Avent v. North Carolina Brief for the United States as Amicus Curiae
Public Court Documents
October 1, 1962
Cite this item
-
Brief Collection, LDF Court Filings. Avent v. North Carolina Brief for the United States as Amicus Curiae, 1962. 22dd2d7f-ba9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/ba8ef00a-0abf-462f-b98a-72792ef960ab/avent-v-north-carolina-brief-for-the-united-states-as-amicus-curiae. Accessed June 01, 2025.
Copied!
1. .
■J
! I ■
.. V
•■'v
N os. 11, 58, 66, 67, an d 71
| f n the Suprem e ajourt of the United p is te s
Octobek Teem , 1962
"
John T homas A vent, et al., petitioners
v.
S tate o f N orth Carolina
R udolph Lombard, et al., petitioners
V.
S tate of L ouisiana
J ames Gober, et al., petitioners
v.
City of B irmingham
F . L. S huttlesworth, et al., petitionersI
V.
City of B irmingham
. iv ames R ichard P eterson, et al., petitioners
' \ v.
Cit" of Greenvilley V. \ ■ ________ , -
ON WRITS OF CERTIORAtI TO I HE SUPREME COURTS OF NORTH
CAROLINA, LOUISIANA, AND SOUTH CAROLINA, AND TO THE
COURT OF APPEALS OF ALABAMA
m i.i
■■
brief for the united states as amicus curiae
ARCHIBALD COX,
v , ' Solicitor General,
RCRKE MARSHALL,
Assistant Attorney General,
RALPH S. SPRITZER,
LOUTS F. CLAIBORNE,
Assistants to the Solicitor General,
- HAROLD H. GREENE,
' HOWARD A GLICKSTEIN,
RICHARD K. BERG,
ALAN G. MARER,
Attorneys,
Department ol Justice, Washington 25, D.C.
• \
A;' . •' -t .
I N D E X
Pice
Opinions below_____________________________ 2
Jurisdiction___ _____ 3
Question presented___________________________________ 4
Interest of the United States__________________________ 5
Statement:
1. Aveni v. North Carolina, No. 11________________ 6
a. Statutes involved______________________ 6
b. The facts______________________________ 7
2. Lombard, v. State oj Louisiana, No. 58___________ 11
a. Statute involved______________________ 11
b. The facts______________________________ n
3. Gober v. City of Birmingham, No. 66____________ 22
a. Statutes involved______________________ 22
b. The facts______________________________ 22
(i) Gober and Davis________________ 22
(ii) Hutchinson and King____________ 24
(iii) Parker and West_________________ 26
(iv) Sanders and Westmoreland_______ 27
(v) Walker and Willis________________ 28
4. Shuttlesworih v. Birmingham, No. 67___________ 33
a. Statutes involved_______ 33
b. The facts______________________ 33
5. Peterson v. City of Greenville, No. 71____________ 35
a. Statutes involved_______________________ 35
b. The facts___________ ________- ......... ........ 36
Argument:
Introduction and summary_______________________ 41
I. The convictions of the petitioners in Avent, Gober,
Shuttlesworth and Peterson violate the Four
teenth Amendment because it must be con
cluded that the force of municipal laws caused
the proprietors to discriminate______________ 46
A. A municipal ordinance which requires
racial segregation in restaurants vio
lates the Fourteenth Amendment......... 49
(i)
• 58676— 62-------1
II
Argument—Continued
Introduction and summary—Continued
I. The convictions of, etc.—Continued
B. The State is responsible for the decision
of the owners of a restaurant to dis
criminate on the basis of race when
this decision is compelled by State rage
la w - ............................- _________ __________ 50
II. Although in the Louisiana case the State ad
dressed no explicit statutory command to
restaurateurs, as such, to segregate their cus
tomers, it appears that the State, by its policies
and by its laws in closely related areas, effec
tively induced the proprietor’s acts of dis
crimination. Since the case does not permit a
finding that the proprietor was merely making
a private decision, uninfluenced by official pres
sure, the State is constitutionally forbidden to
impose criminal sanctions which implement the
discrimination____________________________ 59
III. The decision in these cases should not be deter
mined by considerations pertinent solely to
rights as between the proprietors and peti
tioners.._____ _________ 7g
Conclusion____________________ 00
CITATIONS
Cases:
Ashwander v. Tennessee Valley Authority, 297 U.S. 288. 47
Bailey v. Patterson, 369 U.S. 31____________________ 49, 62
Baldwin v. Morgan, 251 F. 2d 780________________ 51
Baldwin v. Morgan, 287 F. 2d 750_______________ 49, 50, 63
Barrows v. Jackson, 346 U.S. 249___________________44, 63
Board oj Supervisors oj Louisiana State U. v. Fleming,
265 F. 2d 736__________________________________ 68
Boman v. Birmingham Transit Co., 280 F. 2d 531_____ 51
Boynton v. Virginia, 364 U.S. 454__________________ 56
Brown v. Board oj Education, 347 U.S. 4S3___________ 67
Buchanan v. Warley, 245 U.S. 60___________________ 62, 69
Burton v. Wilmington Parking Authority, 365 U.S. 715. 49,
51, 54, 63, 64
Ill
Cases—Continued
Bushy. Orleans Parish School Board, 138 F. Supp. 337,
leave to file mandamus denied, 351 U.S. 948,
affirmed, 242 F. 2d 156, certiorari denied, 354 U.S.
921, denial of motion to vacate affirmed 252 F. 2d
253, certiorari denied, 356 U.S. 969, further motion
to vacate denied, 163 F. Supp. 701, affirmed, 268 F. rage
2d78------- ------------------------------------ ----------- 68
Bush v. Orleans Parish School Board, 187 F. Supp. 42,
stay denied, 364 U.S. 803, affirmed, 365 U.S. 569___ ! 68
Bush v. Orleans Parish School Board, 188 F. Supp.
916, stay denied, 364 U.S. 500, affirmed, 365 U.S.
569_____________________________ gg
Bush v. Orleans Parish School Board, 190 F. Supp. 861,
affirmed, 366 U.S. 212______ ____________ ’ gg
Bush v. Orleans Parish School Board, 191 F. Supp. 871,
affirmed, 367 U.S. 908_______ _______________ ’ 69
Bush v. Orleans Parish School Board, 194 F. Supp. 182~
affirmed, 367 U.S. 907, 368 U.S. 11_______________ ’ 69
Bush v. Orleans Parish School Board, 204 F. Supp. 568,
modified, 205 F. Supp. 893, modified and affirmed
(C.A. 5), August 6, 1962________________________ 69
City oj Greensboro v. Simkins, 246 F. 2d 425________ 63
City oj St. Petersburg v. Alsup, 238 F. 2d 830___ ' _ 63
Civil Rights Cases, 109 U.S. 3_______________ 41, 64, 69 79
Coke v. City of Atlanta, Ga., 184 F. Supp. 579____’ 63
Cooper v. Aaron, 358 U.S. 1________________ 62, 63 70-71
Department oj Conservation and Development v Tate ’
231 F. 2d 615_______________________ ’ g3
Derrington v. Plummer, 240 F. 2d 922____ _____ 63
Dorsey v. State Athletic Commission, 168 F. Supp. 149
affirmed, 359 U.S. 533___ _______________ ’ gg
Blast Baton Rouge Parish School Board v. Davis, 287 F.
2d 380, certiorari denied, 368 U.S. 831____ .............. 68
Eubanks v. Louisiana, 356 U.S. 584____________ 71
Faubus v. Aaron, 361 U.S. 197, affirming 173 F. Sudd
9 4 4 ............. 62
Flemming v. South Carolina Electric and Gas Co 224
F. 2d 752-------------------------- ------- ------------- " 5Q
Fvlghum v. Town of Selma, 23S X.C. 100, 76 S. E. 2d
368------------ ^g
Garner v. Louisiana, 368 U.S. 157........ ........................ .. 7Q( 71
IV
Cases—Continued
^707 V' Br<>Wder’ 352 U S> 903* afL™ing 142 F. Supp. pw
Hall v. DeCuir, 95 U.S. 485_____________
Hannah v. Larche, 363 U.S. 420........ '
Harmon v. Ty/er, 273 U.S. 668.” ” ' ” ""” ” ] ' ’ “ ” 69
Home Tel. cfc Tel. Co. x. Los Angeles, 227 U.S. 2 7 8 . . . 62
./ones v. il/anra Theatres, Inc., 180 F. Supp. 4 9 . . . . ." ' 63
Kerr y. Enoch Pratt Free Library oj Baltimore City, 149
F. 2d 212......... ................................................. 63
Lawrence v. Hancock, 76 F. Supp. 1004........... * 63
Louisiana x. N.A.A.C.P., 366 U.S. 293” ” ! ” ” ” ” 69
Louisiana State Board oj Education x. Allen, 287 F. 2d
32, certiorari denied, 368 U.S. 830______________ 68
Ludley x. Board oj Supervisors oj L.S.U., 150 F. Supp.
900, affirmed, 252 F. 2d 372, certiorari denied, 358
U.S. 819.................................................................... 6g
Marsh x. Alabama, 326 U.S. 501............................... 44
Monk x. Birmingham, 87 F. Supp. 538, affirmod, 185
F. 2d 859, certiorari denied, 341 U.S. 940............... .. 47
Monroe v. Pape, 365 U.S. 167. ______ ____________ 62
Morgan x. Virginia, 328 U.S. 373................. ............' 49
Morrison x. Davis, 252 F. 2d 102, certiorari denied, 356
U.S. 968, rehearing denied, 357 U.S. 944_________ 67-68
Muir x. Louisville Park Theatrical Association, 347
U.S. 971, reversing and remanding 202 F. 2d 275 .. 63
National Labor Relations Board x. Remington Rand
Inc., 94 F. 2d 862____ _______________________ _ 55
New Orleans City Park Improvement Ass’n x. Detiege
252 F. 2d 122, affirmed, 358 U.S. 54.............. ..........68
Niemotko x. Maryland, 340 U.S. 268_______________ 62
Nixon x. Condon, 286 U.S. 73-_________________” 63
Orleans Parish School Board x. Bush, August 6, 1962
(C.A. 5 )--------------------------- --------------------- ------- 65
Pennsylvania x. Board oj Trusts, 353 U.S. 230_______ 62
Pierre x. Louisiana, 306 U.S. 3 5 4 .. ..................... .......... 69
Plessy x. Ferguson, 163 U.S. 537..................................~ 69
Poret x. Sigler, 361 U.S. 375____________________ 7l
Public Utilities Comm’n x. Poliak, 343 U.S. 451_____ 63
Rice x. Sioux City Memorial Park Cemetery, Inc 349
U S ™....................... - ............................. - ............ 48
V
Cases—Continued
St. Helena Parish School Board v. Hall, 287 F. 2d 376,
• certiorari denied, 368 U.S. 830, further relief granted, p»g»
197 F. Supp. 649, affirmed, 368 U.S. 515_________ 68
Shell Oil v. Edwards, 263 Ala. 4, 81 So. 2d 535______ 47
Shelley v. Kraemer, 334 U.S. 1......................... 43,44, 62, 63
Smiley v. City oj Birmingham, 255 Ala. 604, 52 So. 2d
710__________________________________________ 47
Smith v. AUwright, 321 U.S. 649___________________ 63
Smith v. California, 361 U.S. 147____________ _____ 57
Speiser v. Randall, 357 U.S. 513___________________ 57
State y. Clybum, 247 N.C. 455, 101 S.E. 2d 295......... 48
State v. Goldfinch, 241 La. 958, 139 So. 2d 8 6 0 ......... 19
State Athletic Commission y. Dorsey, 359 U.S. 533,
affirming 168 F. Supp. 149_____ ____ ___________ 62
Sterling v. Constantin, 287 U.S. 378........... ............... 62
Strauder v. West Virginia, 100 U.S. 303____________ 71
Taylor v. Louisiana, 370 U.S. 154_____ ____________ 71
Terminiello v. Chicago, 337 U.S. 1................................... 47
Terry v. Adams, 345 U.S. 461__________________ 63, 69-70
Thornhill v. Alabama, 310 U.S. 88_________________ 57
Truax v. Raich, 239 U.S. 33______________________ 62
Tureaud v. Board of Supervisors, 116 F. Supp. 248,
reversed, 207 F. 2d 807, judgment of court of
appeals stayed, 346 U.S. 881, vacated and re
manded, 347 U.S. 971, affirmed, 225 F. 2d 434,
reversed and remanded on rehearing, 226 F. 2d 714,
affirmed on further rehearing en banc, 228 F. 2d
895, certiorari denied, 351 U.S. 924______________ 67
Turner v. City of Memphis, 369 U.S. 350___________ 49, 62
United States v. Association of Citizens Councils of
Louisiana, 196 F. Supp. 908....................................... 71
United Slates v. Cruikshank, 92 U.S. 542___________ 69
United States v. Manning, 205 F. Supp. 172________ 71
United States v. McElveen, 180 F. Supp. 10, affirmed
sub nom. United States v. Thomas, 362 U.S. 58____ 71
Valle v. Stengel, 176 F. 2d 697____ ________________ 63
Virginia, Ex parte, 100 U.S. 339...........„........................62, 64
Virginia v. Rives, 100 U.S. 313___________________ 62
Wieman v. Updegraff, 344 U.S. 183......................... ...... 57
Williams v. Hot Shoppes, Inc., 293 F. 2d 835_______ 51
VI
Cases—Continued
Williams v. Howard Johnson’s Restaurant, 268 F. 2d p«„
---------------------------------------------------------------- 50
Wilson x. Board of Supervisors, 92 F. Sudd. 986
affirmed, 340 U.S. 909______________ ' g7
Winters v. New York, 333 U.S. 5 0 7 ,]" ” "'"” " 57
Yick Wo v. Hopkins, 118 U.S. 356.......... 62
Constitutions and Statutes:
U.S. Constitution:
First Amendment____________ g7
Fourteenth Amendment__________ _ 4
28 u .s .c . si,' i i . 64, s i
Alabama Statutes:
7 Code of Alabama (1940), § 429(1)________ 47
General City Code of Birmingham, Alabama
(1944):
®eC' ....................... - — ..............- .............. 30,33Sec. 8 2 4 .. ........... _ ~~
Sec. 1436___________ 33 34
Louisiana Constitution and Statutes:
Louisiana Constitution 1921, Art. X, § 5 1 a3
added by Act 630 of 1960, adopted’November
8, 1960----------------- ------------------- ---------- 6g 71
Louisiana Act 194 of 1954.................. ' ............. ’ g7
Louisiana Act 630 of 1960, Preamble...'/.” ] ] ] ' ’ 69
Louisiana Civil Code, Art. 94________ ~~ 66
Louisiana Revised Statutes of 1950, as amended’
4:3-4------------ ------- - ‘ fi7
4 :451 ...................._......... ..............] ] ] ] ’ ” ' 1
4 : f 2----------------------- 65)66
9 :2 0 l] ] ] ] ] ] ] ]” ” ” " gg
13:917, 13:1219________________] ] ] ] ' ” ” gg
14:59(6), as amended 1960 ” i i u
14:79........... ' I 5
15:422(6)............... ................” ” ................7g
15:752, 15:854_____ gg
15:1011, 15:1031.. *1
17:10-12........................................................................“
17:107, 17394.1, 17:895.1-4, 17:2801,
17:2901, et seq................. ..................... 65
vn
Constitutions and Statutes—Continued
Louisiana Constitution and Statutes—Continued
Louisiana Revised Statutes of 1950—Continued
17:331-334, 17:341-344 (former sections—re-
pealed in 1960)________________________ 65
17:443, 17:462, 17:493, 17:523_____ 71
18:195__________________________________ 65
18:1174.1____ 65
22:337, 22:345____________ ______________ 66
23:971-975______________________________ 65
23:972___________________________ 66
33:4558.1____ 65
33:4771_________________________________ 65
33:5066-5068_________ 65
40:244_____________________ 65
40:246............... 66
46:181_________ 66
New Orleans City Code, §§ 5-2(1), 5-61.1_______ 66
North Carolina Statutes:
North Carolina General Statutes, § 14-134______ 6
Code of Durham, North Carolina (1947), ch. 13,
§42____ 6
South Carolina Statutes:
Code of Greenville, South Carolina, 1953, as
amended in 1958, § 31-8________ 35
Code of Laws of South Carolina, 1952, as amended
1960, § 16.388-.............................. ................ ........ 36
Miscellaneous: i
Henkin, Shelley v. Kraemer: Notes for a Revised Opinion,
110 U. of Pa. L. Rev. 473____________ 43
Reporter’s Notes to Louisiana Revised Statutes of
1950,33:5066............... 69
< P the Jsujjreme <f(mtrt o f the ttn ite i S ta tes
October T erm, 1962
No. 11
J ohn T homas A vent, et al., petitioners
v.
S tate of N orth Carolina
No. 58
R udolph L ombard, et al., petitioners
v.
S tate of L ouisiana
No. 66
J ames Gober, et al., petitioners
v.
City of B irmingham
No. 67
F. L. S huttlesworth, et al., petitioners
V.
City of B irmingham
No. 71
J ames R ichard P eterson, et al., petitioners
v.
City of Greenville
■ON WRITS OF CERTIORARI TO THE SUPREME COURTS OF NORTH
CAROLINA, LOUISIANA, AND SOUTH CAROLINA, AND TO THE
COURT OF APPEALS OF ALABAMA
(1)
2
BRIEF FOE THE UNITED STATES AS AMICUS CURIAE1
OPINIONS BELOW
The opinion of the Supreme Court of North Caro
lina in Avent (A. 72-90) 2 is reported at 253 N.C 580
118 S.E. 2d 47.
The opinion of the Supreme Court of Louisiana in
Lombard (L. 141-151) is reported at 241 La. 958, 132
So. 2d 860. The opinion of the Criminal District
Court of Orleans Parish overruling petitioners’ mo
tion to quash (L. 28-86) is not reported.
The opinion and orders of the Alabama Court of
Appeals (G. 57-64, 88, 124, 144, 178, 194, 220, 236,
262, 278) and the orders of the Supreme Court of
Alabama (G. 69, 92, 128, 144, 182, 194, 224, 236, 266,
278) in Gober are reported, inter alia, at 133 So 2d
697-708.
The opinions of the Alabama Court of Appeals
(S. 42-44, 67) and the orders of the Supreme Court
of Alabama (S. 46, 69) in Shuttleswortli are reported
at 134 So. 2d 213.
1 This brief will not consider Wright v. Georgia, No. 68.
Since that case involves arrests for unlawfully assembling on
municipal property, it does not present the paramount tssue
considered in the cases discussed in this brief as to the rights of
private businesses to exclude Negroes from all or a portion of
them premises. We believe, however, that the convictions in
Wright should be reversed for reasons advanced by the petitioners
in that case. The United States, as amicus curiae, is filing a
separate brief in Griffin v. Maryland, No. 26, this Term.
* Th® records in Avent v. North Carolina, No. 11, Lombard
v. Louisiana, No. 58, Gober v. Birmingham, No. 66, Shuttles-
worth v. Birmingham, No. 67, and Peterson v. Greenville No
71, are referred to as “A.,” “L.,” “G.,” “S.,” and “P. ” respec
tively. ’ 1
3
The opinion of the Supreme Court of South Caro
lina in Peterson (P. 55-59) is reported at 122 S.E.
2d 826. The opinion of the Greenville County Court
(P. 50-52) is not reported.
JURISDICTION
The judgment of the Supreme Court of North
Carolina in Avent was entered on January 20 1961
(A. 90).
The judgment of the Supreme Court of Louisiana
in Lombard was entered on June 29, 1961 (L. 149).
The judgments of the Alabama Court of Appeals
in Gober were entered on May 30, 1961 (G. 57. 88,
124, 144, 178, 194, 220, 236, 262, 278). Petitions to
the Supreme Court of Alabama for writs of certiorari
were denied on September 14, 1961 (G. 69, 92, 128,
144, 182, 194, 224, 236, 266, 278); and applications
for rehearing were overruled on November 2, 1961
(G. 71, 92, 128, 144, 182, 194, 224, 236, 266, 278.)
The judgments of the Alabama Courts of Appeals
in Shuttlesworth were entered on May 30, 1961 (S.
43, 66). Application for rehearing before the Court
of Appeals of Alabama was denied on June 20, 1961
(S. 45, 68). A petition to the Supreme Court of
Alabama for a writ of certiorari was denied on Sep
tember 25, 1961 (S. 46, 69), and application for re
hearing was overruled on November 16, 1961 (S 51
74).
The judgment of the Supreme Court of South Car
olina in Peterson was entered on November 10, 1961
(P. 55), and a petition for rehearing was denied on
November 30,1961 (P. 62).
4
The petitions for writs of certiorari were granted
by this Court on June 25, 1962 (370 U.S. 934-935;
A. 92, L. 152, G. 279, S. 75, P. 65). The jurisdiction
of this Court rests upon 28 U.S.C. 1257(3).
QUESTIONS PRESENTED
Petitioners are Negroes who were invited into de
partment and variety stores as customers. They were
refused service at lunch counters or in lunch rooms
under the proprietor’s practice of enforcing racial
segregation in the store’s dining facilities. In Nos.
11, 66, 67 and 71, there was little evidence as to
motive, but the proprietor’s practice of racial dis
crimination in fact conformed to current municipal
ordinances requiring racial segregation in public
eating places. In No. 58, although there was no
ordinance specifically requiring segregation in public
eating places, the proprietor’s practice of racial dis
crimination knowingly conformed to a current and
pervasive State policy of maintaining racial segre
gation expressed in numerous legislative enactments
and official declarations. Petitioners in each case re
fused to leave the lunch counters or lunch rooms upon
being denied service. They were arrested and con
victed of criminal trespass or a similar offense.
The questions presented are:
1. Whether, upon the records in Nos. 11, 66, 67 and
71, the convictions are sufficiently related to the ordi
nances requiring racial segregation that they should
be set aside on the ground that they result from a
denial of equal protection of the laws in violation of
the Fourteenth Amendment.
5
2. Whether, upon the record in No. 58, the convic
tions are sufficiently related to the State laws and
policies maintaining racial segregation that they
should be set aside on the ground that they result
from a denial of equal protection of the laws in
violation of the Fourteenth Amendment.
INTEREST OF THE UNITED STATES
The fundamental constitutional issue in these cases
is to what extent the Fourteenth Amendment con
demns, as a denial of equal protection of the laws,
enforcement by the States of racial segregation in
private businesses open to the general public. This
problem involves not only the power of the States but
also the constitutional rights of millions of American
citizens. On the one hand, millions of Negroes (as
well as some other groups) are subjected to racial
discrimination in private businesses open to the
public. The “sit-in” activities resulting in peti
tioners’ convictions were part of a widespread peace
ful protest against this practice. Petitioners claim
that the involvement of the States in their convic
tions violates the equal protection clause of the
Fourteenth Amendment. On the other hand, the
respondents invoke both the power of the States to
preserve order and also the freedom and responsi
bility of individuals to make their own decisions
concerning the use of private property and choice
of associates. Thus, the basic issue in these cases
involves the competing claims of large numbers of
citizens, and of the States, and is of grave importance
to the country as a whole.
6
The petitions for certiorari in each of these cases
urge various grounds for reversal. Since the primary
interest of the United States is in the fundamental
question which is described above, we will confine this
brief on behalf of the United States to a discussion
ot that question.
STATEMENT a
1. A VENT V. STATE OF NORTH CAROLINA, NO. 11
a Statutes Involved,—Chapter 13, Section 42, of the
Code of Durham, North Carolina (1947), provides:
In all licensed restaurants, public eating
places and ‘weenie shops’ where persons of the
white and colored races are permitted to be
served with, and eat food, and are allowed to
congregate, there shall be provided separate
rooms for the separate accommodation of each
race. The partition between such rooms shall
be constructed of wood, plaster or brick or like
material, and shall reach from floor to the ceil
ing. Any person violating this section shall
upon conviction, pay a fine of ten dollars and
each day’s violation thereof shall constitute a
separate and distinct offense.
Petitioners were convicted of violating Section 14-134
of the North Carolina General Statutes, which
provides:
Trespass on land after being forbidden. * * *
I f any person after being forbidden to do so
shall go or enter upon the lands of another, with
out a license therefor, he shall be guilty of a mis-
______demeanor and on conviction, shall be fined not
• Wo have set forth fully only the facts of each of the cases
briefmay *° * * legal « that consider in S s
7
exceeding fifty dollars or imprisoned not more
than thirty days * * *.
b. The Facts.—On May 6, 1960, petitioners, five Ne
gro students from North Carolina College and two
white students from Duke University, both of which
are in Durham, North Carolina, entered Kress’ De
partment Store in Durham (A. 1, 2, 4, 5, 6, 8, 9, 35).
On the two selling floors of the store, there are ap
proximately fifty counters (including a “ standup”
lunch counter) which serve Negroes and whites with
out racial distinction (A. 21, 22). No sign at the
store’s entrance barred or conditioned Negro patron
age (A. 22). Petitioners made various purchases, as
some of them had in the past, and eventually went to
the basement lunch counter (A. 21, 35, 39, 41, 43, 46,
47, 48) .4 There a sign stated “ Invited Guests and
Employees Only” (A. 23). The manager testified that,
although no invitations as such were sent out, white
persons automatically were considered guests; Ne
groes, and whites accompanied by Negroes, were not
* Petitioners were participants in an informal student or
ganization which opposed racial segregation. They believed
that they had a right to service at Kress’ basement lunch
counter after having been customers in other departments (A.
36, 40, 44-45). Some had previously picketed the store to pro
test its policy of welcoming Negroes’ business while refusing
them lunch counter service (A. 41, 43, 46, 48, 49). Some of the
petitioners had requested and had been denied service on pre
vious occasions at Kress’ lunch counter (A. 37). Some of the
petitioners testified that they expected to be served at the base
ment lunch counter because they had been served upstairs (A.
39, 48, 49). Various petitioners testified that they did not
expect to be arrested for trespassing on this oi-c.ision (A. 37, 38,
41, 43, 48, 49).
8
(A. 21-23).* The counter was separated from other
departments by an iron railing (A. 21). The store
manager testified that the entrances to the counter
were chained, but petitioner Streeter denied this (A 21
37). ' ’
The manager declined to serve the students and
asked them to leave (A. 21). He stated that if Ne
groes wanted service they might obtain it at a stand-
up counter upstairs (A. 22). The manager then
called the police (A. 21). After being asked by the
police officers to leave, petitioners persisted in their
refusal and were arrested for trespass (A. 21, 24-25).a
‘ Thes manager testified that “the luncheonette was open for
the purpose of serving customers food. Customers on that date
were invjted guests and employees” (A. 21). He testified fur
ther that We had signs all over the luncheonette to the effect
that it was open for employees and invited guests. Mr Pear
son [petitioners’ Negro attorney], I do not consider you an in-
vited piest, under the circumstances right now. I do consider
Mr. Murdock [the State Solicitor] an invited guest under the
circumstances” (A. 22). He also testified: “I would serve this
young lady (indicating the white female defendant), but I asked
her to leave when she gave her food to a Negro. She was my
invited guest at that time, up until the time that I asked her to
leave (A. 2-3).
Portions of the record suggest that the police were already
present at the time the manager first asked the students to
eave (A. 35, 40, 42, 44, 47, 48). For example, petitioner Phil
bps testified that “When I took a seat at the lunch counter
I was approached by Mr. W. K. Boger, who said, ‘You are not
an invited guest and you are not an employee; so I am asking
you b) leave. Before I could ask him who he was, the police
officer directed me to the back of the store” (A. 40).
• I t is not clear whether, after the arrival of the’police officer
S t h T s S f 2 5 ) Sam aSkGd Petiti°nerS leave (^mpare A. 21
Petitioner Nelson, one of the white students, was asked to
leave after she offered food to Negroes. The manager tohTher
9
The Kress manager explained his refusal to serve
the students at the trial (A. 22-23) :
* * * I t is the policy of our store to wait on
customers dependent upon the customs of the
community. * * * I t is the policy of our
store to operate all counters in the interest of
the customs of the community. * * * In the
interest of public safety it is our policy to re
fuse to serve Negroos at the luncheonette down
stairs in our seating arrangements. I t is also
the policy of Kress to refuse the patronage of
white people in the company of Negroes at that
counter. Even if Negroes accompanied by
white people were orderly at our luncheonette
because of the policy of the community we
would not serve them, and that was our policy
prior to May 6, 1960. * * * I t is not the cus
tom of the community to serve Negroes in the
basement luncheonette, and that is why we put
up the signs, “ Invited Guests and Employees
Only.”
Petitioners were indicted in the Superior Court of
Durham County, the indictments stating that each
petitioner (A. 1-10):
with force and arms, * * * did unlawfully,
willfully, and intentionally after being for
bidden to do so, enter upon the land and tene
ment of S. H. Kress and Co. store * * * said
S. H. Kress and Co., owner, being then and
there in actual and peaceable possession of said
premises, under the control of its manager and
that she was “antagonizing the customers” (A. 42). Petitioner
Brown was told by the manager that “[t]ho custom has not been
changed, and you will have to leave” (A. 44).
65S676— C2------ 2
10
agent, W. K. Boger, who had, as agent and
manager, the authority to exercise his control
over said premises, and said [petitioner] after
being ordered by said W. K. Boger, agent and
manager of said owner, S. H. Kress and Co.,
to leave that part of the said store reserved for
employees and invited guests, willfully and un
lawfully refused to do so knowing or having
reason to know that * * * [petitioner] had no
license therefor, against the form of the statute
in such case made and provided and against
the peace and dignity of the state.7
Petitioners pleaded not guilty and were tried by a
jury on June 30 and July 1, 1960 (A. 15-26). The
jury returned a verdict of guilty (A. 16). Three of
the petitioners received thirty-day sentences, one re
ceived a twenty-day sentence, one received a fifteen-
day sentence, and, in two cases, sentence was continued
for two years (A. 16-20).
On January 20, 1961, the Supreme Court of North
Carolina affirmed the convictions (A. 73). In a
lengthy opinion, the court emphasized that (A. 78) :
No statute of North Carolina requires the ex
clusion of Negroes and of W hite people in com
pany with Negroes from restaurants,8 and no
statute in this State forbids discrimination by
the owner of a restaurant of people on account
of race or color, or of White people in company
with Negroes. In the absence of a statute for-
TThe indictments of all the petitioners carried a racial desig
nation, viz., “CM,,” “WM,” “CF,” and “WF” (A 2 3 5 6 7
9, 10). ’ ’ ’ ’ ’
8 A municipal ordinance in Durham, however, does require
segregation in restaurants. See supra, p. 6.
11
bidding discrimination based on race or color
in restaurants, the rule is well established that
an operator of a privately owned restaurant
privately operated in a privately owned build
ing has the right to select the clientele he will
serve, and to make such selection based on
color, race, or White people in company with
Negroes or vice versa, if he so desires. He is not
an innkeeper. This is the common law. * * *
2. LOMBARD V. STATE OF LOUISIANA, NO. 5S
a. Statute Involved.—The Louisiana statute under
which petitioners were convicted is La. R.S. 14:59(6),
as amended 1960, which provides:
Criminal mischief is the intentional perform
ance of any of the following acts:
* * * * *
(6) Taking temporary possession of any part
or parts of a place of business, or remaining in
a place of business after the person in charge
of such business or portion of such business
has ordered such person to leave the premises
and to desist from the temporary possession of
any part or parts of such business.
The statute states that “ [wjhoever commits the crime
of criminal mischief shall be fined not more than
$500.00, or imprisoned for not more than one year, or
both.”
b. The Facts.—On September 10, 1960, one week
prior to the “sit-in” demonstration out of which this
case arose, a group of Negroes conducted at Wool-
worth’s Department Store in New Orleans, Louisiana,
the first “sit-in” demonstration to occur in that city.
On the same day, the New Orleans Superintendent of
12
Police issued the following statement, which was pub
lished in the New Orleans Times-Picayune (L. 17,139-
140):
The regrettable sit-in activity today at the
lunch counter of a Canal St. chain store by sev
eral young white and Negro persons causes me
to issue this statement to the citizens of New
Orleans.
We urge every adult and juvenile to read this
statement carefully, completely and calmly.
First, it is important that all citizens of our
community understand that this sit-in demon
stration was initiated by a very small group.
We firmly believe that they do not reflect the
sentiments of the great majority of responsible
citizens, both white and Negro, who make up our
population.
We believe it is most important that the
mature responsible citizens of both races in this
city understand that and that they continue the
exercise of sound, individual judgment, good
will and a sense of personal and community
responsibility.
Members of both the white and Negro groups
in New Orleans for the most part are aware of
the individual s obligation for good conduct_
an obligation both to himself and to his com
munity. With the exercise of continued, re
sponsible law-abiding conduct by all persons,
we see no reason for any change whatever in
the normal, good race-relations that have tra
ditionally existed in New Orleans.
At the same time we wish to say to every
adult and juvenile in this city that the police
department intends to maintain peace and or
der.
13
No one should have any concern or question
over either the intent or the ability of this de
partment to keep and preserve peace and order.
As part of its regular operating program, the
New Orleans police department is prepared to
take prompt and effective action against any
person or group who disturbs the peace or
creates disorder on public or private property.
We wish to urge the parents of both white
and Negro students who participated in today’s
sit-in demonstration to urge upon these young
people that such actions are not in the com
munity interest.
Finally, we want everyone to fully under
stand that the police department and its per
sonnel is ready and able to enforce the laws of
the city of New Orleans and the state of
Louisiana.*
On September 13, 1960, four days prior to the “sit-
in” demonstration out of which this case arose, Mayor
DeLesseps Morrison also issued a statement which was
printed in the Times-Pica ijune. The Mayor said (L.
14, 15, 138-139):
I have today directed the superintendent of
police that no additional sit-in demonstrations
or so-called peaceful picketing outside retail
stores by sit-in demonstrators or their sympa
thizers will be permitted.
The police department, in my judgment, has
handled the initial sit-in demonstration Friday
• At the trial of the petitioners in Lombard, the Superintend
ent of Police testified that the reason for his statement was that
he “was hoping that situations of this kind would not come up
in the future to provoke any disorder of any kind in the com
munity” (L. 17).
14
and the follow-up picketing activity Saturday
in an efficient and creditable manner. This is
in keeping with the oft-announced policy of the
New Orleans city government that peace and
order in our city will be preserved.
I have carefully reviewed the reports of these
two initial demonstrations by a small group of
misguided wnite and Negro students, or former
students. I t is my considered opinion that re
gardless of the avowed purpose or intent of the
participants, the effect of such demonstrations
is not in the public interest of this communitv.
Act 70 of the 1960 Legislative session rede
fines disturbing the peace to include “the com
mission of any act as would foreseeably disturb
or alarm the public.”
Act 70 also provides that persons who seek
to prevent prospective customers from entering
private premises to transact business shall be
guilty of disorderly conduct and disturbing the
pG&C0 •
Act 80—obstructing public passages—pro
vides that “no person shall wilfully obstruct
the free, convenient, and normal use of any
public sidewalk, street, highway, road, bridge,
alley or other passage way or the entrance, cor
ridor or passage of any public building, struc
ture, water craft or ferry by impeding, hin-
enng, stifling, retarding or restraining traffic
or passage thereon or therein.”
. ATt is determination that the communitv
interest, the public safety, and the economic
welfare of this city require that such demon-
15
strations cease and that henceforth they be pro
hibited by the police department.10
On September 17, 1960 (one week after the Super
intendent’s statement and four days after the Mayor’s
statement), the petitioners here, three Negroes and
one white person, sat down at counter seats at the
white refreshment counter at McCrory’s Five and Ten
Cents Store in New Orleans. McCrory’s, which “ ca
ters to the general public,” is a branch of a national
chain doing business in 'Mrty-four states (L. 19).
Although no sign indicated any racial restriction
as to service, the counter where petitioners sat had
been restricted to white patronage since 1938 (L. 105,
110). The counter manager (Mr. Graves) advised
petitioners that he could not serve them there and that
10 The Mayor testified at petitioners’ trial that the superin
tendent of police “serves under [the Mayor’s] direction,” and
that “[i]t is the policy of my office and that of the City Govern
ment to set the line or direction of policy to the police depart
ment” (L. 13). The Mayor further testified that his statement
was issued “following the initial sit-in and follow-up demon
stration the next day, I believe by picketing in the same area,
and I outlined to the police department and the community
the two acts of the Legislature 70 and 80 which dealt with this
matter and gave the reasons in the public interest that we
should carry out the intent and purpose of the law” (L. 14).
He testified that his statement “encompasse[d] any laws cov
ering questions of disturbing the peace, of public acts which
would create a disturbance or confusion, disturbances of the
peace, and specifically quoted these two acts because they are
of recent nature and somewhat specific in regard to the ques
tion, but I have a feeling that matters of this kind, when per
sons engage in this type of demonstration as a natural consequence
will create disturbances of the peace and in many cases set off
chain reactions that can be much more serious” (L. 16).
16
they could be served at a colored counter in the rear
of the store (L. 105, 110). The petitioners made no
reply (L. 105). Although petitioners were not cre
ating a disturbance or doing anything except sitting
at the counter (L. 108), Mr. Graves closed the coun
ter because Negroes were present (L. 105, 108). Peti
tioners nonetheless remained seated. The police were
called by store personnel (L. 107), and the store man
ager, Mr. Barrett, arrived (L. 112). Shortly there-
a ter several police officers arrived (L. 112). Mr.
Barrett informed the police that he wanted the Ne
groes to leave, but an officer informed him that he
must request them to leave in the presence of the po
lice (L. 126). The police then witnessed Mr. Barrett’s
request to the petitioners that they leave the counter
area (L. 113). When petitioners did not leave, a po
lice officer, Major Reuther, informed them that they
were viffiatiHg the law “and if the manager insisted
that they move we would have to put them under
arrest (L. 129). After a short period, the police
arrested petitioners (L. 129), who were charged with
criminal mischief under La. R.S. 14:59(6), supra,
p» 10.
Testimony was adduced at a hearing on petitioners’
motion to quash the information and at the trial on
the merits concerning the reasons that petitioners
were not served at the counter. The store manager
testified that he exercises discretion as to whether Ne-
groes should be served11 (L. 21), and that “ [tjhe policy
11 Mr. Barrett testified that he was authorized bv «
“r > McCrory’s chain delen irinT X
policies of the New Orleans More (L. 21). The (rial“court
17
[as to serving Negroes] is determined by local tradi
tion, law and custom, as interpreted by me” (L. 21).
The manager testified further that when, as occasion
ally happened, Negroes sought service at a white lunch
counter he “would tell them we had a colored counter
in the back, because they might be passing through
from the North and not understand Southern cus
toms” (L. 117-118).12
When asked whether “in the last 30 to 60 days [he
had] entered into any conference with other depart
ment store managers here in New Orleans relative to
sit-in problems” (L. 22) the manager replied that
“ [w]e have spoken of i t” (L. 23).
Mayor Morrison and the Superintendent of Police
testified concerning the custom in New Orleans with
respect to segregated eating facilities. The Mayor
stated that to his personal knowledge no lunch coun
ter in the city served both Negroes and whites to
gether (L. 15). The Superintendent of Police testi
fied that, in his experience as a member of the police
force for fifteen years, and as a resident of New Or
leans, he had not known of “any public establishments
that cater to both Negroes and whites at the same
lunch counter in the city of New Orleans” (L. 18).
The trial court refused to allow a series of questions
designed to ascertain whether the manager’s decision
sustained objections to questions designed to reveal the practice
of McCrory’s stores in other states (L. 19-20, 22) and the
power of the national office to overrule a manager’s decision
(L. 22).
11 Mr. Barrett also replied “[y]es, sir” to counsel’s question
whether his decision was based on “state policy and practice
and custom in this area” (L. 25).
18
was dictated or influenced* by “state policy.” Thus,
Mr. Barrett was not permitted to say whether he
discussed methods and means to handle these situa
tions if they arise in any particular department
store (L. 23), although counsel observed that the
‘purpose of this Your Honor is a question of conform
ity with state policy” (L. 23). Again, the manager
was not allowed to reply to questions as to whether “ if
the state policy or practice would be different you
would exercise your discretion in a different manner”
and whether “ if there was no custom of segregated
lunch counters or no state policy, the general atmos
phere would be different, would you allow Negroes to
eat at white lunch counters” (L. 25, 26). Similarly,
the trial court ruled out a question to Mr. Graves, the
counter manager, as to “why [he was] not allowed
to serve them,” despite counsel’s contention that the
question was “ material, because if Mr. Graves felt
there was some state policy that prevented him from
serving these defendants this is a clear state action”
(L. 109-110).13
The trial court also excluded a series of questions
designed to ascertain whether the police had been
actively involved in the manager’s decision to refuse
service to petitioners. Captain Cutrera, one of the
arresting officers, was not permitted to say whether
“ Petitioners introduced into evidence a series of bills, some of c
which were ultimately enacted into law, of the 1900 session of
the Louisiana state legislature. Petitioners contended that these
bills and statutes (including the criminal mischief statute
under which petitioners were convicted) demonstrated a state
policy of racial discrimination (see L. 26-27 and the opinion of
the Louisiana Supreme Court, quoted infra, p. 19).
19
“ there was any plan approved by the police as
to what [the store personnel] should do in the event
of a sit-in” (L. 127-128). And Mr. Barrett was not
allowed to reply to the question whether he had “ever
met with members of the New Orleans Police Depart
ment and discussed problems of sit-in demonstrations
and how you or how they should be handled if they
arise in your store?” (L. 23). Similarly, counsel was
not allowed to determine whether Mr. Graves had
called the police “on his own initiative;” the question
was asked in order to learn whether he had “any
plan * * * with the police” (L. 107).“
Petitioners were convicted of violating the
“ criminal mischief” law, sentenced to sixty days in
jail, and fined $350 each (L. 8). The convictions
were affirmed by the Supreme Court of Louisiana.
State v. Goldfinch, 132 So. 2d 860, 241 La. 958 (1961)
(L. 141-149). The State Supreme Court rejected the
contention that “by content, reference and position
of context [the statute] is designed to apply to, and
be enforced in an arbitrary manner against, members
of the Negro race and those acting in concert with
them” (L. 145), stating (L. 145-146):
* * * In aid of this assertion certain House
bills of the Louisiana legislature for 1960, intro
duced in the same session with the contested
statute, were offered in evidence. All of these
bills did not become law, but some did. I t is
declared that this law and the others enacted
“ Mr. Graves did testify at another point that he had called
the police “as a matter of routine procedure,” and that he had
“no particular plan” for the handling of sit-ins; they were to be
handled like any other emergency situation (L. 106).
20
during the same session were designed to apply
to and be enforced against, in an arbitrary
manner, members of the Negro race. We have
carefully reviewed the provisions of these bills
referred to which were enacted into law and
nowhere in their content or context do we find
that any of them seek to discriminate against
any class, group, or race of persons. We there
fore find no merit in this contention and, ac
cordingly, dismiss it as being unsupported.
The court also considered the contention that “ the
action of the manager of McCrory’s was provoked or
encouraged by the state, its policy, or officers,
and * that this action of McCrory’s was not its
own voluntary action, but was influenced by the offi
cers of the state” (L. 146). I t held (L. 146-147):
The conclusion contended for is incompatible
with the facts. Rather, the testimony supports
a finding that the manager of McCrory’s had
for the past several years refused service to
Negroes, that the policy of the store was estab
lished by him, that he had set out the policy
and followed it consistently; that Negroes had
habitually been granted access to only one
counter within the store and a deliberately
provoked mischief and disturbance such as the
one he complained of here had not previously
occurred. * * *
Even under the provision of the questioned
statute it is apparent that a prosecution is
dependent upon the will of the proprietor, for
only after he has ordered the intruder to re
linquish possession of his place of business does
a violation of the statute occur. The state
therefore, without the exercise of the pro-
21
prietor’s will can find no basis under the statute
to prosecute.
These facts lead us to the conclusion that the
existence of a discriminatory design by the
state, its officers or agents, or by its established
policy, assuming such could have been shown,
would have had no influence upon the actions of
McCrory’s. The action of bringing about the
arrest of the defendants, then, was the inde
pendent action of the manager of the privately
owned store, uninfluenced by any governmental
action, design, or policy—state or municipal—
and the arrest was accomplished in keeping
with McCrory’s business practice established
and maintained long before the occasion which
defendants seek to associate with a discrimina
tory design by the state. * * *
The court further held that no constitutional provi
sion prevented a proprietor of a restaurant from re
fusing service on the basis of race. I t said (L. 148) :
The defendants have sought to show through
evidence adduced at the trial that there is no
integration of the races in eating places in
New Orleans and, therefore, the custom of
the state is one that supports segregation and
hence state action is involved. * * *
In answer to this contention, the court stated that
“segregation of the races * * * is not required by
any * * * law of the State * * * but is the result of
the business choice of the individual proprietors, both
white and Negro, catering to the desires and wishes of
their customers, regardless of what may stimulate and
form the basis of the desires” (L. 148).
22
3. GOBER V. CITY OF BIRMINGHAM, NO. G6
a. Statutes Involved.—Section 369 of the General
City Code of Birmingham, Alabama (1944), provides:
Separation of races.—It shall be unlawful to
conduct a restaurant or other place for the
serving of food in the city, at which white and
colored people are served in the same room,
unless such white and colored persons are ef
fectually separated by a solid partition extend
ing from the floor upward to a distance of
seven feet or higher, and unless a separate en
trance from the street is provided for each com
partment.
Petitioners were convicted of violating Section 1436
of the General City Code of Birmingham, Alabama
(1944), which provides:
After warning.—Any person who enters into
the dwelling house, or goes or remains on the
premises of another, alter being warned not to
do so, shall on conviction, be punished as pro
vided in Section 4, provided, that this Section
shall not apply to police officers in the discharge
of official duties.
b. The Facts.—This case involves ten different peti
tioners. On March 31, 1960, the petitioners, in five
groups of two, entered five department stores in the
City of Birmingham. The facts relating to each of
the cases are as follows:
(i) Gober and Davis.—Petitioners entered Pizitz’s
Department Store in Birmingham, Alabama (G. 43,
50). Petitioner Davis purchased stocks, toothpaste'
and a handkerchief (G. 43). They then proceeded to’
the mezzanine lunch counter where they attempted to
23
order, but were ignored by the waitresses (G. 44).
Although only white persons were seated at the lunch
counter at the time, there was no sign indicating that
the counter was reserved for whites (G. 44, 50).
Petitioners were approached by Mr. Pizitz, assistant
to the president of the store. Pizitz, who did not
identify himself to petitioners, told them that Negroes
were served elsewhere in the store (G. 23, 44-45).
They were not directly asked to leave the store or the
area in which they were sitting (G. 45). Mr. Pizitz’s
conversation with petitioners was described as follows
(G. 23-24) :
He asked the defendants to leave the tea
room area, told them that they could be served
in the Negro restaurant in the basement.
* * * * *
He told them that they couldn’t be served
there and we had facilities in the basement to
serve them. * * * He told them it would be
against the law to serve them there. * * *
Mr. Gottlinger, the controller of Pizitz’s, testified
that no official of Pizitz called the police (G. 26).
He also testified that no official of the company filed a
complaint (G. 27).
Police Officer Martin of the Birmingham Police
made the arrests (G. 19). He had received a report
from a superior officer that there was a disturbance
at Pizitz’s (G. 19). He went to the dining area,
found it closed to customers, and saw two Negro
men seated and conversing together (G. 18-19).
Martin heard no one speak to petitioners (G. 19).
Following the direction of his superior, and without
24
himself warning petitioners, Martin placed them
under arrest and charged them with trespassing after
warning (G. 20).
(ii) Hutchinson and King.—Petitioners took seats
at tables in the mezzanine dining area at Loveman’s
Department Store (G. 107, 115). Loveman’s is a gen
eral department store and invites Negro trade in all
departments with the exception of dining facilities
(G. 114, 120). The dining room is a concession run
by the Price Candy Company but follows Loveman’s
policies and regulations (G. 114).15
Soon after petitioners were seated, Mr. Kidd, a
member of the store’s protective department, ap
peared.1" At the trial, he described what occurred in
these terms (G. 115) :
There was two colored boys sitting on the
mezzanine and I notified the people who were
milling around, I notified all of the people,
white people, to leave as we were closing the
mezzanine in their presence—I did not directly
speak to the two colored boys w'ho were sitting
at a table * * V T
Mr. Kidd announced three times that the dining
area was closed and put up signs to that effect (G.
15 Mr. Schmid, the dining area concessionaire, testified that
he knew of no dining facilities in Loveman’s for Negroes
(G. 113-114). However, Mr. Kidd of Loveman’s protective
department testified that the store did have separate dining
facilities for Negroes (G. 119).
M Apparently, a restaurant employee called the protective
department (G. 112). According to Mr. Schmid, this had
been done since, “naturally,” there was a “disturbance of the
peace” (G. 112). The only actual disturbance described, how
ever, was that “* * * the waiters went oil the floor” (G. 112).
,T Mr. Schmid likewise did not speak to petitioners (G. 110).
25
116).18 About forty or fifty people were seated at
the time these announcements were made, and some of
them apparently stayed and finished their lunches
(G. 111).
About twenty-five white patrons were seated when
the police arrived, but none were arrested (G. 113).l*
There is nothing in the record to indicate who called
the police.80 Police officer Martin, who arrested peti
tioners, had been told by a motorcycle policeman to go
to Loveman’s (G. 107). At the dining area, he ob
served a rope tied from one post to another and a sign
stating that the area was closed (G. 107). He saw
two Negro men at a table but had no conversation
with them “other than to tell them they were under
arrest” (G. 107). Officer Martin did not know of
his own personal knowledge that anyone from Love-
man’s had asked petitioners to leave but believed that
his superior officer knew this (G. 10S).21 Martin
18 When asked what caused him to close the lunchroom, Kidd
testified: “The commotion that was on the mezzanine. I did
not know what was the cause of the commotion. When I
began closing the place down then I noticed after the crowd
had dispersed that the two colored boys were occupying a
table” (G. 117). The commotion Kidd referred to was the
people standing up and milling around (G. 117).
19 Mr. Kidd testified, however, that everyone left immediately
when he announced the closing of the lunch-room (G. 118).
90 Mr. Schmid did not know who called the police and testi
fied that his secretary and cashier had instructions to call the
store detective in case of disturbances (G. 112).
21 Apparently at about the time of the arrest, Police Lieu
tenant Purv is approached Mr. Schmid and stated that “someone
called us that you had two people in here that were trying to
be served * * *” (G. 112). Schmid pointed to petitioners (G.
112).
6.VS676— 62------3
26
charged petitioners with trespass after warning (G
109).
(iii) Purker and West.—Petitioners entered New
berry s, a variety store open to the general public (G.
158, 165). There are two lunch counters in New
berry’s for white customers—one on the first floor
where these “sit-ins” occurred and one in the base
ment (G. 163). There is a Negro lunch counter on
the fourth floor which has a “for colored only” sign
(G. 163, 166).
At least one of the petitioners made purchases of
paper and books (G. 170). They then sat at the lunch
counter (G. 158-159). No sign at the lunch counter
indicated that it was reserved for whites (G. 166,
171). When Mrs. Gibbs, the store detective, saw the
petitioners, she (G. 162) :
went over to the lunch counter * * *
., - and identified myself and told them that they
would have to leave, they couldn’t be served
., there, but if they would go to the fourth floor
we ha\e a snack bar for colored there and thev
would be served on the fourth floor.
Assistant Store Manager Stallings also spoke with
petitioners (G. 164):
- Wel1 1 asked them, I said, “ You know you
can’t do this.” I said, “We have a lunch
counter up on the fourth floor for colored
people only. We would appreciate it if you
would go up there.”
. Mr. Stallings did not call the police, did not make
a complaint to the police, and did not know whether
27
anybody else did * (O' 165). Police officer Myers was
directed by a radio call from police headquarters to
proceed to Newberry’s (Of. 158-159). Myers under
stood that a fellow officer had received a complaint
from a Mr. Stallings, whose capacity at the store—or
even whether he was an employee of Newberry’s—
Myers did not know (G. 160-161). At. Newberiy’s, he
encountered something “out of the ordinary,” viz.,
“ IXIW0 colored males were sitting at the lunch counter”
(G. 158). Myers did not speak with petitioners nor
did he witness a conversation among petitioners and
any store employee (G. 159). Nevertheless, Myers
arrested petitioners for trespass after warning.23
) Sanders and TJ estmovcland.—Petitioners en
tered the Kress dime store in Birmingham, a general
department store soliciting the trade of the general
public (G. 214-215). I t has no food service facilities
for Negroes (G. 215), who are, however, invited to
buy food and bakery items to carry out (G. 218).
White and Negroes purchase from the same counters
at other departments (G. 216).
M Stallings, when asked “Did any other official at Newberry’s
call the police?,” replied: “Someone, now I don’t remember
who this person was, but someone said to me that we called
the police. I don't know who it was. I don't remember that”
(G. 165).
13 Petitioner West testified that when officer Myers arrived on
the scene he began to motion white people away from the lunch
counter but all of them did not leave (G. 172). “After he
started motioning the white people away,” West stated, “we
started to get up and when we started to get up one got me in
the back or somewhere in behind. * * * After I saw him mo
tioning other people up I said, ‘Let's go.’ And we stalled to
get up” (G. 172).
28
After petitioners sat down at a bay in the lunch
counter, Kress’ lunch counter manager told them “ we
couldn’t serve them and they would have to leave”
(G. 211). After the manager turned out the lights in
the bay in which petitioners were sitting, petitioners
moved to another (G. 211), The manager then closed
down all the bays and turned out all the lights in the
bays (G. 212).
Officer Caldwell, upon receiving a call to go to
Kress’ store, went to the basement and observed that
the lunchroom was closed and “two black males” were
“sitting there” (G. 209). The manager then informed
the policeman, in the presence of petitioners, that
“they couldn’t be served and he had turned the lights
out and closed the counter” (G. 209).“ Two police
men entered the bay where petitioners were seated and
twice asked them to get up (G. 212). After addi
tional policemen entered, officer Caldwell arrested peti
tioners, although no one had asked him to do so (G.
209, 210), and the officers escorted petitioners from
the store (G. 212).”
(v) Walker and Willis.—Petitioner Walker en
tered Woolworth’s store to purchase handkerchiefs
and a birthday gift for a friend (G. 255). Petitioner
Willis purchased various non-food items (G. 255).
“ The officer did riot hear anyone tell petitionei-s to leave the
counter (G. 210). The counter manager had not called the
police, requested an arrest or signed a complaint. Nor did the
store manager do any of these things in the counter manager's
presence (G. 213-214).
25 A woman already seated at the counter remained after the
“closing” and, so far as the counter manager knew, was not
arrested (G. 217-218).
29
They were not refused service at any non-food counter
(G. 257-258), and Walker testified that he “ really ex
pected service” at the lunch counter because he “had
been served prior to coining to the [lunch] counter”
(G. 259).
Petitioners proceeded to the lunch counter and sat
down (G. 255). There were no signs indicating that
the lunch counter was reserved for whites (G. 257).
A waitress said to petitioner, “ I ’m sorry I can’t serve
you,” but they remained seated at the counter (G.
256).
Two police officers arrived in response to a call
from the Birmingham police radio (G. 252). Mrs.
Evans, the manager of the lunch counter, informed one
officer that “she had told the boys to leave, that the
place was closed, and the second time she directed her
conversation to the defendants and told them it was
closed and they would have to leave, she would not
serve them” (G. 252-253).16 Officer Casey testified
that no one directly instructed the police to arrest pe
titioners (G. 253-254), but that he understood Mis.
Evans’ “complaint” that “ she wanted the boys out of
the store” as a request to remove them (G. 253).
When asked “did you take it upon yourself to make
these arrests,” officer Casey replied: “ I did under au
thority of the City of Birmingham” (G. 253).
26 This was the testimony of police officer Casey. Petitioner
Walker, on the other hand, testified that no one connected with
the store management had ever asked petitioners to leave, and
that he did not see Mrs. Evans at the store at the time of the
incident (G. 256).
S«>iu*- u hif•
r . A J.« i
«*'; ? " \ ^
• • « t f.1 J • » *
If/ * T? ‘. • [ •
« » * . r • a «.
v* A - • - •
S-*-' ’ i<
' a ’ 4i 1
i ' *
i »
a r i * t* tin*
* . *
W
31»
sc« iv j,M ti.> n la w ;m .| u<»t U -.-a u ^ - it w . n | \ / y
J>nlirv.
• • • • «
M r. 11 \ ; i \ I i. » . » , ■ ! • * • . • >«,. - ■
«■ f T!. i I 'iJv '• . . ■
t J'.l r «‘| •! i* I 11V • •' :* * I • * • • •
1 t > < ■> i !: ; • ’ i a • • ■ • ■ ■ • .
V - »r
* ' - »* ’ * ■ : a! t . . I h>
‘ ' ' >>11 lilt*
*•' r • \<1ikUm| I n't i-
• • J • J'» i. I Miring the .
i * fi!i*>nrr-< r«Kiust‘1 likewise
\ ii.it jM titi..m‘i-s were arrested
r *: itl*•!» polieies of the City o£x
!!:•*
* •>
. . n‘,f, Uvausr of any policy of the
• •' ̂ » "* l '*) . J|„. (.uUrt again ruled tha t this
* »■*■! •»»> was not "competent’’ (Gr. 168).
32
Petitioners won* again adjudged guilty in the Cir
cuit Court and, in a common sentencing proceeding,
were fined $100 and given thirty days’ hard labor,
with additional time for failure to pay the fine and
court costs17 (G. 10-11, 82, 101-102, 137-138, 153,
188, 203-201, 230, 245-24(5, 272). The Alabama Court
of Appeals, affirming the conviction, wrote an opinion !
for the first case, Gobcr v. State of Alabama, and
affirmed all others in brief per curiam orders citing
Gobcr (G. 57-64, 88, 124, 144, 178, 194, 220, 236, 262,
278). In its opinion in Gobcr, the Court of Appeals
stated that ‘there is no question presented in the rec
ord before us, by the pleading, of any statute or ordi
nance requiring the separation of the races in restau
rants. The prosecution was for a criminal trespass
on private property” (G. 63). The court noted that
petitioners were licensees and entered the premises by
implied invitation and that, under such circumstances,
the owners of the premises had the right to place limi
tations as they saw fit (G. 63). “It is fundamental,”
the court held, “ and requires no citation of authority,
the grantor of a license, which has not become coupled
with an interest, may revoke the license at will” (G.
64). The Supreme Court of Alabama denied cer
tiorari in all the cases by identical orders (G. (59. 92,
128, 144, 1S2, 194, 224, 236, 266, 278).
27 For example, petitioner Gober was sentenced to .‘>2 days of
hard labor for failure to pay bis $100 line and the $.'> costs ac
crued in the Recorder's Court, and to an additional bn days of
hard labor for failure to pay the costs accrued in the Circuit
Court. The State of Alabama also was authorized to mover
from Gober the costs expended for feeding Gober while lie was
in jail (G. 11; see also G. 82, 101-10:2. 1.‘17-1.‘is, 1 iss, -jo:; -jog
230, 245-246, 272).
33
4 . SHUTTLES WORT It V. CITY OF BIRMINGHAM, NO. 67
a. Statutes involved.—Petitioners were convicted
of violating Section 824 of the General City Code of Bir
mingham, Alabama (1944). Section 824 provides:
It shall be unlawful for any person to incite,
or aid or abet in, the violation of any law or
ordinance of the city, or any provision of state
law, the violation of which is a misdemeanor.
Sections 369 and 1436 of the Birmingham code, which
are also involved, are set forth above at page 22.
b. The Facts.™—'The record shows that James Gober
(one of the petitioners in the Gober case (see supra,
pp. 22-24) went to petitioner Shuttlesworth’s hofne on
March 30, 1960 (S. 27-28). Slmttlesworth, his wife,
several students from Daniel Payne College, and peti
tioner Billups, who had driven one of the students to
Shuttlesworth’s home, were present (S. 2S, 31). Peti
tioner Shuttles wo id h “ asked for volunteers to par
ticipate in the sit down demonstrations” (S. 29). A
“ list,” not otherwise described, was prepared (S. 30).
One student “ volunteered to go to Pizitz [a depart
ment store] at 10:30 [a.m.] [the next day] and take
part in the sit down demonstrations” (S. 31). Sliut-
tlesworth “didn’t say that he would furnish Counsel
but told him or made the announcement at that time
that he would get them out of ja il” (S. 31-32).
28 The record of the trial court proceedings in this case con
sists largely of testimony of a city detective in the Circuit
Court, of Jefferson County describing the evidence adduced at
an earlier trial of petitioner Slmttlesworth for tire offense in
the city recorder’s conn. Objections were regularly made to
this testimony by the defendants on hearsay grounds (see, e.g.,
S. 24-25).
34
Gober and other students present at the meeting did
participate in a “ sit-in demonstration, not otherwise
described, on the next day, March 31, 19G0 (S. 33).
Petitioners Shuttlesworth and Billups were charged
with violating Section 824 of the Code of Birmingham,
supra, by inciting or aiding or abetting “ another per
son to go or remain on the premises of another after
being warned not to do so,” in violation of Section
1436 of the Birmingham Code, supra (S. 2, 53). They
were convicted by the city recorder’s court. On ap
peal to the Circuit Court of Jefferson County, they
were separately tried de novo. Petitioners Shuttles
worth and Billups were again convicted by the court
sitting without a jury, and sentenced, respectively, to
180 days hard labor and a $100 fine, and 30 days’ hard
labor and a $25 fine (S. 40).
The convictions were affirmed by the Court of Ap
peals of Alabama. The court stated, in the Shuttles
worth case, that “ *[e]very one who incites any person
to commit a crime is guilty of a common law misde
meanor, even though the crime is not committed’ ”
(S. 44). It also held (S. 44) :
There is no question of the restriction of any
• right of free speech or other assimilated right
derived from the Fourteenth Amendment, since
the appellant counseled the college students not
merely to ask service in a restaurant, but urged,
convinced and arranged for them to remain on
the premises presumably for an indefinite pe
riod of time. There is a great deal of analogy
to the sit-down strikes in the automobile indus
try referred to in National Labor Jlelations
Board v. Feasted Metallurgical Corp., 306 U S
240.
35
In the Billups case, the Court of Appeals simply
adopted the findings of fact and the legal conclusions
set forth in the Shuttlesicortli case (S. G7). On Sep
tember 25, 1961, the Supreme Court of Alabama
denied writs of certiorari in both cases, and on Novem
ber 16,1961, rehearings were denied (S. 46, 69).
5. PETERSON V. CITY OF GREENVILLE, NO. 71
a. Statutes Involved.—Section 31-S, Code of Green
ville, South Carolina, 1953, as amended in 1958,
provides:
It shall be unlawful for any person owning,
managing or controlling any hotel, restaurant,
cafe, eating house, boarding house or similar
establishment to furnish meals to white persons
and colored persons in the same room, or at the
same table, or at the same counter; provided,
however, that meals may be served to white
persons and colored persons in the same room
where separate facilities are furnished. Sepa
rate facilities shall be interpreted to mean:
(a) Separate eating utensils and separate
dishes for the seining of food, all of which shall
be distinctly marked by some appropriate color
scheme or otherwise;
(b) Separate tables, counters or booths;
(c) A distance of at least thirty-five feet
shall be maintained between the area where
white and colored persons are served;
(d) The area referred to in subsection (c*)
above shall not be vacant but shall be occupied
by the usual display counters and merchandise
found in a business concern of a similar nature;
(e) A separate facility shall be maintained
and used for the cleaning of eating utensils
and dishes furnished the two races.
36
Petitioners were convicted of violating Section 16-
388, Code of Laws of South Carolina, 1962, as amended
in 1960, which provides:
Any person:
(1) Who without legal cause or good excuse
enters into the dwelling house, place of business
or on the premises of another person, after
having been warned within six months preced
ing, not to do so or
(2) who, having entered into the dwelling
house, place of business or on the premises of
another person without having been warned
within six months not to do so, and fails and
refuses, without good cause or excuse, to leave
immediately upon being ordered or requested
to do so by the person in possession, or his agent
or representative,
Shall, on conviction, be fined not more than
one hundred dollars, or be imprisoned for not
more than thirty days.
b. The Farts.—At about 11:00 a.m. on August 9,
1960, petitioners, ten Negro students, took seats at the
lunch counter at the Kress department store in
Greenville, South Carolina, and requested service (P.
1, 19, 36). The Kress store in Greenville is open
to the general public; it has fifteen to twenty depart
ments and sells over 10,000 items (P. 21). Negroes
and whites are invited to purchase and are served
alike, except that Negroes are not served at the lunch
counter (P. 21).
When petitioners requested service at the lunch
counter, they were told by a Kress employee, “I ’m
sorry, we don’t serve Negroes” (P. 19, 36). Peti
tioners refused to leave, and G. W. West, the Kress
37
manager, directed that the police be called (P. 22).”
Captain Bramlette of the Greenville Police De
partment received the call to proceed to the Kress
store (P. 7). He was told that there were young
colored boys and girls seated at the lunch counter (P.
10). Captain Bramlette testified that he did not
know the origin of the telephone call (P. 7, 10).
When Captain Bramlette, with several city policemen,
arrived at the store, he found two agents of the State
Law Enforcement Division already present at the
lunch counter (P. 7).30 In the presence of the police
officers, the lunch counter lights were tinned off and
manager West requested “everybody to leave, that
the lunch counter was closed” (P. 19, 1 5 ).31 At peti
tioners’ trial, their counsel was denied permission to
ascertain whether this request followed arrangement
or agreement with the police (P. 23, 21-25). After
29 Doris Wright, one of the petitioners, testified that on an
earlier occasion she had spoken to the Kress manager about
the stores' policy of lunch counter segregation and was assured
that charges would not be pressed against Negroes who sought
service (P. 38).
30 The South Carolina Law Enforcement Division was or
ganized to assist local law enforcement officers. Officer Hillyer
of the Division, present at the time of the incident, testified
that his immediate superior is Chief J. P. Strom, who is di
rectly under the authority of the Governor of South Carolina
(P .43).
31 Petitioner Wright testified that the request to leave was
made by the police and not by Mr. West (P. 37). She denied
that Mr. West asked her or any of the other petitioners to leave
(P. 41). When asked, ‘‘Of course, you are not in position to
say whether or not Mr. West may have made a request to some
of the other nine?” she replied, “Yes, I am, Mr. West, come
from the back of the store, at the time we were being arrested
and were told that the lunch counter was closed" (P. 41).
38
about five minutes,52 during which petitioners had
made no attempt to leave the lunch counter, Captain
Bramlette placed them under arrest for trespassing
(P. 19).“ Store manager West did not request that
petitioners be arrested (P. 16, 24).
White persons were seated at the counter when the
announcement to close was made but none were ar
rested (P. 19). Mr. West testified that, when the
lights went out, the white customers departed (P. 19).
But a white customer testified that, at the time of the
arrests, some white persons were still seated at the
counter (P. 30-31). .As soon as petitioners were re
moved by the police, the lunch counter was reopened
(P. 23).
Manager West testified that he closed the counter
because of local custom and because of the Greenville
city ordinance requiring racial segregation in eating
facilities (P. 23) :
Q. Mr. West, why did you order your lunch
counter closed ?
A. I t ’s contrary to local custom and it’s also
the ordinance that has been discussed.
Q. Do I understand then further, that you
are saying that the presence of Negroes at your
lunch counter was contrary to customs?
A. Yes, sir.
Q. And that is why you closed your lunch
counter ?
32 There is some conflict in the record regarding the time
lapse between the announcement that the counter was closed
and the arrests (see P. 29, 37, 3?, 45).
“ Four other Negroes were also arrested but their cases were
disposed of by the juvenile authorities (P. 7).
39
A. Yes, sir, that's right.54
The record is conflicting as to whether Captain
Bramlette thought he was acting under the Green
ville segregation ordinance or the State trespass law.
At one point, the Captain testified that he did not
have the city ordinance in mind when he went to
Kress but was thinking of the recently passed State
trespass statute (P. 11). When asked however, why
he arrested petitioners, he said (P. 15) :
A. Under the State Law just passed by the
Governor relative to sit-down lunch counters
in Greenville, I enforced this order.
Q. But the State Law that just passed and
signed by the Governor in May doesn’t men
tion anything about Negroes sitting at lunch
counters, does it?
A. It mentions sit-ins.
However, after refreshing his recollection, the Cap
tain conceded that the new State law did not mention
sit-ins (P. 15). He further testified as follows (P.
16-17):
Q. Hid the manager of Kress’, did he ask
you to place these defendants under arrest,
Captain Bramlette ?
A. He did not.
Q. He did not ?
A. No.
Q. Then why did you place them under
arrest ?
A. Because we have an ordinance against it.
Q. An ordinance?
31 Mr. West testified (P. 21) that the policy of following local
custom was prescribed by Kress’ headquarters.
40
A. That’s right.
Q. But you just now testified that you did not
have the ordinance in mind when you went over
there?
A. State law in mind when I went Tip there.
Q. And that isn’t the ordinance of the City
of Greenville, is it ?
A. This supersedes the order for the City' of
Greenville.
Q. In other words, you believe you referred
to an ordinance, but I believe you had the State
statute in mind ?
A. You asked me have I, did I have knowl
edge of the City ordinance in mind when I went
up there and I answered I did not have it par
ticularly in my mind, I said I had the State
ordinance in my mind.
Q. I see and so far this City ordinance which
requires separation of the races in restaurants,
you at no tim° had it in mind, as you went about
answering the call to Kress’ and placing these
people under arrest?
A. In my opinion the State law was passed
recently supersedes our City ordinance.”
Petitioners were tried and convicted in the Re
corder’s Couid of Greeilville before the City Recorder,
sitting without a jury, of violation of the South Caro
lina trespass law and sentenced to pay a fine of one
hundred dollars or serve thirty days in the city jail
(P. 47). Petitioners appealed to the Greenville
County Court, and their appeal was dismissed on
35 Although the trial judge appears to have denied petitioners’
motion to make the Greenville segregation ordinance a part of
the record (P. 46-47), it nevertheless has been incorporated into
the record (P. 49).
41
March 17, 1961 (P. 50). That court noted that the
trespass statute was merely a reenactment of the com
mon law which permits a property owner to order
any person from his premises whether they be an
invitee or an uninvited person and that the consti
tutionality of the statute was unquestioned (P. 50-51).
The court rejected petitioners’ contention that they
had a right to be served (P. 52).
On November 10, 1961, the Supreme Court of South
Carolina affirmed the judgment and sentences (P. 55).
It held that the operator of a privately owned busi
ness may accept some customers and reject others on
purely personal grounds, in the absence of a statute
to the contrary (P. 58). The court also held that
there was nothing in the record to substantiate a claim
that petitioners were actually prosecuted under the
Greenville segregation ordinance (P. 59). The Su
preme Court denied rehearing on November 30, 1961
(P. 62).
ARGUMENT
INTRODUCTION AND SUMMARY
We believe it important at the outset to define, and
if possible limit, the issue in these cases.
The Fourteenth Amendment provides:
* * * nor shall any State * * * deny to any
person within its jurisdiction the equal pro
tection of the laws.
In the Civil Rights Cases, 109 U.S. 3, decided
shortly after the adoption of the Fourteenth Amend
ment, this Court held that the Amendment drew a
fundamental distinction between a State’s denial of
65SG7G— «2------ 4
42
equal pi^otection of the laws and discrimination by
private individuals, however odious. ‘"It is State
action of a particular character that is prohibited.
Individual invasion of individual rights is not the
subject-matter of the Amendment” (id., p. 11).
For a century, this basic postulate has been con
sistently applied in the courts. This brief does not
question its validity. On the one hand, a State can
not constitutionally prohibit association between Ne
groes and whites, be it in a public restaurant ^r
elsewhere. On the other hand, to cite an example, if
a private landowner should invite all of his neighbors
to use his swinuning pool at will and then request
one of the invitees to leave because of his race, creed
or color, the decision would he private and, however
unpraiseworthy, not unconstitutional. Furthermore,
we take it that there would be no denial of equal pro
tection if the State made its police and legal remedies
available to the owner of the swimming pool against
any person who came or remained upon his property
over his objection. For, in a civilized community,
where legal remedies have been substituted for force,
private choice necessarily depends upon the support
of sovereign sanctions. In such a case, the law would
be color-blind and it could not be fairly said, we
think, that the State had denied anyone the equal
protection of its laws.
With respect to these “ sit-in” cases it has been
argued most broadly that the requisite State action
is to be found in the arrests by the police, the prose
cutions and the convictions, and that since discrimi-
43
nation against Negroes resulted from this State
action, it violates the constitutional guarantee of
equal protection of the laws. Cf. Henkin, Shelley v.
Kraemer: Notes for a Bcviscd Opinion, 110 U. of Pa.
L. Rev. 473. Our example of the private residence
and swimming pool is to be distinguished (the argu
ment runs) upon the ground that, although that case
too would involve State action and thus raise a fed
eral constitutional question if there was an arrest
and prosecution, nevertheless, the owner’s right of
privacy should outweigh the neighbor’s claim to be free
from racial discrimination. Against this, the States
will no doubt argue that the two cases are alike because
the State does not deny equal protection of the law
when it indiscriminately offers to support the deci
sion of the private landowner without regard to the
landowner’s reasons.
We believe that this broad issue need not, and
should not, be decided in the cases at bar. We express
no opinion upon it. We assume arguendo that in the
absence of other grounds for holding the State respon
sible the principle invoked by the States is applicable
to uninvited entrants upon business property, where
the business is neither subject to a legal duty to serve
the public (as in the case of inns and common car
riers) nor owned or managed by one exercising sov
ereign functions. In our view, however, the principle
is not applicable to the present cases.
One significant difference is that these cases do
not involve in any substantial sense the landowner’s
privilege of deciding whom he will bar from his
44
premises and whom he will invite upon them as social
guests or business visitors. In these cases the Ne
groes were invited into the store and were lawfully
on the premises. In the Lombard case, for example,
McCrory’s Five and Ten Cent Store caters to the
general public, both whites and colored, and even
at the lunch counter restricted to white patronage
there was no sign indicating the restriction. The
situation was substantially the same in Peterson,
Gobcr and SliuttlesicoHli. The all-white lunch room
in Avent was expressly restricted to “ invited guests,”
which perhaps impliedly excluded the petitioners in
that, case, hut all other portions of the store were open to
Negroes and their patronage was solicited without dis
crimination. The only real restriction, therefore, was
a policy of refusing to allow white and colored to
break bread together. Although this restriction can
be cast in the language of the law of trespass by say-
ing that the owner may revoke the consent to enter,
the terminology cannot conceal the fact that the sole
reason for revocation was petitioners’ refusal to ac
cept a stigma of social inferiority. While this cir
cumstance may not directly bear upon the ques
tion of the States’ responsibility, it plainly shows that
no substantial claim to constitutional rights in private
property is involved in these cases. Cf. Marsh v.
Alabama, 326 U.S. 501, 505-507.36
. ,Mr* ;Tuftice Frankfurter, concurring, said “And
similarly the technical distinctions on which a finding of ‘tres
pass so often depends are often too tenuous to control fal de
cision regarding the scope of the vital liberties guaranteed
S . ' C - a i t a i o n . ” 326 U.S. ,1 511. Cf. S M I ' , v. A W ,,,,,,
«M4 L .b. 1, 22; Harrows v. Jackson, 346 U.S. 219, 260.
45
Still more important in the eases at bar, the States,
which instituted the prosecutions, share the responsi
bility for the invidious discrimination, so that the
State denial of equal protection does not depend upon
the arrests and prosecution alone. In the Avert,
Gober and Peterson cases, municipal ordinances re
quired racial segregation in public eating places. In
the Slmttlesivorth case, petitioners were convicted of
aiding and abetting Negroes to sit in lunch counters
reserved for whites in a city where an ordinance re
quired segregation in restaurants. In the Lombard
ease, the State’s laws and policies, effectively and per
sistently implemented throughout the community, had
a similar effect, albeit there was no ordinance in
terms requiring the exclusion of Negroes from the
establishment in question.
Accordingly, we submit that the only question now
requiring decision is whether, judged against the
background of the owner’s willingness to serve Ne
groes in other parts of the stores, the States’ influence
upon the owner’s decision to discriminate in serving
food, through explicit segregation ordinances in four
cases and through a general policy of promoting ra
cial segregation in the fifth, was sufficient on these
records to make the States’ activities, taken as a whole,
a denial of equal protection of the laws. If so, the
resulting convictions must be reversed.
It is one thing for the State to enforce, through the
laws of trespass, exclusionary practices which rest
simply upon individual preference, caprice or
prejudice. It is quite another for the State, exercis-
46
ing as it does immeasurable influence over individual
behavior, to induce racial segregation and then pro
ceed to implement the acts of exclusion which it has
brought about. If the State, by its laws, actions, and
policies, causes individual acts of discrimination in
the conduct of a business open to the public at large,
the same State, we believe, cannot be heard to say
that it is merely enforcing, in even-handed fashion,
the private and unfettered decisions of the citizen.
To sustain the judgments of conviction in the in
stant cases in the face of the segregation ordinances
and official policies, the Court, we believe, would be
obliged, at a minimum, to find (1) that the acts of
discrimination were shown not to be a result of the
State’s laws and policies or of the actions of State
officials and (2) that the petitioners, when ordered to
leave the premises in question, were on notice that
the proprietor was acting to assert his own rights,
rather than in obedience to the State’s unconstitu
tional command. In these cases, neither finding can
be made. For aught that appears, the State, in each
instance, laid the foundation for the criminal convic
tion by its own mandates of segregation.
I
THE CONVICTIONS OF THE PETITIONEES IN A VC lit, Gobcr,
Skuttlesworth a n d Peterson v io l a t e t h e f o u r
t e e n t h AMENDMENT BECAUSE IT MUST BE CONCLUDED
THAT THE FORCE OF MUNICIPAL LAWS CAUSED THE
PROPRIETORS TO DISCRIMINATE
While the petitioners in Avcnt, Gobcr, and Peter
son were convicted of trespassing for refusing to
leave racially segregated lunch counters, these cases
47
cannot bo divorced from the fact that the allegedly
criminal acts occurred in communities which had or
dinances affirmatively requiring racial segregation at
establishments where food is served. (The Shuttles-
worth case, involving a charge of aiding and abetting
the violation of Alabama’s criminal trespass statute,
turns on the same considerations which govern the
Gober case.) The City of Durham, North Carolina
(see supra, pp. 6-7),37 the City of Birmingham, Ala
bama (see supra, p. 22), and the City of Greenville,
South Carolina (see supra, pp. 35-36), all had ordi-
37 In the Gober case, the Alabama Supreme Court held that
the Birmingham ordinance was not properly pleaded and
therefore was not before the court on appeal. This reasoning
is plainly insubstantial, since it is well established that the
Alabama courts can take judicial notice of municipal ordinances.
See 7 Code of Alabama (1940), § 429(1); Shell Oil v. Edwards,
263 Ala. 4, 81 So. 2d 535; Smiley v. City of Birmingham., 255
Ala. 604, 605, ;>2 bo. 2d 710; Monk v. Birmingham. 87 F. Supp.
538 (N.L). Ala.), affirmed, 185 I’. 2d 859 (C.A. 5), certiorari
denied, 341 IT.S. 940. Therefore, the ordinance was properly
before the Alabama courts and may be considered by this
Court.
We recognize that the existence of the Durham segregation
ordinance was not called to the attention of the courts Itelow
and that no argument based on that ordinance was advanced
in the petition for certiorari in the A rent case. Nevertheless,
on occasion, this Court has decided cases on a ground not
raised below. See, e.g.. Terminiello v. Chicago. 337 U.S. 1.
This practice is particularly appropriate where it furthers this
Courts historic refusal to adjudicate far-reaching constitu
tional questions except where such adjudication is absolutely
necessary to the decision. See, e.g., the concurring opinion of
Mr. Justice Brandeis in Ashicander v. Tennessee Valley .1 u-
thority. 297 l .S. 288, 345-348. Accordingly, should this Court
conclude that the existence of the segregation ordinances in
48
nances forbidding eating establishments from serving
whites and Negroes on a nonsegregated basis. We
submit that the decision of restaurant owners to dis
criminate under the compulsion of these ordinances
constitutes State action in violation of the Fourteenth
Amendment. From that, it necessarily follows that
the arrest and conviction of persons for refusing to
obey this decision to discriminate likewise violates
the command of the Constitution.
Gober and Peterxon requires reversal of the convictions in these
cases, we believe that a similar result should follow in .1 rent.
Such a reversal in A rent would avoid consideration of any
new constitutional issues not already decided in Gober and
Pctenton.
If this Court should conclude that it ought not take judicial
notice of the Durham ordinance in deciding the case on the merits
and that the constitutional issues raised, absent the ordinance,
go substantially beyond anything required to he decided in the
companion cases, it may wish to consider two other dispositions
of the Arent case. One would be to remand the case to the
Supreme Court of North Carolina for further consideration in
the light of the decisions in any cases in which the segregation
ordinances were given decisive significance. That court’s rule
with respect to judicial notice (see Fvhjhum v. Town of Selma-,
2.18 N.C. 100, 70 S.E. 2d 108, 171: State v. Clybitrn, 247 X.C.
455, 101 S.E. 2d 295, 100) might properly l>e affected by
awareness of possible constitutional implications. And this
Court has authority to “require such further proceedings to be
had as may be just under the circumstances." 28 U.S.C. 2106.
The other course would be to consider whether the writ was
providently granted in the Arent case. The well-established
practice of refusing to decide difficult constitutional issues upon
an inadequate record or in cases that do not require their decision
would seem equally applicable to cases in which the constitutional
issue is raised only because one of the parties failed to take
advantage of another available defense. Cf. Rice v. Sioux City
Memorial Park Cemetery. Inc.. 349 I'.S. 70.
49
A . A M U N IC IP A L ORDINANCE W H IC H REQ U IRES RACIAL SEGREGATION
I X R ESTA U RA N TS V IO LA TES T H E FO U RTEEN TH A M EN DM EN T
The municipal ordinances involved in these cases
are clearly unconstitutional. It is a fundamental
principle of our constitutional system that the Four
teenth Amendment prohibits state-sanctioned racial
segregation. This principle was recently applied to
restaurants in Turner v. City of Memphis, 369 U.S.
350. There, a statute authorized the State Division
of Hotel and Restaurant Inspection of the State
Department of Conservation to issue “such rules and
regulations * * * as may be necessary pertaining to
the safety and/or sanitation of hotels and restau
rants * * *” and made violation of such regulations
a misdemeanor (id. at 351). The resulting regulation
provided that ‘"[r]estaurants catering to both white
and negro patrons should be arranged so that each
race is properly segregated” (ibid.). This Court left
no doubt that such State-required racial discrimina
tion was unconstitutional, stating (id. at 353) :
* * * our decisions have foreclosed any
possible contention that such a statute or regu
lation may stand consistently with the Four
teenth Amendment. Brown v. Board of Educa
tion, 347 l\S . 483; Mayor d- City Council v.
Dawson, 350 U.S. 877; Holmes v. City of A t
lanta, 350 U.S. 879; Gayle v. Browder, 352 U.S.
903; New Orleans City Paric Improvement
Assn v. Detiege, 358 U.S. .54. * * *
See also Bailey v. Patterson, 369 U.S. 31; Burton
v. Wilmington Parking Authority, 365 U.S. 715; Mor
gan v. Virginia, 328 U.S. 373; Baldwin v. Morgan,
287 F. 2d 750 (C.A. 5).
50
B . T H E STA TE IS R ESP O N SIB LE FOR T H E DECISION O F T H E O W N ERS
O F A RESTA U RA N T TO D ISC R IM IN A TE ON T H E BA SIS OF RACE W H E N
T H IS DECISION IS COM PELLED B Y STA TE LAW
!• the owner of an establishment requests
Negroes to leave a lunch counter reserved for whites
because a State law requires the ownei* to maintain
segregation, the prosecution of Negroes for criminal
tiespass for refusing to leave would be an implementa
tion of the discriminatory State statute and would
therefore violate the equal protection clause of the
Fourteenth Amendment. While this Court has ap
parently never had occasion to pass directly upon the
question, the lower courts have so held. Thus, in IHV-
liams v. Howard Johnson’s Restaurant, 268 F. 2d 845,
847, the Court of Appeals for the Fourth Circuit indi
cated that actions * * * performed in obedience to
some positive provision of state law” acquire the col
oration of the State and are governed by the broad
egalitarian requirements of the Fourteenth Amend
ment. In Flemming v. South Carolina Electric and
Gas Co., 224 F. 2d 752, the Fourth Circuit held that
the racial segregation of passengers by a bus com
pany, as required by State law, constituted action
under color of State law. Similarly, the Court of
Appeals for the Fifth Circuit has held that “ [t]he
very act of posting and maintaining separate [wait
ing room] facilities when done by the [railroad]
Terminal as commanded by these state orders is action
by the state.” Baldwin v. Morgan, 287 F. 2d 750,
755 (C.A. 5). It declared (id. at 756) :
the State may not use race or color as
the basis for distinction. It may not do so by
direct action or through the medium of others
51
who are tinder State compulsion to do so. * * *
- - (Emphasis added.)
See also the earlier Baldwin v. Morgan case, 251 F.
2d 780, 789-790 (C.A. 5); Boman v. Birmingham
Transit Co., 280 F. 2d 531 (C.A. 5).38
The rule enunciated in the above decisions, we be
lieve, is clearly correct. A person who engages in
racial discrimination under influence of the State’s
coercive authority is in no sense acting independently.
Rather, he is acting in compliance with the will of the
State, and the effect of his action is to carry out the
State s policy of discrimination. Consequently, the
discriminatory action, while performea by a private
person, is a reflection of the State’s law and policy.
The State has “insinuated itself” into the private
decision and "placefd] its authority behind discrimi
natory treatment based solely on color * * *” in the
most forceful manner available to it, by the eompul-
sion of its penal laws. Burton v. Wilmington Park
ing Authority, 3(35 U.S. 715, 725, 727.
38 And see Williams v. Hot Shoppes. I nr., 293 F. 2d 835,
845, 840 (C.A. D.C.) (Judges Bazelcn and Edgerton dissenting) :
‘•If a state statute affirmatively required restaurant owners to
segregate their facilities or exclude Negro patrons, conduct of
the restaurant owners caused solely by the compulsion of such
a statute would be state action and would give rise to a claim
for relief under [42 U.S.C.] § 1983. * * * When otherwise
private persons or institutions are required by law to enforce
the declared policy of the state against others, their enforce
ment of that policy is state action no less than would be en
forcement of that policy by a uniformed officer."
The majority opinion in Hot Shoppes did not reach this
question.
52
Indeed, if actions compelled by statute are not con
sidered State action, decisions of this Court proscrib
ing State-imposed racial segregation (see supra, p.
48) may be largely circumvented. For the result is
that State laws compelling private persons or organ
izations to discriminate are enforced through parallel
statutes—like the trespass and criminal mischief stat
utes involved here. It may be argued that no busi
nessman is bound to discriminate because, if he dis
obeys a State law which commands discrimination, he
can challenge the constitutionality of the statute under
which he has been convicted—if need be, in this
Court. But a criminal law, with the power of the
State behind it, has, until it is repealed, a powerful
effect of its own. Ordinary citizens do not know that
a particular law is not enforced or is unconstitutional,
and, even if they know, they do not lightly disregard
it. In any event, regardless of the number of people
who act under compulsion of a State segregation
statute which is unconstitutional and therefore
unenforceable, certainly in the case of those who
do respond to the compulsion the consequence is an
implementation of the statutory command. The use
of the State’s criminal law to arrest and convict Ne
groes for activities which, except for unconstitutional
State segregation statutes, would be entirely legal—
because the restaurateur would not discriminate—is
surely unconstitutional.
2. We have shown that, if a restaurateur excludes
Negroes because of a State statute, the State cannot
convict Negroes for trespass for entering the restau-
53
rant. In none of these cases, we recognize, does the
record contain an express and specific affirmative
showing that the coercive force of the segregation
ordinance was the sole reason for the proprietor’s
refusal to serve the various petitioner's. In Peterson
the proprietor testified that he refused service because
of local custom and the segregation ordinance of
Greenville. In Avent the ordinance is not mentioned
in the record, but the manager acted in accordance
with local custom and for reasons of “public safety.”
The Gober case presents five pairs of convictions. Pe-
tioners Gober and Davis were excluded because the
proprietor felt that it would be against the law to
serve them. The records in the four other trials in
the Gober case do not record the motivation of the
various proprietors.39 In Shuttlesworth, the petition
ers were convicted of aiding and abetting the viola
tions of the trespass statute involved in the Gober
case. Under Alabama law, as stated by the Ala
bama Court of Appeals in this case, the validity
89 In the Gober-Davis trial, petitioners’ attempt to secure fur
ther evidence concerning the relationship of the ordinance and
the decision to discriminate was foreclosed by the rulings of the
trial court that this line of inquiry was incompetent (see the
Statement, *upra, pp. 20-.°,0). Since Gober-Davis was the first of
a series of five trials before the same state trial judge, fur
ther efforts in the four later cases to raise the same issue would
have been futile, as is shown by the court's ruling in Parker-
West that a similar line of inquiry was impermissible. Thus,
while no effort was made in the Hutchinson-King. Sanders-
Westnwreland, or Walker-Willis trials to raise an issue con
cerning the segregation ordinance, it is fair to say that all the
petitioners in Gober were denied an opportunity to show that
the restaurateurs’ decisions to discriminate were based on the
Birmingham ordinance.
54
of the convictions depends on whether they were in
citing persons to commit a crime. There is no evi
dence in the Shuttlesworth record as to the motiva
tions of the proprietors of the establishments where
the “sitting-in” occurred.
Upon each of these records the only permissible
inference is that the local ordinance was such a sub
stantial factor in the proprietor’s decision that the
State must share in the responsibility for the discrimi
nation to the same extent as if the record showed that
the decision of the restaurateurs to discriminate was
based solely upon State law. It is not necessary that
the discrimination be solely the result of the State’s
activities. I t is enough that the State in any of its
manifestations has become involved in the discrimina
tion. See Burton v. Wilmington Parking Authority,
365 U.S. 715, 722. See also pp. 59—63 infra.
We base our submission that the only permissible
inference upon these records is one of substantial
State responsibility for the proprietor’s discrimina
tion upon three lines of reasoning.
First, where State law requires racial segregation
in all eating places and the proprietors uniformly
comply, the average individual proprietor would never
reach the question whether he would discriminate if
left to a judgment uninfluenced by the State; and this
seems true whether the owner is conscious or uncou-
scious of the reasons for his conduct. The normal
inference to be drawn from the existence of the ordi
nance, therefore, is that it caused the discrimination,
and the State would then have to overcome the infer-
ence by showing that the decisions of the proprietors
were wholly uninfluenced by the compulsion of an
existing State law.
Second, to the extent that the records in these cases
are unclear as to the motivation of the proprietors,
the States had the burden of removing the ambiguity
because the States themselves created it. I t is a
familiar principle of general applicability in our law
that the party responsible for a wrong must “disen
tangle the consequences for which it was chargeable”
or bear the responsibility for the whole. Xational
Labor Relations Board v. Remington Rand Inc., 94
F. 2d 862, 872. The question whether the restaura
teurs were moved to act as they did because of the
coercive effect of the segregation statutes would not
exist except for the fact that the States passed and
retained statutes which compel racial segregation and
therefore violate the Fourteenth Amendment. It is
clear, as we have seen, that if the proprietor discrimi
nates as a result of the compulsion of the State, this
constitutes State action. On the face of it, the deci
sions of the restaurateurs to discriminate were made
under compulsion of explicit State statutes. Assum
ing that a State would be heard to deny the coercive
effect of its own ordinance, there is no showing in any
of these cases that the State did not cause the exclu
sionary act of the proprietor. In each instance, there
fore, the State has failed to establish an element essen
tial to the constitutionality of the conviction.
Third, even if the States had shown that the pro
prietor’s decision to discriminate was not caused
by the compulsion of the municipal ordinances, these
56
convictions would have to be deemed invalid because
it was not also made to appear that the petitioners
knew that the proprietor’s decision was a purely pri
vate choice. Where discrimination appears on its
face to be invalid under the Fourteenth Amendment
because it is compelled by a State law, Negroes should
not be required to investigate the true motive of the
restaurateur before entering the premises. In Boyn
ton v. Virginia, 364 U.S. 454, this Court held that the
Interstate Commerce Act forbids racial segregation
of a restaurant in a bus terminal. A contention was
made that there was no proof that the bus company
owned or controlled the bus terminal or restaurant
in it. The Court answered that “ where circum
stances show that the terminal and restaurant oper
ate as an integral part of the bus carrier’s transporta
tion service for interstate passengers * * an inter
state passenger need not inquire into documents of
title or contractual arrangements in order to deter
mine whether he has a right to be served without
discrimination.” Id. at 462-464. Thus, the Court
held in Boynton that a Negro who is being discrimi
nated against need not inquire into the precise facts
when it appears that the discrimination violates the
Interstate Commerce Act. It follows a fortiori that
where, as in these cases, discrimination against Ne
groes on its face appears to violate the Fourteenth
Amendment, the Negro need not ascertain the mo
tives of the owner at the risk of suffering criminal
sanctions.
57
I f Negroes were required to ascertain the actual
motives of the proprietors before seeking service at
lunch counters or entering lunch rooms, their rights
under the Fourteenth Amendment would be seriously
abridged. These motives are frequently difficult, if
not impossible, to ascertain, at the time the Negro
desires service in a particular restaurant, especially
when, as in most of these cases, chain stores are in
volved.40 The situation is analogous to that in First
Amendment cases where this Court, has held that the
State cannot pass statutes which, because of vague
ness, or the burden of proof, or the lack of any re
quirement of scienter, have the indirect effect of dis
couraging freedom of speech even though in the
particular case no protected right may have been
invaded. E.y., Smith v. California, 361 U.S. 147;
Speiscr v. Randall, 357 U.S. 513; Thornhill v. A la-
bain a, 310 U.S. 88; Winters v. New York, 333 U.S.
507; Wieinan v. Vpdcgraff, 344 U.S. 183. In these
cases, too, the effect of the State convictions is to
discourage the assertion of constitutional rights since
the petitioners were not given notice of the facts nec
essary to determine whether their actions were con
stitutionally protected.
In the present cases it is unnecessary, we think,
to go farther and consider whether the presumption
that a State law requiring segregation in eating
40 Negroes, it appears, are invited into these stores, and in
other respects their trade is solicited on a non-discriminary
basis.
G5SC7C— G2--------5
58
places has played a significant part in the proprie
tor’s decision can be overcome by testimony that the
proprietor would have enforced segregation even if
there were no current statute or ordinance. It can
be argued with considerable force that a private per
son should not lose a power of choice which is other
wise his merely because the State or municipality
has acted in an unconstitutional manner. We would
submit, however, if the question had to be decided,
that, whatever may be the right of a proprietor to
assert in private litigation that his decision to seg
regate is the result of private choice rather than
the State’s command, the State cannot justify the
prosecution as consistent with the Fourteenth Amend
ment upon the ground that its command directing
segregation had no effective influence upon the pro
prietor, the police or the public prosecutor. In a
criminal prosecution one camiot put the segregation
statute or ordinance, the proprietor’s decision and the
prosecution for trespass in separate compartments.
The order to segregate is too inconsistent with free
dom of choice and the ways in which its existence mav
influence proprietor’s ’ decisions are too varied and too
subtle to permit a State to defend a criminal prosecu
tion which enforces racial segregation, upon the
ground that the segregation resulted from private
choice, unless the State has actually left both choices
entirely open to proprietors.
The segregation ordinances are also related to peti
tioners’ convictions for criminal trespass by another
tie. The police normally exercise considerable dis-
59
cretion in their method of handling citizens’ com
plaints about infractions of minor criminal laws such
as the trespass statutes. Prosecutors have and exer
cise similar latitude in deciding whether to institute
criminal proceedings; and the judge has wide discre
tion in his disposition of the case. A State which has
current laws requiring racial segregation in public
eating places interjects an official discriminatory bias
into all these decisions which is certainly relevant in
deciding whether a prosecution for criminal trespass
is so closely related to the discriminatory ordinances
as to be part and parcel of the same State denial of
equal protection of the laws.
I I
ALTHOUGH IX THE LOUISIANA CASE THE STATE ADDRESSED
NO EXPLICIT STATUTORY COMMAND TO RESTAURATEURS,
AS SUCH, TO SEGREGATE THEIR CUSTOMERS, IT APPEARS
THAT THE STATE, BY ITS POLICIES AND BY ITS LAWS IN
CLOSELY RELATED AREAS, EFFECTIVELY INDUCED THE
PROPRIETOR’S ACTS OF DISCRIMINATION. SINCE THE
CASE DOES NOT PERMIT A FINDING THAT THE PRO
PRIETOR WAS MERELY MAKING A PRIVATE DECISION
UNINFLUENCED BY OFFICIAL PRESSURE, THE STATE IS
CONSTITUTIONALLY FORBIDDEN TO IMPOSE CRIMINAL
SANCTIONS W HICH IMPLEMENT THE DISCRIMINATION.
A. The argument just concluded advances the prop
osition that when a State expresses its policy by
issuing a specific statutory command to segregate
it bears a heavy responsibility for discriminatory con
duct which conforms to the State’s requirement and
cannot be permitted to compound the injustice by im
posing criminal sanctions upon the victims of the
s
60
discrimination. The question presented in Lombard
v. Louisiana is whether the same principle governs
when the State’s segregation policy is not embodied in
an explicit statutory directive in terms requiring the
proprietor of the particular establishment to discrimi
nate against Negroes, but is, nonetheless, forcibly
expressed and plainly evident in legislative declara
tions, laws in closely related areas, statements of
public officials, and a long standing community-wide
custom fostered and encouraged by the State.
We submit the same rule applies. For, in the ab
sence of any contrary proof, in the latter case like the
former it must be concluded that the exclusion of the
Negro is the result of State policy rather than an
unfettered individual decision. Notwithstanding
the unsupported opinion of the Louisiana Supreme
Court to the contrary (L. 146, 147, 148), an examina
tion of the State and City policies and laws, together
with the facts disclosed by the record, leads to the con
clusion that Louisiana induced the acts of discrimina
tion which support the prosecutions in Lombard;
lienee we submit these convictions are as invalid as
those in the other cases.
To illustrate our point, we need go no further
than the actual facts. Suppose, if you will, a State
which, through its legislature, has proclaimed an
overriding State policy of segregation; a State which,
in pursuance of this policy, has enacted a panoply
of prohibitions designed to inhibit contact between
the races; a State which has vigorously and persist
ently enforced these prohibitions; a State which,
61
through the acts, conduct and statements of its public
officials, has placed continuing stress upon the proposi
tion that segregation is the required way of life; a
State which, by the force of law and policy, brought
to bear over the course of many decades and still con
tinuing, has established a community-wide custom of
segregation reaching virtually into every department
of life. Suppose further that, though no specific en
actment explicitly requires it, segregation is in fact
uniformly practiced in public restaurants, in full
conformity with the State’s open and declared policies
and with its encouragement and support. In these
circumstances, does the absence of an express statu
tory command justify the conclusion that the State’s
prosecution of Negroes who seek to be served food
despite the discriminatory practices followed by the
proprietors of such an establishment is neutral and
“ color-blind” ? Or, at least, in the absence of a strong
showing to the contrary, is one not driven, rather, to
the conclusion that the State can not disclaim
a measure of responsibility for the discrimination
which it now seeks to implement through criminal
sanctions?
Common sense requires an affirmative answer. Nor
does this result call for,the adoption of novel prin
ciples of law.
We begin with one certainty. The absence of an
explicit statutory command does not foreclose the
search for State action. The Fourteenth Amend
ment is not so narrowly confined. Just as the State
acts in many other ways, so the Amendment looks
62
beyond the formal enactments of the State legislature.
I t notices State action in the rulings of judges, Ex
Parte Virginia, 100 U.S. 339; Shelley v. Kraemer, 334
U.S. 1, in the edicts of governors, Sterling v. Constan
tin, 287 U.S. 378; Cooper v. Aaron, 358 U.S. 1; Fan-
bus v. Aaron, 361 U.S. 197, affirming 173 F. Supp.
9 4 4 , and in the decisions of all manner of subordinate
local officials. Virginia v. Rives, 100 U.S. 313, 321;
Yick Wo v. Hopkins, 118 U.S. 356; Home Tel. & Tel.
Co. v. Los Angeles, 227 U.S. 278; Niemotko v. Mary
land, 340 U.S. 268; Pennsylvania v. Board of Trusts,
353 U.S. 230; Cooper v. Aaron, supra. And, as the
cases just cited make plain, discrimination by State
officers is no less prohibited because it is accomplished
without, or despite, the command of statutory law.
See Monroe v. Pape, 365 U.S. 167,171-172.
But the Amendment does not reach “official” acts
only. The State is not insulated merely because the
result is accomplished through persons interposed,
however, ‘‘private” they may claim, to be. The State
can no more dictate discrimination in private insti
tutions than it can segregate its own facilities. Truax
v. Raich, 239 U.S. 33; Buchanan v. Warley, 245 U.S.
60; Gayle v. Browder, 352 U.S. 903, affirming 142 F.
Supp. 707; State Athletic Commission v. Dorsey, 359
U.S. 533, affirming 168 F. Supp. 149; Bailey v. Pat
terson, 369 L .S. 31, 33; Turner v. City of Memphis,
369 L .S. 350. Ibe constitutional right to equal treat
ment “can neither be nullified openly and directly by
state legislators or state executive or judicial officers,
nor nullified indirectly * * *” Cooper v. Aaron, su
pra, 358 L .S. at 17. Nor is it only when the State
63
explicitly dictates discrimination by others that tlieir
conduct, “ may fairly he said to be that of the States.”
Shelly v. Kramer, supra, 334 U.S. at 13. See Nixon
v. Condon, 286 U.S. 73; Smith v. AUwriyht, 321 U.S.
649; Terry v. Adams, 345 U.S. 461. State “partici
pation”, “ whether attempted ‘ingeniously or ingen
uously,’ ” or “insinuation” in discriminatory activity
is just as real when its involvment is “nonobvious.”
Cooper v. Aaron, supra, 35S U.S. at 4, 17; Burton v.
Wilmington Parking Authority, 365 U.S. 715, 725.
Cf. Public Utilities Conun’n v. Poliak, 343 U.S. 451.41
And, again, it does not matter through what branch
of government, or whether formally or informally, the
State encourages segregation by others. Cooper v.
Aaron, supra, 358 U.S. at 17; Terry v. Adams, supra,
345 U.S. at 475 (opinion of Mr. Justice Frank
furter) ; Barrows v. Jackson, 346 U.S. 249, 254. As
stated by this Court many years ago. “the prohibi
tions of the Fourteenth Amendment * * * have refer
ence to actions of the political body denominated a
State, by whatever instruments or in whatever modes
41 See, also, Muir v. Louisville Park Theatrical Association,
347 U.S. 971, reversing and remanding - v- F. 2d 275; Iie/r
v. Enoch Pratt Free Library of Baltimore C ity , 149 F. 2d 212
(C.A. 4); Department of Conservation <C Development v. Tate,
231 F. 2d 615 (C.A. 4) ; City of St. Petersburg v. A hup, 238 F. 2d
830 (C.A. 5 ) ; Derrington v. Plummer, 240 F. 2d 922 (C.A.
5 ) ; City of G reensboro v. Simkins, 246 F. 2d 425 (C.A. 4 ) ;
Baldwin v. Morgan. 287 F. 2d 750 (C.A. 5); Lawrence v.
Hancock. 76 F. Supp. 1004 (S.DAV.Ya.); Jones v. Marva The
atres, Inc.. 180 F. Supp. 49 (D.M d.); Coke v. City of Atlanta,
Ga.. 184 F. Supp. 579 (X.D.Ga.). And see Valle v. Stengel,
176 F. 2d 697 (C.A. 3).
64
that action may he taken.” Ex Parte Virginia, su
pra, 100 U.S. at 346-347.
The cases just cited, although they do not resolve
the present issue, show the breadth of the concept of
State action, which, as Mr. Justice Clark pointed out
in Burton v. Wilmington Parking Authority, 365
U.S. 715, 721-722, has from the day of the Civil
Bights cases until Cooper v. Aaron embraced “ State
action of every kind * * * which denies * * * the
equal protection of the. laws” (109 U.S. at 11) and
also “ state participation through any arrangement,
management, funds or property” (358 U.S. at 4).
So long as the State has meaningfully “ place[d] its
authority behind discriminatory treatment based
solely on color [it] is indubitably a denial by a State
of the equal protection of the laws, in violation of the
Fourteenth Amendment.” Burton v. Wilmington
Parking Authority, supra, 365 U.S. at 727 (dissenting
opinion of Mr. Justice Frankfurter).
In short, the State is not insulated from respon
sibility under the Fourteenth Amendment merely
because a private person commits the final act of in
vidious discrimination. The question, as Mr. Jus
tice Clark has pointed out for the Court, is whether
the State in any of its manifestations has, to some
significant extent, become involved in the discrimina
tion. Burton v. Wilmington Parking Authority,
365 U.S. 715, 722.
B. In light of these principles, we consider whether
the act of discrimination which lies at the base of
the prosecution of the petitioners in Lombard can be
said to be “ private”, rather than State-induced.
65
1. The segregationist policy of Louisiana is re
flected in its laws. The scheme is not haphazard.
Almost every activity is segregated. Discrimination
against the Negro literally begins with his birth and
continues to his death, and beyond.
At the outset, the Negro is given a birth certificate
which so identifies him. La. R.S. 40:244. He starts
life on a segregated street. La. 33:5060-5008. See
also, La. R.S. 33:4771. As a child he is segregated in
parks, playgrounds, swimming pools,, and other rec
reational activities. La. R.S. 33:4558.1. If taken to
the circus, he must go in by a separate entrance. La.
R.S. 4:5. Until very recently, he was relegated to all-
Negro public schools. Former La. R.S. 17:331-334,
17:341-344 (repealed in I960).4' Even now, he may
attend a segregated school in the upper grades. See
Orleans Parish School Board v. Bush, August 6, 1962
(C.A. 5). Later on, he will be compelled to stay apart
at all entertainments and athletic contests. La. R.S.
4:452. Mixed social functions are absolutely banned.
La. R.S. 4:451. At work, he will eat separately and
use separate sanitary facilities. La. R.S. 23:971-975.
His voting registration is separately tabulated. La.
R.S. 18:195. And, should he become a candidate for
elective office, he will be identified by race on the bal
lot. La. R.S. 18:1174.1. He may not marry outside
“ Despite the contrary rulings of the federal courts the stat
ute lxx>ks of Louisiana are not yet wiped clean of provisions
designed to forestall effective desegregation of the public
schools. See, e.g.. La. R.S. 17:107, 17:304.1, 17:305.1-4, 17:2801,
et neq., 17:2901, ct aeg.
66
of his race. La. Civil Code, Art. 94; La. R.S. 9:201.
See, also, La. R.S. 14:79. If he is divorced, the court
proceedings will reflect his color. La. R.S. 13.917,
13:1219.
Institutions for the blind and deaf are segregated.
La. R.S. 17:10-12. So are homes for the aged and in
firm. La. R.S. 46:181. And prisons also separate the
races. La. R.S. 15:752, 15:854. See, also, La. R.S.
15:1011, 15:1031.
Finally, his death will be attested by a certificate
identifying him by race. La. R.S. 40:246. And he
will l>e buried, presumably in a segregated cemetery,45
perhaps under a funeral policy which has been sepa
rately administered. La. R.S. 22:337, 22:345.
Significantly, in this pervasive scheme of segrega
tion, there seems to be special emphasis on separate
consumption of food and drink. Employers are re
quired to segregate their employees during meals, even
to the point of supplying different utensils for each
race. La. R.S. 23:972. Likewise, at all places of pub
lic entertainment, separate water fountains must be
provided. La. R.S. 4:452. And, in New Orleans at
least, strict segregation is required in all establish
ments which serve beverages with more than one-half
of 1 percent alcohol. New Orleans City Code, §§ 5-
2(1), 5-61.1. All appearances suggest that the leg-
■*3 While there appears to be no specific statute segregatin';
cemeteries, the practice seems to be required, at least in all pub
licly owned cemeteries, by the recent constitutional provision
compelling segregation in all State, parochial or municipal in
stitutions. See La. Const. 1021, Art. X, §5.1, as added by Act
630 of 1060, adopted November 8, 1960.
67
islative policy o f Louisiana includes segregation of
public restaurants and lunch counters.
The statute l>ooks give no false impression. While
compulsory segregation is far from new in Louisiana,
neither are the present laws mere vestiges of a for
gotten past. Many of the statutes are recent. None
are ignored as obsolete. On the contrary, what re
mained of a more generous era (see Hall v. DeCuir,
95 U.S. 485) was quickly erased from the books.
One relevant example is the repeal in 1954, shortly
after this Court’s initial decision in Brown v. Board
of Education, 347 U.S. 483, of the local “ inkeeper”
statute and a companion provision specifically ban
ning “ distinction or discrimination on account of
race or color” in licensed “places of public resort.”
See former La. 1LS. 4:3-4, repealed by Act 194 of
1954.
Where the State’s segregation policy has given
away, it has been almost invariably under the com
pulsion of federal court orders, and then only after
most protracted litigation. See Wilton v. Board of
Supervisors, 92 F. Supp. 986 (E.D. La.), affirmed,
340 L~.S. 909 (State law school); Tureaud v. Board
of Supervisors, 116 F. Supp. 248 (E.I). La.), re
versed, 207 F. 2d 807, judgment of court of appeals
stayed, 346 U.S. 881, vacated and remanded, 347 U.S.
971, affirmed, 225 F. 2d 434, reversed and remanded
on rehearing, 226 F. 2d 714, affirmed on further re
hearing en lane, 228 F. 2d 895, certiorari denied, 351
U.S. 924 (State undergraduate and law school); Mor
rison v. Davis, 252 F. 2d 102 (C.A. 5), certiorari
68
denied, 356 U.S. 968, rehearing denied, 357 U.S. 944
(Buses and streetcars); New Orleans City Park Im
provement Ass’n v. Detiege, 252 F. 2d 122 (C.A. 5),
affirmed, 358 U.S. 54 (Municipal park); Ludley v.
Board of Supervisors of L.S.U., 150 F. Supp. 900
(E.D. La.), affirmed, 252 F. 2d 372, certiorari denied,
358 U.S. 819 (State colleges); Dorsey v. State Ath
letic Commission, 168 F. Supp. 149 (E.D. La.),
affirmed, 359 U.S. 533 (Interracial sports contests);
Board of Supervisors of Louisiana State V. v.
Fleming, 265 F. 2d 736 (C.A. 5); (State uni
versity) ; Louisiana State Board of Education v.
Allen, 287 F. 2d 32 (C.A. 5), certiorari denied, 368
U.S. 830 (State trade school); St. Helena Parish
School Board v. Hall, 287 F. 2d 376 (C.A. 5), certio
rari denied, 368 U.S. 830, further relief granted, 197
F. Supp. 649, affirmed, 368 U.S. 515 (Public schools) ;
East Baton Itouge Parish School Board v. Davis, 287
F. 2d 380 (C.A. 5), certiorari denied, 368 U.S. 831
(Public schools). This Court is, of course, familiar
with the course of the litigation involving the public
schools of New Orleans. See Bush v. Orleans Parish
School Board, 138 F. Supp. 337 (E.D. La.), leave to
file mandamus denied, 351 U.S. 948, affirmed, 242 F.
2d 156, certiorari denied, 354 U.S. 921, denial of mo
tion to vacate affirmed, 252 F. 2d 253, certiorari de
nied, 356 U.S. 969, further motion to vacate denied,
163 F. Supp. 701, affirmed, 268 F. 2d 78; id., 187 F.
Supp. 42, stay denied, 364 U.S. 803, affirmed, 365 U.S.
569; id., 188 F. Supp. 916, stay denied, 364 U.S. 500,
affirmed, 365 U.S. 569; id., 190 F. Supp. 861, affirmed,
69
366 U.S. 212; id., 191 F. Supp. 871, affirmed, 367 U.S.
908; id., 194 F. Supp. 182, affirmed, 367 U.S. 907, 368
U.S. 11; id., 204 F. Supp., 568, modified, 205 F. Supp.
893, modified and affirmed (C.A. 5), August 6, 1962.
As the State Legislature recently proclaimed, not
only has Louisiana “ always maintained a policy of
segregation of the races,” but “ it is the intention of
the citizens of this sovereign state that such a policy
be continued.” La. Act 630 of 1960, Preamble.
2. The statute books tell only a part of the story.
Louisiana has a long tradition of racial discrimina
tion, as is attested by the cases which have reached
this Court. See, in addition to the cases already
cited and those cited, infra, p. 70, United States v.
Cruik shank, 92 U.S. 542; PI ess y v. Ferguson, 163
U.S. 537; Harmon v. Tyler, 273 U.S. 668;“ Pierre v.
Louisiana, 306 U.S. 354; Louisiana v. X.A.A.C.P.,
366 U.S. 293. Even in areas where there is no spe
cific statute, the custom of segregation persists. And,
of course, customs often have a force akin to law.
Civil Rights Cases, 109 U.S. 3, 16, 21; Terry v. Adams,
“ Louisiana's reluctance to abandon its tradition of segrega
tion, even where this Court lias ruled, is exemplified by the
retention of the provision banning mixed communities in the
1950 codification of the laws still in effect, long after this Court's
declaration that the statute was unconstitutional in Hannon v.
Tyler. The Reporter for the revision notes that, since “[t]he
state supreme court in its opinion [upholding the statute] had
carefully distinguished or attempted to distinguish, the
Buchanan, case [Buchanan v. Warley, 245 U.S. 60, relied on by
this Court],” and since this Court's ruling was “only a memo
randum decision,” the provision should be retained as still in
force. See “Reporter's Notes” to La. R.S. 33:5066.
70
supra, 345 U.S. at 475 (opinion of Mr. Justice Frank
furter). Indeed, the Louisiana criminal courts are
expressly enjoined to take judicial notice of extra-
legal racial customs, presumably because they have
legal relevance. See La. R.S. 15:422(6).
Specifically, a strict practice of segregation pre
vails in the service of food. As Mr. Justice Douglas
noted in Garner v. Louisiana, 368 U.S. 157, 181 (con
curring opinion) :
Though there may have been no state law or
municipal ordinance that in terms required
segregation of the races in restaurants, it is
plain that the proprietors in the instant cases
were segregating blacks from whites pursuant
to Louisiana’s custom. Segregation is basic to
the structure of Louisiana as a community;
the custom that maintains it is at least as pow
erful as any law. * * *
The custom had not changed when the present “ sit-in ”
occurred. B oth the M ayor and P o lice Superintend
ent o f N ew O rleans frankly stated that they knew of
no desegregated restaurant in the C ity ."5
But segregation in restaurants is no mere private
custom. If it were, it would doubtless have long since
ceased to be the uniform practice. See Cooper v.
45 We understand that since the granting of the petition in
Lombard several department stores in New Orleans have deseg
regated their lunch counters. Of course, the partial desegre
gation of eating establishments at the present time does not
disclose the situation when the discrimination at the base of these
prosecutions occurred, two years earlier.
71
Aaron, supra, 358 U.S. at 20-21, 25, 26 (concurring
opinion of Mr. Justice Frankfurter). I t is actively
supported by the outspoken policies of the State—
policies so hardened that State employees are en
joined from advocating integration under penalty of
losing their jobs. See La. R.S. 17:443, 17:462, 17:403,
17:523.
The State itself, apart from the enactment of com
pulsory legislation, sets the example. I t segregates
all of its own facilities. La. Const. 1921, Art. X, as
amended 1960, § 5.1. I t continues to discriminate in
the electoral process. See United States v. McElvrcn,
180 F. Sup]). 10 (E.D. La.), affirmed sub nom. United
States v. Thomas, 362 U.S. 58; United States v. Asso
ciation of Citizens Councils of Louisiana, 196 F. Supp.
908 (W.D. La.) ; United States v. Manning, 205 F.
Supp. 172 (W.D. La.). See, also, Hannah v. Larche,
363 U.S. 420. Despite decisions in this Court, be
ginning with Strauder v. West Virginia, 100 U.S.
303, discrimination in grand jury selection persisted
in New Orleans until at least 1954. See Eubanks
v. Louisiana, 356 U.S. 584, 586. See, also, Poret v.
Sigler, 361 U.S. 375. And efforts by Negroes to chal
lenge segregation customs have been promptly mel
with prosecutions for breach of the peace. Garner
v. Louisiana, 368 U.S. 157 (lunch counter customarily
reserved for whites) ; Taylor v. Louisiana, 370 U.S.
154 (terminal waiting room customarily reserved for
whites).
3. As indicated above, the inference that the State
government causes and sustains the practice of segre-
72
gation in Louisiana restaurants seem s unavoidable.
In th is instance, there were additional pressures by
local officials.
A lthough the form er N ew Orleans Mayor and the
Superintendent o f P olice are men o f m oderation, *
whose utterances were restrained, their statem ents
quoted in full at pp. 12-15, supra, could not but
harden the opposition to desegregation o f lunch coun
ters m the City. The tim ing o f these official declara
tions was crucial.
I t appears that, one week prior to the “ s it-in s”
here involved, the Superintendent o f P olice issued a
public statem ent (supra, pp. 12-13), reprinted in the
c ity ’s leading newspaper, which, in the context
o f L ouisiana’s laws and customs, must have been
understood to condemn the efforts o f the c ity ’s
N egro citizens to achieve equality o f treatment at
lunch counter facilities not only by dem onstrations but
by any means. Term ing the first “ sit-in s” to have
occurred in N ew Orleans “ regrettable,” the S u
perintendent claimed they were instigated by a
“ very sm all group” which did “ not reflect the senti
ments o f the great m ajority o f responsible citizens
both w hite and Negro, who m ake up our population .’’
. . Superintendent appealed to “ m ature responsible
citizens o f both races” to “ exercise * * * sound in
dividual judgm ent, goodwill and a sense o f personal
and com m unity responsib ility .” P arents o f the dem
onstrators were asked “ to urge upon these voung
people that such actions are not in the com m unity
interest. Perhaps m ost significant, the Superintend-
73
ent saw “no reason for any change whatever in the
normal, good race-relations that have traditionally
existed in New Orleans.” In the existing environ
m ent this exhortation can hardly have been under
stood to be confined to illegal dem onstrations; it ob
viously supported the notion that proprietors should
continue to refuse service to Negroes, for the normal
traditional pattern o f race relations w ith respect to
food service, as the M ayor and Superintendent testi
fied, was that proprietors would not serve Negroes on
an integrated basis.
Four days prior to the “ sit-ins,” the Superin
tendent’s statement was buttressed by a statement
issued by the Mayor (supra, pp. 1,3-15) also published
in the press. The Mayor declared that he had “ di
rected the superintendent of police that no additional
sit-in demonstrations or so-called peaceful picketing
outside retail stores by sit-in demonstrators or their
sympathizers will be permitted.” This command was
not restricted to demonstrations involving refusals to
leave after being requested to do so. It acknowledged
no room for free private decisions by the owners of
lunch counters, no opportunity for Negroes to seek
service in the hope that the owners would abandon seg
regation. I t was also a direct prohibition upon law
ful peaceful picketing (Cf. Thornhill v. Alabama, 310
U.S. 88) designed to encourage proprietors to serve
Negroes on an integrated basis. The Mayor stated
that he would enforce his directions by invoking two
recent enactments of the State legislature prohibiting
acts which could “ foreseeably disturb or alarm the
65S676— « 2
74
public.” F inally , he demanded that “ such demonstra
tions cease” in the “ com m unity in terest.”
The foregoing statem ents read in isolation m ight
fa ir ly be construed to deal only w ith “ s it-in ” demon
strations. H owever, their combined effect in the
Louisiana context, we subm it, was not only to dis
courage “ sit-in s” but to condemn the goal o f equality
o f service and any activ ity intended to persuade the
proprietors o f public eating-places to cease segrega
tion. Their im pact upon those who m ight other vise
have acceded to the demands for equality of treatment
seem s plain.
4. We return to the question whether the total bod}'
of State influences—the manifold current segregation
laws and contemporaneous declarations of policy, the
customs stemming therefrom and the declarations of
the mayor and chief of police—should be found to
have played the same decisive role in the proprietors’
discrimination against petitioners Lombard et ah as
the municipal ordinances were seen to play in the
companion cases previously discussed. See pp. 50-59
supra. The situations differ in that the Louisiana
laws did not literally require the segregation. They
are the same in that on this record one can only con
clude that Louisiana’s official actions must have been
effective inducing causes of the proprietor’s choice.
Under these circumstances, too, normal human experi
ence teaches that the individual proprietor would
never face the problem of forming a judgment unin
fluenced by State policy. The State which enacts
unconstitutionally discriminatory laws in areas so
75
closely related to segregation in public eating-places
and which declares generally that racial segregation
is the policy of the State has the same burden of
disentangling its influence upon the proprietors’ dis
crimination from other factors for which the State
is not responsible. And there is the same burden to
show petitioners’ awareness that the segregation was
the result of the proprietor’s individual choice unin
fluenced by State action, if indeed that were the
truth.
In the present case, we are not left merely to infer
ence and presumption. Far from overcoming the con
clusion that the exclusionary practice stemmed from
the State, the testimony of the store manager con
firmed it. Although his testimony on this subject was
curtailed at the trial (see supra, pp. 17-19), the man
ager pointedly declared (supra, pp. 16-17) that he re
fused petitioners service because of “ local tradition,
law and custom.”
Louisiana’s official segregation policies are also re
lated to petitioners’ convictions for criminal trespass
by their inevitable effect upon the police, the prosecu
tors and the State courts. Louisiana’s policy, like the
segregation-in-public-eating-places ordinances dis
cussed at pages 49-59 supra, interjected an official
discriminatory bias into the decisions of the police in
the handling of complaints, into the decision of the
prosecutor as to whether to institute criminal proceed
ings and, quite possibly, into the sentence. This im
pact of the segregation policies in the criminal proceed
ing confirms our conclusion that the convictions violate
76
the Fourteenth Amendment because on these records
they are inseparably part of the official State policy of
denying Negroes equal protection of the laws.
In the present case, it is unnecessary to consider
just how large a body of State laws would justify find
ing, in the absence of contrary proof, that the State is
so involved in the proprietor’s decision that it is barred
from initiating a prosecution for criminal trespass.
Each particular case must be individually decided by
making a judgment upon the question of degree, and
the smaller the body of State law the closer the case
will fall to the dividing line. In the Lombard case the
Louisiana statutes are current and the general State
policy of segregation was declared by the legislature
as recently as 1960. The problem that would arise if
the statutes had been repealed and the private discrim
ination were only the result of community customs
promoted by earlier State laws does not require con
sideration here. The currency and pervasiveness of
the body of Louisiana’s segregation laws and the plain
ness with which that policy is declared show that this
case is well on the unconstitutional side of the dividing
line.
5. We have argued above that the record utterly
fails to overcome the strong inference that the proprie
tor’s acts of discrimination were brought about by the
State. Although the Louisiana Supreme Court has
stated in its opinion (L. 147) that the decision to ex
clude Negroes was independently made by the store
owner, we find no supporting evidence for this con
clusion. The manager did testify that, so far as the
77
national chain was concerned, the determination was
left to him. And, obviously, it was he who actually
established the segregated eating accommodations and
maintained them separate. But the courts below gloss
over the manager’s explanation why he acted as he did.
So far as he was permitted to explain, he said he was
following prevailing “ local tradition, law and custom,”
as he interpreted it. Further cross-examination on this
point was cut off. Clearly, this statement does not
support the conclusion that he made a purely private
decision.
We think this evidence unambiguous against tho
background already sketched. For, as we have said,
having intruded so actively and so pervasively in the
area of race relations, the State had to overcome the
presumption that it participated in the act of discrim
ination at the base of these prosecutions. And, cer
tainly, Louisiana has not met that burden, at the trial
or elsewhere. But the result here would not be differ
ent if the Court should disagree and hold that the
shoe was on the other foot. For, if petitioners bore
the burden of proving the State’s involvement, they
were at least entitled to an opportunity to make that
showing. And, if they have failed to satisfy this
Court, it is only because their efforts in this direction
were summarily cut short.
As the court below confirms, petitioners “ sought to
introduce evidence to establish that the action of the
manager of McCrory’s was provoked or encouraged
by the state, its policy, or officers * * *” (L. 146). But
the trial court refused that evidence. To cite one
example, during the questioning of the store manager,
78
petitioners’ counsel asked: “Will you tell the court
why you were not allowed to serve them?” (L. 109).
After an objection by the prosecutor was sustained on
the ground that the question was not material, defense
counsel stated the purpose of his inquiry (L. 110) :
I think it is material, because if Mr. Graves
[the restaurant manager] felt there was some
State policy that prevented him from serv
ing these defendants this is a clear state
action. * * *
Nor is this an isolated instance. Consistently, during
the preliminary hearing on the motion to quash and
during the trial itself, the trial judge prevented in
quiry as to why the restaurant discriminated (L. 23,
25, 26, 107, 108, 127-128). The court having imposed
upon them the burden of proving the State’s involve
ment, this curtailment of petitioners’ attempt to show
that the store’s decision to discriminate was attribut
able to the State was clearly improper. I t follows that
the Lombard convictions would have to be reversed
even if the burden of showing whether the State’s
active support of segregation actually Influenced the
proprietor was upon the petitioners rather than the
THE DECISION IN THESE CASES SHOULD NOT BE DETER
MINED BY CONSIDERATIONS PERTINENT SOLELY TO
RIGHTS AS BETWEEN THE PROPRIETORS AND PETITIONERS
We have considered thus far the issues as between
the petitioners and the States, and have shown that
upon these records it must be concluded that the
79
States were sufficiently responsible for the discrimina
tion to make their total action in relation to the peti
tioners’ sentences—the inducement to discriminate
plus the prosecution, conviction and sentences—a
denial of equal protection of the law. In other words,
a State may not, consistently with the Fourteenth
Amendment, both induce a proprietor to engage in
racial discrimination and prosecute the victims for
criminal trespass or a similar offense.
The question may be raised, what are the mutual
rights and duties of the petitioners and proprietors
in the context of an ordinance requiring, or State
action strongly encouraging, racial segregation. It
may be argued, in attack upon our position, that re
versal upon the grounds we urge would require hold
ing the proprietors to a duty to serve Negroes and deny
ing thettL'private right to exclude them for whatever
personal reasons they chose, a result inconsistent with
the preservation of the private freedom of choice, sus
tained in the Civil Rights Cases and our ensuing con
stitutional history. The Negroes’ remedy, the argu
ment would conclude, is by direct attack upon the
unconstitutional ordinances and official segregation
policies rather than the proprietors’ private freedom
to discriminate.
We believe that this line of inquiry need not be
fully explored because a decision in the present cases
upon the ground put forward in this brief need not
determine the private rights as between proprietors of
public eating places and Negroes seeking service.
80
In the first place, there is no need to decide here
whether even a criminal prosecution would violate the
Fourteenth Amendment if it were made to appear as
a fact that the proprietor’s discriminatory practice
was not a result of State action but of a personal wish
to discriminate which would have been indulged in the
absence of the State laws. On the records before the
Court, this is not the fact. Obviously, the decision,
then, cannot affect rights in private litigation in
which the fact is made to appear.
Second, the presumption that the State law has in
fluenced the private decision—a presumption which
operates against the State in a criminal prosecution—
might not operate in the same fashion against the
private owner. The State, having adopted unconsti
tutional segregation laws, has a duty to disentangle
the consequences; it does not lie in the State’s mouth,
at least in the absence of clear proof, to say that the
very discriminatory practices that it ordered or other
wise sought to induce were actually unrelated to the
State’s directions or encouragement. This reasoning,
however, would not run against the individual pro
prietor and consequently, as between him and the
Negro, the outcome of any litigation might be dif
ferent.
Third, we submit that there is no reason, in the
circumstances of these cases, why the ability of the
State to prosecute must be exactly the same, both sub
stantively and procedurally, as the right of private
owners to refuse service and exclude the Negro who
81
insists upon service. I t is one thing to say that a
State which enacts a law requiring segregation in
public eating places is guilty of denying Negroes
equal protection of the laws not only when it enforces
that statute against them, but also when it prosecutes
them for criminal trespass because of the decision of
those who are apparently obeying the statutory com
mand. That conclusion follows because the segrega
tion laws -cannot be so rigidly separated from the
criminal prosecution; the prosecution, at least until
the contrary is clearly demonstrated, is not only State
action but a consequence, and therefore part and
parcel, of the concurrent denial of equal protection
of the laws. I t is quite a different thing, however,
to deprive the owner of any property rights which
he may independently wish to exercise, on the ground
that the State has violated the Fourteenth Amend
ment. Because of this difference the disposition of
these criminal cases need not affect the private rights
of proprietors and those seeking restaurant service,
and those rights would remain to be determined when
ever the issue may arise.
Under the facts of these cases, there is no serious
incongruity in suggesting that the proprietors have
not necessarily lost their right of action or defense
in private suits merely because the State is constitu
tionally barred from implementing their discrimina
tion through the imposition of criminal sanctions.
The problem, if any, is confined within a narrow
compass, and it is curable. We espouse no broad
82
rule of constitutional law which would, in all cases,
deny the storeowner who wished to discriminate
among customers the aid of the State criminal law.
That might he the result if it were held that a State
violates the Fourteenth Amendment merely by arrest
ing and prosecuting those who trespass upon segre
gated premises. But we present no such question.
Our contention is that, in cases like those at bar, the
arrests and prosecutions violate the Constitution be
cause the State itself has been a party to the under
lying discrimination. To regain its neutrality and
remove the only barrier now urged against its action,
it suffices if the State terminates its objectionable
inducement of discriminatory practices.
In summary, we submit that when the State, by its
current laws, actions, and policies, brings about indi
vidual acts of discrimination in the conduct of a busi
ness open to the public at large, it cannot impose
criminal sanctions upon those who have been ex
cluded, on the theory that it is merely implementing
a private property right. Americans, both black and
white, may stand upon a more fundamental right:
The right that government shall deny to no man the
equal protection of the laws.
83
C0NCLTJ3I0N
F o r the foregoing reasons, the judgm ents of con
viction in these cases should be reversed.
R espectfu lly submitted.
A rchibald Cox,
Solicitor General.
B urke Marshall,
Assistant Attorney General.
R alph S. S pritzer,
Louis F . Claiborne,
Assistants to the Solicitor General.
October 1962.
H arold H . Greene,
H oward A. Glickstein,
R ichard K . B erg,
A lan G. M arer,
Attorneys.
r s . G O V E R N ME NT PRINTING O P r i C l i l M l