Brown v. Board of Education Appendix to Appellants' Briefs

    I n  t h e

OJimrt at tip United Ĵ tatTB
October Term, 1968 

No. 488

M rs. D oris D an iel  and M rs. R osalyn K yles,

Petitioners,

E u ell  P au l , Jr., Individually and as Owner, 
Operator or Manager of Lake Nixon Club,

Respondent.

ON W R IT  OF CERTIORARI TO T H E  U N IT E D  STATES COURT OF 

APPE A LS FOR T H E  E IG H T H  C IR C U IT

BRIEF FOR PETITIONERS

J ack  Greenberg 
J ames M. N abrit, III 
N orman  C. A m aker  
C onrad K. H arper 
N orman  J . C h a c h k in  

10 Columbus Circle 
New York, N.Y. 10019

J ohn  W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Petitioners



I N D E X

PAGE

Citations to Opinions Below ............................................. 1

Jurisdiction ..........................................................................  2

Questions Presented.......................................    2

Constitutional and Statutory Provisions Involved .......  3

Statement .......      5

Summary of Argum ent......................................................  7

A r g u m e n t 1—

I. Lake Nixon Club, a Place of Public Accommo­
dation, Which. Offers to Serve Interstate Trav­
elers and Provides Food, Facilities for Enter­
tainment, and Other Products Which Have 
Moved in Commerce, Is Barred From Excluding
Petitioners by Title II of the 1964 Civil Bights 
Act .............................................................................. 9
A. Title II of the 1964 Civil Rights Act Applies

to the Whole of Lake Nixon Because of Its 
Lunch Counter’s Operations............................. 9

B. Like Nixon Is a Place of Entertainment As
Defined by Title II of the 1964 Civil Bights 
Act ......................... —...........................................  14

II. The Equal Bight to Make and Enforce Contracts 
and to Have an Interest in Property, Guaran­
teed by 42 U.S.C. §§ 1981 and 1982, Includes the
Right of Negroes to Have Access to a Place of
Public Amusement ..................................................  18

Conclusion   ....................................................................... 21



11

T able op A uthorities

Cases: page

Civil Eights Cases, 109 U.S. 3 (1883) ......... ............... . 20
Codogan v. Fox, 266 F. Supp. 866 (M.D. Fla. 1967) .... 12 
Coger v. The North West Union Packet Co., 37 Iowa

145 (1873) ..........    20
Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) .... 19

Evans v. Laurel Links, Inc., 261 F. Supp. 474 (EJD.
Va. 1966) ..........................................................................  13

Fazzio Eeal Estate Co. v. Adams, 396 F.2d 146 (5th 
Cir. 1968) ...........................................................10,12,13,19

Gregory v. Meyer, 376 F.2d 509 (5th Cir. 1967) ...........  11
Griffin v. Southland Pacing Corp., 236 Ark. 872, 370 

S.W.2d 429 (1963) ..........................................................  18

Hamm v. Kock Hill, 379 U.S. 306 (1964) .....................11,13

Jones v. Mayer Co., 392 U.S. 409 (1968) .........18,19, 20, 21

Katzenbach v. McClung, 379 U.S. 294 (1964) ................  12

Miller v. Amusement Enterprises, Inc., 394 F.2d 342 
(5th Cir. en banc, 1968) ...................................11,14,16,17

Newman v. Piggie Park Enterprises, Inc., 256 F. Supp.
941 (D.S.C. 1966), rev’d, 377 F.2d 433 (4th Cir. 
1967), mod. and aff’d on oth. gds., 390 U.S. 400 
(1968) ........     19

Scott v. Young, 12 Race Eel. L. Rep. 428 (E.D. Ya.
1966) .................................................................................. 13

Sullivan v. Little Hunting Park, Inc., 392 U.S. 657 
(1968) 2 0



I ll

Thorpe v. Housing Authority, 37 U.S.L.W. 4068 (U.S.

PAGE

Jan. 13, 1969) ................................................................ 19,20

Vallee v. Stengel, 176 F.2d 697 (3rd Cir. 1949) ...........  18

Wooten v. Moore, 400 F.2d 239 (4th Cir. 1968) ...........  10

Constitutional Provisions:

Commerce Clause, Art. 1, §8, cl. 3

Thirteenth Amendment ................

Fourteenth Amendment ................

Statutes-.

28 U. S. C. §1254(1) ................................................  2

48 U. S. C. §1981 ...............................2, 3, 5, 8,18,19, 20

42 IT. S. C. §1982 .................................. 2, 3,8,18,19, 20

42 U. S. C. §2000a (§201) ......... 2,5,8,9,12,13,14,19

42 U. S. C. §2000a(b) (§201(b)) ............. 3,8,9,10,12

42 U. S. C. §2000a(c) (§201(c)) ............. 4,8,9,10,11,
12,16,17

42 U. S. C. §2000a(e) (§201(e)) ...........................  11

42 U. S. C. §§3601-3631 ............................................. 18

3.5 

3, 20

3.5



IV

Miscellaneous:

PAGE

Cong. Globe, 39th Cong., 1st Sess. 43, 322, 475, 541,
599 ; Appendix 69, 183, 936 ............ ..................... 20

109 Cong. Eec. 12276 (1963) ................................ 15,16

110 Cong. Eee. 6557 (1964) ............... .....................  17

110 Cong. Eee. 7383 (1964) ........... . ......................  15

110 Cong. Eee. 7402 (1964) ............... ......................  16

110 Cong. Eec. 13915 (1964) ............. .................. . 17

110 Cong. Eec. 13921 (1964) ..................................  17

110 Cong. Eec. 13924 (1964) ............................. . 17

Flack, H., The Adoption of the 
Amendment (1908) ...........................

Fourteenth 
.....................  20

Hearing's on Miscellaneous Proposals Eegarding 
Civil Eights Before Subcommittee No. 5 of the 
House Committee on the Judiciary, 88th Cong.,
1st Sess. ser. 4, pt. 2 (1963) ................................  15

Hearings on H.E. 7152 Before the House Commit­
tee on the Judiciary, 88th Cong., 1st Sess. ser.
4, pt. 4 (1963) ......................................................... 15

H. E. Eep. No. 914, 88th Cong., 1st Sess. (1963) .... 13

S. Eep. No. 872 on S. 1732, 88th Cong., 2nd Sess. 
(1964) 17



I n  t h e

dmtrt nf tty? Init^ States
October Term, 1968 

No. 488

Mrs. D oris D an iel  and Mss. R osalyn K yles,

-v .—
Petitioners,

E u ell  P au l , J r ., Individually and as Owner, 
Operator or Manager of Lake Nixon Club,

Respondent.

ON W R IT  OE CERTIORARI TO T H E  U N IT E D  STATES COURT OF 

APPEALS FOR T H E  E IG H T H  C IR C U IT

BRIEF FOR PETITIONERS

Citations to Opinions Below

The February 1, 1967 memorandum opinion of the Dis­
trict Court, reprinted in the Appendix at pp. 47-62, is re­
ported at 263 F. Supp. 412. The May 3, 1968 opinion of 
the United States Court of Appeals for the Eighth Cir­
cuit, reprinted in the Appendix at pp. 64-82, is reported 
at 395 F,2d 118. The dissenting opinion of Judge Heaney, 
reprinted in the Appendix at pp. 82-90, is reported at 395 
F.2d 127.



2

Jurisdiction

The judgment of the United States Court of Appeals for 
the Eighth Circuit was rendered May 3, 1968. A  peti­
tion for a rehearing en banc was denied on June 10, 1968. 
A petition for writ of certiorari was filed September 7, 
1968 and granted December 9, 1968 (A. 105). The jurisdic­
tion of this Court is invoked pursuant to 28 U. S. C. 
§1254(1).

Questions Presented

1. Lake Nixon Club is a privately owned and operated 
recreational area open to the white public in general. Lake 
Nixon has facilities for swimming, boating, picnicking, 
sunbathing, and miniature golf. On the premises is a snack 
bar principally engaged in selling food for consunrption on 
the premises which offers to serve interstate travelers 
and which serves food a substantial portion of which has 
moved in commerce.

a) Is the snack bar a covered establishment within the 
contemplation of Title II of the Civil Rights Act of 1964, 
and if so, does this bring the entire recreational area within 
the coverage of Title II?

b) Is the Lake Nixon Club a place of entertainment 
within the scope of Title II?

2. Petitioners are denied admission to Lake Nixon Club 
solely because they are Negroes. Have petitioners been 
denied the same right to make and enforce contracts and 
have an interest in property, as is enjoyed by white citi­
zens, in violation of the Thirteenth Amendment and an 
Act of Congress, 42 U. S. C. §§1981, 1982?



3

Constitutional and Statutory Provisions Involved

This case involves the Commerce Clause, Art. 1, §8, cl. 3, 
and the Thirteenth and Fourteenth Amendments of the 
Constitution of the United States.

This case also involves the following United States 
statutes:

42 U. S. C. §1981:

All persons within the jurisdiction of the United States 
shall have the same right in every State and Territory to 
make and enforce contracts, to sue, be parties, give evi­
dence, and to the full and equal benefit of all laws and 
proceedings for the security of persons and property as 
is enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exactions 
of every kind, and to no other.

42 U.S. C. §1982:

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

42 U. S. C. §2000a(b):

Each of the following establishments which serves the 
public is a place of public accommodation within the mean­
ing of this subchapter if its operations affect commerce, 
or if discrimination or segregation by it is supported by 
State action:

(2) any restaurant, cafeteria, lunchroom, lunch counter, 
soda fountain, or other facility principally engaged in sell­



4

ing food for consumption on the premises, including, but 
not limited to, any such facility located on the premises 
of any retail establishment; or any gasoline station;

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

(4) any establishment (A ) (i) which is physically located 
within the premises of any establishment otherwise covered 
by this subsection, or (ii) within the premises of which is 
physically located any such covered establishment, and 
(B) which holds itself out as serving patrons of such 
covered establishment.

42 U .S .C . §2000a(c):

The operations of an establishment affect commerce 
within the meaning of this subchapter if . . . (2) in the 
case of an establishment described in paragraph (2) of 
subsection (b) of this section, it serves or offers to serve 
interstate travelers or a substantial portion of the food 
which it serves, or gasoline or other products which it 
sells, has moved in commerce; (3) in the case of an estab­
lishment described in paragraph (3) of subsection (b) of 
this section, it customarily presents, films, performances, 
athletic teams, exhibitions, or other sources of entertain­
ment which move in commerce; and (4) in the case of an 
establishment described in paragraph (4) of subsection (b) 
of this section, it is physically located within the premises 
of, or there is physically located within its premises, an 
establishment the operations of which affect commerce 
within the meaning of this subsection. For purposes of 
this section, “ commerce” means travel, trade, traffic, com­
merce, transportation, or communication among the sev­
eral States, or between the District of Columbia and any



5

State, or between any foreign country or any territory or 
possession and any State or the District of Columbia, or 
between points in the same State but through any other 
State or the District of Columbia or a foreign country.

Statement

On July 18, 1966, petitioners, Mrs. Doris Daniel and Mrs. 
Rosalyn Kyles, Negro citizens of the City of Little Rock, 
Pulaski County, Arkansas, instituted a class action in the 
United States District Court for the Eastern District of 
Arkansas against Euell Paul, Jr., individually and as owner 
of Lake Nixon Club, Pulaski County, Arkansas (A. 2-3). 
The petitioners claimed that the Lake Nixon Club was 
depriving them, and Negro citizens similarly situated, of 
rights, privileges and immunities secured by (a) the Four­
teenth Amendment to the Constitution of the United States; 
(b) the Commerce Clause of the Constitution; (c) Title II 
of the Civil Rights Act of 1964 (42 U. S. C. §2000a), pro­
viding for injunctive relief against discrimination in places 
of public accommodation; and (d) 42 U. S. C. §1981, pro­
viding for the equal rights of citizens and all persons 
within the jurisdiction of the United States (A. 2). The 
complaint alleged the Lake Nixon Club pursues a policy 
of racial discrimination in the operation of its facili­
ties, services and accommodations; petitioners prayed for 
injunctive relief (A. 4-5).

On August 3, 1966, Mr. Euell Paul, Jr., answered the 
complaint (A. 6-7). At trial, Mrs. Paul was made a party 
defendant without objection (263 F. Supp. at 414). After 
trial without a jury, the district court, on February 1, 
1967, held that the Lake Nixon Club is not a place of 
public accommodation within the contemplation of the 
Civil Rights Act and that its operations do not affect com­



6

merce, and dismissed the complaint with prejudice (263 F. 
Supp. at 420). The petitioners filed notice of appeal to 
the Court of Appeals for the Eighth Circuit on March 2, 
1967 (A. 63).

The United States Court of Appeals for the Eighth 
Circuit affirmed the judgment of the district court on May 3, 
1968, Judge Heaney dissenting, 395 F.2d 118, 127. On 
June 10, 1968, petitioners’ petition for rehearing was 
denied.

Lake Nixon Club is a recreational area comprising 232 
acres (A. 41) and located about 12 miles west of Little 
Eock, Arkansas (Appellee’s Brief in the Court of Appeals, 
1). There is a State highway located 5 miles north of Lake 
Nixon and a U.S. highway located 5 miles to the south 
(Appellee’s Brief in the Court of Appeals, 2).

During each season, approximately 100,000 people avail 
themselves of Lake Nixon’s swimming, picnicking, boating, 
sun-bathing, and miniature golf (263 F. Supp. at 416).

At Lake Nixon there is a snack bar which sells ham­
burgers, hot dogs, milk and sodas for consumption on the 
premises (263 F. Supp. at 416). The snack bar is oper­
ated by Mrs. Paul’s sister under an oral agreement whereby 
the parties share the profits from the snack bar (A. 32). In 
1966 the gross receipts from food sales accounted for al­
most 23% of the total gross receipts ($10,468.95 out of a 
total of $46,326.00) (A. 13, 63).

The equipment of Lake Nixon includes two juke boxes 
manufactured out of Arkansas (263 F. Supp. at 417); 15 
aluminum paddle boats leased from an Oklahoma com­
pany, and a surfboard or yak purchased from the same 
company (A. 28-29). The rental cost of the paddle boats 
is based on a percentage of the profits realized from their 
rental to patrons of Lake Nixon (A. 28).



7

Lake Nixon Club was advertised in the following media: 
(a) once in 1966 in Little Rock Today, a monthly publica­
tion distributed free of charge by Little Rock’s leading 
hotels, chambers of commerce, motels and restaurants to 
their guests, newcomers and tourists; (h) once in 1966 in 
the Little Rock Air Force Base publication; (e) and three 
days each week from May through September, 1966, over 
radio station KALO (A. 12, 96; 263 F. Supp. at 417-418). A 
typical radio announcement stated:

“Attention all members of Lake Nixon. In answer to 
your requests, Mr. Paul is happy to announce the Sat­
urday night dances will be continued . . . Lake Nixon 
continues their policy of offering you year-round en­
tertainment. The Villagers play for the big dance Sat­
urday night and, of course, there’s the jam session 
Sunday afternoon . . . also swimming, boating, and 
miniature golf . . . ” 395 F.2d at 130, n. 10 (dissenting 
opinion).

On July 10, 1966, the petitioners sought admission to Lake 
Nixon (A. 37-38). The district court found they were re­
fused admission because they are Negroes (263 F. Supp. 
at 418) and concluded Lake Nixon Club is not a private 
club within the contemplation of the 1964 Civil Rights Act, 
but is a facility open to the white public in general (263 
F. Supp. at 418).

Summary o f  Argument

Lake Nixon Club is a 232 acre site for public amusement 
and recreation, located just outside of Little Rock, Ar­
kansas, open to the white public in general but excluding 
blacks. In addition to such activities as swimming, boat­
ing, picnicking and miniature golf, Lake Nixon Club con­
tains a snack bar selling food for consumption on the prem­



8

ises. Lake Nixon advertises its entertainment on radio and 
in magazines directed to tourists. Because the snack bar, 
which serves Lake Nixon’s patrons, offers to serve inter­
state travelers as members of the general public and 
serves or sells food and other products, which have moved 
in commerce, the whole of Lake Nixon is subject to Title II 
of the 1964 Civil Rights Act.

Lake Nixon Club is also a place of entertainment affect­
ing commerce within the scope of §201 (b)(3) and (c)(3 ) 
because its patrons are entertained by the activities of 
others who enjoy the establishment’s recreational facilities. 
The legislative history of Title II supports the view that 
Congress sought to encompass places of public amusement 
like recreational areas within the statute. Furthermore, 
Lake Nixon is subject to §201(c)(3) because it purchases 
and leases recreational equipment from out-of-state con­
cerns and makes available to its patrons facilities for en­
tertainment manufactured outside of Arkansas.

Lake Nixon is also barred from discriminating against 
blacks by the equal contractual and property rights guar­
antees of 42 U. S. C. §§1981 and 1982. These statutes, de­
rived from the 1866 Civil Rights Act, cover the right of 
Negroes not to be denied the right to contract and to use 
property of a place of public amusement. Sections 1981 
and 1982 stand independent of the provisions of Title II 
of the 1964 Civil Rights Act. The legislative history of 
§§1981 and 1982 supports the view that these statutes were 
designed to eradicate racial discrimination in places of 
public accommodation.



9

ARGUMENT

I.

Lake Nixon Club, a Place o f  Public Accommodation, 
Which Offers to Serve Interstate Travelers and Provides 
Food, Facilities for  Entertainment, and Other Products 
Which Have Moved in Commerce, Is Barred From Ex­
cluding Petitioners by Title II o f  the 1964 Civil Rights 
Act.

For reasons stated in greater detail below, Lake Nixon 
Club is a place of public accommodation within the coverage 
of Title II of the 1961 Civil Rights Act on both of the follow­
ing grounds:

1. A  snack bar on the premises serves a substantial 
amount of food that has moved in commerce and sells 
or offers to sell food to all patrons of Lake Nixon, in­
cluding interstate travelers. Section 201(b)(4) and 
(c)(4 ).

2. Lake Nixon is a place of entertainment custom­
arily presenting sources of entertainment which move 
in commerce. Section 201(b)(3) and (c)(3 ).

A. Title II of the 1964 Civil Rights Act Applies to the Whole 
of Lake N ixon B ecause of Its Lunch C ounter’s Operations.

It is not disputed that Lake Nixon’s snack bar is princi­
pally engaged in selling* food for consumption on the 
premises of Lake Nixon,1 making the snack bar subject to

1 The district court erroneously concluded that the test under 
§201 (b) (2)  was whether the “ establishment” was “ ‘principally 
engaged’ in the sale of food for consumption on the premises” ; 
having concluded that Lake Nixon Club was not principally en­
gaged in selling food, the district court held that §201 (b) (2)  did 
not apply. 263 F. Supp. at 419. The district court’s holding mis­
construes the language and meaning of §201 (b) (2) that an estab­



10

§201 (b )(2 ). Because the snack bar offers to serve inter­
state travelers and serves or sells food and other products 
which have moved in commerce, the whole of Lake Nixon is 
subject to §201(c)(2) and (c)(4 ), and thus barred from 
excluding patrons, as here, on racial grounds.

Lake Nixon Club offers to serve interstate travelers by 
the mere fact that it is open, as the district court found, 
to the white public in general. 263 F. Supp. at 418. Section 
201(c) (2) covers an establishment if “ . . .  it serves or offers 
to serve interstate travelers . . . ” It is plain from the 
language that there need be no showing that interstate 
travellers were actually served; an offer is sufficient. 
Wooten v. Moore, 400 F.2d 239, 242 (4th Cir. 1968).

The district court misconceived the issue by finding no 
evidence that Lake Nixon “ ever tried to attract interstate 
travelers as such.” 263 F. Supp. at 418 (emphasis added). 
The Eighth Circuit compounded the error by holding, 
“ There is no evidence that any interstate traveler ever 
patronized this facility, or that it offered to serve inter­
state travelers . . . ” 395 F.2d at 127. Where an establish­
ment like Lake Nixon advertises its facilities on radio and 
in magazines for tourists and servicemen, charging only a 
token 250 membership fee, what is important is whether 
Lake Nixon prohibits interstate travelers from using its 
facilities.

Furthermore the district court, sitting near Lake 
Nixon in Little Bock, concluded “ it is probably true that 
some out-of-state people” have visited Lake Nixon. 263 
F. Supp. at 418. Under these circumstances, Lake Nixon

lishment like a restaurant or a lunch counter is covered if such 
eating facility is principally engaged in selling food for consump­
tion on its premises or on the premises, for example, of a retail 
establishment where the eating facility is located. Fazzio Real Es­
tate Co. v. Adams, 396 F.2d 146, 149 (5th Cir. 1968).



11

offers to serve interstate travelers within the meaning of 
§201 (c) (2). Hamm v. Rock Hill, 379 U.S. 306 (1964); 
Miller v. Amusement Enterprises Inc., 394 F.2d 342 (5th 
Cir. en banc, 1968).

In the district court the owners of Lake Nixon suggested 
it was a private club within the exemption of §201 (e). But 
every judge who has considered this ease has found that 
Lake Nixon is open to members of the white race in general 
for profit and thus not a private club. 263 F. Supp. at 418; 
395 F.2d at 123, 130.2

Lake Nixon is also subject to 201(c) (2) because a substan­
tial portion of the food and other products sold at the 
snack bar have moved in commerce. “ Substantial” means 
more than minimal. 395 F.2d at 124; Gregory v. Meyer, 376 
F.2d 509, 511 n. 1 (5th Cir. 1967).

The only food served at the snack bar consists of ham­
burgers, hot dogs, soft drinks, and milk, 263 F. Supp. at 
416. The district court took judicial notice that the princi­
pal ingredients of bread are produced outside of Arkansas 
and that some ingredients of soft drinks probably origi­
nated outside of Arkansas. 263 F. Supp. at 418. The 
Eighth Circuit asserted, however, that bread ingredients 
would not constitute a substantial portion of the food 
served and that the milk used was obtained in Arkansas. 
395 F.2d at 124. But to ascribe to “ substantial” any mean­
ing other than “ more than minimal” forces the Court and

2 Lake Nixon contains none of the indicia of a private club such 
as a membership committee, self-government, ownership of assets 
by the membership, and social as opposed to profit-making objec­
tives. Mr. and Mrs. Paul own Lake Nixon; they exercise their own 
judgment in admitting or excluding “members” ; there is no list 
of “members” and no address required on membership cards; 
radio and magazine notices are given to ‘‘members” of Lake Nixon’s 
entertainment; a nominal 25j  fee is charged for “membership” ; 
the Pauls operated Lake Nixon for profit. 263 F. Supp. at 416-18.



12

counsel to reflect on obvious facts such as hamburgers and 
hot dogs are served in a bun or other piece of bread. Since 
the snack bar sold many hamburgers and soft drinks (A. 
31, 34), three of the four food items sold at the snack bar, 
including the two major products, contained ingredients 
originating outside of Arkansas. That 75% of the types of 
foodstuffs sold contain out-of-state ingredients would seem 
substantial by any reasonable test. Katsenbach v. McClung, 
379 U.S. 294, 296-97 (1964) (46% is substantial); Codogan 
v. Fox, 266 F. Supp. 866 (M.D. Fla. 1967) (23-30% is sub­
stantial). Having established this, it seems that a more 
common sense approach, i.e., telling at a glance whether a 
more than de minimis test lias been satisfied, is all that 
should be required in the interest of the policy of the law 
and judicial economy.

Because the snack bar is physically located within the 
premises of Lake Nixon and holds itself out as serving 
patrons of Lake Nixon, all of its facilities and privileges 
comprise a place of public accommodation within §201 
(b ) (4) and ( c ) (4).

Both the district court and the court of appeals held that, 
because the gross income from food sales constitutes a rela­
tively small percentage of the total gross income (23%) 
and the sale of food is merely an adjunct to the Pauls’ 
principal purpose of providing recreational facilities, Lake 
Nixon is a single unit operation and not covered by §201 
(b )(4 ). Apparently the Eighth Circuit requires for cover­
age under Title II at least two establishments under sepa­
rate ownership. See 395 F.2d at 123. This holding is in 
conflict with the decision of every other court which has 
considered this subsection.

In Fazzio Real Estate Co. v. Adams, 396 F.2d 146 (5th 
Cir. 1968), the court held that where the operators of a 
bowling alley also operated a snack bar for the patrons



13

of the bowling alley, the entire establishment was covered 
by this subsection. Income from the sale of food and beer 
in Fazzio represented 23% of the total gross income; in­
come from the sale of food alone represented 8 to 11% of 
the total gross income. The court held that even 8 to 11% 
could not be considered insignificant and explicitly rejected 
the substantial business purpose test of the Eighth Circuit, 
compare 396 F.2d at 150 with 395 F.2d at 123. The Fifth 
Circuit stated, 396 F.2d at 149:

The Act contemplates that the term “ establishment” 
refers to any separately identifiable business operation 
without regard to whether that operation is carried on 
in conjunction with other service or retail sales opera­
tions and without regard to questions concerning 
ownership, management or control of such operations.3

Even under its own rule that Title II covers only sepa­
rately managed but physically connected establishments, 
the Eighth Circuit erred in failing to find the snack bar’s 
operations made Lake Nixon a public accommodation with­
in the coverage of Title II. The evidence is that the snack 
bar is a separate enterprise managed by Mrs. Paul’s sister 
pursuant to an oral contract whereby the Pauls and Mrs. 
Paul’s sister share the profits from food sales.

3 In Evans v. Laurel Links, Inc., 261 F. Supp. 474 (E.D. Ya. 
1966), the court held an entire golf course within the coverage of 
Title II, because the operators of the golf course maintained a 
lunch counter for the patrons of the course. Income from food 
sales constituted 15% of the total gross income of the golf course. 
See also Hamm v. Bock Hill, 379 U.S. 306 (1964); Scott v. Young, 
12 Race Rel. L. Rep. 428 (E.D. Va. 1966) (recreational area with 
snackbar). The legislative history supports the majority rule. The 
Report of the House Judiciary Committee states that subsection 
(b) (4) “would include, for example, retail stores which contain 
public lunch counters otherwise covered by Title II” . H. R. Rep. 
No. 914, 88th Cong., 1st Sess. 20 (1963).



14

B. Lake Nixon Is a Place of Entertainment As Defined by 
Title II of the 1964 Civil Rights Act.

Lake Nixon also is a place of entertainment within the 
contemplation of Title II and we submit that this Court 
should so hold. The snack bar might be eliminated for the 
purpose of removing Lake Nixon from Title II coverage 
and then further litigation would be necessary to determine 
whether it is a place of entertainment. This possibility is 
not fanciful: in a companion case involving a similar recrea­
tional area, all sales of food were discontinued after peti­
tioners instituted an action under Title II, 263 F. Supp. 
at 417. In addition, the conflict between the Eighth Cir­
cuit’s construction of “place of entertainment” and that of 
the Fifth Circuit in Miller v. Amusement Enterprises, Inc., 
394 F.2d 342 (5th Cir. en banc, 1968), should be resolved by 
this Court.

The Eighth Circuit held Lake Nixon was not a “place of 
entertainment” , because the Court found a total lack of 
evidence that its activities or entertainment moved in com­
merce, 395 F.2d at 125. The district court, defining “place 
of entertainment” to mean an establishment where the 
patrons are spectators or listeners and their physical par­
ticipation is non-existent or minimal, held that Lake Nixon 
is not within this definition (263 F. Supp. at 419).

In Miller v. Amusement Enterprises, Inc., supra, the 
Court of Appeals for the Fifth Circuit, sitting en banc, 
overruled the prior decision of a three-judge panel (re­
ported at 391 F.2d 86), and held that Fun Fair amusement 
park in Baton Bouge, La., is a place of entertainment 
within the coverage of Title II. Noting that it was not nec­
essary to its decision, the Court held that even under a nar­
row construction of “place of entertainment” to include 
only places which present exhibitions for spectators, Fun



15

Fair is a covered establishment because “many of the 
people who assemble at the park come there to be enter­
tained by watching others, particularly their own children, 
participate in the activities available” , 394 F.2d at 348. 
Swimming, boating, picnicking, sun-bathing and dancing 
at Lake Nixon are certainly as much, if not more, spectator 
activities as ice-skating and “kiddie rides” at Fun Fair, see
394 F.2d at 348.

The overriding* purpose of Title II was to eliminate dis­
crimination in those facilities which were the focal point 
of civil rights demonstrations. Hearings on II. R. 7152 
Before the House Comm, on the Judiciary, 88th Gong., 1st 
Sess., ser. 4, pt. 4, at 2655 (1963) (Testimony of Attorney 
Gen’l Kennedy). President Kennedy clearly intended that 
recreational areas and other places of amusement be cov­
ered. Hearings on Miscellaneous Proposals Regarding Civil 
Rights Before Subcomm. No. 5 of the House Comm, on the 
Judiciary, 88th Cong., 1st Sess., ser. 4, pt. 4, at 1448-1449, 
2655 (1963). Facilities which were the focal point of dem­
onstrations were consistently identified in both the Senate 
and House hearings as lodging houses, eating places, and 
places of amusement or recreation. 110 Cong*. Rec. 7383 
(1964) (Remarks of Sen. Young). While the Senate was 
debating the Act, there were demonstrations at the Gwynn 
Oak Amusement Park in Maryland; Senator Humphrey 
stated that this was proof of the need for this Act. 109 
Cong. Rec. 12276 (1963).

Under either a narrow or a liberal construction of “place 
of entertainment” , coverage depends on whether Lake 
Nixon customarily presents sources of entertainment which 
move in commerce. The Eighth Circuit could not discern 
any evidence that any source of entertainment customarily 
presented by Lake Nison moved in interstate commerce,
395 F.2d at 125.



16

In fact, “ sources of entertainment” were intended to 
include equipment. In a discussion of §201 (c)(3 ), Senator 
Magnuson, floor manager of Title II, pointed out that “ es­
tablishments which receive supplies, equipment or goods 
through the channels of interstate commerce . . . 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,” 110 Cong. 
Rec. 7402 (1964) (emphasis added). In the discussion of 
the demonstration at the Gwynn Oak Amusement Park, 
Senator Humphrey believed that the park would be covered 
by the Act in part because he was “confident that mer­
chandise and facilities used in the park were transported 
across State lines,” 109 Cong. Rec. 12276 (1963).

Lake Nixon purchases and leases its boats from an Okla­
homa company. The Pauls rent two juke boxes which were 
manufactured outside Arkansas and which play records 
manufactured outside Arkansas. In view of these facts the 
Eighth Circuit is in direct conflict with Fifth Circuit’s deci­
sion in Miller. The Miller Court relied in part on the fact 
that 10 of the 11 “kiddie rides” at the park were purchased 
from out of state, 394 F.2d at 351, to find an effect on 
commerce. But the Court also concluded that even under 
a narrow construction of the Act, since Fun Fair is located 
on a major highway and does not geographically restrict 
its advertising, the logical conclusion is that a number of 
the patrons, whose activities may entertain, have moved 
in commerce, 394 F.2d at 349. The same circumstances 
which make it reasonable to assume that some interstate 
travelers will accept Lake Nixon’s offer to serve the gen­
eral public make it reasonable to assume that some of 
Lake Nixon’s patrons have moved in commerce.

The Eighth and Fifth Circuits are also in conflict as to 
the meaning of “move in commerce” . The district court



17

found that Lake Nixon’s operations do not affect commerce 
on the ground that, although the boats, juke boxes and rec­
ords have moved in commerce, they do not now move, 263 
F. Supp. at 420. The court concluded that because the 
phrase, “has moved” , appears in the section concerning eat­
ing facilities, Congress must have intended to limit the 
section concerning places of entertainment to sources which 
“move” , and therefore sources of entertainment which have 
but no longer move, are not covered, 263 F. Supp. at 420. 
The Fifth Circuit, on the other hand, expressly concluded 
in Miller that Congressional use of the present tense of 
“move” was not intended to exclude other tenses, 394 F.2d 
at 351-52.

The legislative history supports the conclusion of the 
Fifth Circuit. The Report of the Senate Committee on 
Commerce refers within a single paragraph to “ sources of 
entertainment which move in interstate commerce” and 
“ entertainment that has moved in interstate commerce” , as 
within the contemplation of §201(e)(3). 8. Rep. No. 872 
on 8 . 1732, 88th Cong., 2nd Sess. 3 (1964). See also 110 
Cong. Rec. 6557 (1964) (remarks of Sen. Kuchel). In ad­
dition, a proposal to amend §2Gl(c)(3) to read “ sources of 
entertainment which move in commerce and have not come 
to rest within a state” was rejected. 110 Cong. Rec. 13915, 
13921 (1964). The subsequent debate indicates that Con­
gress intended the bill to reach businesses which individu­
ally had a minimal or insignificant impact on interstate 
commerce. 110 Cong. Rec. 13924 (1964).



18

II.
The Equal Right to Make and Enforce Contracts and 

to Have an Interest in Property, Guaranteed by 42 
U.S.C. §§1981  and 1982, Includes the Right o f  Negroes 
to Have Access to a Place o f  Public Amusement.

The first sentence of the Civil Rights Act of 1866, en­
acted pursuant to the Thirteenth Amendment, provided, 
inter alia, for citizens to have the same right to make and 
enforce contracts and have an interest in property as is 
enjoyed by white citizens. These rights are now embodied 
in 42 U. S. C. §§1981 and 1982. Negro petitioners have been 
denied these rights because the Pauls barred them from 
becoming 25  ̂ “members” of Lake Nixon solely on racial 
grounds. The Lake Nixon membership fee is in effect a 
contract, like the purchase of a ticket, entitling one to use, 
for a time, the real and personal property on Lake Nixon’s 
232 acres. See Griffin v. Southland Racing Corp., 236 Ark. 
872, 370 S.W.2d 429 (1963); Vallee v. Stengel, 176 F.2d 
697 (3rd Cir. 1949). Denial of these contractual and prop­
erty rights on racial grounds violates rights secured by the 
1866 Civil Rights Act. See Jones v. Mayer Co., 392 U.S. 
409, 426, 436, 439-41 (1968). As this Court held just last 
term, “At the very least, the freedom that Congress is em­
powered to secure under the Thirteenth Amendment in­
cludes the freedom to buy whatever a white man can 
buy . . ” Jones v. Mayer Co., supra, 392 U.S. at 443 (em­
phasis added). Neither of the courts below considered the 
applicability of Jones since it was decided subsequent to 
the Eighth Circuit’s denial of rehearing.

For reasons essentially similar to those holding §1982 
independent of the Civil Rights Act of 1968, 42 U. S. C. 
§§3601-3631—the principal reasons being differences in cov­
erage between the two statutes and no Congressional pur­



19

pose to limit §1982-—petitioners submit that §§1981 and 
1982 provide rights independent of Title II of the 1964 
Civil Rights Act, 42 U. S. C. §2000a.4 See Jones v. Mayer 
Co., supra, 392 U.S, at 413-17. Where racial discrimination 
between blacks and whites is alleged, the great advantage 
of applying the sweeping and unambiguous language of 
§§1981, 1982 is that no complex statutory tests for cover­
age need be applied as in the ca«e of Title II of the 1964 
Civil Rights Act.5 6

In this case a threshold question on the applicability of 
§§1981 and 1982 is whether these statutes are properly be­
fore the Court. Section 1981, guaranteeing equal con­
tractual rights, was specifically pleaded in the complaint 
(A. 2, 5), and thus its applicability is properly to be de­
termined. Section 1982 was not pleaded below but this 
does not bar petitioners from relying on it here because 
this Court has made clear that the “mere failure” to raise 
a constitutional or statutory question “ prior to the an­
nouncement of a decision which might support it cannot 
prevent a litigant from later invoking such a ground” 
Curtis Publishing Co. v. Butts, 388 U.S. 130,142-143 (1967); 
Thorpe v. Housing Authority, 37 U.S.L.W. 4068, 4072 and

4 Among other points of difference between §§1981, 1982 and
Title II are these: (a) Sections 1981, 1982 contain no exceptions 
whereas Title II covers only places of public accommodation affect­
ing commerce as defined; (b) Title II prohibits discrimination 
based on religion and national origin whereas §§1981, 1982 prohibit 
only treatment different from white citizens; (c) Title II makes no 
distinction between citizens and persons—all are entitled to be free 
from discrimination, whereas §1982 guarantees to citizens property 
rights equal to white citizens, No intent to modify §§1981 or 1982 
could be found in the legislative history of Title II.

6 Much litigation has concerned simply Title II’s requirement of 
“affecting commerce.” See e.g., Fazzio Beal Estate Co. v. Adams, 
•396 F.2d 146 (5th Cir. 1968); Newman v. Piggie Park Enterprises, 
Inc., 256 F. Supp. 941 (D.S.C. 1966), rev’d, 377 F.2d 433 (4th 
Cir. 1967), mod. and aff’d on oth. gds., 390 U.S. 400 (1968).



20

accompanying notes (U.S. Jan. 13,1969). Furthermore, this 
precise issue was before this Court last term in Sullivan v. 
Little Hunting Park, 392 U.S. 657 (1968) where this Court 
vacated the judgment of the Virginia Supreme Court of 
Appeals and remanded the case for further consideration in 
light of Jones v. Mayer Co., supra, even though the Sullivan 
petitioners did not rely on §1982 in the Virginia courts.

This case, involving as it does the contractual and prop­
erty rights of blacks to use Lake Nixon Club is, therefore, 
controlled by the language of §§1981 and 1982 requiring 
equal rights. Any intimation to the contrary in the Civil 
Rights Cases, 109 U.S. 3, 16-18 (1883) has been superseded 
by the approval on Thirteenth Amendment grounds of the 
1866 Act in Jones, 392 U.S. at 426, 436, 439-41. This Court’s 
holding in Jones and the legislative history of the 1866 Act, 
from which §§1981 and 1982 are derived,6 demonstrate a 6

6 Much of the legislative history of the 1866 Civil Rights Act 
which this Court found persuasive in Jones is applicable here to 
show that the Act was intended to make blacks the practical equal 
of whites. 392 U.S. at 420-40 and accompanying notes. The spon­
sor of the 1866 Act, Senator Trumbull, repeatedly affirmed the 
Act’s intention to give blacks the rights to go or come at pleasure 
and to buy and sell without discrimination. Cong. Globe, 39th 
Cong., 1st Sess. 43, 322, 475, 599. The opponents of the Act and 
its companion bill, the Freemen’s Bureau Bill, pointed out the 
Act would permit commingling of whites and blacks in hotels, 
theaters and public conveyances. Cong. Globe, 39th Cong., 1st Sess. 
at 541 (remarks of Rep. Dawson); id. at Appendix 183, 936 (re­
marks of Sen. Davis); id. at Appendix 69 (remarks of Rep. Rous­
seau). No one disputed this view. Furthermore, in the early years 
following the Act’s passage, the common view of its friends and 
enemies that it applied to public accommodations and conveyances 
was generally accepted by various courts. IT. Flack, The Adoption 
of Fourteenth Amendment 46-47, 52-54 (1908) ;  Coger v. The North 
West Union Packet Go., 37 Iowa 145, 153-54 (1873). Cf. “ That the 
[1866 Civil Rights] bill would indeed have so sweeping an effect 
[in breaking down all discrimination between whites and blacks] 
was seen as its great virtue by its friends and as its great danger 
by its enemies but was disputed by none.” Jones v. Mayer Co., 
supra, 392 U.S. at 433 (footnotes omitted).



2 1

Congressional purpose to outlaw racial discrimination 
where, as here, access to public accommodations concerns 
rights of contract and property.

CONCLUSION

For the foregoing reasons the judgment below should 
be reversed or, in the alternative, reversed and remanded 
for reconsideration in light of Jones v. Mayer Co., 392 U.S. 
409 (1968).

Respectfully submitted,

J ack  Greenberg 
J ames M. N abrit, III 
N orman C. A m aker  
C onrad K. H arper 
N orman  J . Ch a c h k in  

10 Columbus Circle 
New York, N.Y. 10019

J ohn  W . W alker

1304-B Wright Avenue 
Little Rock, Arkansas 72206

Attorneys for Petitioners



M EIIEN  PRESS INC. —  N. Y C. «*^P=>219