 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 o f 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.

The conclusion that 42 IT.S.'C. 1981, which imple­
ments the Thirteenth Amendment, is repealed insofar 
as it applies to establishments not covered under Title 
I I  can rest only on the premise that Congress delib­
erately determined in 1964 that the Commerce Clause 
was to be the exclusive basis for all federal regulation



27

in respect of racial discrimination in public accom­
modations. There is no evidence of any such deter­
mination. Cf. United States v. Johnson, 390 U.S. 563, 
566-S67.9 Nor is there any other indication that Con­
gress meant to repeal the Civil Rights Act of 1866 
in this respect. The result is that Section 1981 stands 
unimpaired.

II . T H E  EXCLUSION OP PETITIONERS, BY  REASON OP TH EIR
RACE, FROM  T H E  E N JO Y M E N T  OP T H E  FACILITIES OP
LAK E N IX O N  CLUB VIOLATES TITLE II  OF TH E CIVIL
RIGHTS ACT OP 1 9 6 4

Section 201(a) of the Civil Rights Act of 1964 (42 
IT.S.C. 2000a(a)) guarantees to all persons, “ without 
discrimination or segregation on the ground of 
race [or] color,” “ the full and equal enjoyment of 
the * * * services, facilities, privileges, [and] advan­
tages * * * of any place of public accommodations.”  
The Act prohibits any person from withholding or 
denying the right secured by Section 201, and author­
izes an aggrieved party to institute a civil action for 
preventive relief (Sections 203(a) and 204(a), 42 
U.S.C. 2000a-2(a) and 2000a-3(a)). Both the district 
court and the court of appeals held that petitioners 
were not entitled to relief under the 1964 Act because 
Lake Nixon Club is not a place of public accommo­
dation as defined in Section 201. For the following 
reasons, however, we conclude that Lake Nixon is 
covered under either Section 201(b)(4) or Section

9 We note that onr interpretation o f Section 207(b), since it 
relates to the enforcement by individuals o f 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.



28

201(b)(3) of the Act (42 U.S.C. 2000a(b) (4), 42 
U.S.C. 2000a(b)(3)).10
A. SECTION 2 0 1 ( b ) ( 4 )  BRINGS LAKE NIXON W ITHIN THE COVERAGE

OF THE 1964 ACT

In addition to the specific types of establishments 
which are covered under Sections 201(b)(1) to 201 
(b) (3) if their operations affect commerce, Section 
201(b)(4) extends the A ct’s prohibition against dis­
crimination to any establishment which has a covered 
establishment located on its premises and which holds 
itself out as serving the patrons of the covered estab­
lishment. Respondent’s testimony at trial showed that 
Lake hTixon maintained a snack bar for the con­
venience of patrons who used its other facilities. 
Thus, if  the snack bar operation is covered under 
Section 201(b)(2), the entire establishment would 
be brought within the coverage of the Act. The dis­
trict court held, however, that Section 201(b) (4) was 
inapplicable because Lake Mxon was a single enter­
prise whose principal business was the furnishing of 
recreational facilites, so that the snack bar could not 
be considered a separate establishment covered under 
the Act (A. 58).

The district court’s ruling misconstrues Section 
201(b)(4). Two of the major proponents of the bill 
explained to their colleagues in the House and Senate 
that a department store or other retail establishment

10 This case does not present any question under the “ private 
club” exemption o f Section 201(e) o f  the Act (42 U.S.C. 
2000a (e ) ). The district court found that Lake Nixon Club, 
despite its “ membership”  requirement, would not come “ within 
the terms o f any rational definition o f  a private club which 
might be formulated”  under Section 201(e) (A . 57), and
respondent did not challenge that finding on appeal.



29

which would not otherwise be covered would have 
to open “ all its facilities” on a nondiscriminatory 
basis if it contained so much as a “ lunch coun­
ter.” Hearings on H.R. 7152 before the House 
Committee on Rules, 88th Cong., 2d Sess., 92 (Repre­
sentative Celler); 110 Cong. Rec. 7406-7407 (Senator 
Magnuson). See also H. Rep. Ho. 914, 88th Cong., 
1st Sess., p. 20. In Fazzio Beal Estate Go. v. 
Adams, 396 F. 2d 146 (C.A. 5), affirming 268 F. 
Supp. 630 (E.D. La.), the court of appeals enun­
ciated the correct principle in holding that a refresh­
ment counter located within a bowling alley could be 
considered a separate establishment itself covered 
under the Act for the purpose of applying Section 
201(b)(4) to the entire establishment (396 F. 2d at 
149) :

It is clear that the Act, for purposes of cover­
age, contemplates that there may be an “ estab­
lishment”  within an “ establishment.”
* * * [ I ] f  it be found * * * that a covered 
establishment exists within the structure of a 
unified business operation, then under the pro­
visions of § 201(b) (4) of the Act the entire 
business operation located at those premises 
becomes a “ covered establishment.”  The Act 
draws no distinction with regard to the prin­
cipal purpose for which a business enterprise 
is carried on.11

11 Accord, Scott v. Young, 12 Eace Eel. L. Eep. 428 (E.D. 
Va.) (recreational area-eating facility ); Evans v. Laurel Links, 
Inc., 261 F. Supp. 474 (E.D. Va.) (golf course-eating facility ); 
United States v. All Star Triangle Bowl, Inc., 283 F. Supp. 
300 (D. S.C.) (bowling alley-eating facility ); United States v. 
Fraley, 282 F. Supp. 948 (M.D. N.C.) (tavern-eating facility );



30

See Hamm v. City of Rock Mill, 379 U.S. 306, 309,. 
where this Court held that a lunch counter in a de­
partment store which was operated as an adjunct to 
the main business of the store was a covered establish­
ment within the contemplation of the Act.

There is no doubt on this record that the Lake 
Nixon snack bar is a “ facility principally engaged in 
selling food for consumption on the premises”  under 
Section 201(b)(2) (A. 32; see Newman v. Piggie 
Park Enterprises, Inc., 377 F. 2d 433 (C.A. 4) (en 
bane), modified as to other issues and affirmed, 390 
U.S. 400). It is a covered establishment if its opera­
tions affect commerce, i.e., if  it “ serves or offers to 
serve interstate travelers or a substantial portion o f 
the food which it serves * * * has moved in com­
merce”  (Section 201 (c)(2 )). The court of appeals 
held that the Lake Nixon snack bar failed to satisfy 
either standard (A. 74-78).

In our view, the record establishes that the Lake 
Nixon Club (which, for this inquiry, is congruent with 
its snack bar) “ offers to serve interstate travelers” 
within the meaning of Section 201(c)(2 ).12 The court
United States v. Beach Associates, Inc., 286 F. Supp. 801 (D. 
Md.) (battling beach-eating facility and tourist cottages). See 
also Drews v. Maryland, 381 U.S. 421, 428 n. 10 (Warren, C.J., 
dissenting-), and Judge Heaney’s dissent in the instant case 
(A . 82-86). Compare Nesmith v. YMGA of Raleigh, 397 F. 
2d 96, 100 (C.A. 4) (dictum).

12 On this analysis, it is unnecessary to consider whether a. 
substantial portion o f the food or its ingredients moved in 
commerce. However, we note that the district court took judicial 
notice that the principal ingredients o f the bread products used 
and some ingredients in the soft drinks probably originated 
outside o f Arkansas (A. 57). The use o f the word “ substan­
tial” in the statute was intended to mean only that something 
“more than just [a] minimal,” or more than a ude minimis” 
amount of the food had moved in commerce. See Hearings on



31

of appeals relied on the district court’s finding that 
“ there was no evidence that the Lake Nixon Club has 
ever tried to attract interstate travelers as such”  (A. 
74, 56, emphasis added). But we can find nothing in 
the legislative history of the Act to indicate that the 
“ offers to serve”  provision was intended to mean less 
than what it says and to apply only to those establish­
ments which actively solicit the business of interstate 
travelers. Such a limited construction was implicitly 
rejected by this Court in Hamm v. City of Rock Hill, 
379 U.S. 306, 309, where, although coverage under the 
Act does not appear to have been seriously disputed, 
the Court found an offer to serve interstate travelers 
in the fact that the lunch counter was located in a 
retail store that “ invites all members of the public into 
its premises to do business.”  In Gregory v. Meyer, 376 
F. 2d 509, 510 (C.A. 5), the court, in finding that a 
restaurant offered to serve interstate travelers, 
stressed the fact that “ customers were not questioned 
as to tourist status, and that tourists were not rejected 
as customers.”  See also Bolton v. State, 220 Ga. 632, 
140 S.E. 2d 866. And in Wooten v. Moore, 400 F. 2d 
239, 242 (C.A. 4), the court cited a restaurateur’s 
“ readiness to serve white strangers without interroga­
tion concerning their status”  as evidence that he 
offered to serve interstate travelers, notwithstanding 
the fact that he had posted a sign on the door stating
Civil Rights before Subcommittee No. 5 o f the House Committee 
on the Judiciary, 88th Cong., 1st Sess., Part II , pp. 1384, 1386 
(Attorney General Kennedy); Hearings on S. 1732 before the 
Senate Committee on Commerce, 88th Cong., 1st Sess., pp. 172, 
212 (Attorney General Kennedy and Assistant Attorney Gen­
eral Marshall); 110 Cong. Rec. 4856 (Senators Humphrey and 
Sparkman); 'Willis v. Pickrick Restaurant, 231 F. Supp. 396, 403 
(N.D. Ga.), appeal dismissed, 382 U.S. 18; Greqory v. Meyer. 
376 F. 2d 509, 511 (C.A. 5).



32

that the restaurant did not “ eater to interstate 
patrons.”

In the present case, the district court found that 
Lake Nixon was “ open in general to all of the public 
who are members of the white race”  (A. 57). When 
questioned about his admission policies at trial, re­
spondent did not advert to any policy of excluding 
interstate travelers or any practice of questioning 
patrons to determine whether they were out-of-state 
residents (see A. 20-21). And as Judge Heaney noted 
in his dissent below (A. 88 n. 9), respondent’s adver­
tisements did not suggest that interstate travelers 
would not be admitted; nor did the membership cards 
require an applicant to state his address. In addi­
tion, respondent inserted advertisements for Lake 
Nixon in periodicals which were intended to reach 
interstate travelers: the “ Little Rock Air Force 
Base,”  a monthly newspaper published at the base, 
and “ Little Rock Today,”  a monthly magazine list­
ing available attractions in the Little Rock area (A. 
55-56; see petitioners’ Petition for Rehearing en banc 
in the court below, A. 92, 96, which quotes from the 
masthead of the May 1968 edition of “ Little Rock 
Today” : “ Published monthly and distributed free o f 
charge by Metropolitan Little Rock’s leading 
hotels * * * motels and restaurants to their guests, 
new comers and tourists * * *.” ). Although these ad­
vertisements were directed to “ members”  of Lake 
Nixon, there is little reason to assume, as Judge 
Heaney realistically observed, that travelers would be 
less likely than residents of the Little Rock area to 
understand that the “ membership”  device was used



33

solely to exclude Negroes from the publicly adver­
tised facilities (A. 89).

The fact that Lake Nixon, unlike the restaurants 
in Gregory and Wooten, is not located on an inter­
state highway does not justify disregarding the other 
evidence that respondent offered to serve interstate 
travelers. Lake Nixon is not “ some isolated and re­
mote lunchroom”  (Heart of Atlanta Motel v. United 
Slates, 379 U.S. 241, 275 (concurring opinion of Mr. 
Justice Black)) which Congress’ regulatory power 
under the Commerce Clause could reach only with 
evident strain. It is a large and profitable establish­
ment which, Mrs. Paul testified, serves about 100,000 
patrons each season (A. 43). An offer to serve such 
a large segment of the public without inquiry as to 
the residence o f customers, under circumstances which 
make it reasonable to assume that some interstate 
travelers have accepted the offer, constitutes a suffi­
cient connection with interstate commerce to support 
coverage of the establishment under Sections 
201(b) (2) and 201(c) (2). See Hamm v. City of Bock 
Hill, 379 U.S. 306. Here, the offer to serve and the like­
lihood of actual service were so clear that the district 
court stated that “ it is probably true that some out- 
of-state people spending time in or around Little 
Rock have utilized [Lake Nixon’s] facilities”  (A. 57).

In the light of the foregoing appraisal of the evi­
dence, the failure of both courts below to find that 
the Lake Nixon snack bar offered to serve interstate 
travelers reflects an unduly restrictive construction of 
Section 201(c)(2) which deprives the Act of its in­
tended scope. We conclude that the evidence demon­



34

strated that the snack bar was a covered establishment 
under Section 201(b)(2) and 201(c)(2) and, conse­
quently, that the entire Lake Nixon Club was covered 
under Section 201(b )(4 ).13
B. SECTION 2 0 1 ( b ) ( 3 )  BRINGS LAKE NIXON W ITHIN THE COVERAGE 

OF THE 1964 ACT

Taken together, Sections 201(b)(3) and 201(c)(3) 
include within the A ct’s proscription of discrimina­
tion “ any motion picture house, theater, concert hall, 
sports arena, stadium, or other place of exhibition 
or entertainment”  which “ customarily presents films, 
performances, athletic teams, exhibitions, or other 
sources of entertainment which move in commerce.” 
The district court rejected petitioners’ claim for relief 
under Section 201(b)(3) on the ground that the

13 Though a decision reversing and remanding on the basis of 
Section 201 (b) (4) would dispose of this case, we note that an 
order grounded only upon that section may be circumvented 
by respondent i f  he is prepared to remove all vestiges o f the 
eating facility from the Lake Nixon premises. W e stress, how­
ever, that mere closing o f the eating facility at any time prior 
to the entry o f an order by the district court upon remand 
should not be sufficient ground for dismissing the action as 
moot. The closing o f the snack bar at this date would be for the 
purpose o f defeating coverage. So long as the facilities for pre­
paring and serving food remain on the premises they may be 
opened and put into use. Thus, unless the entire snack bar and 
all its facilities are totally removed from the Lake Nixon prem­
ises, the case could not be rendered moot under Section 
201(b) (4). Gray v. Sanders, 372 U.S. 368, 376; United States v. 
All Star Triangle Bowl, Inc., 283 F. Supp. 300, 302-303 
(D. S .C .); United States v. Beach Associates, Inc., 286 F. 
Supp. 801, 808 (D. M d.). Yet., respondent might well choose to 
take that step. Therefore, a determination o f coverage under 
Title I I  should not in this case be rested upon Section 
201 (b) (4) alone.



35

“ other place[s] of * * * entertainment”  covered by 
the statute included only establishments where pa­
trons were “ edified, entertained, thrilled, or amused 
in their capacity of spectators or listeners”  (A. 59). 
Alternatively, the court held that even if Lake Nixon 
were considered a place of entertainment, its opera­
tions did not affect commerce under Section 201 
(e) (3) because the juke boxes, records, boats, and 
other amusement apparatus which respondent ob­
tained from outside the State were no longer moving 
in interstate commerce (A. 61-62). The majority on 
the court of appeals affirmed, substantially on the 
grounds stated by the district court (A. 78-79, 81).

The decisions below are in conflict with the decision 
of the Court of Appeals for the Fifth Circuit en 
banc in Miller v. Amusement Enterprises, Inc., 394 
F. 2d 342, which reversed the ruling of a divided 
three-judge panel (391 F. 2d 86) that Section 201 
(b) (3) did not cover a private amusement park 
which offered mechanical rides and an ice skating 
rink to white patrons. The full court held that a place 
of entertainment within the meaning of Section 201 
(b )(3 ) included “ both establishments which present 
shows, performances and exhibitions to a passive au­
dience and those establishments which provide rec­
reational or other activities for the amusement or 
enjoyment of its patrons”  (394 F. 2d at 350). The 
court also concluded that “ sources of entertainment”  
within Section 201(c)(3) include the equipment and 
apparatus used by the patrons of such an establish­
ment, as well as the patrons themselves, who provide 
entertainment for those who come only to watch others



36

enjoy the park’s facilities (id. at 349, 351). The 
court further held that the use of the term “ move 
in commerce”  in Section 201(c)(3) was not intended 
to exclude sources of entertainment, such as equip­
ment, which had moved in interstate commerce but 
which had come to rest on the premises of the enter­
tainment establishment {id. at 351-352).

In a lengthy memorandum submitted at the request 
of the panel which rendered the initial decision in 
Miller (printed as an appendix to the panel’s opin­
ion, 391 F. 2d 86, 89-96), the government analyzed 
the relevant portions of the legislative history o f Sec­
tions 201(b) (3) and 201(c) (3) and advised the court 
that the history was “ inconclusive” as to the question 
whether Congress intended to restrict coverage under 
those sections to places which offer performances for 
spectator audiences. We believe that is a correct 
statement. But it does not follow that the scope of 
the provision should be limited to what Congress 
undoubtedly meant to encompass. On the contrary, 
in the absence of a discernible legislative intent to 
restrict coverage to a certain class of entertainment 
facilities, we think the full court of appeals on re­
hearing in Miller correctly determined to give full 
effect to the statutory language according to its com­
mon understanding, so as not “ to deprive citizens 
of the United States of the general protection which 
on its face [the statute] most reasonably affords” — 
to borrow the language of Mr. Justice Holmes, speak­
ing for the Court in a related context {United States 
v. Mosley, 238 U.S. 383, 388). See also United States 
v. Price, 383 U.S. 787, 801; United States v. Johnson,



37

390 U.S. 563, 566-567; Jones v. Mayer Go., 392 U.S. 
409, 421, 437; Amos v. Prom, Inc., 117 F. Supp. 615, 
624 (H.D. Iowa).

To carve from Section 201(b)(3) an exception for 
Lake Hixon and similar establisliments would violate 
the overriding purpose of Title I I :  “ to remove the 
daily affront and humiliation involved in discrimina­
tory denials of access to facilities ostensibly open to 
the general public.” H. Rep. Ho. 914, 88th Cong., 1st 
Sess., p. 18. See Heart of Atlanta Motel v. United 
States, supra, 379 U.S. at 245-246, 291-292 (Goldberg, 
J., concurring) ; Hamm v. City of Bock Hill, supra, 
379 U.S. at 315-316. We turn, then, to the statutory 
words which the courts below construed narrowly: 
“ entertainment” in Section 201(b)(3) and “move” in 
Section 201(c) (3).

1. The dictionary defines “ entertainment”  as “ the 
act of diverting, amusing, or causing someone’s time 
to pass agreeably: [synonymous with] amusement” 
(Webster’s Third Hew International Dictionary 757). 
Ho distinction is made between that which amuses or 
diverts one as a spectator or as a participant. Rec­
reational activities such as swimming, boating, minia­
ture golf, picnicking, and dancing—all offered at Lake 
Hixon—unquestionably amuse, divert, or agreeably 
engage a participant’s attention; so also may sun­
bathing on a beach or watching others engage in the 
activities available at Lake Hixon. Indeed, respondent 
himself advertised over a local radio station that 
“ Lake Hixon continues their policy of offering you 
year-round entertainment”  (A. 88 n. 10).

Absent a clear showing that Congress intended to 
exclude establishments which offered such diversions



38

to tiie general public, to bold that the Lake Nixon 
Club is not a place of entertainment within the mean­
ing of Section 201(b)(3) would violate the basic 
canon of statutory construction that the words of a 
law are presumed to be used in their ordinary and 
usual sense. Moreover, the facts o f this case illus­
trate the precise problem which Congress considered 
in respect of its power to regulate interstate com­
merce. As Senator Magnuson, the floor manager o f 
Title II, told the Senate (110 Cong. Rec. 7398, 7402):

Discriminatory practices in places of amuse­
ment * * * often leads [sic] to the withhold­
ing of patronage by those affected, and in that 
way the normal demand for goods or entertain­
ment is restricted. * * *

* * * * *

These principles are applicable not merely to 
motion picture theaters but to other establish­
ments which receive supplies, equipment or 
goods through the channels of interstate com­
merce. I f  these establishments narrow their 
potential markets by artificially restricting their 
patrons to non-Negroes, the volume of sales and, 
therefore, the volume of interstate purchases 
will be less.

In light of those concerns, it is most doubtful that 
Congress contemplated that an establishment like 
Lake Nixon, comprising several hundred acres of fa­
cilities and catering to about 100,000 patrons each 
season, would not be considered a place of entertain­
ment despite the size of its market for interstate 
business.



39

We therefore conclude that the Lake Nixon Club 
is a place of entertainment within the meaning of 
Section 201(b) (3). That result is fairly comprehended 
by the language of the statute and is fully consistent 
with the spirit of the law. As the Fifth Circuit ex­
plained in its en bane opinion in Miller, to hold that 
this type of establishment is not covered by the Act 
“would be an injustice, and would be to pay homage to 
that same inequality which the laws of our land, the 
Congress in enacting them, the courts in interpreting 
them, and executive branch in its enforcement efforts 
have strived to eradicate” (394 F. 2d at 353).

2. The record clearly establishes that the operation 
of Lake Nixon affected commerce within the meaning 
of Section 201(c)(3 ). The district court found that 
Lake Nixon offers to serve the general public and that 
it is reasonable to assume that some interstate trav­
elers, who may be viewed as providing entertainment 
for other patrons, have made use of its facilities (A. 
57). The court also found that the juke boxes and 
some of the records, which furnished music for listen­
ing or dancing, were manufactured outside of Arkan­
sas (A. 62), and the fifteen paddle boats which 
respondent rented for use on the lake were leased on a 
royalty basis from an Oklahoma company (A. 28-29; 
see A. 62, 90). Both courts below disregarded evidence 
of the interstate origin of these mechanical sources of 
entertainment because of their view that Section 
201(c)(3) required a showing that the persons or 
products were continuously moving in interstate com­
merce. As shown above (p. 38, supra), however, Con-



40

gress was also concerned with the impediments which 
discrimination imposed on interstate commerce in 
entertainment equipment and supplies, which would 
usually be retained by the purchaser or lessee. Con­
gress’ determination to include such products within 
the operation of Section 201(c) (3) is demonstrated by 
the fact that it rejected an amendment to that section 
which would have required that the source of enter­
tainment had “not come to rest within a state.” 110 
Cong. Ree. 13915, 13921. See S. Rep. No. 872, 88th 
Cong., 2d Sess., p. 3; Miller v. Amusement Enterprises,. 
Inc., supra, 394 F. 2d at 351-352 ; cf. Katzenbach v. 
McClung, 379 U.S. 294, 302.

CONCLUSION

For the foregoing reasons, we respectfully submit 
that the judgment below should lie reversed and the 
cause remanded for the entry of an appropriate order.

Erwin N. Griswold,
Solicitor General.

J erkis L eonard,
Assistant Attorney General.

Lotus E. Claiborne,
J oseph J. Connolly, 

Assistants to the Solicitor General.
Gary J. Greenberg,

Attorney..
F ebruary 1969.

U.S, GOVERNMENT PRINTING OFFICE: !9 6 9