Griffin v. Maryland Supplemental Brief Amicus Curiae

    N o s . 6 ,9 ,1 0 ,1 2  a n d  60

Jtt fte (§mxt of t h  SttM States
October Term, 1963

W illiam L. Griffin. et al., petitioners
: V. ' ■ -

State of Maryland

Charles F . B arr, et al., petitioners

City op Columbia
v.

Simon B ouie, et al., petitioners
v.

City op Columbia

R obert Mack Bell, et al., petitioners 
' v . -

State op Maryland

J ames R ussell Robinson, et al., appellants 
' v.

State op F lorida

ON W R IT S  OF CERTIO RARI TO THE SUPREME COURT OF SOUTH  
CAROLINA AND THE COURT OF APPEALS OF M ARYLAND AND  
ON APPEAL FROM THE SUPREME COURT OF FLORIDA

SUPPLEMENTAL BRIEF FOE THE UNITED STATES AS AMICUS
CUEIAE

*7-----------
ARCHIBALD COX,

Solicitor General,
BURKE MARSHALL,

Assistant Attorney General,
R A LPH  S. SPRITZER,
LOUIS P. CLAIBORNE,

Assistants to  the Solicitor General, 
HAROLD H„ GREENE,
DAVID RUBIN,

Attorneys,
Department of Justice, 

Washington, D.O. 20530.



I N D E X

Pse<4

Question presented_________________________________  5
Argument:

Introductory----------------------------------------------------- 7
I. The refusal to allow Negroes to eat with other 

members of the public or to share amusement 
in these places of public accommodation was an 
integral part of a wider system of segregation 
established by a combination of governmental 
and private action to subject Negroes to caste
inferiority________________________    21

A. Acts of racial discrimination in places of
public accommodation are parts of a 
community-wide practice stigmatizing 
Negroes an inferior caste____________  23

B. The States have shared in establishing the
system of racial segregation of which dis­
crimination in places of public accommo­
dation is an inseparable part_______  40

Slavery and the free Negro before the
Civil W ar_____________________  41

Emancipation and its aftermath____  45
Jim Crow and segregation_________  50

II. For a State to give legal support to a right to main­
tain public racial segregation in places of public 
accommodation, as part of a caste system 
fabricated by a combination of State and 
private action, constitutes a denial of equal pro­
tection of the laws________________________ 64

A. Where racial discrimination becomes effec­
tive by concurrent State and individual 
action, the responsibility of the State 
under the Fourteenth Amendment de­
pends upon the importance of the ele­
ments of State involvement compared
with the elements of private choice___  66
i719- 946— 64 (X)



II

II. For a State to give legal support, etc.—Continued
B. In the present cases the elements of State 

involvement are sufficiently significant, 
in relation to the elements of private 
choice, to carry responsibility under the Page 
Fourteenth Amendment_____________  80

1. The States are involved through
the arrest, prosecution and con­
viction of petitioners_________  80

2. The States are involved in the
practice of discriminating

Argument—Continued

against Negroes in places of 
public accommodation because of 
their role in establishing the 
system of segregation of which
it is an integral part__________ 90

3. The States are involved in the dis­
crimination because of their 
traditional acceptance of re­
sponsibility for, and detailed 
regulation of, the conduct of the 
proprietors of places of public 
accommodations towards the 
general public to which they
have opened their businesses___ 93

4. These cases involve no substantial
element of private choice______ 104

C. The imposition of State responsibility 
would give effect to the historic purposes 
of the Thirteenth, Fourteenth and
Fifteenth Amendments---------------------  111

_______________________________________  . 145Conclusion



r«

CITATIONS
Cases in this Court: ijage

American Federation of Labor v. Swing, 312 U.S. 321__ 81
Anderson v. Martin, No. 51, this Term, decided January

13, 1964____________________________    62
Avent v. North Carolina, 373 U.S. 375______________ 26
Bailey v. Patterson, 368 U.S. 346, 369 U.S. 31______  26
Barr v. Columbia, No. 9, certiorari granted, 374 U.S.

804 _____ ________________________________  26
Barrows v. Jackson, 346 U.S. 249_________________  72
Bell v. Maryland, No. 12, certiorari granted, 374 U.S.

805 _______________________________________  26
Black v. Cutter Laboratories, 351 U.S. 292__________  82
Bouie v. Columbia, No. 10, certiorari granted, 374 U.S.

805_________________________________________  26
Boynton v. Virginia, 364 U.S. 454_________________  26
Brown v. Board of Education, 347 U.S. 483________  50, 111
Buchanan v. War ley, 245 U.S. 60_________________  89
Burton v. Wilmington Parking Authority, 365 U.S. 715_ 3,

15, 26, 68, 69, 70, 72, 88, 102
Cantwell v. Connecticut, 310 U.S. 296___________ __  81
Child Labor Tax Case, 259 U.S. 20_______ ________  80
Civil Rights Cases, 109 U.S. 3____________________  9,

10, 66, 73, 78, 94, 95, 135, 136 
Dawson v. Mayor and City Council of Baltimore, 220

F. 2d 386, affirmed, 350 U.S. 877_______________  58
District of Columbia v. Thompson, 346 U.S. 100_____  30
Drews v. Maryland, No. 3_______________________ 26, 31
Edwards v. South Carolina, 372 U.S. 229___________  26
Florida, ex rel. Hawkins v. Board of Control, 347 U.S.

971, 350 U.S. 413, 355 U.S. 839_____________60
Ford v. Tennessee, No. 15__________ :_____________ 26
Fox v. North Carolina, No. 5_____________________  26
Garner v. Louisiana, Briscoe v. Louisiana, Hoston v.

Louisiana, 368 U.S. 157_________ ___________ 26, 31, 62
Gayle v. Browder, 352 U.S. 903, affirming 142 F. Supp.

707_________________________________________  68
Gober v. Birmingham, 373 U.S. 374________________ 26
Griffin v. Maryland, No. 6, certiorari granted, 370 U.S.

935, reargument ordered, 373 U.S. 920__________  26
Hamm v. Rock Hill, No. 105_____________________  26



IV

Cases in this Court—Continued Page
Henry v. Virginia, 374 U.S. 98___________________  26
International Ass’n of Machinists v. Street, 367 U.S.

740_______________________________________ 71,73,89
Johnson v. Virginia, 373 U.S. 61_________________ 63, 111
Lombard v. Louisiana, 373 U.S. 267_____ _________ 3, 15,

26, 27, 65, 68, 70, 72, 90, 94
Lupper v. Arkansas, No. 432________ !___ ________  26
Marsh v. Alabama, 326 U.S. 501______________  20, 69, 110
McCabe v. A.T. cfe S.F. By. Co., 235 U.S. 151_______  68
Mitchell v. Charleston, No. 8_____________________  26
Monroe v. Pape, 365 U.S. 167____________________  84
Monroe v. Pape, 367 U.S. 167_____________ ___ ___  118
Muir v. Louisville Park Theatrical Ass’n., 347 U.S.

971, reversing and remanding 202 F. 2d 275______  68
Munn v. Illinois, 94 U.S. 113___________________  94, 110
NAACP  v. Webb’s City, No. 362__________________ 26
National Labor Relations Board v. Southern Bell Co.,

319 U.S. 50_________________________________  19, 109
Pennsylvania v. Board of Trusts, 353 U.S. 230______  15, 71
Peterson v. Greenville, 373 U.S. 244________________3,17,

26, 40, 55, 65, 68, 70, 72, 90, 107
Public Utilities Comm. v. Poliak, 343 U.S. 451______ 71, 95
Railroad Company v. Brown, 17 Wall. 445__________ 30
Railway Employees’ Dept. v. Hanson, 351 U.S. 225- 15, 71, 89
Randolph v. Virginia, 374 U.S. 97 (remanded)_______ 26
Rice v. Sioux City Memorial Park Cemetery, 347 U.S.

942_________________________________________  82
Robinson v. Florida, No. 60, probable jurisdiction

noted, 374 U.S. 803_____________________ 2, 26, 28, 106
Scott v. Sandford, 19 How. 393___________________  36
Shelly v. Kraemer, 334 U.S. 1_____- ___________  13, 72, 88
In re Shuttlesworth, 369 U.S. 35___________________ 26
Shuttlesworth v. City of Birmingham, 373 U.S. 262___  26
Slaughter-House Cases, 16 Wall. 36______________  112, 141
Smith v. Allwright, 321 U.S. 149____ ______________  69
Steele v. Louisville cfe N. R. Co., 323 U.S. 192_ 68, 71, 89, 103
Strauder v. West Virginia, 100 U.S. 303____________ 111
Swift <& Co. v. United States, 196 U.S. 375________  19, 109
Taylor v. Louisiana, 370 U.S. 154________________  26
Terry v. Adams, 345 U.S. 461_____ ____ ___ 19, 69, 109
Texas cfe N. 0. R. Co. v. Brotherhood of Railway & S.S.

Clerks, 281 U.S. 548_________________________  19 ,109
Thompson v. Louisville, 362 U.S. 199______________  31



V

Cases in this Court—Continued Page
Thompson v. Virginia, 374 U.S. 99------------------------  26
Turner v. City of Memphis, 369 U.S. 350----------------- 26, 68
United States v. Cruikshank, 92 U.S. 542-----------------  66
United States v. Harris, 106 U.S. 629---------------------- 66
United States v. Rumely, 345 U.S. 41---------------------- 80
Williams v. North Carolina, No. 4----------  26
Wood v . Virginia, 374 U.S. 100--------------------    26
Wright v. Georgia, 373 U.S. 284----------------    26

Other cases:
Abstract Investment Co. v. William 0. Hutchinson,

22 Cal. Reptr. 309_______ ______ :--------------------  88
Baldwin v. Morgan, 287 F. 2d 750------- ----------- -—  71
jfennett v. Mellor (1793) 5 Term R. 273------ - 94
Bohler v. Lane, 204 F. Supp. 168---------------------------  57
Boman v. Birmingham Transit Co., 280 F. 2d 531 _—  103
Bowen v. Independent Publishing Company, 230 S.C.

509, 96 S.E. 2d 564------------- ---------------------------  59
Boyer v. Garrett, 183 F. 2d 582-.--------------------------  58
Bryan v. Walton, 14 Ga. 185--------------------------------  37
Capitol Federal Savings and Loan Ass’n v. Smith, 316

P. 2d 252-_______________________ ----------------  83
Carlisle v. J. Weingarten, Inc., 137 Tex. 220, 152 S.W.

2d. 1073-_--____________ ____ : -------— --------- 32
Catlette v. United States, 132 F. 2d 902 ---------------- - 83
Clifton v. Puente, 218 S.W. 2d 272------------------------- 83
Coger v. The North West. Union Packet Co., 37 Iowa

145_________________________________________  130
Coke v. City of Atlanta, Ga., 184 F. Supp. 579---------- 68
Cook v. Patterson Drug Co., 185 Va. 516, 39 S.E. 2d

304-.----------------- ----- -----------------------------------  35
Dawson v. Mayor and City Council of Baltimore City,

220 F. 2d 386______________________________ -- 58
DeAngelis v. Board, 1 R.R.L.R. 370----------------------- 57
Department of Conservation <& Development v. Tate,

231 F. 2d 615----------- ----------------- ------------------ 68, 71
Derrington v. Plummer, 240 F. 2d 922-------------  68, 71, 111
Donnell v. State, 48 Miss. 661-------------------------------  129
Ferguson v. Gies, 82 Mich. 358----------    123
Grant v. Knepper, 245 N.Y. 158, 156 N.E. 650---------  102
Hamilton v. State, 104 So. 345-----------------------------------  31
Hendrickson v. Hodkin, 276 N.Y. 252, 11 N.E. 2d 899_ 102
Hinson v. United States, 257 F. 2d 178— . — ..---------  101



VI

Jones v. Marva Theatres, Inc., 180 F. Supp. 49_____ 57, 88
Joseph v. Bid-well, 28 La. Ann. 382________________  129
Kerr v. Enoch Pratt Free Library of Baltimore City,

149 F. 2d 212_____________________________  58, 69, 71
Kidd v. Thomas A. Edison, Inc., 239 Fed. 405_____  102
Lane v. Cotton (1701) 12 Mod. 472______________ __ 94
Law v. Mayor and City Council of Baltimore, 78 F.

Supp. 346___________________________________  58
Lawrence v. Hancock, 76 F. Supp. 1004___ ____ ____  68
Lynch v. United States, 189 F. 2d 476______________ 83
Madden v. Queens County Jockey Club, 296 N.Y. 249,

72 N.E. 2d 697, certiorari denied 332 U.S. 761____ 103
McDuffie v. Florida Turnpike Authority, 7 E.R.LJl.

505_________  68
McKibbin v. Michigan C. and S.C., 369 Mich. 69, 119

N.W. 2d 557_________________________________  103
Miller v. Gaskins, 11 Fla. 73____________________  42
Nelson v. Natchez, 19 So. 2d 747__________________  31
Picking v. Pennsylvania Railroad Company, 151 F. 2d

240-________________________________________  83
Pinate v. Dolby, 1 Dallas 167____________________ 36
Pontardawe R. C. v. Moore-Gwyn, 1 Ch. 656, 98 L.J.

Ch. 424_____________________________________  101
Renjro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W. 2d

609_________________________________________  32
Sauvinet v. Walker, 27 La. Ann. 14, affirmed, 92 U.S.

90__________________________   129
Simkins v. Moses H. Cone Hospital, No. 8908 (C.A. 4,

November 1, 1963)________________________   71
Simonsen v. Thorin, 120 Neb. 684, 234 N.W. 628-----  92
Slavin v. State, 249 App. Div. 72, 291 N.Y. Supp. 721. 92
Smith v. Holiday Inns of America, Inc., 220 F. Supp.

1________________________________________  68, 69,71
State v. Brown, 195 A. 2d 379____________________ 82, 85
Thompson v. The Baltimore City Passenger Railway

Co_________________________________________  51
Thompson v. Lacy (1820), 3 Barn, and Aid. 283_____ 94
Warbrook v. Griffin (1609), 2 Brownl. 254__________  94
White’s Case (1558) Dryer 158b__________________  94
Williams v. Howard Johnson’s Restaurant, 268 F. 2d

845_________________________________________  103
Willis v. McMahon, 89 Cal. 156__________________  77

Other cases—Continued Pags



VII

Wood v. Hogan, 215 F. Supp. 53,---------------------------  103
Yarbrough v. State, 101 So. 231 (Ala.)--------------------- 32

U.S. Constitution and statutes:
Thirteenth Amendment._7, 10, 12, 13, 14, 15, 21, 45, 60, 64,

65, 111, 113,114
Fourteenth Amendment--------------------------------------  6,

7, 9, 10, 11, 12, 13, 14, 15, 16, 20, 21, 22, 41,48, 60, 
64, 65, 66, 70, 78, 79, 81, 84, 86, 88, 91, 96, 110, 
111, 114, 118, 127.

Section 1_____________________________ 66,117, 140
Section 5__________________________  20, 66,117, 140

Fifteenth Amendment_________________________ 7,10,
12, 13, 14, 15, 21, 60, 64, 65, 111, 114

Civil Eights Act of 1866, 14 Stat. 27--------------------  45, 48,
113, 114, 117, 118,124,127, 131

Civil Eights Act of 1875, 18 Stat. 335--------------------  30,
74,113,124,131,133

Civil Eights Act, 28 U.S.C. 1343__________________ 83
Ku Klux Act of 1871, 17 Stat. 13_________________  113
Supplementary Freedmen’s Bureau Act, 14Stat. 173. 113, 114 

State constitutions and statutes:
Alabama:

Const., 1875, Art. X III, § 1---------------------------  49
Laws:

1868, p. 148___________________________ 49
1873, p. 176____________________________ 49

City codes:
Birmingham Code, 1944:

§ 369_____________________________  56
§ 859_____________________________  56
§ 939_____________________________  56
§ 1110____________________________  56
§ 1604____________________________  56

Gadsden Code, 1946, § 8-18______________ 56
Montgomery Code, 1952:

§ 10-14___________________________  56
§ 13-25___________________________  56
§ 25-5_____________________   56
§ 28A-2____   56
§ 28A-5___________________    56
§ 34-5____________________________  56
Ch. 20-28_________________________  56

Other Cases—Continued pSg*



VIII

State constitutions and statutes—Continued 
Alabama—Continued

City Codes—Continued
Selma Code (1956 Supp.): Pag»

§ 627-1______________________    56
§ 627-6____________________________ 56

Alaska Stat., 1962, § 11.60.230________________ ___ 31
Arkansas:

Laws, 1873:
Pp. 15-19_________________________  49, 77,128
P.423________________________________  49

Stat. Ann., § 71-1801__________________ ____  61
California Civ. Code, § 51_______________________  31
Colorado Rev. Stat., 1953, § 25-1-1_______________ 31
Connecticut Gen. Stat. (1962 Supp.), § 53-55______  31
Delaware Code Ann., § 24-1501__________________  61
District of Columbia Code., 1961, § 47-2907________  31
Florida:

Const., 1885:
Art. XII, § 12__________________________ 50
Art. XVI, § 24_________________________  59

Codes:
Administrative:

Ch. 1700:
§ 8.06_________________  2, 57, 62, 91, 99
§ 16__________________________  97

Ch. 175:
§ 175-1_______________________  , 97
§ 175.1.03_____________________  99
§ 175-2_______________________  97
§ 175-4_______________________ 97, 98
§ 175.4.02_____________________  98

State Sanitary Code: Ch. VII, § 6________  2
Digest Laws, 1881: Pp. 171-172______________ 51
Laws:

1842, ch. 32____________________________ 44
1847-1848, ch. 155______________________ 44
1856', ch. 794, 795_______________________ 44
1858-1859, ch. 860______________________ 44



IX

State constitutions and statutes—Continued 
Florida—Continued 

Laws—Continued
1865-1866: Page

Pp. 23-39__________________________ 48
P. 25, ch. 1466, § 14________________  48
Pp. 41-43, ch. 1479, §§ 1, 3 ,  —  . _____  48

1873:
Ch. 1947___     76
Ch. 1947, p. 25____________________49, 128

1881, ch. 3283, p. 86___________   50
1887, ch. 3743, p. 116___________________  52
1891, ch. 4055, p. 92____________________  51
1895, ch. 4335, p. 96_______ ____________ 50, 54
1897, ch. 4167, pp. 107-108______________  54
1903, ch. 5140, p. 76____________________  58
1905:

Ch. 5420, p. 99_____________________  54
Ch. 5447, § 1, p. 132________________  54

1907:
Ch. 5617, p. 99_____________________  53
Ch. 5617, § 6, p. 100________________  54
Ch. 5619, p. 105________   53

1909:
Ch. 5893, § 1, p. 40_________________  53
Ch. 5967, pp. 171, 171-172___________  54

1913, ch. 6490, p. 311___________________  54
Rev. Stat. 1892, p. V III_____________________  51
S tat.:

§ 1.01(6)______________________________  59
§ 228.09__________________________   50,63
§§ 352.03-352.18_______________________  60
Ch. 154_______________________________  97
Ch. 381_______________________________  97
Ch. 509_______________________________  97

§ 509.032__________________________97, 99
§ 509.211__________________________  98
§ 509.221__________________________  97
§ 509.271______________________   97
§ 509.292__________________________  98
§ 509.092__________________________  61
§ 509.141__________________________  61

§§ 741.11-741.16_______________________  59
§ 871.04_______________________________  99
§§ 950.05-950.08_______________________  63



X

State constitutions and statutes—Continued 
Florida—Continued

City codes and ordinances: Par«
Dade County Code, § 2-77______________  97
Jacksonville City Codes:

1917, § 439____________ ___________  58
1953:

§§ 39-65, 39-70________________  58
§§ 39-15, 39-17________________  58

Miami Code:
Ch. 25___________      97
Ch. 35____________________________  97

Tampa City Code, § 18-107---------------------  58
Emergency Ordinance No. 236 of the City of 

Delray Beach, reprinted in 1 R.R.L.R. 733 
(1956)___    63

Georgia:
Laws:

1870, pp. 398, 427-428___ _____________ 49, 128
1872, p. 69_____________________________ 49

City Codes:
Atlanta, 1942:

§ 36-64.____________    56
§ 38-31___________________________  56
§ 56-15___________________________  56

Augusta, 1952, § 8-2-26_________________  56
Idaho Code (1963 Supp.) § 18-7301----------------------- 31
Illinois Stat., 1961, § 38-13.1_____________________ 31
Indiana Stat. (1963 Supp.) § 10-901----------------------  31
Iowa Code, 1962, § 735.1________________________  31
Kansas Laws, 1874, p. 82________________________  130
Kansas (1961 Supp.) § 21-2424----------------------------- 31
Kentucky Laws: 1873-1874, p. 63-------------------------  49
Louisiana:

Const., 1868, Art. 13_______________________49, 128
Acts:

1869, p. 37________________________  49, 76, 128
1870, p. 57.__________________________ 76, 128
1872, p. 29_____________________________ 128
1873:

P. 156________________________  49, 77, 128
P. 157_____________________________ 77

1954, No. 194, repealing former La. R.S. 4:3-
4____________ ______________________ 61



XI

State constitutions and statutes—Continued 
Louisiana)—Continued

City codes and ordinances:
Monroe Code, 1958: Page

§ 4-24____________________________  56
§7-1_____________________________  56

New Orleans:
Code, 1956, § 5-61.1________________  56
Com’n Council Ord. No. 4485 (1917)----  57

Shreveport Code, 1955:
§ 8.2___   56
§ 8.3___________   56
§11-47_________    56
§ 24-36___________________________  56
§24-56_________- _________________  56

Maine Rev. Stat. (1963 Supp.) § 137-50___________  31
Maryland:

Const., 1851, Art. I, § 1------------    42
Codes:

1860:
Art. 66, § 56_______________________  43
Art. 66, § 74_______________________  43
Art. 66, §§ 76-87___________________  43
1939, Art. 59, § 14___________    63

1957:
Art. 25, § 14_______________________  104
Art. 27:

§ 398__________________________ 59,60
§ 506__________________________ 104

Art. 43, §§ 200, 202, 203, 209_________ 103
Art. 56, §§ 178-179_________________  103
Art. 78A, § 14______________________ .63

1963 Supp., § 49B-11-----   31
Laws:

1801:
Ch. 90___________________________  42
Ch. 109______________________   43



XII

State constitutions and statutes—Continued 
Maryland—Continued 

Laws—Continued
1805, ch. 80__________ - ________________  43
1809, ch. 83____________________________  42
1810, ch. 33______________________    42
1825- 1826, ch. 93_____________________  43
1826- 1827, ch. 229, § 9________________  43
1846-1847, ch. 27____    43
1854, ch. 273______________    43
1870, ch. 392, pp. 555-556, 706----------------- 50, 54
1872, pp. 650-651_______________________ 50
1882, ch. 291, p. 445____________________  54
1884, ch. 264, p. 365____________________  50
1898, ch. 273, pp. 814-817-------------------- --- , 50
1904:

Ch. 109, p. 186_________ ___ - - - - - -  53, 54
Ch. 110, p. 188_____________________53, 54

1908:
Ch. 248, p. 88______________________ 53
Ch. 292, p. 86____ - - - - - - __________  53
Ch. 617, p. 85______________________ 53

1910, ch. 250, pp. 234, 237-246,-_________  54
1963, chs. 227, 228_____________________ 60, 104

City and county codes and ordinances:
Baltimore:

City Code, 1950, Art. 12, §§ 24, 107--- 103
Ordinances:

December 19, 1910, #610-----------  58
April 7, 1911, #654______________ 58
May 15, 1911, #692_____________  58
September 25, 1913, #339-----------  58

Montgomery County Code, 1960, §§ 15-7,
15-8, 15-11, ch. 75__________- - - - - - - - - -  104

Massachusetts:
Acts, 1865, ch. 277, p. 650__________________ 76, 130
Laws, 1956, § 272-92A--------------------------------  31

Michigan Stat., 1962, §28.343------------------------------  31
Minnesota Stat., 1947, § 327.09----------------------------  31



XXXI

State constitutions and statutes—Continued 
Mississippi:

Code Ann., § 2046.5--------------------------------------  61
Laws:

1865:
Ch. 4:

§1------------ —  — --------------------  46
§2____________________________ 46
§ 3--------1--------------------------------  46
§ 4___________________________  46
§ 5 ____________~---------------------- 46
§ 6___________________________  46
§ 7___________________________  46
§ 8___________________________  46

1865, ch. 5:
§ 1_______________________________  46
§ 4_______________________________  46

1865, ch. 6, § 6___     46
1873, p. 66____________________________49, 128

City codes:
' Jackson, 1938, § 546______ _ .7__________  56

Meridian, 1962, § 17-97_____ ___________  56
Natchez, 1954, § 5.6____________________  56

Montana Key. Code, 1962, § 64-211______________  31
Nebraska Rev. Stat., 1954, § 20-101---------------------- 31
New Hampshire Rev. Stat. (1963 Supp.) § 354.1------  31
New Jersey Stat., 1960, § 10:1-2---------------------------  31
New Mexico Stat. (1963 Supp.) § 99-8-3----------------  31
New York:

Laws, 1873, p. 303---------------------------------------  130
Stat., IX, pp. 583-584— -----------    76
Civ. R., §40___________________-  — ---------- 31

North Carolina city codes:
Asheville, 1945:

§2-5-109_______    56
§ 2-7-120_____________________________  56
§ 3-23-636__________—_________________ 56

Charlotte, 1961:
§ 11-11-2 (b)J__________________________ 56
§ 13—13—11____________________________  56
§ 13-13-15 (a)__________________________  56



XIV

North Dakota Code (1963 Supp.) § 12-22-30_______ 31
Ohio Rev. Code, 1954, § 2901.35__________________ 31
Oregon Rev. Stat., 1961, § 30.670_________________  31
Pennsylvania Stat., 1963, § 18-4654_______________ 31
Rhode Island Gen. Laws, 1957, § 11-24-1---------------  31
South Carolina:

Constitutions:
1895:

Art. I l l ,  §33_______________________ 59
Art. XI, §8________________________  50

Codes:
1882, §§ 1369, 2601-2609________________  51
1962:

§20-7______________________________59,60
§§ 35-51-35-54_____________________ 103
§§ 35-130-35-136___________________ 103
§ 35-142___________________________ 103
§ 40-452__________________________  63
§ 58-551____________________________60,61
§§ 58-714—58-720__________________  60
§§ 58-1331—58-1340_-_____    60
§ 58-1333__________________________ 36
§§ 58-1491—58-1496________________  60

Statutes at large :
7 Stat. 461, §§ 2, 7 (1822)____________ 44
7 Stat. 463 (1823)_____. . . ________ _ 44
14 Stat. 179 (1869)_________________ ' 49
14 Stat. 386 (1870)__________________ 49

Acts:
1865:

No. 4730__________________________  47
No. 4731:

§ I ____________________________ 47
§ IV__________________________  47
§ X -----------------------------------------  47
§ XIV_________________________ 47
§ X X II________________________ 47
§ XXIV_______________________  47
§ XXVII______________________  47

State constitutions and statutes—Continued page



XV

State constitutions and statutes—Continued 
South Carolina—Continued 

Acts—Continued
1865—Continued 

No. 4732:
§ V----------    47
§ V II_________________________  47
§ X X _________________________  47
§ X X IX _______________________ 47
§ X X X I_______________________ 47
§ X X X II______________________  47
§ X X X III_____________________  47

No. 4733:
§§ XV-LXXI__________________  47
§XXXV______ - ______________  47
§ LX X II______________________  48
§ LX X XI-X CIX_______________  48

1886-1887, No. 288, p. 549----------------------- 51
1888-1889, No. 219, p. 362----------------------- 51
1896, No. 63, p. 171--------   50
1898, No. 483, pp. 777-778----------------------  53
1900:

No. 246, pp. 443-444------------------------  54
No. 262, pp. 457-459------------------------  53, 54

1904, No. 249, p. 438------------------------------  53
1905, No. 477, p. 954____________________ 53
1906:

No. 52, p. 76_______________________  55
No. 86, pp. 133-137________________ 50, 54

1911, No. 110, p. 169------------------------------  54
1917, p. 48 (S.C. Code (1962), § 5-19)-------- 55
1918, No. 398, pp. 729, 731----------------------  54
1924, p. 895 (S.C. Code (1962), § 5-503).—  55
1934, No. 893, p. 1536----------------------------- 54



XVI

State constitutions and statutes—Continued 
South Carolina—Continued 

City codes and ordinances:
Columbia ordinances: Pag®

§2-73_________    103
§§ 12-27—12-33____________________ 103

Greenville City Code, 1953:
. §8-1______________________________ 55

§ 16-35____________________________ 55
§31-1_____________________________ 55
§ 31-2_____________________________ 55
§31-4_____________________________ 55
§31-5______________________________ 55,63
§ 31-6____________________________  55
§ 31-7_____________________________ 55
§31-8___    55
§ 31-9____________________________  55
§ 31-10___________________________  55
§ 31—12____________________________ 55,63
§ 37-30____________________________ 55

Greenwood City Code, 1952, ch. 24________ 56
Spartanburg:

City Codes:
1949, § 23-51___________________ 63
1958:

§ 28-45____________________ 57
§28-76 (a)_________________  57
Plumbing Code, 1961, § 921.1__ 57

South Dakota Laws, 1963, ch, 58_________________  31
Tennessee:

Code Ann., § 62-710___________    61
Laws 1868-1869, p. 14_____________________  49

Vermont Stat., 1958, § 1451___________________  31
Virginia:

City codes:
“ Danville, 1962, § 18-13___________________ 53,63

Norfolk, 1950, § 9-30___________________  56
Washington Rev. Code, 1962, § 49.60.215__________  31
Wisconsin Stat., 1958, § 942.04-----------------------------  31
Wyoming Stat. (1963 Supp.) § 6-83.1--------------------------- 31

Congressional material:
Cong. Globe, 2d Cong., 2d Sess., p. 381____________ 132
Cong. Globe, 38th Cong., 1st Sess., p. 839_________  124

P. 1156-1157______________________________  124
P. 2989___________________________________  115



XVII

Congressional material—Continued Page
Cong. Globe, 38th Cong., 2d Sess., p. I l l —.............. 116

P. 177____________________________________  115
Cong. Globe, 39th Cong., 1st Sess., p. 39----------— 114, 120

P. 41________________________________ ___ 119, 138
P .4 2 _______________________ — _________  120
P .4 3 ___________________________ - _______  120
Pp. 96, 342, 1157, 1270-1271___- _____________ 138
P. I l l __________________________________  116, 120
P. 154____________________________________  115
Pp. 113, 363, 499, 598, 623, 628, 936, 1268, 1270-

1271, 2940, App. 158_________ - __________  138
P. 318____________________________________  121
P. 322________ ___ ___________ . . . ______ 114, 121
P .341-----------------— ,-------—-----------------  117
Pp. 343, 477, 541, 606, 1122, 1157-_______ — 138
P.474-476_______________- - - - - ______ _ 117,121
Pp. 474-476, 503, 1124, 1159__________ - ____  114
Pp. 476, 599, 606, 1117, 1151, 1154, 1159, 1162,

1263________________    115
Pp. 476-477, 1117, 1122, 1291____________ _ —  116
Pp. 570-571_______________________________  116
P. 589____________________________   116
P.630____________________________________  116
App. 67______________________ ____ -----__  116
P.477_________________- _______ —  121
P. 500, 1120, 1268, 1290-1293________________  115
P. 503_____________________________   114
P. 516-517________________________________  122
P. 541____________________________________  125
Pp. 601-602, App. 70_______________________- 138
P.684____________________   118
P.916______ ,______ _________________ _____  125
P.936-943________________________ - - - - - -  125,126
P. 943_____________________     113
P. 1117, 1159______________________________  113
P. 1124___________________________________  113
P. 1290-1293________________ - _________ ___  115
P. 1366__________________________     121
P. 1679______________________- ____________  126
P. 1832____________- _______ -____ — -------  136
P. 2459_________________________________  118, 141

719- 946— 64-----------2



XVIII

Congressional material—Continued
Congressional Globe—Continued pag0

Pp. 2459, 2462, 2465, 2467, 2538_________   118
Pp. 2461, 2511, 2961________________________  118
Pp. 2465, 2542_______________________   142
Pp. 2498, 2503, 2530, 2531, 2459, 2510, 2539,

2961, 3034___________    118
P. 2765_________    141
P. 2766___________________________________  118
P. 2897___________________________________  118
P. 3037___________________________________  115
App. 68-71________________    125
App. 183__________________________________  126

Cong. Globe, 42d Cong., 2d Sess., p. 244___________  131
Pp. 381, 381-383_____________________  124, 131, 142
Pp. 382-383_______________________________  132
P. 1582___________________________________  133

2 Cong. Rec. 11, 340, App. 361, 3452, 4081-4082, 4116,
4171, 4176_____________________  124, 132, 134, 135, 142

3 Cong. Rec. 1005, 1006, 1011, 1870, 2013________ 133, 135
Hearing before the Senate Committee on Commerce

on S. 1732, 88th Cong., 1st Sess., pp. 324-326____  28
House Bill No. 86, approved May 16, 1963 (Florida)__ 98
House Rep. No. 30, 39th Cong., 1st Sess., Part II,

pp. 4, 61, 126, 177___________________________ 48, 122
Journal of Joint Committee on Reconstruction, S. Doc.

No. 711, 63d Cong., 3d Sess., p. 17______________ 139
S. 9, 39th Cong., 1st Sess________________________  114
S. 60, 39th Cong., 1st Sess_______________________  114
S. 61, 39th Cong., 1st Sess_____________________  114, 121
Senate Exec. Document No. 2, 39th Cong., 1st Sess.,

pp. 516-517__________________________________ 122
Miscellaneous:

Allport, The Nature of Prejudice (1954)_______________  38
Annotation, 46 A.L.R. 2d 1287„_________________    59
5 Bacon, Abridgement of the Law— Inns and Inn­

keepers (1852)__________________________________ 94
Baltimore American, April 30, 1870, p. 1, col. 6, p. 2,

col. 1_________________________________________  51
Baltimore American, November 11, 1871, p. 2, col. 2, 

November 14, 1871, p. 2, col. 1, p. 4, col. 3______ 51



XIX

Baltimore Sun, November 13, 1871, p. 4, col. 2_____  51
Biekel, The Original Understanding and the Segregation

Decision, 69 Harv. L. Rev. 1 (1955)___  113, 137, 139, 141
Bilbo, Take Your Choice, Segregation or Mongrelization

(1947)_____________________________________   38
3 Blackstone, Commentaries, (Lewis ed., 1897), p. 166_ 30, 94 
Bradley, J., unpublished draft of letter by, March 12,

1871, on file, The New Jersey Historical Society,
Newark, New Jersey-___________________________  76

10 Broek, The Antislavery Origins oj the Fourteenth
Amendment (1951)____________________________  113

Burdick, The Origin of the Peculiar Duties oj Public
Service Companies, 11 Col. L. Rev. (1911) 514____  30

Cable, “The Freedman’s Case in Equity” (1884) and
“The Silent South” (1885)_________________   129

Cable, The Negro Question (Turner ed., 1958)_______ 129
Cash, The Mind oj the South (1941)_______________ 38, 40
Cleghorn, “The Segs,” Esquire (January 1964)_______  38
Collins, The Fourteenth Amendment and the States

(1912)_______________________________ - - - - - - -  113
Collins, Whither Solid South (1947)__________________ 38
Commission on Inter-racial Problems and Relations 

to the Governor and General Assembly, Annual Re­
port 1957__________________________- ________  28

•Conard, The Privilege oj Forcibly Ejecting an Amuse­
ment Patron, 90 U. of Pa. L. Rev. (1942)_________  30

Dollard, Caste and Class in a Southern Town (1957
ed.)___________ __________________________ '__  38

Doyle, The Etiquette oj Race Relations in the South
(1937)_______________________________________ 40,42

Dummond, Antislavery (1961)____________________  37
Flack, The Adoption oj the Fourteenth Amendment

(1908)_____________________- ______  113,118,127,132
1 Fleming, Documentary History oj Reconstruction

(1906)__________   45
Frank and Munro, The Original Understanding oj 

“Equal Protection oj the Laws,” 50 Col. L. Rev.

Miscellaneous—Continued Page

Frazier, The Negro in the United States (1957)___  36, 37, 38



XX

George, The Biology of the Race Problem (1962)_____  38
Graham, Our “Declaratory” Fourteenth Amendment,

7 Stan. L. Rev. (1954) 3_______________   113
Greenburg, Race Relations and American Law (1959) _ 62
Hand, L., The Speech of Justice, 29 Harv. L. Rev.

(1916) 617_________ _____________ . . . _________  144
Handlin, Race and Nationality in American Life (1957). 38
Harris, The Quest for Equality (1960)_____ 65, 113, 118, 142
Henkin, Shelley v. Kraemer, Notes for a Revised

Opinion, 110 U. Pa. L. Rev. (1962) 473__________ 84, 85
Horowitz, The Misleading Search for “State Action”

Under the Fourteenth Amendment, 30 So. Cal. L.
Rev. (1957) 208________________________________  84

II Hurd, The Law of Freedom and Bondage in the
United States (1862)______________ _________  37, 44, 45

James, The Framing of the Fourteenth Amendment
(1956)_____________________      113

Johnson, C., Patterns of Segregation (1943)_________  35
Kendrick, Journal of the Joint Committee on Recon­

struction (1914)______________________________  113
Konvitz & Leskes, A  Century of Civil Rights (1961) _ 38
Lewinson, Race, Class, and Party (1932)___________  38
Lewis, Prof. Thomas P., The Role of Law in Regulating 

Discrimination in Places of Public Accommodation
(p. 14)____________________ _________ ____.___  33

Lomax, The Negro Revolt (1962)____________   38
Mangum, The Legal Status of the Negro (1940)______  62
Manual of Practice for Florida’s Food and Drink 

Services Based on the Rules and Regulations of the 
Florida State Board of Health and State Hotel and
Restaurant Commission (July 1960)________ 2, 3, 97, 100

McPherson, Political History of the United States
During the Period of Reconstruction (1871)_______  45

Mechem, Outlines of the Law of Agency (4th ed.) § 382_ 102
Murray, States Laws on Race and Color (1950)______  62
Myrdal, An American Dilemma (Rev. ed., 1962)____38, 40

Miscellaneous—Continued page



XXI

National Cyclopedia of American Biography, V (1907). _ 129
X X X V III-■______________________ - - - - - - -  129

Nye, Fettered Freedom (1949)_________ ___________  113
1 Op. Atty Gen. 659__________________________  44
Page, The Negro: The Southerner’s Problem (1904)___  38
Peters, Civil Rights and State Action, 3 Notre Dame

Lawyer 303_________________________- _______  65
Pollitt, Dime Store Demonstrations: Events and Legal 

Problems of First Sixty Days, 1960 Duke L.J. 315- _ 25, 35 
Prosser, Toils:

(1941 ed.) 194, 323-325, 330, 723_________  90, 92, 101
(1955 ed.) 188-189, 430— _________________ 101, 102

Putnam, This is the Problem!, The Citizen (Citizens’
Councils of America, Nov. 1961--._______________  38

4 R.R.L.R. 733______________    63
Randall, The Civil War and Reconstruction (1937)___  113
Restatement Torts, Secs. 321, 330(d), 364, 431,

551(2)----------------------- -------------- -------------  32, 92, 101
Roche, Civil Liberty in the Age of Enterprise, 31 U. of

Chi. L. Rev. 103_____________________________  65, 76
Rowland, Courts, Judgesand Lawyers of Mississippi,

1798-1935 (1935), pp. 48-49___________________  129
Role of Law in Regulating Discrimination in Places of 

Public Accommodation, The, Conference on “Dis­
crimination of the Law”, November 22-23, 1963__ 33

Saenger, The Social Psychology of Prejudice (1953)__  38
Shaw, Man and Superman (1916 ed.)______________  37
Shufeldt, The Negro, A  Menace to American Civilization

(1907)___________________________________ __ 38
Smith, L ., Killers of the Dream (1949)_____________  40
Southern Regional Council, Inc., Civil Rights: Year-

End Summary (Dec. 31, 1963, mimeograph)______  26
Southern Regional Council, Inc., The Student Protest

Movement: A  Recapitulation (September 1961)____  26
Southern Regional Council, Report, The Student 

Protest Movement: Winter 1960 (April 4, 1960, rev.)- 25, 35 
Southern Standard Building Code, 1957-1958;

§ 2002.1

Miscellaneous—Continued Page

57



XXII

Stephenson, Race Distinctions in American Law Saga
(1910)___________________________________  30,76,77

Storey, Bailments, §§ 475, 476 (7th ed., 1863)______  94
1 Street, Foundations oj Legal Inability (1906)______  91
3 Stroud, Judicial Dictionary (1903), p. 2187_______ , 30
Swisher, Roger B. Taney (1936) p. 154____________  44
Tindall, South Carolina Negroes 1877-1900________ _ 51
Tumin, Desegregation (1958)_____________________  38
U.S. Commission on Civil Rights, Freedom to the Free

(1963)______________________________________ , 48
Van Alstyne and Karst, State Action, 14 Stan. L. Rev.

3 (1961)_____________________________________ 84
Warsoff, Equality and the Tm w  (1938)______________ 113
Weyl, The Negro in American Civilization (1960)__ 36, 37, 44
Wheeler, Law oj Slavery (1837)___________________  42
Williams, The Twilight of State Action, 41 Texas L. Rev.

347 (1963)___________________________________ 84
Woodward, The Strange Career of Jim  Crow (1955)__  27, 51
Woodson, The Negro in Our History (6 ed. 1932)____  36
Woof ter, Southern Race Progress— The Wavering Color

Line (1957)__________________________________ 38
Wright, The Free Negro in Maryland (1921)________  37
Wyman, The Law of the Public Callings as a Solution

of the Trust Problem, 17 Harv. L. Rev. 156 ( 1 9 0 3 ) 3 0

Miscellaneous—Continued



J t t  the Supreme (Sfmtrt of the United s ta tes
October Term, 1963 

No. 6
W illiam L. Griffin , et al., petitioners

v.
State of Maryland

No. 9
Charles F . B arr, et al., petitioners

v.
City of Columbia

No. 10
Simon B ouie, et al., petitioners

v.
City of Columbia

No. 12
Robert Mack B ell, et al., petitioners

v.
State of Maryland

No. 6 (f
J ames Russell R obinson, et al., appellants

v.
State of F lorida

ON W R IT S OF CERTIO RARI TO THE SUPREME COURT OF SOUTH  
CAROLINA AND THE COURT OF APPEALS OF M ARYLAND AND 
ON APPEAL FROM THE SUPREME COURT OF FLORIDA

SUPPLEMENTAL BRIEF FOR THE UNITED STATES AS AMICUS
CURIAE

This brief is filed pursuant to the Court’s order of 
November 18, 1963, inviting the Solicitor General,
pursuant to his suggestion, to file a brief expressing

(i)



2

the views of the United States upon “ the broader 
constitutional issues which have been mooted” in 
these cases.

We confine the brief to those issues, but believe it 
appropriate to note two somewhat narrower grounds 
specially applicable to Robinson v. Florida, No. 60, 
which came to our attention in preparing to argue the 
broader issues.

1. At the time petitioners Robinson et al. were 
arrested, there was in effect a regulation of the 
Florida Board of Health applicable to restaurants 
(Florida State Sanitary Code, Chapter VII, Section 
6), which provided:1

Toilet and lavatory rooms must be provided for 
each sex and in case of public toilets or where 
colored persons are employed or accommodated 
separate rooms must be provided for their use. 
Each toilet room shall be plainly marked, viz: 
“White Women,” “Colored Men,” “White 
Men,” “ Colored Women.”

1A  Manual of Practice for Florida's Food and Brink Serv­
ices based on the Rules and Regulations of the Florida State 
Board of Health and State Hotel and Restaurant Commission, 
published in July 1960 (one month before petitioners were 
arrested), prescribed (pp. 140-141) :
“4.6.7—Toilet and hand washing facilities

“ (a) Basic requirement—In every food and drink service 
establishment adequate toilet and hand washing facilities shall 
be available for employees and guests. Separate facilities shall 
be provided for each sex and for each race whether employed 
or served in the establishment. Toilet rooms shall not open 
directly into a room in v/hich food or drink is prepared, stored 
or served.”

The substance of the regulation quoted in the text was 
reissued on June 26, 1962, and is now part of Florida Admin­
istrative Code, Chapter 170C, Section 8.06. See pp. 99-100, 
infra.



3

While the regulation does not require segregation 
in the parts of the restaurant where customers are 
eating, the regulation not only gives official support 
to the principle of racial segregation but puts the 
proprietor who desires to serve both races indiscrimin­
ately to the financial burden of providing duplicate 
toilets and lavatories.2 Thus, the regulation would 
seem to impose sufficient State pressure to bring the 
case within Peterson v. Greenville, 373 U.S. 244, and 
Lombard v. Louisiana, 373 U.S. 267.

2. The views expressed by Mr. Justice Stewart in 
Burton v. Wilmington Parking Authority, 365 U.S. 
715, 726, would also seem to require reversal in the 
Robinson ease.

Chapter 509 of Florida Statutes Annotated sets 
forth a comprehensive code of regulation for public 
lodging and public food service establishments. Sec­
tion 509.092, however, provides—

Public lodging and public food service estab­
lishments are declared to be private enterprises 
and the owner or manager of public lodging 
and public food service establishments shall 
have the right to refuse accommodations or 
service to any person who is objectionable or 
undesirable to said owner or manager.

2 A restaurant serving fewer than 100 people at one time 
would be required to have one toilet and one lavatory for 
women, one toilet, one urinal and one lavatory for men, pro­
vided that no Negroes were accommodated. I f  Negroes were 
accommodated, the facilities would have to be duplicated. See 
A  Manual of Practice for Florida's Food and Drink Services, 
supra, p. 141.



4

It is undisputed that petitioners were refused serv­
ice only because they were either Negroes or in the 
company of Negroes (R. 19-20, 29).

Section 509.141, the statute under which petitioners 
were convicted, authorizes the manager to eject any 
person who, in his opinion, is a—

person whom it would be detrimental to such 
* * * restaurant * * * for it any longer to 
entertain.

•The managers invoked this section because they be­
lieved that enforcing segregation accorded with the 
wishes of a majority of the people of the county and 
any contrary course would be detrimental to the 
business.

The statute in Burton v. Wilmington Parking 
Authority allowed a proprietor to refuse to se rv e -

persons whose reception or entertainment by 
him would be offensive to the major part of his 
customers * * *.

In Burton, Mr. Justice Stewart said—
There is no suggestion in the record that the 
appellant as an individual was such a person. 
The highest court of Delaware has thus con­
strued this legislative enactment as authorizing 
discriminatory classification based exclusively 
on color. Such a law seems to me clearly viola­
tive of the Fourteenth Amendment.

Here, as in Burton, there is no suggestion in the 
record that any appellant as an individual was a per­
son deemed detrimental to the business because per­
sonally offensive to other customers. Whites were 
automatically served and Negroes and groups contain­



5

ing Negroes were automatically excluded. Here, as 
in Burton, therefore, the highest court of the State 
has construed its legislation as authorizing a discrimi­
natory classification based exclusively upon color.3 
Such a law is invalid equally with the Delaware legis­
lation, and the convictions thereunder should be 
reversed.4

We turn now to the broader issue.
QUESTION PRESENTED!

In four of these five cases petitioners peacefully 
entered premises thrown open by the proprietor to the 
general public for the service of food and refresh­
ments; in the fifth, they entered an amusement park 
offering entertainment to the public at large. In each

3 See also the statement of the trial court at R. 36. The in­
stant case would seem even clearer than Burton, for the statute 
was enacted in 1957 in a context of systematic segregation.

4 I t  has been suggested that Mr. Justice Stewart’s opinion 
in Burton v. Wilmington Parking Authority should be read as 
saying that there was no suggestion in the record that appel­
lant’s race made him “offensive to the major part of [the res­
taurant’s] customers.” Examination of the record makes it 
plain that this cannot be the meaning. The case was decided on 
cross motions for summary judgment. The third affirmative de­
fense asserted the restaurant’s right as a private business to 
refuse refreshment “to persons whose reception or entertain­
ment would be offensive to the major part of its customers and 
would injure its business,” and that the defendant “is there­
fore not bound to serve the plaintiff in its restaurant.” Trans­
cript of Record, p. 8, No. 164, October Term, 1960. On motion 
for summary judgment, that allegation would be taken as true. 
The nub of the matter, therefore, was that plaintiff was re­
fused service not as an offensive individual but upon the ground 
that a majority of the customers desired a racial classification. 
The situation in the instant case is the same.



6

ease, although, otherwise acceptable, petitioners were 
refused service and asked to leave on the ground that 
they were Negroes or were in the company of Negroes. 
This was done pursuant to the proprietor’s policy of 
denying service to Negroes as a class, although he 
rendered service to all other members of the public, 
without discrimination, to the extent of his facilities. 
In three of the cases Negroes were invited into the 
premises to buy goods, and their patronage was sought 
for all purposes except the service of food to be eaten 
there in the presence of white patrons.

In each instance petitioners refused to leave the 
premises when requested. They were arrested by 
the local police, prosecuted and subsequently convicted 
of criminal trespass or an equivalent crime. The 
relevant State laws afforded Negroes and non-Negroes 
technical equality in the limited sense that they gave 
no member of the public an enforeible right to enter­
tainment or service in the establishments involved.48

The question presented is whether the convictions 
are invalid under the equal protection clause of the 
Fourteenth Amendment, when it appears (as we shall 
argue)—

(1) that the convictions gave legal effect to a com­
munity-wide practice under which non-Negroes are 
automatically served in establishments of public ac­
commodation while Negroes are automatically segre­

4a The briefs previously filed in these cases present full state­
ments of the facts and proceedings below. We have epitomized 
the essential elements to the extent necessary to present the 
broad constitutional issue.



7

gated or excluded in order to stigmatize them as 
members of an inferior race, and

(2) that the practice, is an integral paid of the 
fabric of a caste system woven of threads of both 
State and private action.

ARGUMENT

INTRODUCTORY

For nearly a century, a nation dedicated to the 
faith that all men are created equal nonetheless tole­
rated Negro slavery and still more widely espoused, 
in laws and public institutions, as well as private 
life, the thesis that the Negro is a servile race destined 
to be set apart as an inferior caste neither sharing nor 
deserving equal rights and opportunities with other 
men. A great war resulted. At the end the Thirteenth, 
Fourteenth and Fifteenth Amendments not only 
abolished human bondage but purported to eradicate 
the imposed public disabilities based upon the false 
thesis that the Negro is an inferior caste. Before 
their government, the Amendments taught, in the 
eyes of the law, all men—men of all races-—are cre­
ated equal.

Slavery was in fact abolished. The twin promise of 
civil equality failed of immediate performance. State 
laws were enacted, customs were promoted by public 
and private action, institutions and ways of life were 
established, all upon the pervasive thesis that, although 
human bondage was forbidden, Negroes were still an 
inferior caste to be set apart, neither sharing nor 
entitled to equality with other men.



8

One of the pivotal points in the State-promoted 
system of public segregation and subjection became 
separation in all places of public transportation, en­
tertainment or accommodation.5 There the brand of 
inferiority burns the deepest; there the wrong is the 
greatest; for there no element of private association, 
personal choice or business judgment enters the de­
cision—only the willingness to join in the imposition 
of the public stigma of membership in an inferior 
caste. There the Negro asks most insistently whether 
we mean our declarations and constitutional recitals 
of human equality or are content to live by, although 
we do not profess, the theories of a master race.

That is the question petitioners raised when they 
entered and sought service in these places of public 
accommodation. They raised the question in various 
forms. They raised a moral, and therefore in a sense

5 Throughout this brief we frequently use the term “places of 
public accommodation” as a convenient shorthand description 
of the soda fountains or lunch counters, restaurants and amuse­
ment park involved in these cases. The phrase seems apt to 
describe all establishments which throw their premises open 
to the public at large (except for any racial restrictions), which 
invite the patronage of the general public without selection 
either in the invitation or rendition of service, and which 
furnish lodging, food or drink, entertainment, amusement or 
similar services. The meaning might extend far enough to 
include gasoline service stations which “feed” the automobiles, 
just as the adjacent restaurant feeds the traveler. The exact 
limits are unimportant for it is the characteristics of the soda 
fountains or lunch counters, restaurants and amusement park 
described later in this brief that are legally significant and the 
expression is merely a shorthand way of describing them. If  
other establishments were shown to have the same characteris­
tics, the same legal consequences would follow.



9

a persona] question, as they presented it to the pro­
prietors of the establishments in which they were 
arrested. The question became legislative as the dem­
onstrations pressed the Congress and the States to 
consider whether to require establishments holding 
themselves out to the public to serve all members of 
the public without regard to race. It became a ques­
tion for government, also, when the managers of the 
establishments called upon State authority to support 
a right to evict petitioners and thus join in maintain­
ing the system of stigmatizing Negroes an inferior 
caste. When the State intervened, a constitutional 
issue was raised—how far and in what circumstances 
does the Fourteenth Amendment permit a State to 
support the system of public segregation of Negroes 
for the purpose of stigmatizing them as an inferior 
caste.

Only the last question is here. It is manifestly dif­
ferent from both the moral question posed for the 
individual and the policy questions presented to Con­
gress and State authorities, but it is nonetheless re­
lated to the ideal of civil equality. While the Four­
teenth Amendment does not lay upon individuals and 
non-governmental institutions the standards of con­
duct applicable to the States and does not compel a 
State to exercise all its regulatory power to abolish all 
forms of private (i.e., non-governmental) discrimina­
tion, the Amendment does reach State-sponsored in­
equality in every form. In the Civil Bights Cases,



1 0

109 U.S. 3, 11, the Court drew the fundamental dis­
tinction :

It is State action of a particular character 
that is prohibited. Individual invasion of indi­
vidual rights is not the subject-matter of the 
amendment. * * *

The distinction is deeply imbedded not only 
in our fundamental law but in our national 
life. It is essential to a free, pluralistic so­
ciety. It is a product of our moral philosophy, 
which values freedom because it calls upon man to 
exercise his noblest quality—the power of choice be­
tween good and evil. Freedom, in this sense, is free­
dom to be foolish as well as wise, to be wrong as 
well as right. While the State may sometimes limit 
the choice, especially in the regulation of business 
conduct, there is room for legislative judgment. 
Nothing in the Constitution prevents a State which 
has always scrupulously stayed its hand, from con­
tinuing to prefer the course of private self-deter­
mination, at least for those who have not opened 
their premises to the public and perhaps even for those 
whose businesses are affected with a public interest. 
It would be equally false to ideals secured by the 
Thirteenth, Fourteenth and Fifteenth Amendments, 
however, to permit a State to use the cloak of private 
choice to hide affirmative State support for a caste 
system heavily infused with governmental action.

We unqualifiedly accept the fundamental distinction 
laid down in the Civil Bights Cases. Moreover, in 
applying it, we take for granted the proposition that 
the mere fact of State intervention through the courts



11

or other public authority in order to provide sanctions 
for a private decision is not enough to implicate the 
State for the purposes of the Fourteenth Amendment. 
In a civilized community, where legal remedies and 
sovereign authority have been substituted for private 
force, private choice in the use of property or busi­
ness or social relations often depends upon the sup­
port of sovereign sanctions. Where the only State 
involvement is color-blind support for every property- 
owner’s exercise of the normal right to choose his 
business visitors or social guests, proof that the partic­
ular property-owner was motivated by racial or reli­
gious prejudice is not enough to convict the State of 
denying equal protection of the laws.

But that is not this case. We deal here not with 
individual action but with a community-wide, public 
custom of denying Negroes the opportunity of break­
ing bread with their fellow men in public places in 
order to subject them to a stigma of inferiority as 
an integral part of the fabric of a caste system woven 
of threads of both State and private action. The re­
fusal to allow an individual to eat at a lunch counter 
generally open to all orderly members of the public, 
when viewed in isolation, can be fairly described in 
legal terms as a businessman’s exercise of the right 
to select his customers, or as the property owner’s ex­
ercise of the right to choose whom he will permit 
upon his premises. Depending upon his motive, the 
manager’s act may be petty, vindictive, immoral, a 
harsh business judgment, or even justifiable; but in 
the absence of statute his right is absolute. But his­
tory and an appreciation of current institutions

719- 946— 64-------------3



12

(whose meaning is partly a product of history) show 
that racial segregation in places of public accommoda­
tion cannot be viewed as merely a series of isolated 
private decisions concerning the use of property or 
choice of customers, or even as a widespread private 
custom unrelated to governmental action. The inci­
dents are not separable. The custom is infused with 
official action both in its origins and implementation. 
The legal concepts applicable to isolated incidents are 
not more adequate to capture the truth of racial segre­
gation in places of public accommodation than chemi­
cal formulas for body content are sufficient to describe 
mankind. By way of illustration, Hitler’s pogroms 
were not mere instances of assault, battery and mali­
cious destruction of property.

To break the institution into its components even 
for the purposes of analysis loses some of the reality, 
but in our argument we emphasize, first, that the 
essence of the practice of racial segregation in places 
of public accommodation is not the management of 
property or the selection of customers but the stig­
matization of the Negro as an untouchable member 
of an inferior caste. Its only function is to preserve, 
despite the Thirteenth, Fourteenth and Fifteenth 
Amendments, the essence of the earlier disabilities 
associated with slavery but extended more widely 
through the Nation. Segregation in places of public 
accommodation does not involve the management of 
property or selection of customers in any true sense. 
These are public places, made so by the proprietors’ 
voluntarily inviting the public at large to use them. 
Between proprietor and customer there is only the



13

most casual and. evanescent of all business relation­
ships. Any orderly person is served, always and 
automatically, except those branded as members of an 
inferior race. There is none of the continuity or 
selectivity that enters into employment; and none of 
the personal contact or need for mutual trust, con­
fidence and compatibility that characterizes the doctor- 
patient and lawyer-client relationships. The virtual 
irrelevance of the legal concepts of private property 
is vividly demonstrated by the practice of many de­
partment stores. They solicit the patronage of Ne­
groes, invite them onto the property and into the 
store, make sales in other departments—some even 
furnish food to eat away from the counter—but then 
they deny the Negro the privilege of breaking bread 
with other men. Manifestly, it is the stigma—the 
brand of inferiority—that is important, not presence 
on the premises or the character of customers.

Second, we show that the practice of stigmatizing 
Negroes as an inferior caste by refusing to serve them 
in places of public accommodation together with their 
fellow men is a product of State action in the nar­
rowest sense, although not currently required by law, 
because it is an important and inseparable part of a 
system of segregation established by a combination 
of State and private action. When the Thirteenth, 
Fourteenth and Fifteenth Amendments outlawed 
slavery and sought also to eradicate the public disa­
bilities relegating Negroes to the status of an inferior 
caste, respondents and some sister States were unwill­
ing to eliminate all vestiges of the caste system from 
their jurisprudence, official policies and public insti­



14

tutions and leave the development of business, pro­
fessional and social relations to private choice. State 
statutes and municipal ordinances, on a wide scale, 
required segregation in places of public accommoda­
tion, upon common carriers, and in places of public 
entertainment. State laws provided for segregation 
in related areas such as schools, court houses and 
public institutions. State policies expressed, in count­
less other ways, the notion that Negroes should be 
treated as an inferior caste. The community-wide 
fabric of segregation thus was filled with the threads 
of law and government policy woven by government 
through the warp of custom laid down by private 
prejudice. The system is all of a piece. Segregation 
in places of public accommodation cannot be severed 
and appraised in isolation. One cannot tell what 
would happen if the threads of State law and State 
policy were pulled from the cloth, save that mani­
festly it would be changed.

After developing these two points in the hope of 
clarifying the true nature of the institution with 
which the cases are concerned, we return to the legal 
question—whether a State which has fostered the 
practice of racial segregation in places of public 
accommodation in order to preserve the stigma upon 
the Negro as an inferior caste, contrary to the promise 
of the Thirteenth, Fourteenth and Fifteenth Amend­
ments, may now, consistently with the requirements 
of the Fourteenth Amendment, use the sovereign au­
thority of its police and courts to sanction the eviction 
of Negroes, pursuant to the practice, as an exercise of 
private choice.



15

It is a settled principle that a State cannot exeul- j 
pate itself merely by showing that the racial segrega- j 
tion or some other invasion of fundamental interests 
was contingent upon the decision of private individ­
uals. Shelley v. Kraemer, 334 U.S. 1; Pennsylvania v. 
Board of Trusts, 353 U.S. 230; Burton v. Wilmington 
Parking Authority, 365 U.S. 715; Lombard v. Louisi­
ana, 373 U.S. 267; Railway Employees’ Dept. v. Han­
son, 351 U.S. 225. This is not to retract our previous y 
acknowledgement that neither recognition of a right 
of private choice in a business subject to public regu­
lation nor the use of State power to safeguard the 
choice once made is automatically sufficient to impli­
cate the State for the purposes of the Fourteenth 
Amendment. It is to assert, in a complex, civilized 
community where public and private action are inter­
woven and interdependent, that the determination of a 
State’s responsibility under the Fourteenth Amend­
ment depends upon a judgment upon the size and im­
portance of the elements of State involvement in rela­
tion to the elements of private action, both measured 
from the standpoint of the fundamental aims of the 
constitutional guarantees.

The framers of the Thirteenth, Fourteenth and F if­
teenth Amendments were not content merely to forbid 
human bondage. They were equally determined to re­
move the widespread public disabilities, associated 
with slavery, that branded the Negro an inferior caste 
excluded from the promise that in America all men 
are created equal. This is the heart of the guarantees 
of the privileges and immunities of citizens, of equal 
voting rights, and of equal protection of the laws.



16

The Fourteenth Amendment, it must be emphasized 
required major changes in State laws: the old slave 
codes were to be repealed; civil disabilities in owning- 
property, in contracting and in the laws of inheritance 
were to be eradicated; there were to be no State barri­
ers to business opportunities and the professions; nor 
were the States left free passively to watch Negroes 
suffer individual wrongs at the hands of private per­
sons in situations in which the State would intervene 
to protect non-Negroes.

On the other hand, the Amendments left most social 
and business associations to private choice. Where 
the law did not compel social intercourse, business as­
sociations and other private relationships among 
whites, the Amendment did not require them between 
whites and Negroes. Whether a Negro won equality 
and acceptance in the private world outside the sphere 
of government once freed from the public stigma of 
civil disabilities would depend upon his own capacities 
and efforts, hampered perhaps by personal prejudices 
but freed from the caste system.

In historical terms it can hardly be denied that any 
State intervention in support of the preservation of 
the caste system in an everyday element of public life 
defeats the promise of the Amendments. In stricter 
legal terminology, the elements of State “ involve­
ment” in these cases are sufficient, we submit, to carry 
State “ responsibility” for the constitutional injustice.

The State is involved because its police intervened, 
its officials prosecuted the petitioners, and its courts 
convicted and sentenced them as a result of racial dis­



17

crimination. The discrimination became operative 
through the State’s action. The State cannot close 
its eyes to what all other men see.

The State is further involved because the discrimi­
nation occurred in public places, voluntarily thrown 
open by the proprietors to the community at large. 
It occurred in a segment of public life in which the 
rights and duties—the relationships between the pro­
prietor and the invited public—have always been a 
special concern of the legal system. In each of the re­
spondent States, but especially in Florida, the rela­
tionship between these places of public accommodation 
and the general public is so closely supervised as to 
involve the State in all its aspects.

The States are involved through their support of 
the system of segregation. For both the Negro and 
the white supremacists, discrimination in places of 
public accommodation is a pivotal point in the caste 
system. The respondents and neighboring States 
commanded segregation for many years on a broad 
front. Between State policy and the prejudices and 
customs of the dominant portions of the community 
there was a symbiotic relation. The prejudices and 
customs gave rise to State action. Legislation and 
executive action confirmed and strengthened the 
prejudices, and also prevented individual variations 
from the solid front. State involvement under such 
conditions is too clear for argument, even though 
segregation might be the proprietor’s choice in the 
absence of legislation. Cf. Peterson v. Greenville, 373 
U.S. 244.



1 8

State responsibility does not end with the bare re­
peal of laws commanding segregation in places of 
public accommodation. The very history of the caste 
system belies the claim of legal innocence when the 
State, in these and similar cases, intervenes to sup­
port its central stigma. The State is responsible for 
the momentum its action has generated. The law is 
filled with instances of liability for the consequences 
of negligent or wrongful acts carried through a chain 
of cause and effect until the connection between the 
wrong and the consequences has become too attenu­
ated to be a substantial factor in the harm. Until 
time and events have attenuated the connection, the 
respondents continue to bear responsibility for the 
conditions, which they shared in creating, that result 
in branding Negroes an inferior caste. They have 
not wiped the slate clean.

We recognize that treating the discrimination as 
a consequence of State action for the purposes of im­
posing a measure of State responsibility will, to a 
corresponding extent, lessen the opportunities and 
protection for private choice. Decision here requires 
striking a balance with liberty and equality in oppos­
ing scales. The “liberty” asserted is hardly conse­
quential. These are all business premises thrown 
open to the public. The proprietors have voluntarily 
foregone virtually all power of choice concerning the 
customers they serve. There is no element of per­
sonal selection or personal judgment. Non-Negroes 
are served automatically; Negroes are automatical^



19

segregated or excluded. With rare exceptions there 
is no other basis of choice.

There may be instances where the racial choice is 
purely private in the sense that the proprietor would 
make it even if the States had been truly neutral 
and no community system of segregation had been 
preserved. While our reasoning would sweep them 
under the one conclusion until the caste system is 
eliminated from public places, there is no unfair­
ness in this conclusion. When the proprietor of a 
place of public accommodation discriminates against 
Negroes in a community which practices segregation, 
he knows that he is joining in the enforcement of a 
caste system and his acts take on the color of the 
community practice and suffer the common disability 
resulting from the community wrong. “ [T]hey are 
bound together as the parts of a single plan. The plan 
may make the parts unlawful.” Sivift & Co. v. 
United States, 196 U.S. 375, 396; Terry v. Adams, 
345 U.S. 461, 470, 476 (Mr. Justice Frankfurter 
concurring). The risk that some proprietors may 
lose State protection for an arbitrary choice not 
influenced by the State’s previous conduct is not 
great enough to permit the continuance of support 
for the caste system, which is a product of State 
involvement. Cf. Texas & N.O.R. Go. v. Brother­
hood of Railway & S.S. Clerks, 281 U.S. 548; Na­
tional Labor Relations Board v. Southern Bell Co., 
319 U.S. 50.

These problems, moreover, lie in an area where 
there is little basis for the plea of private rights. 
The proprietors of places of public accommodation



2 0

open their property and business to public use. 
While the dedication cannot supply affirmative ele­
ments of State involvement, it is relevant in weigh­
ing the significance of those elements for the pur­
poses of the Fourteenth Amendment. “ The more an 
owner, for his advantage, opens up his property for 
use by the public in general, the more do his rights 
become circumscribed by the statutory and consti­
tutional rights of those who use it.” Marsh v. 
Alabama, 326 U.S. 501, 506.

The choice of affirmative remedies for State in­
volvement in a system of segregation in places of 
public accommodation rests with Congress imder Sec­
tion 5 of the Fourteenth Amendment. We do not 
argue that .Negroes would have a direct action against 
such an establishment to secure the services of food 
or admission to entertainment. Our contention is 
simply that a State which has contributed to this 
evil custom may not constitutionally take steps to aid 
its enforcement in public places. The same reasoning 
that interdicts State action in the form of arrests and 
criminal prosecution equally condemns State support 
for the caste stigma in the recognition of a legal 
privilege to use private force against the person. 
Whoever first resorts to violence is guilty of a breach 
of the peace, be he the Negro seeking to enter and 
be served or the operator seeking to evict him. The 
State may punish such disturbances of public order 
without discrimination. The failure to accord either 
party that normal protection against an aggressor 
upon racial grounds would also be a denial of equal 
protection of law.



21

Beyond this point, the question is for Congress. 
Congress alone can meet the present national crisis 
arising from the system of segregation by removing 
the fundamental injustice in places of public accom­
modation. Neither petitioners nor the United States 
is arguing that the Court should undertake to hold 
that places of public accommodation must serve all 
members of the public alike without regard to race 
or color. The Court, being subject to judicial and 
constitutional limitations, cannot solve the whole 
problem. There is judicial power, nevertheless, to 
scrutinize a State’s contribution to the injustice and 
to invalidate any convictions flowing from affirmative 
State involvement. After a century of frustration, it 
is not too much for petitioners to ask that, whatever 
action the Congress may take, the barriers raised by 
the Thirteenth, Fourteenth and Fifteenth Amend­
ments to any continued State support for the caste 
system should be made unmistakably plain.

I
THE REFUSAL TO ALLOW NEGROES TO EAT WITH OTHER 

MEMBERS OF THE PUBLIC OR TO SHARE AMUSEMENT IN 
THESE PLACES OF PUBLIC ACCOMMODATION WAS AN IN­
TEGRAL PART OF A WIDER SYSTEM OF SEGREGATION ES­
TABLISHED BY A COMBINATION OF GOVERNMENTAL AND 
PRIVATE ACTION TO SUBJECT NEGROES TO CASTE INFERI­
ORITY

At the heart of these cases lies the necessity for 
understanding the human significance of the institu­
tions with which we deal. The courts below reasoned



22

that the States had not violated the Fourteenth 
Amendment because under their law no one has a 
legal right to be served in a place of public accommo­
dation and anyone, white or Negro, is subject to 
prosecution and conviction if he refuses to leave the 
private property at the proprietor’s request. The de­
cisions look only to technical legal equality of right 
and no-right in the immediate context. The courts 
below dealt in terms of the abstract legal concepts of 
property rights, trespass, freedom of association, and 
business choice without going behind the formulas to 
see what is actually involved.

In our view that approach is fundamentally wrong. 
We argue below the legal error of confining the focus 
so narrowly (Point II, pp. 64 if.), but first we seek to 
catch the truth of these events. A department store’s 
refusal to serve a Negro at its lunch counter is not, 
in truth, either for the Negro, the proprietor or the 
community, an isolated act of personal antipathy. 
Nor is the exclusion from an amusement park. All 
are based upon an invidious classification applied by 
the proprietor automatically and invariably. Each 
proprietor acts pursuant to a community-wide prac­
tice. The practice serves the function of branding 
Negroes inferior to other men. It is an integral part 
of a caste system, based upon racial segregation, es­
tablished by a combination of State and private ac­



23

tion. No other discrimination based upon race, na­
tionality or religion is the same.6

Because the question for decision turns upon an 
appreciation of these simple, institutional facts, we 
develop them in some detail before discussing their 
legal significance. Full presentation requires a study 
of the system of segregation as it followed in the wake 
of Negro slavery, but we concentrate first upon the 
facts pertaining to discrimination in places of public 
accommodation: lunch counters, restaurants and an 
amusement park are here involved.
A. ACTS OP RACIAL DISCRIMINATION IN  PLACES OP PUBLIC ACCOM­

MODATION ARE PARTS OP A COM M UNITY-W IDE PRACTICE STIGMA­
TIZING NEGROES A N  INFERIOR CASTE

When these cases arose, the practice of excluding 
or segregating Negroes in lunch counters, lunch 
rooms, restaurants, bars, hotels, and places of public 
amusement was almost universal in the former slave 
States. The pervasiveness of the discrimination is

6 The reasoning does not apply with the same force, if at all, 
in jurisdictions where there has been no governmental support 
for the caste system and where the discrimination is uneven. 
Racial discrimination, even in these instances, might be re­
garded as the fringes of a single fabric; or distinctions could 
be drawn based upon differences in fact. The question seems 
more academic than practical. No cases have arisen under 
such conditions, so far as we know, and none seems likely to 
arise. Thirty States outside the old slave-holding areas have 
enacted equal public accommodations laws. See p. 31, n. 22, 
infra.



24

too notorious to require documentation. It is perhaps 
most dramatically illustrated by consulting the list 
of the cities where protest demonstrations have oc­
curred in the last four years.7 Though it obviously

7 "While no complete list is available, protests directed specifi­
cally against segregation in privately-owned places of public 
accommodation have occurred in at least the following com­
munities :

Alabama: Birmingham, Gadsden, Huntsville, Mobile, Mont­
gomery, Selma, Tuskegee.

Arkansas: Helena, Little Rock, Pine Bluff.
Delaware: Dover, Newark, Smyrna, Wilmington.
Florida: Bradenton, Clearwater Beach, Daytona Beach, De- 

Land, Dunnellon, Gainesville, Jacksonville, Lakeland, Mel­
bourne, Merritt Island, Miami, Ocala, Panama City, Pensacola, 
St. Augustine, St. Petersburg, Sarasota, Tallahassee, Tampa, 
Winter Haven.

Georgia: Albany, Americus, Athens, Atlanta, Augusta, Bruns­
wick, Columbus, Savannah, Yaldosta, Warner Robins.

Kentucky: Henderson, Lexington, Louisville.
Louisiana: Baton Rouge, Clinton, Hammond, New Orleans, 

Plaquemine, Shreveport.
Maryland: Annapolis, Baltimore, Cambridge, Catonsville, 

Crisfield, Cockeysville, Gwynn Oak, Ocean City, Prince 
Georges County, Silver Spring.

Mississippi: Clarksdale, Greenville, Greenwood, Jackson.
Missouri: Berkeley, Kansas City, St. Louis.
North Carolina: Chapel Hill, Charlotte, Concord, Dunn, Dur­

ham, Elizabeth City, Enfield, Fayetteville, Gastonia, Goldsboro, 
Greensboro, Henderson, High Point, Kinston, Lexington, 
Monroe, Mount Airy, New Bern, New Salem, Oxford, Raleigh, 
Rocky Mount, Salisbury, Shelby, Southport, Statesville, 
Thomasville, Williamston, Wilmington, Wilson, Winston-Salem.

South Carolina: Anderson, Beaufort, Charleston, Columbia, 
Denmark, Florence, Newberry, Orangeburg, Rock Hill, South- 
port, Sumter.

Tennessee: Chattanooga, Clarksville, Humboldt, Jackson, 
Knoxville, Memphis, Moscow, Nashville, Oak Ridge, Somerville.

Texas: Amarillo, Austin, Galveston, Houston, Kerrville, 
Longview, Marshall, San Antonio.



25

gives only a partial sampling of the areas involved, 
the list includes several cities in each of the Southern 
and border States, and reflects a generalized practice 
of segregation even in the most public of all places 
of public accommodation, the dime store, drug 
store or department store lunch counter.* 8 While 
the demonstrations met with a measure of success, 
usually in a very narrow area,9 and other forces have 
had their influence, the overall picture is not greatly 
changed. Even a partial record of State prosecutions 
involving attempts to break down the color barrier 
in places of public accommodation is eloquent testi-

Virginia: Arlington, Charlottesville, Danville, Farmville, 
Hampton, Hopewell, Leesburg, Lynchburg, Newport News, 
Norfolk, Petersburg, Portsmouth, Prince Edward, Richmond, 
Suffolk.

West Virginia: Bluefield, Charleston, Huntington, Wheeling.
This incomplete list is compiled on the basis of a study of the 

demonstrations from February 1, 1960, through March of the 
same year by Professor Pollitt, Dime Store Demonstrations: 
Events and Legal Problems of First S ixty Days, 1960 Duke 
L.J. 315, a report by the Southern Regional Council for the 
same two-month period, The Student Protest Movement: Winter 
1960 (April 1, 1960, rev.), and a survey of news reports made 
in the Department of Justice covering only the six-month 
period from May 20, 1963, to November 21, 1963. During the 
latter period, our reports show at least 663 demonstrations of 
this kind in the Southern and Border States.

8 See pollitt, op. cit., supra.
9 An analysis of informal reports through October 15, 1963, 

indicates that many communities have desegregated lunch 
counter, but not other eating places, or hotels or theatres. 
I t  is also clear that, while many of the larger cities of the 
Southern and Border States have abandoned segregation in at 
least some accommodations, there has been very little de­
segregation in the smaller cities and towns, where most of the 
Negro population lives.



26

mony of the survival of the discrimination.10 Indeed, 
the number of such cases in this Court alone is in­
structive.11

10 The Southern Regional Council asserts that more than 
20,083 persons engaged in demonstrations against Negro dis­
crimination in the 11 Southern States were arrested during 
1963. See Civil Rights: Year-End Summary (Southern
Regional Council, Inc., Dec. 31, 1963, mimeograph), p. 1. 
Another report by the same organization indicates that during 
the first nine months of 1961 at least 1190 persons were arrested 
in Florida and South Carolina alone in connection with pro­
tests against racial discrimination in places of public accommo­
dation. See, The Student Protest Movement: A  Recapitulation 
(Southern Regional Council, Inc., September, 1961), pp. 5, 10.

111960 Term: Boynton v. Virginia., 364 U.S. 454; Burton v. 
Wilmington Parking Authority, 365 U.S. 715.

1961 Term: Gamer v. Louisiana, Briscoe v. Louisiana, Boston 
v. Louisiana, 368 U.S. 157; Bailey v. Patterson, 368 U.S. 346, 
369 U.S. 31; In  re Shuttlesworth, 369 U.S. 35; Turner v. City 
of Memphis, 369 U.S. 350; Taylor v. Louisiana, 370 U.S. 154.

1962 Term: Peterson v. Greenville, 373 U.S. 244; Shuttles- 
worth v. City of Birmingham, 373 U.S. 262; I^omibard v. Lou­
isiana, 373 U.S. 267; Goher v. Birmingham, 373 U.S. 374; 
Avent v. North Carolina, 373 U.S. 375 (remanded) ; Randolph 
v. Virginia, 374 U.S. 97 (remanded); Henry v. Virginia, 374 
U.S. 98 (remanded); Thompson v. Virginia, 374 U.S. 99 (re­
manded) ; Wood v. Virginia, 374 U.S. 100 (remanded); Cf. 
Edwards v. South Carolina, 372 U.S. 229; Wright v. Georqia, 
373 U.S. 284.

1963 Term: Drews v. Maryland, No. 3; Williams v. North 
Carolina, No. 4; Fox v. North Carolina, No. 5; Griffin v. Mary­
land, No. 6, certiorari granted, 370 U.S. 935, reargument or­
dered, 373 U.S. 920; Mitchell v. Charleston, No. 8; Barr v. 
Columbia, No. 9, certiorari granted, 374 U.S. 804; Bouie v. Co­
lumbia, No. 10, certiorari granted, 374 U.S. 805; Bell v. Mary­
land, No. 12, certiorari granted, 374 U.S. 805; Robinson v. 
Florida, No. 60, probable jurisdiction noted, 374 U.S. 803; 
Hamm  v. Rock Hill, No. 105; N AAC P  v. Webb's City, No. 
362; Lupper v. Arkansas, No. 432. Cf. Ford v. Tennessee, 
No. 15 (leased municipal auditorium).



27

Nor does the discrimination result from a temporary 
and accidental concurrence of independent decisions 
by the operators of the establishments involved. 
Though not immemorial,12 the prevailing practices 
have persisted for 60 or 70 years without interrup­
tion, often as part of the statutory law, almost in­
variably, it would appear, with official encourage­
ment.13 It is today a public custom, in many respects 
a legal institution. The consequence is a rigid system 
which imposes itself with very little regard for the 
personal choice of the business operator.

Typically, the storeowner or restaurateur is not 
shaping his own policy, but deferring to broader 
pressures. He may be governed by the will of the 
community, including his customers, or he may be 
acting in part through loyalty to his fellows who ex­
pect him to “hold the line.” Usually, he also is in­
fluenced by official pleas or attitudes.14 As the rec­
ords in these very cases make plain, the proprietor 
who segregates is almost never deciding for himself: 
he is merely adhering to a preexisting custom,15 * * which 
often, until very recently, wTas embodied in the official 
legal code. Nor is there an entirely free choice 
whether to conform or not. In many instances, no 
doubt, acquiescence is willing, even enthusiastic. But 
those who are otherwise inclined are carried with the

12 As. we sliow later, pp. 50-53, infra , segregation in its pres­
ent pervasive and rigid form is a relatively recent phenomenon. 
See, generally, Woodward, The Strange Career of Jim, Crow 
(1955).

13 See Section B, infra.
14 See, e.g., Lombard v. Louisiana, 373 U.S. 267.
15 See the government’s initial brief in these cases, pp. 11, 13,

16, 22.
719- 946— 64' 4



2 8

tide. Experience shows that no change in the estab­
lished pattern can be expected without the concerted 
action of most of the businessmen in the locality in 
any given group.18

While the records are not conclusive, it seems plain 
that the discrimination was part of a community-wide 
practice in the present cases. The 1957 annual report 
of the Commission on Inter-racial Problems and Re­
lations to the Governor and General Assembly, p. 13, 
reveals that 91 percent of all public facilities in Bal­
timore then excluded or segregated Negroes. Even in 
1962, change had been “ slow and inconsistent.” Id., 
1962, p. 23. In Robinson v. Florida, No. 60, the 
Shell’s City restaurant was following “ the customs 
and traditions and practice in this county—not only 
in this county but in this part of the state and else­
where, not to serve whites and colored people seated 
in the same restaurant” (R. 30). The record in the 
Barr and Bouie cases is less explicit, but there ap­
pears to be little doubt that segregation was the rule 
in Columbia, South Carolina, at the time of the inci­
dents in question.

Furnishing food and entertainment in a place of 
public accommodation does not involve any selection 
of customers or business associates in the usual sense 
of the word, even when Negroes are excluded, nor

18 See, e.g., the testimony of Mayor Morris of Salisbury, Md.,
Hearings before the Senate Committee on Commerce on S. 1732, 
88th Cong., 1st Sess., pp. 324-326.



29

does the practice of discrimination turn upon any 
judgment concerning the character or even the color 
of the persons whom the owner is willing to permit 
upon his premises. The unique quality of the choice 
to establish arbitrary racial segregation at lunch 
counters and in restaurants and amusement parks re­
sults partly from the public character of the premises 
and partly from the evanescent nature of the relation­
ship between the proprietor and his customers.

We notice first the public character of the establish­
ment. Whether it is a lunch counter, a restaurant, a 
hotel or place of amusement or entertainment, it is 
open to the public at large. The fact is reflected in 
several aspects of the law. The establishment is 
usually licensed and is often minutely regulated by 
the State or a municipal subdivision.17 That was true 
even before the modern proliferation of State regu­
lation. What is more, the law has traditionally con­
cerned itself with regulating admission to such estab­
lishments. Beginning with the early common law 
rule requiring innkeepers, “victuallers” and public

17 See Brief for Petitioners in Nos. 9, 10 and 12, p. 53, n. 28; 
Brief for the Appellant in No. 60, pp. 19-21, nn. 6-17.



30

carriers18 to serve all, the right to service in places of 
public accommodation has been viewed as a question 
of public interest, the resolution of which should not 
depend on the wishes of the business owner. The 
early State public accommodation laws of the Nine­
teenth Century, both North19 and South,20 21 the federal 
Civil Rights Act of 1875,21 and, indeed, the compulsory 
segregation laws affecting this area, all disclose the 
same attitude, which is today reflected in public ac­

18 u* * * if an innkeeper, or other victualler, hangs out a 
sign and offers his house for travellers, it is an implied engage­
ment to entertain all persons who travel that way; and. upon 
this universal assumpsit an action on the case will lie against 
him for damages, if he without good reason refuses to admit 
a traveller.” 3 Blackstone, Commentaries (Lewis ed., 1897),
p. 168.

“A Victualling house is a house where persons are provided 
with victuals, but without lodging.” 3 Stroud, Judicial Dic­
tionary (1903), p. 2187.

See also Burdick, The, Origin of the Peculiar Duties of Pub­
lic Service Companies. 11 Col. L. Rev. 514 (1911); Wyman, 
The Law of the Public Callings as a Solution of the Trust 
Problem, 17 Harv. L. Rev. 156 (1903). Cf. Conard, The Priv­
ilege of Forcibly Ejecting an Amusement Patron, 90 U. of Pa. 
L. Rev. 809 (1942).

19 Between 1865 and 1897, Massachusetts, Kansas, New York, 
Connecticut, Iowa, New Jersey, Ohio, Colorado, Illinois, Indi­
ana, Michigan, Minnesota, Nebraska, Rhode Island, Pennsyl­
vania, Washington, Wisconsin and California enacted more or 
less comprehensive laws barring discrimination in places of 
public accommodation. For a detailed study of those statutes, 
see Stephenson, Race Distinctions in American Lave (1910), pp. 
111-153. Such a law was also passed in the District of Colum­
bia. See District of Columbia v. Thompson, 346 U.S. 100; 
see, also, Railroad Company v. Brown, 17 Wall. 445.

20 As we show later, during the period of Reconstruction, 
Louisiana, South Carolina, Georgia, Arkansas, Mississippi and 
Florida adopted more or less broad public accommodation laws. 
See notes 83-85, infra.

2118 Stat. 335.



31

commodation laws in 30 of the 50 States 22 and the Dis­
trict of Columbia.23

The public character of such places is also reflected 
in other aspects of the legal system. They are treated 
as public under criminal laws prohibiting gaming, 
vulgar language and similar misconduct in “ public 
places. ’ ’24 Tort- liability for negligence is imposed as

22Alaska: Stat. § 11.60.230 (1962); California: Civ. Code 
§51; Colorado: Rev. Stat. §25-1-1 (1953); Connecticut: Gen. 
Stat. § 53-35 (1962 Supp.); Idaho: Code §18-7301 (1963 
Supp.); Illinois: Stat. §38-13.1 (1961); Indiana: Stat. §10- 
901 (1963 Supp.); Iowa: Code §735-1 (1962); Kansas: §21- 
2424 (1961 Supp.); Maine: Rev. Stat. § 137-50 (1963 Supp.); 
Maryland: Code § 49B-11 (1963 Supp.): Massachusetts: Laws 
§ 272-92A (1956); Michigan: Stat. §28.343 (1962); Minnesota: 
Stat. §327.09 (1947); Montana: Rev. Code §64-211 (1962); 
Nebraska: Rev. Stat. §20-101 (1954); New Hampshire: Rev. 
Stat. §354.1 (1963 Supp.); New Jersey: Stat. §10:1-2 (1960); 
New Mexico: Stat. §49-8-3 (1963 Supp.); New York: Civ. R. 
§40; North Dakota: Code § 12-22-30 (1963 Supp.); Ohio: Rev. 
Code §2901.35 (1954); Oregon: Rev. Stat. §30.670 (1961); 
Pennsylvania: Stat. § 18-4654 (1963); Rhode Island: Gen. 
Laws § 11-24-1 (1957); South Dakota: ch. 58, Laws 1963; Ver­
mont: Stat. § 1451 (1958); Washington: Rev. Code §49.60.215 
(1962); Wisconsin: Stat. § 942.04 (1958); Wyoming. Stat. § 6- 
83.1 (1963 Supp.).

23 D.C. Code § 47-2907 (1961).
24 See, e.g., Dretvs v. Maryland, 167 A. 2d 341 (Md. 1961), 

pending on petition for certiorari, No. 3, this Term (conviction 
for refusal to leave amusement park under statute prohibiting 
disorderly conduct in a “place of public resort or amuse­
ment”) ; Nelson v. Natchez, 19 So. 2d 747 (Miss. 1944) (con­
viction for profanity in restaurant under ordinance prohibiting 
profanity in a “public place”) ; Hamilton v. State, 104 So. 345 
(Ala. 1925) (conviction for profanity at carnival under statute 
prohibiting profanity in a “public place”) ; Yarbrough v. State, 
101 So. 321 (Ala. 1924) (same). . See, also, Gamer v. Louisiana, 
368 U.S. 157 (“disturbing the peace” at lunch counters); 
Thompson v. Louisville, 362 U.S. 199 (“loitering” and “disor­
derly conduct” in cafe).



32

if the premises were a street or public square. For 
example, the owner of Shell’s City or the Taylor Drug­
store would be liable to one passing through the 
premises as a shortcut even though he had no inten­
tion to make a purchase. Restatement Torts, Section 
330(d) ; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235, 
S.W. 2d 609; cf. Carlisle v. J. Weingarten, Inc., 137 
Tex. 220, 152 S.W. 2d. 1073 (“ The most essential fac­
tor to be considered in determining this issue is 
whether the premises were public or private.”).

I f  the law has long regulated admission to places of 
public accommodation, it is because they are truly pub­
lic service establishments. They perform an impor­
tant function in serving the commonplace needs of the 
wThole community. Appropriately, they hold them­
selves out as open to the general public; and they are 
open in fact, except for the color line. Neither in 
theory, nor in practice, is there any basis for the claim 
made here that such businessmen “ select” their cus­
tomers. Their admission policy is wholly indiscrimi­
nate. As Professor Thomas P. Lewis has said:

There is probably no expectation, with or 
without a legal basis, which is more firmly 
established than the expectation of the average 
person that he will be served in places of public 
accommodation. The expectation is cemented 
in the private enterprise system which created 
the accommodations. They exist to serve; it 
would be absurd in the extreme to imagine that 
a place built and designed to serve the people 
would be used in a way inconsistent with the 
purpose for which it was built and inconsistent



33

with the use which will allow it to survive and
prosper.25

The establishments in question are also public in an­
other respect. Not only do they perform a service of 
public importance and invite the community at large 
to enjoy it, but they are public places in something of 
the same sense as are the public streets, the public 
squares, the public parks. This is particularly true 
of an amusement park like Glen Echo (No. 6) and of 
public conveyances (not here involved), but to some 
extent it also characterizes drugstore lunch counters 
(Nos. 9 and 10), a department store restaurant (No. 
60), and a sizable urban restaurant (No. 12), which 
are mere temporary resting places on a journey 
“ downtown.” In each instance, a relatively large 
group congregates and the service is offered and re­
ceived “in public.” It is a place where the relation­
ship between the manager and his customers, and be­
tween one customer and another (unless they choose 
a closer association) is distant. There is no privacy, 
no intimacy. It is the relationship of strangers en­
gaged in a public transaction.

The public locale has another relevance. It trans­
forms the discrimination against the Negro who is ex­
cluded or ejected into a public affront, performed 
before an audience and usually with reference to that

25 The quoted excerpt is from a paper entitled The Role of 
Law in Regulating Discrimination in Places of Public Accom­
modation (p. 14), which was delivered at a conference on “Dis­
crimination and the law,” sponsored by the University of 
Chicago and the Anti-Defamation League of B’nai B’rith, 
November 22-23, 1963. Publication is pending.



34

audience. The humiliation is the greater. The open­
ness of the locale also discourages any violation of 
the prevailing code, for no breach of the color line 
can pass unnoticed.

It is absurd here to speak of an intrusion on pri­
vacy. Nor is there any real question of “association.” 
The relationship is too casual, too ephemeral, too pub­
lic, for any such claim. The proprietor makes no 
choice, except for the color line. This is not a home 
or club where private, personal, social intercourse is 
involved. It is unlike almost any other business rela­
tionship. Most economic relationships involve a sig­
nificant personal factor—for example, those between 
an author and his publisher, a lawyer and his client, 
the owner of a home and his lodger, employers of 
many descriptions and their employees. In many in­
stances, also, the relationship is one of considerable 
duration; again, the employment relationship is a case 
in point. Here there is no element of trust and confi­
dence, no continuity, no personal association. The 
activity involved is as “everyday” and automatic as 
walking down the street, boarding a bus or posting a 
letter. When the ordinary citizen enters a drugstore 
and asks for a cup of coffee at the lunch counter, he 
assumes that his ancestry, his attributes and his per­
sonal qualities are wholly irrelevant and that the only 
requirement is the possession of ten cents. The same 
is true when he takes Ms child for a ride on the carou­
sel in the local amusement park. One who goes to the 
back door of a restaurant to ask for a job as cook or 
waiter or to obtain a contract for supplying meat to the 
proprietor assumes, as a matter of common experience,



35

that the owner may make his decision to accept or re­
ject the offer partly on the basis of personal consider­
ations, perhaps wholly irrational or unworthy ones, 
but the reverse is true when one enters the front door 
as just another customer, cash in hand. I f  this seems 
so commonplace as hardly to require statement, it is 
because the absence of personal selection in places of 
public accommodation is an integral and unquestioned 
aspect of modern society.

Three of the cases now before the Court (Nos. 9, 
10 and 16) demonstrate the truth of these observa­
tions. At Shell’s City, at the Eckerd’s Pharmacy and 
at the Taylor Drug Store, the Negro applicant for 
lunch-counter service is freely admitted in the other 
departments of the same store, or (as in No. 9) per­
mitted to enter the lunchroom and order food but only 
for consumption off the premises. Elsewhere, the 
anomalies are even more pointed, as when Negro pa­
trons are allowed to eat standing, but not seated, or at 
the stool counter, but not in a booth.26 And the same 
distinctions apply in other accommodations. W e  need 
only cite the familiar exception of the train or street 
car Jim Crow laws which permit a Negro woman to 
ride in the forward section of the car if accompanying

26 See Pollitt, Dime Store Demonstrations: Events and Legal 
Problems of First S ixty Days, 1960 Duke L. J. 315, 317; C. 
Johnson, Patterns of Segregation (1943). See, also, The S tu ­
dent Protest Movement, Winter 1960, Southern Regional Coun­
cil Special Report (mimeograph).

A drugstore in Danville, Virginia, while serving Negroes 
Pepsi-Cola in paper cups (for which there was a one-cent addi­
tional charge), refused them Coca Cola and would not furnish 
a glass. Cooh v. Patterson Drug Go., 185 Va. 516, 39 S.E. 2d 
304 (1946).



36

a white child.27 The Negro is acceptable as licensee 
upon the premises and as a customer. All that is ob­
jectionable is the assertion of human equality in­
volved in breaking bread with other men.

The only possible conclusion is that segregation in 
places of public accommodation is a symbolic act, the 
sole purpose and effect of which is to stigmatize the 
Negro as an inferior race, not entitled to full equality 
even in the public life of the community. The notion 
of the racial inferiority of the Negro dates from the 
earliest days of slavery. It was conceived to justify 
the continued bondage of the African who had been 
enslaved as a “ heathen” but was now a Christian.28 
And, whether supported by Biblical citations29 or 
biological theories,30 it prevailed as an official philoso­
phy through the mid-Nineteenth Century. Chief Jus­
tice Taney stated that, when the Constitution was 
adopted, Negroes “had for more than a century before 
been regarded as being of an inferior order, and alto­
gether unfit to associate with the white race, either in 
social or political relations; and so far inferior, that 
they had no rights which the white man was bound to 
respect.” Scott v. Sandford, 19 How. 393, 407.

27 See, e.g., S.C. Code (1962), § 58-1333.
28 See Frazier, The Negro in the United States (1957), pp. 

24—25; Woodson, The Negro in Our History (6 ed., 1932), pp. 
82-87.

29 See, e.g., Pirate v. Dolby, 1 Dallas 167, 168. The Biblical 
references are examined in Weyl, The Negro in, American Oiv- 
ilization (1960), pp. 14-15.

80 For some of these doctrines, see Weyl, op. cit., pp. 114-115.



37

The supposed inferiority of the race at once ex­
plained its enslavement and was demonstrated by the 
slave status of most Negroes.31 But the principle of 
course applied also to free Negroes and they were 
accordingly viewed and treated as inferiors.32 The 
attitude is illustrated by an opinion of Chief Justice 
Lumpkin of the Georgia Supreme Court in 1853:

[W ]e maintain, that the status of the African 
in Georgia, whether bond or free, is such that he 
has no civil, social, or political rights or capac­
ity, whatever, except such as are bestowed upon 
him by Statute; * * * that the social and civil 
degradation, resulting from the taint of blood, 
adheres to the descendants of Ham in this 
country, like the poisoned tunic of Nessus; that 
nothing but an Act of the Assembly can purify, 
by the salt of its grace, the bitter fountain— 
the “ darkling sea.” 33

31 As George Bernard Shaw observed, the same rationale pre­
vailed long after slavery was abolished. In  1903, he said that 
“the haughty American Nation * * * makes the negro clean 
its boots and then proves the moral and physical inferiority of 
the negro by the fact that he is a shoeblack.” Shaw, Man and 
Superman (1916 ed.), p. xviii.

32 The degraded state of the free Negro before the Civil War 
is treated at some length in Weyl, op. tit., pp. 52-62; Frazier, 
op. tit., pp. 59-81; Dumond, Antislavery (1961), pp. 119-132; 
Wright, The Free Negro in Maryland (1921).

33 Bryan v. Walton, 14 Ga. 185, 198. I t  is needless to add 
that the Georgia Assembly granted few rights to the Negro, 
free or slave. See the relevant statutes collected in I I  Hurd, 
The Law of Freedom and Bondage in the United States 
(1862), pp. 101-109.



38

It is basically the same doctrine that survives today in 
the institution of segregation.84 We have only to lis­
ten to its modern exponents.34 35 36 The argumentation of 
the late Senator Bilbo will sufficiently show the line 
of descent:

The principle of segregation of the white and 
Negro races in the South is so well known that 
it requires no definition. Briefly and plainly 
stated, the object of this policy is to prevent the 
two races from meeting on terms of social equal­
ity. By established practice, each race maintains 
its own institutions and promotes its own social 
life. The residential areas of the towns are 
segregated; separate schools are maintained;

34 See, e.g., Konvitz & Leskes, A  Century of Civil Rights
(1961), pp. 3-37, 255-272; Frazier, of. cit., pp. 671-674; Tumin, 
Desegregation (1958), pp. 190-191; Myrdal, A n American Di­
lemma (Rev. ed., 1962), pp. 577-589, 592-599; Cash, The Mind’ 
of the South (1941), pp. 123-139; Woofter, Southern Race 
Progress— The Wavering Color Line (1957), pp. 135-145; Dol­
lard, Caste and Class in a Southern Town (1957 ed.), pp. 62, 
351-353; Handlin, Race and Nationality in American Life 
(1957), pp. 44-47; Allport, The Nature of Prejudice (1954), 
pp. 304, 438; Saenger, The Social Psychology of Prejudice, 
(1953), pp. 256-257.

36 See, e.g.. Cleghorn, “The Segs,” Esquire (January 1964), 
pp. 71, 133-136 (interviews with leading exponents of segrega­
tion) ; George, The Biology of the Race Problem (1962) (Re­
port Prepared by Commission of the Governor of Alabam a); 
Putnam, “This is the Problem!”, The Citizen (Citizens’ Coun­
cils of America, Nov. 1961), pp. 12-33; Collins, Whither Solid 
South (1947), pp. 75-81; Bilbo, Take Your Choice, Separation 
or Mongrelization (1947), pp. 54-55, 82-93; Shufeldt, The 
Negro, A  Menace to American Civilization (1907), pp. 105- 
123; Page, The Negro: The Southerner's Problem (1904), pp. 
54-55, 292-293; Lewinson, Race, Class, and Party (1932), pp. 
82, 84 (statements by post-Reconstruction Southern legislators). 
See also statements quoted in Lomax, The Negro Revolt (1962), 
p. 27.



39

separate accommodations are provided for the 
members of each race in public places and on 
the trains, busses and street cars.

* * * * *

* * * demands [for equality] must neces­
sarily be based on the acceptance of the doc­
trine of the equality of the two races and the 
denial of the inferiority of the Negro. I f  
racial differences do not exist, then these 
writers are asking for equality for equal races, 
but if differences do exist, then they are asking 
for equality for unequals and the very basis of 
their argument is refuted. * * *

* * * * *

History and science refute the doctrine of the 
equality of the white and Negro races which is 
proclaimed by the proponents of racial equality 
in the United States today. There are inequali­
ties and differences between the white and black 
races, and all the history of civilization affirms 
that the superior position belongs to the Cau­
casian. * * *

* * * * *

I f  any Negro reads this chapter and has just 
reason to think that he does not possess the in­
ferior qualities of mind, body, and spirit which 
the greatest and most reliable scientists—stu­
dents of the comparative qualities of the races— 
have pointed out, then let him thank Cod for 
that portion of white blood which flows through 
his veins because of the sin of miscegenation 
on the part of one or more of his ancestors.36 86

86 Bilbo, op. cit. at 49, 82, 93.



4 0

The notion of racial inferiority doubtless pervades 
all contemporary discrimination against the Negro. 
Yet, it is often disguised in other fears and prejudices, 
and sometimes plays only a small part in the hostility 
of the white.37 Here, however, in the area of public 
accommodations, the dogma of Negro inferiority is 
obviously the only operative force. Denying the 
Negro the right to sit to eat in a public place, because 
white persons are eating, is plainly to tell him he is 
“not good enough.” 38 39 It is a pure symbolism, directly 
borrowed from the etiquette of slavery.38 There can 
be no doubt that the unvarying repetition of such a 
gratuitous insult in denying a common privilege marks 
the public degradation of the race.

B. TH E STATES HAVE SHARED IN  ESTABLISHING THE SYSTEM OF
RACIAL SEGREGATION OF W H IC H  DISCRIMINATION' IN  PLACES OF

PUBLIC ACCOMMODATION IS A N  INSEPARABLE PART

In the communities from which these cases arise 
and in thousands of other cities and towns forced 
segregation in places of public accommodation is 
practiced without the legal compulsion upon the pro­
prietors found in such instances as Peterson v. Green­
ville, 373 U.S. 244. To portray it as a purely private 
custom, however, is quite erroneous. As the Peterson 
case shows, the practice has often been required by 
law in the very kind of establishments with which

37 See, e.g., Myrdal, op. cit., pp. 582-586; Cash, op. cit., pp. 
123-139.

38 L. Smith, Killers of the Bream (1949), pp. 19, 29.
39 Doyle The Etiquette of Race Relations in the South (1937),

pp. 18-20, 22, 60.



41

these cases are concerned. Par more important, the 
practice of segregation at places like lunch counters, 
restaurants and amusement parks is an inseparable 
aspect of the entire system of public racial segrega­
tion, and that system is the product of a combination 
of private action and State action violative of the 
Fourteenth Amendment.

We are not concerned with the distant past. State 
action prior to the Fourteenth Amendment is irrele­
vant. The interrelationships between segregation 
where food and amusement are furnished and other 
parts of the system cannot be understood, however, 
nor can the full significance of the States’ activities 
be described, without a sketch of the historical back­
ground.

Slavery and the Free Negro before the Civil War

Of slavery itself little need be said. It is enough 
to remember that slaves were treated in law as the 
property of their masters and were accordingly 
wholly deprived of any social, civil or political rights. 
To say they were viewed as “ inferiors” is to under­
state. As the spirit of abolition increased, and per­
haps as a sense of guilt grew stronger, the defense of 
the institution not unnaturally grew more severe. I f  
the Supreme Court of Florida represented the official 
attitude, it is difficult to exaggerate the temper of the 
times:

There is no evil against which the policy of 
our laws is more pointedly directed than that



42

of allowing slaves to have any other status 
than that of pure slavery. * * * 40

More revealing for our purpose, however, is the 
legal status of the free Negro in the United States 
before the War, for here the disabilities inflicted 
could only be justified on the ground of the inferi­
ority of the whole race. Whatever their motives,41 
the fact is that most of the States (including many 
that had abolished slavery) seriously disadvantaged 
the “ free person of color” and thereby branded him 
an inferior being. He was generally disenfranchised, 
was barred from coming into most States, and his 
movements, even within his own State, were seriously 
curtailed.42 But it was in the slave States that the 
law treated him most harshly.

Thus, in Maryland, every Negro was presumed a 
slave unless he could prove otherwise.43 Even when 
recognized as a freeman, he could neither vote44 nor

40 Miller v. Gashins, 11 Fla. 73, 78 (1864).
41 The free Negro was a source of anxiety for a number of 

reasons: he might arouse the slaves to dissatisfaction and in­
surrection; might enter into competition with white labor; 
might plunder, rob, or murder whites; and finally might offend 
simply by being a misfit in an otherwise bifurcated society. 
See Dumond, Antislavery (1961), pp. 119-125; Weyl, The 
Negro in American Civilization (1960), pp. 52-58; Doyle, The 
Etiquette of Race Relations in the South (1937), pp. 85-93.

42 See I I  Hurd, The Law of Freedom and Bondage in the 
United States (1862), pp. 2-218; Dumond, op. cit.; Weyl, op. 
cit.; Doyle, op. cit.

43 Burke v. Joe, 6 Gill. & Johns. 136 (1834); Hall v. Mullin, 
5 Har. & Johns. 190, 192 (1821). For the similar rule obtain­
ing elsewhere, see cases reported in Wheeler, Law of Slavery 
(1837), pp. 392-408.

44 Md. Laws, 1801, ch. 90; 1809, ch. 83; 1810, ch. 33; Md. 
Constitution, 1851, Art. I, § 1. These provisions, and those cited 
in notes 45-49, infra , are set out in I I  Hurd, op. cit., pp. 19-24.



43

testify in court, except as against another Negro.45 
He could not engage in certain occupations,46 or freely 
contract with respect to his own labor; 47 and he was 
subject to greater pains and penalties for offenses,48 
liable to being sold as a slave and deported from the 
State.49 We refer to the opinion of Roger Taney 
(later Chief Justice) while Attorney General of the 
United States:

The African race in the United States even 
when free, are everywhere a degraded class, 
and exercise no political influence. The priv­
ileges they are allowed to enjoy, are accorded 
to them as a matter of kindness and benevo­
lence rather than of right. They are the only 
class of persons who can be held as mere prop­
erty, as slaves. And where they are nominally 
admitted by law to the privileges of citizen­
ship, they have no effectual power to defend 
them, and are permitted to be citizens by the 
sufferance of the white population and hold 
whatever rights they enjoy at their mercy. 
They were never regarded as a constituent por­
tion of the sovereignty of any state. But as 
a separate and degraded people to whom the 
sovereignty of each state might accord or with­
hold such privileges as they deemed proper. 
They were not looked upon as citizens by the 
contracting parties who formed the Constitu­
tion. They were evidently not supposed to be

45 Md. Laws 1801, ch. 109; 1846-1847, ch. 27.
46 Id., 1805, ch. 80; Code 1860, Art. 66, § 74.
47 Md. Laws 1854, ch. 273; Code 1860, Art. 66, §§ 76-87.
48 Md. Laws 1825-1826, ch. 93.
49 Id., 1826-1827, ch. 229, § 9; Code 1860, Art. 66, §53.

719- 946— 64-------------5



44

included by the term c i t i z e n s .  And were not 
intended to be embraced in any of the provi­
sions of that Constitution but those which point 
to them in terms not to be mistaken.

* * * Our constitutions were not formed by 
the assistance of that unfortunate race nor for 
their benefit. They were not regarded as con­
stituent members of either of the sovereignties 
and were not therefore intended to be embraced 
by the terms, c i t i z e n s  o f  e a c h  s t a t e .50

In Florida, his condition was no better. There the 
free Negro required a “ guardian” without whom he 
could not contract.51 Encouraged to re-enslave him­
self,52 he was taxed for the privilege of remaining 
free.53 Worst of all was the lot of the freedman in 
South Carolina: there, too, Negroes were taxed and 
required to have guardians.54 55 * The official hostility of 
South Carolina toward the free Negroes is best shown 
in the enactment of 1823 (7 Stat. 463) which pro­
vided for the imprisonment of colored seamen during 
the stay of any vessel in a local port, a law enforced 
in defiance of the judgment of Mr. Justice Johnson, 
sitting on circuit, and an opinion of the Attorney 
General, that it was unconstitutional.65 We add only 
the report of a law passed on the eve of secession 
which required eveiy free Negro in South Carolina

50 Swisher, Roger B. Taney (1936), p. 154.
61 Fla. Laws 1847-1848, eh. 155; 1856, ch. 794, 795. For these 

provisions and those cited in notes 52 and 53, infra , see I I  Hurd, 
o f .  cit., pp. 190-195.

52 Id ., 1858-1859, ch. 860.
53 Id ., 1842, ch. 32.
54 7 S.C. Stat., 461, §§ 2, 7 (1822). See I I  Hurd, op. cit., 

p. 97.
55Weyl, The Negro in American Civiliza.tion (1960), pp. 60-

61; 1 Op. Atty. Gen. 659 (1824).



45

literally to wear a badge, identifying him by name, 
occupation and number.56

Emancipation and its aftermath

It is against this background that the Thirteenth 
Amendment was adopted. In light of the condition of 
the nominally free Negro in the South, it is fair to 
suppose that it was viewed as a charter of freedom 
for all Negroes, slave or not. Indeed, the Civil 
Rights Act of 1866,57 passed as implementing legisla­
tion, does not distinguish between the new freedman 
and the old. It was the Negro as a race that was 
intended to be given civil equality, to be freed of the 
badge of inferiority which had been imposed on 
all persons of color. So also, when the slaveholding 
States enacted their Black Codes in 1865 and 1866, 
recognizing the abolition of slavery as such, but sub­
ordinating the Negro in a hundred other ways, they 
did not distinguish between the former slave and the 
free person of color. They dealt indiscriminately 
with every person “tainted” with Negro blood, to the 
extent of %th or even % 6th.58 All were equally dis­
advantaged and set apart as an inferior people.

The tenor of these post-war codes is sufficiently 
known. Some openly and directly disabled the Negro

66I I  Hurd, op. cit., p. 100 (these enactments are not to be 
found in the laws of 1860. Hurd states they were reported in 
the “puhbc journals” of the time).

6714 Stat. 27.
58 The substance of most of these codes is given in McPherson,

Political History of the United States During the Period of 
Reconstruction (1871), pp. 29-44, and in 1 Fleming, Docu­
mentary History of Reconstruction (1906), pp. 278-312 (1906).



46

from meaningful participation in the public life of the 
community. Thus, in Mississippi, the freedman was 
effectively kept a servant on the plantation by pro­
visions which recognized his right to purchase and 
inherit personal property, but not real property,59 and 
forbade his renting or leasing real estate except in 
incorporated towns, where authorized by the local 
authorities; 60 which required him to be employed by 
a written contract,61 except by official license, revocable 
at w ill;62 permitted minor Negroes to be forcibly “ ap­
prenticed” ; 63 and provided for the arrest and return 
of both classes to their employer for breach of the 
contract.64 The injustice here was flagrant: While 
the Negro wTas sparingly granted some new rights—the 
right to marry, but not with whites,65 the right to 
testify, but only when Negroes were involved in the 
proceeding66 67—they were, at the same time, held to 
“the same duties and liabilities existing among white 
persons—-to support their indigent families, and all 
colored persons,” and were accordingly taxed for that 
purpose.61

The laws of Mississippi are perhaps extreme in 
their unwillingness to allow the Negro to find a new 
life, in freedom. But other codes reflect the same at­

59 Mississippi Laws 1865, ch. 4, § 1.
60 Ibid.
61 I d ch. 4, § 6.
62 Id., ch. 4, § 5.
62 Id., ch. 5, § 1.
«  Id., eh. 4, §§7, 8; ch. 5, § 4.
65 Id., ch. 4, §§ 2, 3.
66 Id., ch. 4, § 4.
67 Id., ch. 6, § 6.



47

titude, differing only in degree. The legislation of 
South Carolina, for instance, was plainly calculated 
to preserve the old order, the parties now being 
denominated “ master and servant.” 68 The series of 
laws there begins with one entitled “ An Act prelim­
inary to the legislation induced by the Emancipation 
of Slaves,” which officially creates a class, including 
all Negroes, mulattoes and mestizoes, and their de­
scendants, who have not 7/8ths or more “Caucasian 
blood,” labelled “ persons of color,” and declares that 
“although such persons are not entitled to social or 
political equality,” they shall enjoy certain specified 
rights, including the benefit of legal proceedings, 
“subject to * * * modifications” to be made.69 
There follow statutes creating special crimes for 
“persons of color,” 70 imposing different penalties for 
crimes common to both races,71 and establishing sepa­
rate judicial procedures,72 73 regulating in detail the re­
lationship of “ master and servant,” 78 and disabling 
the Negro from engaging in the sale, for his account, 
of any agricultural product,74 from manufacturing or 
retailing spirits,75 or, for that matter, from carrying 
on any trade or business, “ besides that of husbandry, 
or that of a servant,” except by special license from

68 See S.C. Acts 1865, p. 295 (No. 4733, § X XX V ).
69 Id., p. 271 (No. 4730).
70 Id., pp. 271, 276 (No. 4731, §§ I, X X II).
71 Id., pp. 271, 272, 277 (No. 4731, §§ I , IV , X X I V , X X V I I ) .
72 Id., pp. 279-280, 281, 283, 286, 286-287 (No. 4732, §§ V, 

V II, XX, X X IX . X X X I, X X X II, X X X III).
73 Id., pp. 292-299 (No. 4733, §§ X V -LX X I).
7i Id., p. 274 (4731, §X ).
75 Id., p. 275 (4731, §X IV ).



4 8

the district judge.16 Finally come the “ pauper” and 
“ vagrancy” laws76 77 which appear to have served much 
the same purpose as enactments of a more recent day 
against “ disturbing the peace,” “disorderly conduct,” 
and “ trespass.” 78

In Florida, the situation was much the same.79 We 
need only notice the law enacted in January 1866, 
making it a misdemeanor for any “person of color” 
to “intrude himself into any religious or other pub­
lic assembly of white persons, or into any railroad car 
or other public vehicle set apart for the exclusive ac­
commodation of white people.” 80 The rest was left 
to the towns and cities where “ the free white male 
inhabitants over the age of twenty-one years” were 
permitted to elect a local government “with full 
power and authority * * * to license and regulate re­
tailers of liquor and taverns,” to “ license and regu­
late theatrical and other public amusements,” and to 
“provide for the interior police and good govern­
ment” of the community.81

It was to combat the spirit of these black codes 
that Congress enacted the Civil Rights Act of 1866 
and proposed the Fourteenth Amendment. Recon­
struction followed. While segregation in schools

76 Id., p. 299 (No. 4733, § L X X II).
77 Id., pp. 300-304 (No. 4733, §§ L X X X I-X C IX ).
78 See, e.g., testimony taken by the Joint Committee on Re­

construction, House Report No. 30, 39th Cong., 1st Sess., Testi­
mony, Part II , pp. 61, 126, 177; Freedom to the Free (United 
States Commission on Civil Rights, 1963) , p. 33.

79 See Fla. Laws 1865-1866, pp. 23-39.
80 Id., p. 25, ch. 1,466, § 14.
81 Id., pp. 41—43, ch. 1,479, §§ 1, 3.



49

sometimes remained,82 several Southern States en­
acted more or less broad laws banning racial dis­
crimination in places of public accommodation.83 
South Carolina enacted such laws in 1869, and 1870 
covering common carriers and all businesses “ for 
which a license is required by law” or “under a 
public rule” and expressly referring to theatres and 
“places of amusement or recreation.” 84 The Florida 
statute of 187385 provided:

* * * no citizen of this State shall, by rea­
son of race, color, or previous condition of 
servitude, be excepted or excluded from the 
full and equal enjoyment of any accommoda­
tion, advantage, facility, or privilege furnished 
by innkeepers, by common carriers, whether 
on land or water, by licensed owners, managers, 
or lessees of theatres or other places of public 
amusement; by trustees, commissioners, super­
intendents, teachers, and other officers of com­
mon schools and public institutions of learn­
ing, the same being supported by moneys de­
rived from general taxation, or authorized by 
law, also of cemetery associations and benevo­
lent associations, supported or authorized in 
the same way: Provided, That private schools,

82 See e.g., Ala Laws 1868, p. 148; Ala. Laws 1873, p. 176; 
Ala. Const. 1875, Art. X I I I ,  § 1, Ark Laws 1873, p. 423; Ga. 
Laws 1872, p. 69; Ky. Laws 1873-1874, p. 63; Tenn. Laws 
1868-1869, p. 14.

83 Ark. Laws 1873, pp. 15-19; Ga. Laws 1870, pp. 398, 427- 
428; La. Const. 1868, Art. 13; La. Acts 1869, p. 37; La. Acts 
1873, p. 156; Miss. Laws 1873, p. 66. For South Carolina and 
Florida statutes, see notes following.

8414 S.C. Stat. 179, 386.
85 Fla. Laws 1873, p. 25, ch. 1947.



50

cemeteries, and institutions of learning estab­
lished exclusively for white or colored persons, 
and maintained respectively by voluntary con­
tributions, shall remain according to the terms 
of the original establishment.

Jim  Grow and segregation

As soon as Reconstruction ended in 1877, and often 
before, segregation in public schools was established 
or resumed. That is true of the three States at bar,86 
where the official policy continued uninterruptedly, 
at least until this Court’s decision in Brown v. Board 
of Education, 347 U.S. 483.87 The undeviating public 
example must have had its effect. And segregation 
in the schools doubtless educated a new generation 
in the theory of the Negro’s inferiority which re­
quired his being kept apart. So, also, the reiterated 
legal ban on interracial marriages, or miscegena­
tion,88 must have impressed upon any who were other­
wise disposed that the “accepted,” “official” doctrine 
viewed the Negro as an untouchable. Yet, for a time, 
there was little segregation, in fact or in law, in

86Maryland: Laws 1870, ch. 392, pp. 555-556; Laws 1872, 
ch. 377, pp. 650-651; Laws 1898, ch. 273, pp. 814-817; South 
Carolina: Const. 1895, Art. X I, § 8; Acts 1896, No. 63, p. 171; 
Acts 1906, No. 86, pp. 133-137; Florida: Const. 1885, A rt X II, 
§ 12; Laws 1895, ch. 4335, p. 96.

87 See Fla. Stat. (1960), § 228.09; S.C. Code (1962), §§21-751, 
21-809, 22-3; Md. Code (1957), Art. 65A, §1; Art. 77, §§226, 
279.

88Maryland: Laws 1884, ch. 264, p. 365; South Carolina: 
Acts 1879, p. 3; Const. 1895, A rt I I I ,  § 33, p. 20; Florida: 
Laws 1881, ch. 3283, pp. 86, 753; Const. 1885, Art. XVI, § 24; 
Laws 1903, ch. 5140, p. 76.



51

places of public accommodation.88 89 Neither Florida 
nor South Carolina, though now free of federal inter­
ference, immediately repealed its anti-discrimination 
statute,90 and Maryland (though never “recon­
structed”) acquiesced in the removal of such Jim 
Crow regulations as had existed.91

88 See, Woodward, The Strange Career of Jim  Grow (1955),
pp. 15-28.

90 The Florida law is preserved in the codification of 1881. 
Fla. Digest 1881, ch. 19, pp. 171-172, and was not repealed 
until 1892. See Fla. Laws 1891, ch. 4055, p. 92; Fla. Rev. Stat. 
1892, p. V III. The similar South Carolina statute was retained 
in the 1882 Code (§§ 1369, 2601-2609) and was repealed in 1887 
and 1889. See S.C. Acts 1886-1887, No. 288, p. 549; id. 1888- 
1889, No. 219, p. 362. See, also, Tindall, South Carolina Ne­
groes,, 1877-1900, pp. 291-293.

91 Prior to 1870, the street car company in Baltimore had 
followed the practice of relegating Negroes to the front plat­
form of the cars where they were unable to sit and were exposed 
to the elements. In  April, 1870, U.S. Circuit Court Judge Giles 
ruled this practice discriminatory, awarded damages to a Negro 
who had been ejected from a seat inside the street car and held 
that the railway company was required to furnish its Negro 
passengers with accommodations comparable to that furnished 
white passengers. Thompson v. The Baltimore City Passenger 
Railway Co., reported in Baltimore American, April 30, 1870, 
p. 1, col. 6, p. 2, col. 1. Pursuant to this ruling the railway 
company designated certain cars for “colored persons” but edi­
torial comments in the Baltimore American indicate that volun­
tary desegregation on these cars took place at the initiative of 
white patrons. Baltimore American, November 11, 1871, p. 2, 
col. 2; November 14, 1871, p. 2, col. 1. In  1871, a Negro 
challenged the establishment of separate cars and the jury, 
charged by Judge Bond that a person seeking transportation 
might not be ejected from a car “because of color only,” 
awarded him $40. Fields V. Balitimore City Passenger Rail­
way Co., reported in Baltimore American, November 14, 1871, 
p. 4, col. 3; Baltimore Sum, November 13, 1871, p. 4, col. 2.



52

But this more benevolent official attitude was not 
to endure. Jim Crow laws applicable to trains and 
street cars began to appear. Among the States here 
involved, Florida leads with an 1887 statute requiring 
separate first-class railroad cars for the two races.92

This decision was widely approved as illustrated by the follow­
ing editorial comment from the Baltimore American, Novem­
ber 14, 1871, p. 2, col. 1:

“THE COLORED CAR QUESTION

“We congratulate our community on the disappearance yester­
day of the sign-boards on the cars of the City Passenger Rail­
way—‘Colored Persons admitted to this Car.’’

“We think that our most intelligent merchants, as well as all 
others who are looking to the commercial and industrial ad­
vancement of Baltimore, will heartily thank Judge Bond for his 
decision in the Passenger Railway case, at least so far as it 
has caused the prompt disappearance from the cars of the 
Company of those badges of a dead prejudice, which ought to 
have been removed long since. * * *

“When our city was crowded with strangers from all parts 
of the country attending the great convocations here, this relic 
of a dead prejudice was the subject of constant remark. I t  had 
disappeared from the cars everywhere except here in Baltimore, 
and although assured it rather represented the prejudice of a 
private corporation than the sentiment of the people, they ex­
pressed surprise that our Courts allowed them to thus trifle 
with law and justice. I t  was at this time that we appealed to 
the Company to cease flaunting in the face of strangers this 
badge of shame, and not to await the action of the Courts to 
compel an impartial enforcement of the law. We cannot keep 
pace with the progress of the age in liberal and humanitarian 
sentiment if such things are allowed, and it becomes the duty 
of all who are looking to a brighter future for our city to make 
haste to get rid of any remnant of feeling that would indicate 
that we are not a law-abiding and liberal-minded people.”

92 Fla. Laws 1887, ch. 3743, p. 116.



53

A decade later, in 1898, South Carolina adopted a 
similar provision,93 specifying, however, that “ any 
first-class coach may be divided into apartments, sep­
arated by a substantial partition, in lieu of separate 
coaches.” 94 It is typical of the general pattern to­
ward pervasiveness and rigidity that two years later 
the divided coach was decreed insufficient separation, 
the new law requiring altogether separate cars, and 
that the Jim Crow rule was extended to the entire 
train, not solely the first-class coaches.95 The Mary­
land legislation, beginning in 1904,96 followed the same 
course.97

Once begun, the march of segregation legislation 
continued. The Jim Crow rule was now applied to all 
common carriers, including steamboats98 and street 
cars.99 While once only the conveyances themselves 
had been segregated, the new laws decreed separate 
waiting rooms and ticket windows,100 The injunction 
and the penalty, originally running against the car­
rier alone, were now made applicable to the reluctant 
passenger also: not only must the company furnish

93 S.C. Acts 1898, No. 483, p, 777-778.
94 Id., § 2.
95 S.C. Acts 1900, No. 262, pp. 457-459.
96 Md. Laws 1904, ch. 109, p. 186.
97 Md. Laws 1908, ch. 292, p. 86. See, also, Fla. Laws 1909, 

ch. 5893, § 1, p. 407, banning the divided care except by special 
permission from the railroad commission.

98 See, e.g., Md. Laws 1904, ch. 110, p. 188; Md. Laws 1908, 
ch. 617, p. 85; S.C. Acts 1904, No. 249, p. 438.

99 See, e.g., Fla. Laws 1907, ch. 5617, p. 99; Md. Laws 1908, 
ch. 248, p. 88; S.C. Acts 1905, No. 477, p. 954.

100 See, e.g., Fla. Laws 1907, ch. 5619, p. 105.



54

separate accommodations, but the user must obey the 
sign under the threat of criminal sanctions.101 102

The State next turned to its own institutions. Pub­
lic school segregation was continued, and separation 
was decreed for State prisons,103 reformatories,103 
asylums,104 hospitals.105 Later, they would enact seg­
regation in public parks, playgrounds and beaches.106 
But the legislators did not concern themselves only 
with governmentally operated facilities. We have al­
ready noticed the continuing official bar on interracial 
marriages.107 Very early, the State also expressly 
prohibited mixed private schools,108 and Florida, at 
least, made it a crime for white teachers to teach 
Negro children or the reverse.109 While the regula­
tion of privately owned places of public accommoda­
tion, other than common carriers, was, quite natu­
rally, largely left to the municipalities, statewide leg­

101 See Fla. Laws 1905, ch. 5420, p. 99; Fla. Laws 1907, ch. 
5617, §6, p. 100; Md. Laws 1904, ch. 109, §4, p. 187; Md. Laws 
1904, ch. 110, §3, p. 188; S.C. Acts 1900, No. 262, §5, pp. 
457-458.

102 See, e.g., Fla. Laws 1905, ch. 5447, §1, p. 132; Fla. Laws 
1909, ch. 5967, p. 171; S.C. Acts 1906, No. 86," pp. 133, 136-137; 
S.C. Acts 1911, No. 110, p. 169.

93 S.C. Acts 1898, No. 483, p. 777-778.
103 Md. Laws 1870, ch. 392, p. 706; Md. Laws 1882, ch. 291, 

p. 445; Fla. Laws 1897, ch. 4167, pp. 107-108; Fla. Laws 1909, 
ch. 5967, pp. 171-172; S.C. Acts 1900, No. 246, pp. 443-444.

104 Baltimore Ordinances 1888, § 34-43; Md. Laws 1910, ch. 
250, pp. 234, 237-240; S.C. Acts 1918, No. 398, pp. 729, 731.

105 Md. Code 1912, § 199A.
1M S.C. Acts 1934, No. 893, p. 1536.
107 See note 88, supra.
108 Fla. Laws 1895, ch. 4333, p. 96.
109 Fla. Laws 1913, ch. 6490, p. 311.



55

islation sometimes set the example here too. Thus, 
in 1906, South Carolina required segregation of sta­
tion restaurants and “eating houses” serving passen­
gers,110 and later enjoined circuses and travelling 
shows to provide separate entrances for each race.111 
There was, finally, a law keeping the races apart in 
poolrooms and billiard halls.112

Where the central State government did not act 
directly, segregation was promulgated by the muni­
cipal authorities. Illustrative are the segregation 
provisions of the City Code of Greenville, South Caro­
lina, repealed on May 28, 1963, after this Court’s 
decision in Peterson v. Greenville, 373 U.S. 244. An 
entire chapter of that Code is devoted to “ Segrega­
tion of Races.” Explicitly announcing an “intent 
and purpose * * * to provide for the separation or 
segregation of races in the city,” 113 it proceeds, 
methodically, to define “white” and “colored” blocks,114 
and decrees segregation in housing,115 churches,116 
schools,117 hotels,118 stores,119 restaurants, cafes, and all 
other places serving food, including lunch counters,120 
and transportation.121 Elsewhere in the Code it is 
made generally unlawful “for any colored person to

110 S.C. Acts 1906, No. 52, p. 76
111 S.C. Acts 1917, p. 48 (S.C. Code (1962), § 5-19).
132 S.C. Acts 1924, p. 895 (S.C. Code (1962), § 5-503).
113 Greenville City Code (1953), § 31-4.
114 Id., §31-1.
115 Id., § 31-2, 9, 10.
116 Id., §31-5.
117 Id., § 31-6.
118 Id., §31-7.
119 Id., § 31-7.
120 Id., §31-8. See, also, id., §16-35, requiring restaurants to 

provide separate toilets for -white and colored employees.
125 Id ., § 31-12 e t seq.-, § 37-30.



56

enter upon or go through any of the city cemeteries 
or grounds connected therewith, used exclusively for 
the burial of white persons * * V ’ 122

While the number of similar municipal regulations 
is not known, it is clear that the example just recited 
is not atypical.123 The City Code of Greenwood, S.C., 
amended only last June, was quite similar.124 Some 
of the provisions elsewhere are truly bizarre.125 One

122 Id ., § 8-1.
123 See, e.g., Birmingham, Ala. Code (1944): restaurants 

(§369); theatres (§ 859); poolrooms (§ 939); restrooms 
(§ 1110); housing (§ 1604); Montgomery, Ala. Code (1952) : 
restrooms (§ 13-25); restaurants (§10-14); theatres (§34-5); 
poolrooms (§25-5); parks and swimming pools (§28A-2); 
athletic contests (§28A-5); Selma, Ala. Code (1956 Supp.) : 
recreational facilities (§627-1); restaurants (§627-6); Atlanta, 
Ga. Code (1942); public assemblies (§ 36-64); parks (§ 38-31); 
theatres (§56-15); Augusta, Ga. Code (1952): barbershops 
(§8-2-26); Monroe, La. Code (1958): cemeteries (§7-1); 
bars (§4L24); New Orleans, La. Code (1956) : bars (§5-61.1) : 
Shreveport, La. Code (1955) : housing (§ 8.2); toilets (§§ 8.3, 11- 
47); loitering by whites in Negro districts a form of vagrancy 
(§2-1-56); restaurants (§24-36); Meridian, Miss. Code 
(1962) : jails (§ 17-97); Natchez, Miss. Code (1954) : cemeteries 
(§5.6); Jackson, Miss. Code (1938): cemeteries (§ 546); Ashe­
ville, N.C. Code (1945): housing (§ 3-23-636); cemeteries 
(§2-5-109); sexual relations (§2-7-120) ; Charlotte, N.C. Code 
(1961): restrooms (§13-13-11); poolrooms (§ 11-11-2(b )) ; 
Danville, Ya. Code (1962): cemeteries (§18-13); Norfolk, Va. 
Code (1950) : cemeteries (§9-30). Some of these ordinances 
have been repealed or amended during 1962 and 1963.

124 Greenwood City Code (1952), ch. 24.
125 See, e.g., Montgomery, Ala., Code (1952) ch. 20-28 and 

Gadsden, Ala., Code § 8-18 (1946), which provide in pertinent 
part:
“I t  shall be unlawful for a negro and a white person to play 
together * * * in the city in any game of cards, dice, dominoes 
or checkers * *
Charlotte, N.C., Code (1961) §13-13-15 (a) provides in pertin-



57

obviously degrading provision common to most South­
ern municipalities, and perhaps to all, is the require­
ment of the “Southern Standard Building Code” 
that “where negroes and whites are accommodated 
there shall be separate toilet facilities provided for 
the former, marked £ For Negroes Only \  ’ ’ * 126 By virtue 
of a regulation of the State Administrative Code,127 
that is the law of Florida even today. And where 
municipal laws do not explicitly provide for segrega­
tion in places of public accommodation, there are 
related laws. Thus, in addition to a rather recent 
regulation providing for segregation in bars and in 
restaurants serving liquor,127a Baltimore City at one 
time or another decreed segregation in housing and

ent part: “No person shall give a public exhibition * * either 
on canvas or otherwise, of any prize fight * * * wherein the 
contestants * * * are persons of different races.”
In  1917, the New Orleans, La., Commission Council adopted an 
ordinance prescribing a specific area of the city wherein Negro 
houses of prostitution could be maintained and prohibiting 
peripatetic Negro prostitutes from plying their trade in other 
parts of the city. New Orleans, La., Comm’n Council Ord. 
No. 4485 (1917).

126 Southern Standard Building Code 1957-58, § 2002.1. See 
e.g., Spartanburg, S.C., City Code (1958), §§28-45, 28-76(a); 
Spartanburg Plumbing Code (1961), §921.1.

127 Fla. Adm. Code, ch. 170C, § 8.06. See Bolder v. Lane 
(S.D. Fla.), 204 F. Supp. 168, 172-173. The same practice 
obtained in Maryland until 1960. See Jones v. Marva Thea­
tres, Inc. (D. Md.), 180 F. Supp. 49.

1270 See DeAngelis v. Board (Baltimore City Ct.), 1 Il.R.L.B. 
370 (1955), holding the regulation unconstitutional.



58

use of land,128 in municipal parks and playgrounds 129 
and in a free library.130 Tampa, Florida, prohibits 
the operation of any “ public inn, restaurant, or other 
place of public accommodation and refreshment” serv­
ing Negroes in a “white community,” without the 
consent of a majority of the white residents.131 Until 
1961, Jacksonville, in the same State, segregated 
buses132 and taxicabs,133 and, for a time at least, ex­
pressly required separation of the races in all 
taverns.134

While there are important variations from State to 
State, and even from one town to another, the basic 
pattern has been the same. Some communities, like 
those here involved, have not explicitly compelled 
racial segregation in places of public accommodation. 
Yet, there can be no doubt that each of the States at 
bar, until very recently, has encouraged those 
practices.

Here, as elsewhere, the official philosophy of the 
Negro’s inferiority was affirmed in the legal defini­

128 Ordinance #610, December 19, 1910; Ordinance #654, 
April 7, 1911; Ordinance #692, May 15, 1911; Ordinance #339, 
September 25, 1913.

129 See Boyer v. Garrett (4th Cir.), 183 F. 2d 582, certiorari 
denied, 340 U.S. 912; Law v. Mayor and City Council of Balti­
more (D. Md.), 78 F. Supp. 346; Dawson v. Mayor and City 
Council of Baltimore City (4th Cir.), 220 F. 2d 386, affirmed, 
350 U.S. 877.

130 Kerr v. Enoch Pratt Free Library of Baltimore City (4th 
Cir.), 149 F. 2d 212, certiorari denied, 326 U.S. 721.

131 Tampa City Code (1937), § 18-107.
132 Jacksonville City Code (1953), §§ 39-65, 39-70.
133 Id., §§ 39-15, 39-17.
134 Jacksonville City Code (1917), §439. While the provision 

is not incorporated in the more recent codes, no express repeal 
was found.



59

tion of the race, branding as “tainted” any person 
with so much as %th Negro ancestry,135 136 in the strict 
ban on interracial marriages,130 and by a construction 
of the libel law which recognized it as an insult, ac­
tionable per se, to be wrongly called a Negro.137 Here, 
as elsewhere, compulsory school segregation laws 
taught white children from the first that Negroes 
were inferiors and impressed on colored children 
that they were not fit to share a schoolhouse with the 
white. Here, as elsewhere, the State set an example 
by officially segregating all its owTn facilities. And 
here, as elsewhere, until very recent days, the story 
of segregation legislation has had only one direction, 
becoming ever more rigid and more pervasive, as 
though to give legal support to a threatened institution.

We do not mean to disparage the differences even 
among the former slave-holding States in their past 
and present laws dealing with segregation. Mary­
land’s laws and official policies have been far less rigid 
than those of South Carolina. Some states have 
vehemently pursued an official policy of segregation, 
■while others have taken first steps to adapt themselves 
to constitutional requirements: Louisiana’s rigid in­
sistence upon preserving segregation, which illustrates 
one extreme, is described at pages 59-78 of our brief

135 Fla. Stat. §1.01(6) (1961); Md. Code 27, §398 (1957); 
S.C. Const. Art. I l l ,  § 33.

136 Fla. Const., Art. X V I, §24; Fla. Stat. 741.11-741.16 
(1964); Md. Code (1957), Art. 27, § 398; S.C. Const., Art, I I I ,  
§ 33; S.C. Code § 20-7 (1962).

137 See Annotation, 46 A.L.R. 2d 1287 (1956) ; Bovjen v. In ­
dependent Publishing Company, 230 S.C. 509, 96 S.E. 2d 564.

710- 946— 64 6



60

in Avent v. North Carolina and companion cases (Nos. 
11, 58, 66, 67, and 71, October Term, 1962). Although 
thirty States have equal public accommodations laws, 
neither respondents nor any of the States that 
promoted segregation have wiped the slate clean.138

We are concerned with institutions—not with 
blame. I f  there is to be blame for the revival of the 
caste system in the face of the Thirteenth, Fourteenth 
and Fifteenth Amendments, it should rest upon the 
Nation. Our point is that the respondents and some 
sister States massively contributed to the system of 
segregation by laws and official action. Between State 
law and private custom there was a symbiotic rela­
tion ; they nourished each other and together produced 
the institution.

There can be no doubt that the State laws discussed 
above contributed to the establishment and practices 
of segregation in places of public accommodation. 
The legislation requiring segregation in public con­
veyances and upon carriers came too close to restau- 133

133 Thus, each of the respondent States still retains school seg­
regation laws on its statute books. See note 87, supra. With 
respect to Florida, see, also, Florida ex rel. Hawkins v. Board 
of Control, 347 U.S. 971, 350 U.S. 413, 355 U.S. 839. Segre­
gation on common carriers remains the statutory law of Flor­
ida and South Carolina. Fla. Stat. (1958), §§352.03-352.18; 
S.C. Code (1962), §§58-714 through 58-720, 58-1331 through 
58-1340, 58-1491 through 58-1496. South Carolina’s law requir­
ing segregated eating at station restaurants is still on the books. 
S.C. Code (1962), § 58-551. And all three States still prohibit 
miscegenation and interracial marriages. See Md. Code (1957), 
Art. 27, § 398; Fla. Stat. (1964), §§741.11-741.16; S.C. Code 
(1962), § 20-7. While Maryland has recently adopted a public 
accommodations law, it is expressly inapplicable to several 
counties of the State. Md. Laws 1963, ch. 227.



61

rants, theatres and other public places to have no in­
fluence upon them. No one can seriously argue that 
the South Carolina law requiring segregation in sta­
tion restaurants and “ eating houses” serving passen­
gers 139 did not strengthen the practice of stigmatizing 
Negroes as inferiors by denying them the privilege of 
eating with whites; nor is it unlikely that the State 
law encouraged municipalities and licensing authori­
ties to adopt similar local regulations.140 Even as the 
discriminatory laws were being enacted, Florida and 
South Carolina were repealing earlier laws, applicable 
to places of public accommodation. The South Caro­
lina laws of 1869 and 1870 banning racial discrimina­
tion by all licensed businesses were eliminated in 1887 
and 1889.141 142 Florida followed suit in 1892,142 and, in 
1957, expressly declared restaurants and hotels “ pri­
vate” establishments, free to exclude as they chose.143 
Such enactments camiot be read as legal abstractions. 
In the context of “ private attitudes and pressures” 
toward Negroes at the time of their enactment a “rep­
ressive effect” was bound to follow the “ exercise of

139 S.C. Code (1962), § 58-551.
140 We have already noticed ordinances in Greenville and 

Greenwood, S.C., requiring segregation in places of public ac­
commodation. See notes 118-122, 124, supra.

141 See note 90, supra.
142 Ibid. Other States waited longer. See, e.g., La. Acts 1954, 

No. 194, repealing former La. R.S. 4:3-4 (originally La. Acts 
1869, p. 37).

143 See Fla. Stat. (1962) § 509.092. See, also, the statute in­
volved in No. 60, Fla. Slat. (1962). § 509.141. Four other 
States (all former slave States) have comparable laws expressly 
permitting places of public accommodation to refuse service. 
Ark. Stat. Ann., §71-1801; Del. Code Ann., §24-1501; Miss. 
Code Ann. § 2046.5; Tenn. Code Ann. § 62-710.



62

governmental power.” See Anderson v. Martin, No. 
51, this term, decided January 13, 1964, slip opinion, 
p. 4.

One aspect of the inevitable interaction between 
segregation in restaurants and other aspects of the 
system finds a current illustration in Florida. As 
recently as 1962 the State Board of Health reissued a 
revised regulation requiring restaurants to provide 
separate toilet and lavatory rooms wherever colored 
persons are accommodated (Florida Administrative 
Code, Chapter 170C, Section 8.06).144 Not only does 
this official statement of State policy promote the view 
that colored persons should be segregated from whites 
as inferiors, but it has the very practical consequence 
of discouraging restaurants from accommodating all 
members of the public equally. Excepting very large 
restaurants, the financial burden of providing dupli­
cate facilities would be too heavy.

Institutionally, segregation in restaurants, lunch 
counters and amusement parks is part and parcel of 
the pervasive, official system of segregation which 
carries literally from cradle to grave.145 146 If  it were

144 The substance of the earlier regulation was identical. See
p. 2, supra. The text of the current regulation is set out at pp. 
99-100, infra.

146 See, e.g.. the Louisiana pattern of laws set forth in the 
concurring opinion of Mr. Justice Douglas in Gamer v. Louisi­
ana, 368 U.S. 157, at 179—181. For similar laws elsewhere, see 
Murray, States Laws on Race and Color (1950), and Greenberg, 
Race Relations and American Law (1959), pp. 372-400. See, 
generally, Mangum, The Legal Status of the Negro (1940).

While there are not explicit statutes in each State for each 
activity, those set out below doubtless reflect the official view, 
at least until very recently, in the States at bar.



63

otherwise possible to view the practices reflected in 
the cases at bar as individual instances of truly pri­
vate preference, that assumption becomes absurd in a 
community which until very recently required the 
Negro to begin life in a segregated neighborhood,146 
attending separate schools,146 147 using segregated parks, 
playgrounds, swimming pools,148 which later kept him 
apart at work,149 at play,150 151 at worship,131 even at 
court152 and while going from one place to another,153 
which confined him in segregated hospitals154 and 
prisons,153 156 and finally relegated him to a separate 
burial place.158 It is this rigidity, this pervasiveness, 
which makes unique in the American context the dis­
crimination against the Negro. There is no compa­
rable instance in this country of a massive phenome­
non which affects some 10 million people in every 
aspect of life. It has been infused with State support 
throughout its history.

146 See, e.g., City Code of Spartanburg, S.C. (1949), §23-51.
147 See, e.g., Fla. Stat. (1961), § 228.09.
148 See, e.g., the action of the City Commission of Miami di­

recting the resegregation of municipal swimming pools, re­
ported at 4 R.R.L.R. 1066.

149 See, e.g., S.C. Code (1962), §40-452, requiring separation 
in cotton textile factories.

150 See, e.g., Emergency Ordinance No. 236 of the City of 
Delray Beach, Fla., reprinted in 1 R.R.L.R. 733 (1956), ex­
cluding Negroes from the public beaches.

151 See, e.g., City Code of Greenville, S.C. (1953), §31-5.
152 See, e.g., Johnson v. Virginia., 373 U.S. 61.
163 See, e.g., City Code of Greenville, S.C. (1953), § 31-12.
154 Md. Code Ann. (1939), Art. 59, § 61.
185 See, e.g., Fla. Stat. (1960), §§950.05-950.08; Md. Code 

(1957), Art! 78A, § 14.
156 See, e.g., City Code of Danville, Ya. (1962), §18.13.



64

II

FOR A STATE TO GIVE LEGAL SUPPORT TO A RIGHT TO MAIN­
TAIN PUBLIC RACIAL SEGREGATION IN PLACES OF PUBLIC 
ACCOMMODATION, AS PART OF A CASTE SYSTEM FABRI­
CATED BY A COMBINATION OF STATE AND PRIVATE AC­
TION, CONSTITUTES A DENIAL OF EQUAL PROTECTION 
OF THE LAWS

We have shown that the refusal to allow Negroes 
to eat or mingle with whites in these places of public 
accommodation is a community-wide practice enforced, 
with State support where necessary, in places regu­
lated by the States and heavily affected with a public 
interest, and that the practice is an integral part of a 
system of segregation established by a combination 
of governmental and non-governmental action and 
designed to preserve the very caste system that the 
Thirteenth, Fourteenth and Fifteenth Amendments 
sought to eradicate. We now submit the legal propo­
sition that for a State to support that practice, either 
by arrests and criminal prosecution or by recognizing 
a privilege of self-help, violates the Fourteenth 
Amendment.

The argument is essentially that where racial 
discrimination becomes operative through a combina­
tion of State and private action the State’s respon­
sibility depends upon an appraisal of the significance 
of all the elements of State involvement in relation 
to the elements of private choice. Thus, while we 
stress the presence of the State in the arrests and 
prosecution, we do not urge that such State action 
in support of private discrimination is alone enough



65

to constitute a State denial of equal protection of the 
laws. Similarly, although it might be argued that 
the State’s influence upon the system of segregation, 
of which discrimination in places of public accommo­
dation is an integral part, is enough to bring the 
cases within the principle of Peterson v. Greenville, 
373 U.S. 244, and Lombard v. Louisiana, 373 U.S. 267, 
we do not press the argument that far. We rely upon 
the State’s antecedent involvement only as one of the 
elements in the total complex. Again, while we do 
not assert that a State violates the Fourteenth Amend­
ment merely by failing to require the proprietor of 
a place of public accommodation to serve Negroes 
equally with other members of the public, we do 
nevertheless urge that the States’ close association 
with such establishments through licensing and regu­
lation constitutes a further element of State in­
volvement and also indicates that the imposition of 
State responsibility would effectuate the basic pur­
pose of the Thirteenth, Fourteenth and Fifteenth 
Amendments.157

157 I t  may be useful also to distinguish another line of analy­
sis. There is considerable ground for arguing that the Four­
teenth Amendment imposes upon the States a duty to provide 
equality of treatment under the law for all members of the 
public without regard to race in establishments which the pro­
prietor voluntarily throws open to the general public to such an 
extent that legal protection of the public is a normal part of 
the legal system. Although there is little direct evidence, 
the history of the Reconstruction Period furnishes no little 
support for that thesis. In  addition to materials cited at 
pp. 114-143 below, see Roche, Civil Liberty in the Age of Enter­
prise., 31 U. of Chi. L. Rev. 103, 107-112; Peters, Civil Rights 
and State Action, 3 Notre Dame Lawyer 303; cf. Harris, The 
Quest for Equality (1960), 42-43. The trend of constitutional



6 6

A. WHERE RACIAL DISCRIMINATION BECOMES EFFECTIVE BY CONCUR­
RENT STATE AND INDIVIDUAL ACTION, THE RESPONSIBILITY OF THE  

STATE UNDER TH E FOURTEENTH AM ENDM ENT DEPENDS UPON THE  

IMPORTANCE OF TH E ELEMENTS OF STATE INVOLVEMENT COM­

PARED W ITH THE ELEMENTS OF PRIVATE CHOICE.

Petitioners were convicted as a result of racial dis­
crimination. There was discrimination when they 
were refused service. It became operative again when 
they were arrested, tried and convicted of crime. The

thinking after 1877 points in the opposite direction, but the 
decisions invalidating direct federal legislation do not require 
the latter conclusion because all appear to be based upon the 
absence of any showing that the State failed to provide a 
remedy for the alleged invasions of individual rights. In  the 
Civil Rights Cases, 109 U.S. 3, the Court expressly assumed 
the availability of a State remedy. See pp. 73-77 below. In 
United States v. Cruikshank, 92 U.S. 542, apparently there was 
no allegation of a wilful default in State protection. United 
States v. Harris, 106 U.S. 629, 639-640, states that the gravamen 
of the charge was that the accused “conspired to deprive certain 
citizens of the United States and of the State of Tennessee 
of the equal protection accorded them by the laws of Ten­
nessee.” The Solicitor General’s brief in the Harris case made 
no contention based upon a technical or practical lack of State 
protection.

I f  a State’s failure to provide equal protection violates Sec­
tion 1, then Congress, under Section 5, has power to enact 
legislation appropriate to securing the equality. In  default of 
Congressional action the victims might lack a direct remedy, 
for the refusal of the proprietors could be distinguished from 
the default of the State, but certainly the Court would invali­
date any State action, such as arrests and convictions, that 
enhanced the inequality which the State was constitutionally 
required to eliminate.

In  view of the elements of affirmative State involvement 
present in these cases, we mention but do not pursue the fore­
going line of analysis.



67

facts can hardly be disputed. Though one may argue 
the legal consequences, neither the State authorities 
nor this Court could blind itself to what all the world 
knows.

I f  the State, in addition to making the arrests and 
entering the convictions, had fixed the rule that no 
Negro should be served there would be a plain viola­
tion of the Fourteenth Amendment. I f  the State had 
never intervened, and had no duty to act,ies there 
would equally plainly be no violation of constitutional 
rights. The difficulty in the present case is that the 
discrimination becomes operative through a combina­
tion of State and private action.

The resulting problem, though novel in the present 
particular, is not unfamiliar. In a complex society 
governmental and private action are increasingly 
often entwined as well as interdependent. The State 
acts in many forms and through many channels. Pri­
vate activity may not only depend upon State per­
mission and State sanctions, but it may benefit from 
or be stimulated by State subsidies, State regulation 
and other forms of aid or direction. The cases that 
have reached the courts are alone enough to demon­
strate that invidious discrimination and interference 
with aspects of individual liberty are increasingly 
often the product of combinations of private and gov- * 65

158 We do not argue that there is such a duty. See pp. 9-10,
65, no. 157, 20-21, above.



68

ernmental action.159 In such a situation there is no

159 Cases where lessees of or buyers from the State have dis­
criminated : Burton v. Wilmington Parking Authority, 365 U.S. 
715 (refusal to serve Negro in private restaurant located in 
public building and leased from the S ta te); Muir v. Louisville 
Park Theatrical Ass’n., 347 U.S. 971, reversing and remanding 
202 F. 2d 275 (C.A. 6) (municipally owned amphitheater 
leased to private association); Jones v. Marva Theatres, Inc., 
180 F. Supp. 49 (D. Md.) (city owned theater leased to pri­
vate corporation); Coke v. City of Atlanta, Ga., 184 F. Supp. 
579 (N.D. Ga.) (city owned restaurant leased to private 
corporation); Laiorence v. Hancock, 76 F. Supp. 1004 (S.D. 
W. Ya.) (city owned swimming pool leased to private corpo­
ration) ; McDuffie v. Florida Turnpike Authority (not officially 
reported, see 7 R.R.L.R. 505) (restaurant leased by private 
party from State turnpike authority); Department of Conser­
vation & Development v. Tate, 231 F. 2d 615 (C.A. 4) (threat­
ened lease of state park to private persons who would dis­
criminate) ; Smith  v. Holiday Inns of America, Inc., 220 F. 
Supp. 1 (M.D. Tenn.) (private motel located on urban re­
newal land sold to proprietor who refused to accommodate 
Negroes); Derrington v. Plummer, 240 F. 2d 922 (C.A. 5) 
(refusal to serve Negroes in cafeteria leased from state and 
located in courthouse).

Cases where the State required or encouraged segregation by 
statute or official conduct: Lombard v. Louisiana, 373 U.S. 267 
(refusal to serve Negro in private restaurant in city where 
public officials encouraged and recommended restaurant segre­
gation) : Peterson v. Greenville, 373 U.S. 244 (refusal
to serve Negro in private restaurant in city where ordinance 
required restaurant segregation); Gayle v. Browder, 352 U.S. 
903, affirming 142 F. Supp. 707 (M.D. Ala.) (State law re­
quiring private common carrier to segregate passengers) ; 
McCabe v. A.T. <& S.F. R y Co., 235 U.S. 151 (racial discrimina­
tion by railroad permitted by state law ); Turner v. City of 
Memphis, 369 U.S. 350 (State law requiring segregation in 
private restaurant located in public airport).

Cases where private groups whose power to act derives from 
State, or federal law discriminated: Steele v. Louisville <& N. 
R. Co., 323 U.S. 192 (federal law conferred exclusive



69

simple formula for distinguishing State denials of 
equal protection from individual invasions of the 
same interests.

Mindful of the variety and complexity of the forms 
of State action and their relation to racial discrimi­
nation and other invasions of fundamental rights, the 
Court has eschewed the “impossible task” of formu­
lating fixed rules and has sifted the facts and weighed 
the circumstances of each case in order to attribute “its 
true significance” to “ nonobvious involvement of the 
State in private conduct.” Burton v. Wilmington 
Parking Authority, 365 U.S. 715, 722. “The ultimate 
substantive question is * * * whether the character 
of the State’s involvement in an arbitrary discrimina-

bargaining rights on union which discriminated against 
Negroes).

Cases where the State delegated a governmental function 
to a private entity: Terry v. Adams, 345 U.S. 461 (delegation 
of election function by State to private group which excluded 
Negroes); Smith  v. Allwright, 321 U.S. 149 (same); Marsh v. 
Alabama, 326 U.S. 501 (delegation by State of power to ex­
clude religious solicitors from “company town” and conviction 
for trespass for refusal to leave).

Cases where the State was involved financially or otherwise 
in creating or maintaining the private entity which discrim­
inated: Simhins v. Moses II. Cone Hospital, No. 8908 (C.A. 
4, November 1, 1963) (private hospital refusing Negro patients 
pursuant to statutory authorization although hospital con­
structed under federal and state p la n ); Smith  v. Holiday Inns 
of America, Inc., 220 F. Supp. 1 (M.D. Tenn.) (private motel 
located on urban renewal land sold to proprietor who refused 
to accommodate Negroes); Kerr v. Enoch Pratt Free Library, 
149 F. 2d 212 (C.A. 4) (large-scale public financial support of 
library which excluded Negroes).



70

tion is such that it should be held responsible for the 
discrimination.” Mr. Justice Harlan concurring in 
Peterson v. Greenville, 373 U.S. 244, 249. The re­
quired judgment upon the whole seems not essentially 
different in method from the determination of other 
forms of legal liability for the results of mingled 
causes.

One of the guiding principles is that a State can­
not exculpate itself merely by showing that a private 
person made the effective determination to engage in 
invidious discrimination or some other invasion of 
fundamental rights. Just as there may be two legal 
causes of injury to the person or property, so State 
and private responsibility are not mutually exclusive. 
There are numerous decisions, both in this Court and 
elsewhere, holding that a State has violated the Four­
teenth Amendment where its participation facilitates 
or encourages discrimination but leaves the decision 
to private choice. In Burton v. Wilmington Parking 
Authority, 365 U.S. 715, the State was involved 
through ownership of the building and there was con­
tinuing mutual interdependence as well as association 
between the State parking facility and the private 
restaurant; the actual decision to exclude Negroes 
from the restaurant was made by the restaurant alone. 
In Lombard v. Louisiana, 373 U.S. 267, govern­
ment officials encouraged the discrimination but the 
decision was private. Mr. Justice Harlan urged in 
dissent that the State involvement was insufficient if



71

the decision to discriminate was private, but his view 
was rejected by the Court.160

The principle is not confined to cases of racial dis­
crimination. In Railway Employees’ Dept. v. Han­
son, 351 U.S. 225, the federal statute merely removed 
legal obstacles to private agreements which the par­
ties might conclude or reject, but this was unani­
mously held sufficient to subject the consequences of 
the resulting agreements to scrutiny under the First 
and Fifth Amendments. Compare Steele v. Louis­
ville & N. R. Go., 323 U.S. 192; International Ass’n 
of Machinists v. Street, 367 U.S. 740. See, also, 
Public Utilities Comm. v. Poliak, 343 U.S. 451.

States have also been held responsible where their 
sole participation was to permit and carry out an 
exercise of private right. In the Girard Trust case 
the public authorities did no more than give effect to 
a private individual’s testamentary instructions con­
cerning the disposition and use of his property as a 
public trust. Pennsylvania v. Board of Trusts, 353 
U.S. 230. The State, through a municipal subdivision, 100

100 See, also, Baldwin v. Morgan, 287 F. 2d 750 (C.A. 5) 
(signs designating “white” and “colored” terminal waiting 
rooms unlawful despite lack of enforcement since signs en­
courage segregation); Kerr v. Enoch Pratt Free Library, 149 
F. 2d 212 (C.A. 4) (library supported mainly with public 
funds); Simpkins v. Moses II. Cone Hospital, C.A. 8908 (C.A. 4, 
November 1, 1963) (private hospital constructed with federal 
funds according to state plan and authorized by law to dis­
criminate) ; Derrington v. Plummer, 240 F. 2d 922 (C.A. 5) 
(leased restaurant in courthouse building); Department of Con­
servation K Development v. Tate. 231 F. 2d 615 (C.A. 4) 
(lease of state park to private persons); Sm ith  v. Holiday Inns 
of America, Inc.. 220 F. Supp. 1 (M. D. Tenn.) (sale of 
urban renewal land to private motel corporation).



72

was continuously and intimately involved because it 
acted as trustee; the element of individual freedom 
was diluted by the lapse of a century since the tes­
tator’s death; but the fact remains that the State 
was only giving effect to a private decision. Shelley 
v. Kraemer, 334 U.S. 1, is still closer to the point for 
there the State action consisted solely of a legal system 
which recognized a private right to negotiate cove­
nants running with the land and which enforced such 
private covenants even when racially discriminatory. 
Manifestly, there would have been no racial dis­
crimination but for the private choice; and the State 
did nothing to encourage it. The core of the decision 
appears to be the judgment that, in that instance of 
discrimination, which was a product of private con­
tract combined with jural recognition, the elements 
of law were so significant in relation to the elements 
of private choice as to require the conclusion of State, 
as well as private responsibility. See pp. 88-89 below. 
Accord: Barrows v. Jackson, 346 U.S. 249.161

161 I t  may be suggested that in the Girard Trust case the 
State was required to determine whether an applicant was 
white or Negro, and that in Shelley v. Kraemer and other 
cases of restrictive covenants the State gave judgment to the 
plaintiff only after satisfying itself of the race of the pros­
pective purchaser; whereas in the present cases, the States were 
evicting the persons deemed objectionable by the managers 
without the States’ inquiring into race or color. Other cases 
show this difference to be unimportant. In  Peterson and 
Lombard, as here, the State could say that it proceeded against 
persons identified as objectionable by the managers without 
asking their race or color. While those cases can be dis­
tinguished on the ground that the vice was anterior State 
intervention looking to race, the distinction is not applicable 
to Burton, where the State could have proved a criminal tres­



73

There is nothing to the contrary in the Civil Rights 
Cases, 109 U.S. 3, even though they deal with dis­
crimination in places of public accommodation. 
There the State was not involved in the discrimina­
tion either by action or inaction. In issue was the 
power of Congress under the Thirteenth and Four­
teenth Amendments to require the operators of inns, 
public conveyances, theatres and other places of pub­
lic amusement to make their facilities equally availa­
ble to citizens of every race and color, even though 
there was no showing that the State law failed to 
secure such rights. The decision was that Congress 
lacked power to enact the legislation (id. at 13).

* * * until some State law has been passed, or 
some State action through its officers or agents 
has been taken, adverse to the rights of citi­
zens sought to be protected by the Fourteenth 
Amendment, no legislation of the United States 
under said amendment, nor any proceeding 
under such legislation can be called into ac­
tivity; for the prohibitions of the amendment 
are against State laws and acts done under 
State authority.

The refusal of service was then held to be only a 
private wrong against the argument that the carriers, 
inns and theatres involved were quasi-public con­
cerns acting for the State. The predicate of the rul-

pass without showing Burton’s color. In  a case like Inter­
national Association of Machinists v. Street, the reason for the 
employees’ failure to pay dues would not have to be proved 
to invoke the union shop agreement; yet the employees were 
allowed to offer the proof in challenging the constitutionality 
of the governmental action.



7 4

ing, however, was that the States not only gave no 
support to the discrimination but would afford the 
injured party a remedy.

Discussing in general terms the need for some 
State involvement to invoke the civil rights guaran­
teed by the Constitution, the Court reasoned that 
the wrong done by one individual to another did not 
impair the constitutional right because the individual 
aggressor, unless shielded by State law or State 
authority, “ will only render himself amenable to 
satisfaction or punishment; and amenable therefor 
to the laws of the State where the wrongful acts are 
committed” (109 U.S. at 17). Coming to the Civil 
Rights Act of 1875, the Court assumed that “ a right 
to enjoy equal accommodation and privileges in all 
inns, public conveyances, and places of public amuse­
ment, is one of the essential rights of citizens which 
no State can abridge or interfere with.” It ob­
served that, far from positing State failure to secure 
those rights, the Act of 1875 (id. at 19)—

supersedes and displaces State legislation on 
the same subject, or only allows it permissive 
force. It ignores such legislation and assumes 
that the matter is one that belongs to the 
domain of national regulation.

The rather plain implication that the Court knew, 
or at least assumed the States to have laws protect­
ing the very rights in question was made explicit 
shortly after (id. at 25) :

Innkeepers and public carriers, by the laws of 
all the States, so far as we are aware, are 
bound, to the extent of their facilities, to fur­



75

nish proper accommodation to all unobjection­
able persons who in good faith apply for them.

The same understanding, including also places of 
amusement, is the predicate of the key passage ex­
pressing in the form of a rhetorical question the 
Court’s final judgment upon the issue of State re­
sponsibility for the allegedly individual acts of dis­
crimination {id. at 24) :

Can the act of a mere individual, the owner 
of the inn, the public conveyance or place of 
amusement, refusing the accommodation, be 
justly regarded as imposing any badge of slav­
ery or servitude upon the applicant, or only 
as inflicting an ordinary civil injury, properly 
cognizable by the laws of the State, and pre­
sumably subject to redress by those laws until 
the contrary appears ? [Emphasis added.]

The foregoing passages appear essential to the 
Court’s reasoning. Justice Bradley, who wrote the 
opinion, had earlier expressed in private correspond­
ence the view that the Fourteenth Amendment laid 
upon the States an affirmative obligation to secure 
equality for the freedmen, including the duty to enact 
protective legislation. Although he later modified 
his view—but not in relation to businesses normally 
under a duty of public service—still there is no indi­
cation that he was slow to find State involvement.162

162 “* * * Congress has a right, by appropriate legislation, to 
enforce and protect such fundamental rights, against unfriendly 
or insufficient State legislation. I  (?) say unfriendly or insuf­
ficient; for the X IV th Amendment not only prohibits the mak­
ing or enforcing of laws which shall abridge the privileges of 
the citizen; but prohibits the states from denying to all persons 
within its jurisdiction the equal protection of the laws. Deny-

719- 946— 64---------- 7



76

The assumption that State law, evenly administered, 
would usually provide redress for the denial of access 
to the inns or hotels, carrier, opera house and theatre 
was not unreasonable. The common law covered most 
situations within the Act. Many States were enacting 
still broader equal public accommodation laws.163 Of

ing includes inaction as well as action. And denying the equal 
protection of the laws includes the omission to protect, as well 
as the omission to pass laws for protection.” From an unpub­
lished draft of a letter by Justice Bradley to Circuit Judge 
(later Justice) William B. Woods, March 12, 1871, on file, The 
Few Jersey Historical Society, Newark, New Jersey. Attached 
to the drafts of two letters, including the one to Judge Woods, 
was a note by Justice Bradley stating: “The views expressed 
in the foregoing letters were much modified by subsequent reflec­
tion, so far as relates to the power of Congress to pass laws for 
enforcing social equality between the races.”

The most convenient source of the pertinent excerpts from the 
Bradley Papers is Roche, Civil Liberty in the Age of Enter­
prise, 31 U. of Chi. L. Rev. 103, 108-110.

163 See, for instance: Acts and Resolves of Massachusetts, 1865, 
ch. 277, p. 650 (no distinction, discrimination or restriction on 
account of race or color in any licensed inn, public place or 
amusement, public conveyance, or public meetings); Ibid; Jan. 
sess., 1866, p. 242 (theatres) (Stephenson, Race Discriminations 
in American Law (1910), p. 112.)

New York Statutes, IX , pp. 583-84 (prohibition of race 
distinctions in inns, public conveyances, theaters, other public 
places of amusement, common schools, public institutions of 
learning, cemeteries) (Stephenson, p. 115).

Laws of Florida, 1873, chapt. 1947 (prohibited discrimination 
on account of race, color, or previous condition of servitude in 
full and equal enjoyment of the accommodations of inns, public 
conveyances, licensed theaters, other places of public amuse­
ment, common schools, public institutions of learning, cemeteries, 
benevolent associations supported by general taxation) (Ste­
phenson, pp. 115-116).

Acts of Louisiana, 1869, p .  37; 1870, p. 57 (prohibited 
discrimination on account of race or color by common carriers,



77

the five cases before the Court, two involved plain 
violations of a State statute and two may well have 
been covered by the common law. Only in one in­
stance—the case involving refusal of a parlor coach 
seat on a railroad in Tennessee—is it probable that 
the State would have denied redress, and plainly the 
Court did not examine that case separately to ascer­
tain whether the State had sanctioned discrimina­
tion.164

inkeepers, hotel keepers, keepers of public resorts.); Id., 1873, 
pp. 156-57 (provided that all persons, without regard to race 
or color must have “equal and impartial accommodations” on 
public conveyances, in inns, and other places of public resort) 
(Stephenson, p. 116).

Acts of Arkansas, 1873, pp. 15-19 (same accommodations to 
be furnished to all by common carriers, keepers of public houses 
of entertainment, inns, hotels, restaurants, saloons, groceries, 
dram-shops or other places where liquor was sold, public 
schools, and benevolent institutions supported in whole or in 
part by general taxation) (Stephenson, p. 116).

See also notes 19, 83-85, supra; notes 228-236, 241-243, infra.
164 United States v. Stanley involved a Kansas inn (hotel). 

Probably it was covered by the common law but Kansas 
Laws 1874, p. 82, specifically barred racial discrimination.

United States v. Ryan , involved a California theatre. The 
earliest legislation prohibiting discrimination in theatres was 
Laws 1893, p. 220. See also, Laws 1897, p. 137. However, 
the common law duty was extended broadly; for example, to 
a watering place. See Willis v. McMahon, 89 Cal. 156 (1891).

In United States v. Nichols, the Missouri inn or hotel was 
presumably subject to the common law duty. Indeed, in his 
brief in the Civil Rights Cases, the Solicitor General said: 
“I premise that upon the subject of inns the common law is 
in force in Missouri * * *.” Brief for the United States, 
Nos. 1, 2, 4, 460, Oct. Term, 1882, p. 8.

United States v. Singleton involved the New York opera 
house. A State statute barred racial discrimination by 
“theatres or other places of amusement.” Laws 1873, p. 303; 
Laws 1881, p. 541.



78

The basic distinction between State and private 
action, stemming from the Civil Rights Gases, has 
important implications in determining what degree 
of State involvement will carry, State responsibility 
for the purposes of the Fourteenth Amendment. See 
pp. 84-88 below. The cases hold, however, only that 
the Amendment gives the federal Congress no power 
to deal with individual wrongs (not affecting inter­
state commerce) where there is no State involvement 
hostile to the right to equal treatment and where 
State law is available to secure redress. As we read 
the facts and the opinion, the cases do not even reach 
the question whether the State is sufficiently involved 
for there to be a violation of the Fourteenth Amend­
ment when the State fails to secure a right of equal 
treatment in places of public accommodation. A 
fortiori those decisions do not deal with State rec­
ognition of, and sanctions for, an asserted private 
right to evict Negroes from places of public accom­
modation as members of an untouchable caste. A 
multo fortiori they do not deal with the only question 
here—State recognition and sanctions for discrimina­
tion in public places where the racial practices of the

Robinson v. Memphis, etc. R.R. was a private suit growing 
out of the refusal of accommodations in a railroad parlor 
coach. The common law duty seems plain but Tennessee Laws 
1875, p. 216, expressly repealed the common law rule, Laws 
1881, p. 211, however, amended the 1875 statute to require a 
carrier to furnish separate but equal first class accommodations. 
The pertinent dates in the Robinson case do not appear in the 
official report, but the Court stated that, as far as it was 
aware, the public carrier was bound to furnish equal accom­
modations. 10b U.S. at 25.



proprietors are an integral part of a system of segre­
gation, as a mark of caste, which was adopted and 
promoted by a mixture of governmental and private 
action.

There are no other decisions in this Court even 
arguably inconsistent with our submission that where 
racial discrimination becomes operative through State 
and individual action, the State cannot insulate itself 
from responsibility merely by showing that the deci­
sion to discriminate was private. In such a situation, 
as in other instances of intermingled State and pri­
vate action, the judgment depends, in the last analy­
sis, upon the size and importance of the elements of 
State involvement in relation to the elements of pri­
vate action, both measured from the standpoint of 
the fundamental aims of the constitutional guarantee.

In the present cases the elements of State involve­
ment, measured from that standpoint, outweigh the 
elements of private action. The State is involved 
through the arrests and prosecution, where the effect 
was to enf orce the community-wide stigma in virtually 
all places of public accommodation. The State is also 
involved because, in weaving the fabric of forced seg­
regation as a means of preserving a caste system, its 
laws and official policies helped to fill the warp laid 
down by private prejudice. The State is intimately 
associated with systematic racial discrimination in 
places of public accommodation because it has tradi­
tionally assumed responsibility over their duties to the 
public to which they open their business, and the 
State actually regulates most aspects of the relation­

79



8 0

ship. Conversely, the special character of these estab­
lishments emphasizes the minimal significance of the 
elements of private choice.

We elaborate these points in the next section.

B. IN  TH E  PRESENT CASES THE ELEMENTS OF STATE INVOLVEMENT 

ARE SUFFICIENTLY SIGNIFICANT, IN  RELATION TO THE ELE­
M ENTS OF PRIVATE CHOICE, TO CARRY RESPONSIBILITY UNDER  

TH E FOURTEENTH AM ENDM ENT.

1. The States are involved through the arrest, prosecution and, 
conviction of petitioners

It is beyond dispute that the respondents have pro­
vided official sanctions for the imposition of a racial 
stigma through the intervention of the police, the 
prosecutor and the courts. While any proprietor is 
legally free to abandon the practice of racial segrega­
tion, the substantial effect of the States’ intervention 
in support of the community-wide practice whenever 
it is challenged, is to give the practice the force of 
law insofar as Negroes are concerned, much as if it 
were an ordinance forbidding Negroes to enter and 
seek service in any restaurant or lunch counter where 
whites are eating. Respondents may not deny know­
ledge of what all the world knows—that they are 
prosecuting those whose sole offense was peacefully 
to insist on being treated like other members of the 
public in a place to which the general public was in­
vited. Cf. Child Labor Tax Case, 259 U.S. 20, 37: 
United States v. Rumely, 345 U.S. 41, 44.

Before turning to the other elements of State in­
volvement, it is important to digress, first to empha­



81

size that we would equate police intervention and 
criminal prosecution with any State recognition of a 
legal privilege to engage in aggression against a Negro 
who has peacefully entered and peacefully seeks the 
same service the proprietor is offering to the public 
at large, and second, to mark the limits to our re­
liance upon the arrests and judicial proceedings.

(a) We are not contending that the intervention 
of the police and the subsequent convictions are a sine 
qua non of State involvement. I f  the State is in­
volved when it supplies sovereign or physical power in 
the form of a policeman, the State must be involved 
when it gives the proprietor the privilege to use force 
as his own policeman. The reasoning that interdicts 
State action in the form of arrests and criminal prose­
cution, when sufficiently associated with the other ele­
ments of State involvement as in the present cases, is 
equally applicable to any jural recognition of a priv­
ilege to engage in private aggression. State action 
for the purposes of the Fourteenth Amendment may 
take the form of judge-made law as well as legislation. 
American Federation of Labor v. Swing, 312 U.S. 321; 
Cantwell v. Connecticut, 310 U.S. 296.

We distinguish here between (i) the State’s fail­
ure to impose an affirmative duty, thus leaving the 
proprietor of the place of public accommodation free 
to refuse service, and (ii) the State’s creation of a 
privilege authorizing the proprietor to invade what 
would normally be the protected interests of another, 
notably the interest in bodily security. The former



8 2

implies indifference. The latter puts the State’s im­
primatur upon the aggression.165

In our view, therefore, the Supreme Court of Dela­
ware erred in State v. Brown, 195 A. 2d 379, in saying 
that the proprietor of a place of public accommodation 
has a privilege of using reasonable force to remove 
Negroes from his establishment pursuant to a policy 
of racial discrimination. I f  the Negro seeks police 
assistance or sues for a battery, State law becomes no 
less involved than when the proprietor invokes its 
assistance. The normal rule is that the State will give 
relief against personal aggression. To make an excep­
tion, based upon the proprietor’s decision to enforce 
the community’s caste system, is no less a State denial

165 The foregoing distinction does not involve the complexity 
present in Rice v. Sioux City Memorial Park Cemetery, 347 
U.S. 942, and Black v. Cutter Laboratories, 351 U.S. 292. In  
those cases the party complaining of deprivation of constitu­
tional rights had no cause of action unless based upon con­
tract—the contract for the cemetery lot in one case and the 
promise not to discharge without just cause in the other. The 
defendant was asserting an exception—the clause excluding 
non-Aryans in the one case and the supposed reservation, writ­
ten in by the State court, making Communist affiliations ground 
for discharge in the other. Thus, the argument for respondents 
was essentially that no more State action was involved in the 
refusal to excise part of the contract and enforce the remainder 
than in standing entix-ely aside. The dissenting Justices con­
cluded that there was a distinction. See the dissenting opinion 
of Mr. Justice Douglas joined by the Chief Justice and Mr. 
Justice Black in Black v. Cutter Laboratories, 351 U.S. 292, 302.



83

of equal protection than substituting State assistance 
for private force.166

Of course, no one has a privilege of self-help to 
gain service in a place of public accommodation or to 
enter by force over the owner’s objection. The rule 
applies whether the refusal be rightful or wrongful. 
Even if  the right exists (which we do not argue), it
cannot be enforced by aggression.

These principles go far to meet any problem of 
maintaining public order that might be supposed to 
result from reversal of these convictions. Whoever 
first resorts to violence is guilty of a breach of the 
peace be he a Negro seeking to enter and obtain serv­
ice or a proprietor seeking to evict him. The police 
may quell, and the State may punish, such disturb­
ances of public order without discrimination. Any 
failure of public officials to act because of racial prej­
udice would be unconstitutional discrimination sub­
ject to redress under the Civil Bights Act, 28 U.S.C. 
1343. Lynch v. United States, 189 E. 2d 476 (C. A. 
5) ; Catlette v. United States, 132 E. 2d 902 (C. A. 4) ; 
Picking v. Pennsylvania Railroad Company, 151 E.

lee The above principle was quickly recognized in cases in­
volving restrictive covenants. Although the cases in this Court 
involved affirmative State action providing sanctions for the 
covenants, it was soon held that they were not available as a 
defense. Clifton v. Puente, 218 S.W. 2d 272 (Tex. Civ. A pp .); 
Capitol Federal Savings <& Loan Ass'n v. Sm ith, 316 P. 2d 252 
(S. Ct. Colo.) (action to quiet title).



8 4

2d 240 (C.A. 3). See, also, Monroe v. Pape, 365 U.S. 
167.

In the absence of legislation by Congress the net re­
sult may be that some proprietors of places of public 
accommodation find themselves unable to evict Ne­
groes whom they are unwilling to serve. The dilemma 
is of their own making. One who pursues a public 
calling in which he permits the general public to enter 
his premises is hardly in a position to complain of 
the incongruity if he then refuses upon invidious 
grounds to serve some members of the same public to 
which he opened his business. Though only legisla­
tion can provide a complete solution, the resulting 
stand-off is no more likely, in our judgment, to result 
in demonstrations and disturbances than a decision 
rejecting the argument we have presented.

(b) In arguing that the State’s provision of legal 
sanctions is an element of State involvement pointing 
towards State responsibility, we do not urge that such 
State action is always enough to implicate the State 
for the purposes of the Fourteenth Amendment, leav­
ing for analysis only the question whether the result 
conforms to the substantive requirements of the Four­
teenth Amendment (i.e., involves an invidious classifi­
cation or a deprivation of other fundamental rights) ,167 * 30

167 Henkin, Shelley v. Kraemer, Notes for a Revised Opinion, 
110 U. Pa. L. Rev. 473 (1962); Horowitz, The Misleading 
Search for “State Action” Under the Fourteenth Amendment,
30 So. Cal. L. Rev. 208 (1957); Van Alstyne and Karst, State 
Action, 14 Stan. L. Rev. 3 (1961). Cf. Williams, The
Twilight of State Action, 41 Texas Law Review 347 (1963).



85

The latter argument seems to invite sharp curtail­
ment of the scope for State and private choice and 
would certainly increase the role of constitutional 
adjudication.

To hold that a householder, lawyer or businessman 
may admit or exclude guests at his absolute discretion, 
however wise, capricious or immoral, but that he may 
not look to public authority to safeguard the right 
where the State could not constitutionally make the 
same choice, would deny the right to the poor and 
powerless and invite the rich or strong to recall the 
age of private armies. Manifestly, the same is true 
of business premises and a wide variety of places 
maintained by institutions such as schools, colleges, 
and charitable institutions. The constitutional doc­
trine expounded in State v. Brown, 195 A. 2d 379, also 
raises grave prospects of public disorder, for we feel 
no confidence that the owners of places of public ac­
commodation would not be challenged and then exer­
cise a privilege of self-help.

One escapes the latter difficulty, but only at the 
expense of increasing the former, by saying that a 
State acts not only through its police, prosecutors 
and judicial commands but also when its law recog­
nizes a right, privilege or immunity; and that recog­
nition of a privilege of self-help would therefore vio­
late the Amendment. We agree that recognition of 
a privilege of self-help, like the intervention of the 
police, is indubitably State action (see pp. 20, 81-84 
above), but to say that either form of State action 
is alone enough to make the State responsible for the 
private person’s discrimination would subject a wide



86

variety of heretofore private decisions to the limita­
tions of the Fourteenth Amendment as if  they were 
made by the government. May a lawyer select clients, 
and a doctor patients, whimsically or only upon rea­
sonable grounds? May a private school, endowed by 
its founders as a charitable corporation for the edu­
cation of Episcopalians, prefer applicants of that 
faith over Jews or Roman Catholics? May it termi­
nate the tenure of a teacher who avows atheism ? May 
a popular distributor of detergents discharge an ex­
ecutive whose speeches and political associations with 
right or left wing extremists, in the judgment of the 
management, injure its public relations? Would 
the case be different if there were no risk of injury 
to the business but the other executives found the 
association highly distasteful? A State could not 
constitutionally command such discrimination and 
interference with individual freedom. Must its law 
therefore withhold all legal recognition of the right of 
private persons to engage in them ?

The extent of such difficulties would depend upon 
whether the rule was that the State is responsible 
under the Fourteenth Amendment whenever its law 
failed to protect the claimed constitutional right, i.e., 
did not impose a legal duty upon others in favor of 
the claimant, or only when the State recognized a 
privilege to take aggressive action. We consider the 
distinction significant (see pp. 65, 81-84 above), but we 
do not pause to consider it in this context because 
it is clear that the withholding of criminal sanctions, 
civil remedies and the privilege of affirmative self- 
help would greatly reduce the field for private choice.



87

Of course, the State would be required to with­
hold recognition of a right of private choice only 
when the ensuing discrimination or interference with 
other fundamental interests is not counterbalanced 
by a constitutional interests of the actor equal to that 
which he has invaded, such as the householder’s con­
stitutional right of privacy, which would include the 
right to choose his guests. For although there is 
State responsibility in such case, it is said, the State 
is barred only from arbitrary and capricious action.168 
I f  the requirement of a counterbalancing interest of 
constitutional magnitude is seriously proposed, then 
the contention is really that wherever a State can 
legislate to prohibit discrimination or to secure civil 
liberties, the issue cannot be left to private choice 
without offending the Amendment. I f  other interests 
will suffice, the Substantive restriction upon private 
action is less severe, but there remains the difficulty 
that imposing State responsibility upon the basis of 
jural recognition of a private right turns all manner 
of private activities into constitutional issues, upon 
which neither individuals nor the Congress nor the 
States—-but only this Court—could exercise the final 
judgment.

The preservation of a free and pluralistic society 
would seem to require substantial freedom for private 
choice in social, business and professional associa­
tions. Freedom of choice means the liberty to be 
wrong as well as right, to be mean as well as noble, 
to be vicious as well as kind. And even if that view

168 See Henkin, op. cit. supra.



88

were questioned, the philosophy of federalism leaves 
an area for choice to the States and their people, 
when the State is not otherwise involved, instead of 
vesting the only power of effective decision in the 
federal courts.

Nothing in the Court’s decisions or elsewhere in 
constitutional history suggests that the Fourteenth 
Amendment’s prohibitions against State action put 
such an extraordinary responsibility upon the Court. 
It seems wiser and more in keeping with our ideals 
and institutions to recognize that neither the jural 
recognition of a private right nor securing the right 
through police protection and judicial sanction is in­
variably sufficient involvement to carry State respon­
sibility under the Fourteenth Amendment.

To go to the other extreme and hold that State 
sanctions for private choice are irrelevant to the ques­
tion of the State’s responsibility is untenable upon 
both precedent and principle. See pp. 67-72 above. 
“Only by sifting facts and weighing circumstances can 
the nonobvious involvement of the State in private 
conduct be attributed its true significance” (Burton 
v. Wilmington Parking Authority, 365 U.S. 715, 722).

We read Shelley v. Kraemer as an instance of this 
moderate view. The more extreme argument may 
find support in some language in the opinion and has 
been espoused by a few commentators169 and two 
State courts,170 but in our view the decision rests more

109 See n. 167, supra.
170 State v. Brown, supra; Abstract Investment Go. v. W il­

liam 0. Hutchinson, 22 Cal. Keptr. 309 (D.C. App. 2d Dist., 
1962).



89

solidly upon narrower grounds. The elements of law 
involved in the enforcement of restrictive covenants 
running with the land greatly outweigh any elements 
of private choice. The sting of restrictive covenants 
is the power to bind unwilling strangers to the initial 
transaction. Nor are they typically found in isola­
tion. Their function is to cover whole neighborhoods. 
The developer of a housing tract and his immediate 
grantees who execute the covenants have usually scat­
tered long before enforcement of their covenant is 
sought by newcomers in the neighborhood against a 
willing buyer and willing seller who are strangers to 
the original transaction. The series of covenants be­
comes in effect a local zoning ordinance binding those 
in the area subject to the restriction without their 
consent. Cf. Buchanan v. Warley, 245 U.S. 60. 
Where the State has delegated to private persons a 
power so similar to law-making authority, its exercise 
may fairly be held subject to constitutional restric­
tions. Essentially the same principle has been ap­
plied in quite different contexts. E.g., Railway Em­
ployees’ Dept. v. Hanson, 351 U.S. 225; cf. Steele v. 
Louisville c& N. R., 323 U.S. 192; International Ass’n 
of Machinists v. Street, 367 U.S. 740.

In Shelley v. Kraemer there were no elements of 
State involvement except the force that State law 
gave to private covenants. The State was found to be 
significantly involved, however, because the elements of 
law bulked large, for the reasons just stated, in rela­
tion to the elements of private freedom. A similar 
argument might be made in the present case. We do



9 0

not rely upon it, however, or even urge tliat the pro­
vision of criminal sanctions for an exercise of normal 
private choice is ever enough, standing by itself, to 
implicate the State in a denial of equal protection. 
For in the present cases there are two additional ele­
ments of State involvement.

2. The States are involved in the 'practice of discriminating 
against Negroes in places of public accommodation because 
of their role in establishing the system of segregation of 
which it is an integral part

For many years the States commanded segregation 
on a wide front. Between official policy and the 
prejudices and customs of the dominant portions of 
the community there was a symbiotic relation. The 
prejudices and customs gave rise to State action. 
Legislation and municipal ordinances, as well as ex­
ecutive policy, confirmed and strengthened the prej­
udices, and often forbade individual variations from 
the solid front. We summarized these elements of 
State involvement at pages 40-63 above.

Peterson v. Greenville, 373 U.S. 244, and Lombard 
v. Louisiana, 373 U.S. 267, establish the principle that 
a State is responsible for discrimination which it has 
commanded or officially encouraged even though seg­
regation might be the proprietor’s choice if  uninflu­
enced. Where the discrimination is the product of a 
combination of State and private action, the State 
cannot disclaim responsibility upon the ground that 
the discrimination would have occurred even though 
the State had stayed its hand.171

171 Compare the familiar rule applicable to joint or concur­
rent tortfeasors. Prosser, Torts (1941 ed.), pp. 323-325, 330.



91

In the present cases there are no laws commanding 
segregation in these places of public accommodation. 
The State’s encouragement of the system is more 
remote in time and place, and in its influence upon 
the conduct of the proprietors.172 Nevertheless, the 
State’s prior involvement is material in determining 
its responsibility for the discrimination inherent in 
the challenged convictions. Having shared in the 
creation of a practice depriving Negroes of the kind 
of equality the Fourteenth Amendment was intended 
to secure, the State should not be free to turn its 
back and deny involvement through the momentum 
its action has generated. The law is filled with in­
stances of liability for the consequences of negligent or 
wrongful acts until the connection between the wrong 
and the consequences becomes too attenuated.

In one sense, every event forever influences the 
course of history. A boy throws a stone into a pond; 
the ripples spread; the water level rises; the history 
of that pond is forever altered. We urge no such 
doctrine. Our view is that here, as with personal 
liability for the consequences of wrongful conduct, 
the issue “is always to be determined on the facts of 
each ease upon mixed considerations of logic, com­
mon sense, justice, policy, and precedent.” 1 Street, 
Foundations of Legal Liability (1906) 110. The 
necessity for judgment is inescapable. The question 
is whether a State’s previous action still carries a mo­
mentum making it a “ substantial factor” in the cur­

172 But see Florida Administrative Code, Chapter 170C, Sec­
tion 8.06, discussed pp. 2-3, 62 above and pp. 99-100 below.

719- 946— 64- -8



92

rent practice of discrimination which the State is now 
helping to enforce. Cf. Restatement Torts, § 431. 
Here the State’s previous action was so massive and 
continued so long as to leave no doubt that the official 
policy still exerts substantial influence upon the cus­
toms of the community.

ISTor is the question one of fault. Even one who 
without fault puts another in a position of exposure 
to injury has a duty to act to prevent the danger from 
eventuating or to minimize the damage if harm occurs. 
Simonsen v. Tiiorin, 120 Neh. 684, 234 N.W. 628; 
Slavin v. State, 249 App. Div. 72, 291 N.Y. Supp. 721; 
Restatement Torts § 321. One who makes an innocent 
misrepresentation must communicate the truth to the 
recipient as soon as he learns that the representation 
was false. Prosser, Torts (1941 ed.), p. 723; Restate­
ment Torts § 551(2). Similarly, until time and events 
have attenuated that connection, the State continues 
to bear constitutional responsibility for the conditions 
it has shared in creating by branding Negroes as an 
inferior caste.

Again, the point must not be pressed too far. We 
do not say that prior State support for the system 
of racial segregation always makes the proprietor’s 
action State action, or even that the involvement 
shown here would alone carry State responsibility. 
There are other important elements of State involve­
ment in these cases, and we rely upon them equally. 
What we do say here is that the past legislation has 
constitutional materiality because its momentum is 
still substantial in the realm of public aeeommoda-



93

tions. To that extent, a State which has drawn a color 
line may not suddenly assert that it is color blind.

3. The States are involved in the discrimination because of their 
traditional acceptance of responsibility for, and detailed regu­
lation of, the conduct of the proprietors of places of public 
accommodation towards the general public to which they 
have opened their businesses

Petitioners were convicted of trespass for remain­
ing in establishments which the proprietors had 
thrown open to the general public whose patronage 
they solicited. The invitation ran to the general pub­
lic. There is no other way to describe it, unless it be 
to say that the invitation was to all members of the 
public except Negroes, and not even the proprietors 
were willing to announce their policies publicly in 
that fashion.173 The invitation is a critical element 
in several aspects of the cases,174 but not least because 
the resulting concern of the State brings important 
elements of State involvement.

173 The record in each of these cases shows that there was 
no public notice at the entrance or similar announcement that 
Negroes would not be served. No. 6, R. 44-46; No. 9, R. 20, 
37; No. 10 (no evidence of any sign or notice); No. 12 (policy 
communicated only by oral statements), R. 23-24, 27-28; No. 
60, R, 15-17, 19.

174 The discrimination occurs in a public place which is part 
of the normal public life of the community. The opening of 
the premises to public use gives the resulting relationship 
that casual and evanescent nature that distinguishes it from 
virtually all others. The proprietor who thus opens his 
premises thereby subjects himself to a greater degree to the 
constitutional rights of others. See pp. 12-13, 17, 19-20, 29- 
36, supra, and 104-111, infra.



9 4

(a) At common law those who engaged in such call­
ings had a duty to serve all members of the public 
equally to the limits of their capacity. Special rules 
were applicable to their rates and liability. Such was 
the innkeeper who, if he had available room, could not 
refuse to receive a guest who was ready and able to 
pay him a reasonable compensation. W hite’s Case 
(1558) 2 Dyer 158b; Warbrook v. Griffin (1609), 2 
Brownl. 254; Lane v. Cotton (1701), 12 Mod. 472; 
Bennett v. Mellor (1793), 5 Term R. 273; Thompson 
v. Lacy (1820), 3 Barn. & Aid. 283; see, generally, 
Storey, Bailments, §§ 475, 476 (7th ed., 1863); 5 
Bacon, Abridgement of the Law■—Inns and Inn­
keepers, pp. 230, 232 (1852); 3 Blackstone, Commen­
taries, p. 166 (Lewis ed., 1897). But the list was not 
so limited; at one time or another it apparently in­
cluded the common carrier, the miller, the ferryman, 
the wharfinger, the baker, the farrier, the cartman and 
the hackney-coachman each of whom, it was said, 
“ pursues a public employment and exercises ‘a sort 
of public office.’ ” See Munn v. Illinois, 94 U.S. 113, 
131-132. We do not urge the discountenanced argu­
ment that such establishments are per se State instru­
mentalities (Civil Rights Cases, supra),175 but say 
only that the State’s traditional relation to businesses 
that hold themselves and their premises out to the 
public at large distinguishes other business activities 
and puts the businesses affected with a public interest 
in a segment of community life where the relationship 
between proprietor and customer is less a product of 175

175 But see Mr. Justice Douglas concurring in Lombard v. 
Louisiana, 373 U.S. 267, 274, 281-282.



95

contract or voluntary association than of the legal 
system.

Indeed, it is a fair inference that in a relationship 
so dominated by law, rather than contract or private 
choice, the State, if  it did not approve the practice, 
would require its abolishment. Compare Public 
Utilities Comm. v. Poliak, 343 U.S. 451, 462. The 
inference is confirmed by experience. During the 
debates upon civil rights measures between 1865 and 
1880 it seems to have been assumed that such busi­
nesses had a duty to serve all members of the public 
not subject to racial disabilities, and that the guaran­
tee of equal protection therefore would secure the 
same right for Negroes.176 This Court made the as­
sumption in the Civil Rights Cases.177 During that 
same period equal public accommodations laws were 
widely adopted outside the former slave-holding 
States'.178 They fell into comparative desuetude dur­
ing a period of indifference to civil equality but are 
effective in thirty States today.179 The course of 
events in two of the three States at bar is even more 
illustrative. South Carolina and Florida both enacted 
equal public accommodations laws in the period prior 
to the Civil Rights Cases, but repealed them later.180 
The Florida State Board of Health is presently en­
forcing an order requiring separate wash rooms and 
toilet facilities for whites and Negroes.

176 See pp. 123-136, infra.
177 See pp. 73-77, supra.
178 See nn. 19, 163, supra.
179 See n. 22, supra.
180 See notes 84, 85, 90.



96

From this standpoint it is irrelevant that the States 
have chosen not to subject restaurants, amusement 
parks and similar establishments to the duty of inns 
and common carriers to serve all members of the pub­
lic without discrimination. The class of “businesses 
affected with a public interest” is not closed for con­
stitutional purposes. Restaurants and amusement 
parks, like inns and public conveyances, hold them­
selves out to the general public and open up their 
premises for public use. This characteristic dis­
tinguishes them from the many other activities which 
the State may constitutionally regulate because of 
their effect upon the general welfare but which do not 
involve opening the business or premises to the pub­
lic. For our argument is not that the State is consti­
tutionally responsible for all non-governmental ac­
tion which it has the power to prevent,181 but only that 
its traditional supervision of the special class of busi­
nesses whose relation to the public is largely defined 
by law quickens the readiness to find responsibility 
through other elements of State involvement.

(b) The detailed State supervision over the estab­
lishments in which petitioners were arrested consti­
tutes an element of State involvement. For where a 
State regulates most aspects of a business’s relation- 161

161 To say that the possession of State powers to prohibit any 
private discrimination which would be invidious in a State 
official is enough to render the State responsible under the 
Fourteenth Amendment would raise grave concern about the 
possibility of preserving a distinction between public and pri­
vate action. There are few activities or institutions in which 
a State lacks power to prohibit racial discrimination. Such a 
view of State action therefore raises, still more sharply, the 
difficulties raised by broad interpretations of Shelley v. Krae- 
mer. See pp. 84—88 above.



97

ship to the general public to which it has opened its 
premises, the State can hardly say that it has no rela­
tion to the narrow segment in which it chooses to 
stay its hand.

In Robinson v. Florida, No. 60, petitioners were ar­
rested in a Miami restaurant operated by Shell’s City, 
Inc. The State has assumed pervasive responsibility 
for the conduct of restaurants towards the general 
public to which they have opened their premises. 
Chapter 509 of the Florida Statutes Annotated pro­
vides for the appointment of a Hotel and Restaurant 
Commissioner with power to inspect at least twice 
annually “ every public lodging and food service 
establishment,” and to issue such miles and regula­
tions as may be necessary to carry out the chapter 
(Sec. 509.032). Chapter 509 itself establishes a de­
tailed code of regulation for “public lodging estab­
lishments” and “ public food service establishment.” 
No restaurant may be operated without licenses from 
both the State and municipality (Sec. 509.271; Code 
of Miami, Chap. 35). Section 509.221 prescribes gen­
eral sanitary measures and like requirements for pro­
tecting the public health, including plumbing, light­
ing, heating, ventilation and cooling. An infinitely 
more detailed set of regulations has been issued by 
the Commissioner. Florida Administrative Code, ch. 
175-1, 175-2, 175-4. The State, County and City 
Boards of Health also appear to have jurisdiction.182

182 Fla. Stat. Ann., Chs. 381, 154; Sanitary Code of Florida, 
ch. 170C-16; Dade County Code, §2-77; Code of Miami, ch. 
25; A Manual of Practice for Floridans Food and Drink Serv­
ices based on the Rules and Regulations of the Florida State 
Board of Health and State Hotel and Restaurant Commission, 
published by the State Board of Health and State Hotel and 
Restaurant Commission, 1960.



98

Section 509.211 of the Florida Statutes prescribes 
safety regulations and requires all plans for the erec­
tion or remodeling of any building for use as a public 
food service establishment to be submitted, for ap­
proval by the Hotel and Restaurant Commission.

The State’s supervision extends beyond health and 
safety. For example, it covers representations con­
cerning the food and other forms of advertising. 
Section 509.292 forbids misrepresenting “the identity 
of any seafood or seafood products to any of the 
patrons or customers of such eating establishments.” 
The Commissioner, under his power to issue regula­
tions, has prohibited the publication or advertise­
ment of false or misleading statements relating to 
food or beverages offered to the public on the premises 
(Florida Administrative Code, Sec. 175-4.02). There 
is also general and ill-defined supervision over the 
character, and thus the practices, of the proprietors 
of public eating establishments. House Bill Ho. 86, 
approved May 16, 1963, authorizes the suspension or 
revocation of a restaurant’s license when any person 
interested in its operation “has been convicted within 
the last past five years in this state or any other State, 
or the United States, of * * * any * * * crime in­
volving moral turpitude.” The Commissioner’s regu­
lations provide that licenses may be issued only “to 
establishments operated, managed or controlled by 
persons of good moral character,” and the Commis­
sioner is instructed to ascertain that “no establish­
ment licensed by this commission shall engage in any 
misleading advertising or unethical practices as de­



99

fined by this chapter and all other laws now in force 
or which may be hereafter enacted” (Sec. 509.032).

Florida’s official involvement goes still farther. 
The Commission’s regulations require that “ [ajchieve- 
ment rating cards shall be conspicuously displayed.” 
Florida Administrative Code, Sec. 175-1.03 The 
State has created an Advisory Council for Industry 
Education which employs a Director of Education 
for the lodging and food service industry whose basic 
role is “to develop and blend together an educational 
program offered for the entire industry.” We do 
not know the details of the achievement rating pro­
gram or of the work of the Advisory Council but, 
while they may not deal explicitly with racial dis­
crimination, they undoubtedly cover every other aspect 
of the relationship between a “public food service” 
establishment and all members of the public.

Florida law even touches upon, although it does not 
deal directly with, discrimination in the selection of 
clientele. A related statute prohibits advertising that 
an establishment practices religious discrimination, 
although it permits similar advertisements of racial 
discrimination. Fla. Stat. (1962 Supp.), § 871.04. 
The State Board of Health has an outstanding regu­
lation applicable to restaurants, which provides (Flor­
ida Administrative Code, Chapter 170C, Section 8.06):

Toilet and lavatory room shall be provided for 
each sex and in case of public toilets or where 
colored persons are employed or accommodated 
separate rooms shall be provided for their use. 
Each toilet room shall be plainly marked, viz.: 
“White Women,” “Colored Men,” “White



100

Men,” “Colored Women;” provided, that sep­
aration based upon race shall be waived where 
such separation is determined to be in conflict 
with federal law or regulation.183

The regulation plainly puts the State approval on 
racial discrimination. As a practical matter it encour­
ages the exclusion of Negroes from restaurants that 
serve white persons by putting the proprietors of 
other establishments to the expense of supplying dual 
facilities.184

A State that has so pervasively regulated the con­
duct of public food service establishments cannot dis­
claim association with the racial practices of their 
proprietors in the admission and exclusion of members 
of the public. The reason, we think, is this: Under 
most circumstances the Fourteenth Amendment per­
mits a State to close its eyes to private conduct either 
upon the ground that the problem lacks sufficient pub­
lic importance or because it should be left to the inter­
play of a free society. However, when widespread 
discrimination exists in businesses which have been 
thrown open to the general public by their proprietors 
and are being regulated by the State in pervasive de­
tail, one can be reasonably certain that the State’s fail­
ure to act results not from distaste for interference

183 A Manual of Practice for Florida's Food and Drink Serv­
ices based on the Rules and Regulations of the Florida State 
Board of Health and State Hotel and Restaurant Commission, 
published by the State Board of Health and State Hotel and 
Kestaurant Commission, 1960, also sets forth this requirement 
(§4.6.7).

184 This regulation alone may well be ground for reversing 
the convictions in the Florida case. See pp. 2-3 above.



101

with private determinations, but from a willingness to 
have the public discrimination continue. Compare 
Public Utilities Comm. v. Poliak, 343 U.S. 451, 462.

Whatever the logical rationale there is little room 
for dissent from the practical judgment that detailed 
State supervision over a business as a whole creates a 
closer degree of involvement in the enterprise’s treat­
ment of a segment of the public than if the State had 
stood aside. One who intrudes into a situation volun­
tarily cannot disclaim further responsibility with the 
same ease as a bystander. The volunteer who takes 
an injured person into his charge has a duty to use 
care even though he was free to play the Levite rather 
than the Good Samaritan. “ * * * he is regarded as 
entering voluntarily into a relation of responsibility, 
and hence as assuming a duty.” Prosser, Torts, p. 
194 (1941). The owner of land may leave it to nature 
even though rocks careen into a village,185 but he is 
liable for harm done by what is put there by himself 
or his predecessors in possession.186 The master who 
appoints a servant cannot disclaim responsibility for 
acts causing harm closely related to what he author­
ized even though he forbade that particular con­
duct ; 187 nor can a principal deny liability upon con­
tracts made by his agent in violation of his instruc­
tions if  they are within the general area in which the

185 Pontardawe, R.C. v. Moore-Gwyn, 1 Cli. 656, 98 L.J. 
Ch. 424; See Prosser, Torts (1955) p. 430.

186 Restatement Torts, § 364.
187 See, e.g., Hinson v. United States, 257 F. 2d 178, 181, 183 

(C.A. 5).



102

agent was authorized to contract.188 Much the same 
notion underlies the doctrine that one who volun- 
tarily assumes control over the conduct of another is 
liable to third persons for the harm the other does, 
even though there may be no element of reliance; as 
where the owner of a car fails to restrain the 
driver189 or a hospital permits a charlatan to treat a 
patient on the premises.190 And where one voluntarily 
assumes a relationship such as that of a carrier to its 
passenger, or a warden to his prisoner, or a depart­
ment store to persons on the premises,191 there is a 
duty to use care to protect them from injuries by 
strangers. Here the State both undertook control 
over the conduct of public restaurants and also as­
sumed the role of public protector.

A similar intuitive appraisal lies behind Burton v. 
Wilmington Parking Authority, supra. There the 
State’s presence was felt in the ownership of the 
property, in the close relation, both physical and com­
mercial, between its activities and the restaurant’s 
business, and in the State’s continuing relation as the 
landlord who selected the tenant. Here, the State’s 
involvement is felt in its continuous supervision over 
the premises and virtually all aspects of the business, 
in the traditional legal duties of businesses affected 
with a public interest, in the influence which its ofii-

188 See, e.g., Kidd  v. Thomas A. Edison, Inc., 239 Fed. 405 
(S.D.N.Y.) (L. Hand, J .).

188 See Grant v. Knepper, 245 N.Y. 158, 160, 161, 156 N.E. 
650 (Cardozo, J . ) ; Mecliem, Outlines of the Lato of Agency 
(4th ed.) § 382.

190 Hendrickson v. HodJein, 276 N.Y. 252, 11 N.E. (2d) 899.
191 Prosser, Torts (1955) pp. 188-189, and cases cited.



103

cials can exert through their wide discretionary power 
both as licensing authority and through performance 
ratings. As in Burton the State flag over the build­
ing, though legally irrelevant, seemed to signify its 
involvement in the discrimination, so here the State 
“licenses” held by these places of public accommoda­
tion, while perhaps also legally irrelevant, still sym­
bolize the State’s substantial involvement in all as­
pects of their treatment of the public,192

The degree of actual regulation of restaurants in 
Maryland193 and South Carolina,194 and of amusement

192 There are too many kinds of licenses to attribute constitu­
tional significance to the possession of any license. Some licenses 
give the holders a special privilege to conduct for the bene­
fit of the public a business in a field not open to unrestricted 
entry. In  such cases the grant of one license excludes other 
applicants, and the possession of a State license by one who 
follows a practice of invidious discrimination against part of 
the public in effect shuts off the victims from facilities that 
would otherwise be available. In such a case, the State is re­
sponsible under the Fourteenth Amendment. See, e.g., Steele v. 
Louisville <& N.R. Co., 323 U.S. 192; Bo-man v. Birmingham 
Transit Go., 280 F. 2d 531, 535 (C.A. 5). In  most cases, how­
ever, the license is only a technique of examination, taxation or 
regulation. I t  carries no duty to serve any member of the 
public. The State’s responsibility for the licensee's conduct is 
surely no greater than if the business were taxed, inspected or 
regulated without the issuance of a license. Williams v. How- 
curd .Johnson’s Restaurant, 268 F. 2d 845, 847 (G.A. 4); Wood v. 
Hogan, 215 F. Supp. 53, 58 (W.D. Ya. ) ;McKibbin v. Michigan 
C. & S.C ., 369 Mich. 69, 119 N.W. 2d 557, 566; Madden v. 
Queens County Jockey Club. 296 N.Y. 249, 72 N.E. 2d 697, cer­
tiorari denied, 332 U.S. 761.

193 Md. Code (1957), Art. 56, §§178-179; Art. 43, §§200, 202, 
203, 209; Baltimore City Code (1950), Art. 12, §§24 and 107.

194 S.C. Code (1962), ^  35-51 through 35-54, 35-130 through 
35-136, 35-142; Ordinances of the City of Columbia, §§12-27 
through 12-33; §2-73.



104

parks in Maryland,195 is much less than in Florida. 
The State’s association with their practices is pro­
portionately diluted but not, we think, to the point 
where it ceases to be relevant. South Carolina, like 
Florida, enacted and later repealed a law requiring 
public establishments serving food to refrain from 
racial discrimination.196 Maryland recently enacted 
such a statute.197 Both the Maryland and South Caro­
lina restaurants and the Maryland amusement park 
are in the special category of enterprises that issue 
a general invitation to the public, and are therefore 
affected with a public interest.

4. These cases involve no substantial element of private choice

Where racial discrimination becomes operative 
through a combination of private and governmental 
action, the elements of private choice and State in­
volvement tend to be opposite sides of the same coin; 
as the latter increase in importance the former tend 
to recede. It is useful, nonetheless, to sift the facts 
and weigh the circumstances from the private point 
of view.

The salient feature is still that the proprietor of the 
place of public accommodation, like a carrier, has 
thrown his premises open to the public at large and 
invited its members, without personal selection, to be 
his business guests. Few enterprises, if  any, issue a

195 Md. Code (1957), Art. 25, § 14, Art. 27, § 506; Montgomery 
County Code (1960), §§ 15-7, 15-8, 15-11; Chapter 75.

196 See notes 84, 90, supra.
197Maryland Laws (1963), Chs. 227, 228 (adding §§11 

through 15 to Article 49B of the Code).



105

similar invitation. Even the largest corporations do 
not hold themselves out as offering employment to the 
public at large, nor do they forego all elements of per­
sonal selection. Doctors, lawyers, architects and ac­
countants limit their clientele by one standard or 
another. Private schools and colleges reserve the 
right to pick and choose. The proprietor of a place 
of public accommodation however, as well as a public 
conveyance, expects to take and is expected to take 
all orderly persons, subject to rare restrictions per­
taining to such matters as attire.198 The character of 
his decor, advertising and service, as well as his prices, 
may influence the character of his patrons. Pub­
lishers and writers may frequent one restaurant and 
“the fight crowd” another; but if a table is available, 
even a philistine will be served among litterateurs.

The invitation is general and individual choice is 
excluded because the relationship between proprietor 
and customer in a place of public accommodation is 
entirely casual and evanescent. The inevitable con­
sequence is that lunch counters, restaurants, theatres, 
amusement parks and like enterprises exercise the 
technical legal right to select their customers only to 
the extent of enforcing an impersonal racial ban, ex­
cluding or segregating Negroes. Furthermore, al­
though there are areas in which some places of public 
accommodation serve all members without discrimi­
nation while others enforce segregation, the instant 
cases come from communities in which segregation 
has been an almost community-wide custom. The in­
dividual proprietor exercises little personal choice.

198 See pp. 28-36 above.



106

It is also plain that the custom of excluding or 
segregating Negroes in places where whites are served 
is not really even a choice concerning the races with 
whom one will do business, or whom one will license 
to enter his property. The insubstantiality of the 
legal concepts of private property and choice of cus­
tomers in this context is vividly demonstrated by the 
practice of three of the stores in which petitioners 
were arrested. It appears that Shell’s City, the 
establishment involved in Robinson v. Florida, No. 60, 
is a large store whose Vice President and General 
Manager testified that “ Shell’s City does not have the 
official opinion that it is detrimental to their business 
for Negroes to purchase products in other parts of 
their store;” that “Negroes are permitted in the 
premises;” and that “they are permitted to do busi­
ness with Shell’s City” (R. 24). In Bouie v. City of 
Columbia, No. 10, the petitioners were arrested in 
Eekerd’s Drug Store. The manager testified that 
the store was open to Negroes and that Negroes 
were “welcome to do business with Eckerd’s ” (R. 24). 
The facts in the Barr case are even more striking. 
It too involved a drug store that advertised itself as 
being a complete department store. The co-owner and 
manager testified that he invited Negroes into the 
store just like all other members of the public; that 
they traded in large numbers; and that they were even 
invited into the back area where food was served, 
provided that they took “an order to go” instead of 
eating food among whites (R. 19). These and other 
cases which previously have come before the Court 
show that the proprietors solicit the patronage of



107

Negroes, invite them onto the property and into the 
store, make sales in other departments—some even 
furnish food to eat away from the counter—but then 
they deny the Negro the privilege of breaking bread 
with other men. Manifestly, it is the stigma—the 
brand of inferiority that is important—not presence 
on the premises or reluctance to enter into a business 
relation. The legal concepts are merely a tool for 
enforcing obeisance.

The real particulars behind abstract nouns become 
crucial when striking the balance between “liberty” 
and “equality” inherent in determining whether there 
is enough State involvement to carry State responsi­
bility under the Fourteenth Amendment.199 See Mr. 
Justice Harlan concurring and dissenting in Peterson 
v. Greenville, 373 U.S. 244, 248, 250. The equality 
is freedom from caste. The liberty is freedom of 
personal choice, but for the most part only in the 
sense of a choice to act or refrain from acting in 
concert with others in maintaining the fabric of a 
caste system.

No doubt there are some instances in which the 
proprietor would decide to exclude Negroes upon 
truly individual grounds even though there were no 
system of segregation and the customary practice 
were to serve all members of the public. Obviously 
the opportunities for this kind of arbitrary choice are

199 In  his concurring and dissenting opinion in Peterson v. 
Greenville, 373 U.S. 244, 250, Mr. Justice Harlan said—

“Underlying the cases involving an alleged denial of equal 
protection by ostensibly private action is a clash of competing 
constitutional claims of a high order: liberty and equality.” 

719- 946— 64------------9



108

reduced by treating State recognition of a privilege to 
evict Negroes as a denial of equal protection of the 
law on the ground that the racial discrimination oc­
curs in the public life of the community and is a 
cornerstone in a State-supported caste system. At 
least until the consequences of the State’s prior in­
volvement died out, the proprietor who has an idiosyn­
cratic prejudice against Negroes remote from the 
caste system would be denied State support along 
with others whose preferences were affected by the 
caste system. I f  it were possible to isolate the com­
munity practice, and the community practice had no 
significant influence on the individual’s decision, the 
special cases, perhaps, should be the subject of a spe­
cial rule.200 Since the effort would be fruitless, the 
extraordinary case must yield to the general rule, as 
was held in Peterson and Lombard when the Court 
rejected Justice Harlan’s view.

There is no significant unfairness in this conclu­
sion. When the proprietor of a place of public ac­
commodation discriminates against Negroes in a com­
munity which practices segregation, he knows that 
he is joining in the enforcement of a caste system. 
He takes the system as he finds it, infused with State 
sponsorship and support. That his motives may be 
different, his individual action innocent, is not con­
trolling. When they become part of a community 
pattern so infused with prior State action as to

800 Such is not the case. here. In  addition to the manage­
ments’ disavowal of antipathy to Negroes, there is considerable 
indication that the policy was adopted in conformity to com­
munity practice. See p. 28, supra,



109

render further State sanctions a denial of equal pro­
tection of the law, the unique proprietor’s acts take 
on the color of the community practice and suffer 
the common disability resulting from the community 
wrong. “ [T]hey are bound together as the parts of a 
single plan. The plan may make the parts unlaw­
ful.” Sw ift & Go. v. United States, 196 U.S. 375, 
396; Terry  v. Adams, 345 U.S. 461, 470, 476 (Mr. 
Justice Frankfurter concurring). The risk that some 
proprietors may lose State protection for an arbitrary 
choice not influenced by the State’s previous conduct 
is not great enough to permit the continuance of 
support for the tainted system. When an employer 
has dominated and. supported a labor organization, 
the organization will be forever disestablished even 
though the employer’s misconduct has ceased, even 
though some employees may freely prefer it, and even 
though a majority of the employees might vote to* 
have it represent them. Texas & N.O. R. Go. v. 
Brotherhood of Railway & S.S. Clerks, 281 U.S. 548; 
National Labor Relations Board v. Southern Bell Go., 
319 U.S. 50. When the overwhelming tendency is 
clear, but no exact solution can be tailored because of 
the impracticability of a detailed psychological inquiry 
into the current effect of past events and com m u n ity  
attitudes upon each individual mind, the necessity of 
dealing with the situation in the large justifies a 
remedy going somewhat beyond the exact conse­
quences of the wrongdoing.

These problems, moreover, lie in an area where 
there is little appeal to the plea of private right. The 
proprietors of places of public accommodation open



110

their property and business to public use as part of 
the normal public life of the community. Segrega­
tion in such places is like segregation in a park or on 
the street: it is akin to a restraint against circulating 
as freely as other members of the public. Indeed., it 
is not without significance that the opening of a busi­
ness affected with a public interest at common law 
was likened by Chief Justice Waite, quoting Lord 
Chief Justice Hale, to a man’s setting out a street 
upon his own land. Munn v. Illinois, 94 U.S. 113,150. 
While the dedication alone cannot supply affirmative 
elements of State involvement, it is relevant in weigh­
ing the significance of those elements of State involve­
ment that are present against the possible interfer­
ence with private right, for the purpose of determin­
ing whether those elements are sufficient to implicate 
the State in violation of the Fourteenth Amendment. 
*‘The more an owner, for his advantage, opens up his 
property for use by the public in general, the more 
do his rights become circumscribed by the statutory 
and constitutional rights of those who use lit.” 
Marsh v. Alabama, 326 U.S. 501, 506. Petitioners 
have a constitutional right to be free from the con­
sequences of all significant State encouragement or 
support for discrimination in places of public ac­
commodation, whether the encouragement be past or 
present. When that right conflicts with the proprie­
tor’s claim of private right in a place of public ac­
commodation, Marsh v. Alabama teaches that the 
former should prevail.

When one goes behind the abstract nouns it be­
comes apparent, therefore, that any balance to be



I l l

struck here between “liberty” and “ equality” is no 
different from the balance struck by the framers of 
the Fourteenth Amendment and by this Court in 
earlier cases. Freedom from association with Ne­
groes in places of public accommodation—the only 
freedom actually asserted—is indistinguishable from 
freedom from such association in government build­
ings,201 in the court house,202 or, indeed, on the streets 
and in public squares.203 204 In performing civil duties, 
such as serving on a grand or petit jury,304 or in at­
tending public schools,205 the equality asserted is the 
same—freedom from the stigma of inferiority. We 
are not asking the Court to strike a novel balance.

C. THE IMPOSITION OF STATE RESPONSIBILITY WOULD GIVE EFFECT

TO TH E HISTORIC PURPOSES OF THE THIRTEENTH, FOURTEENTH
AND FIFTEENTH  AM ENDMENTS

The central fact of these cases is that the States 
seek immunity to support the continuance of a caste 
system in the public life of the community that it was 
the central purpose of the Thirteenth, Fourteenth and 
Fifteenth Amendments to destroy. The three Amend­
ments cannot be severed from their history or from 
each other in dealing with the tragic consequences of 
Negro slavery. Other forms of invidious discrimina­
tion, even by reason of race, creed or nationality, have 
a different significance in the community and there­
fore may have a different constitutional status. The

201 Derrington v. Plummer, 240 F. 2d 922 (C.A. 5).
202 Johnson v. Virginia, 373 U.S. 61.
203 See pp. 122-123, 136-137, infra.
204 Strauder v. West Virginia, 100 U.S. 303.
2°5 Brown V- Board of Education, 349 U.S. 294.



1 1 2

controlling philosophy of interpretation was stated in 
the Slaughter-House Cases, 16 Wall. 36, 67, 71-72;

The most cursory glance at these articles [of 
amendment] discloses a unity of purpose, when 
taken in conjunction with the history of the 
times, which cannot fail to have an important 
bearing on any question of doubt concerning 
their true meaning. * * *

* * * * *
* * * no one can fail to be impressed with 

the one pervading purpose found in them all, 
lying at the foundation of each, and without 
which none of them would have been even sug­
gested; we mean the freedom of slave race, the 
security and firm establishment of that free­
dom, and the protection of the newly-made 
freeman and citizen from the oppressions of 
those who had formerly exercised unlimited 
dominion over him. * * *

* * * * *

We do not say that no one else but the negro 
can share in this protection. * * * But what we 
do say, and what we wish to be understood is, 
that in any fair and just construction of any 
section or phrase of these amendments, it is 
necessary to look to the purpose which we have 
said was the pervading spirit of them all, the 
evil which they were designed to remedy, and 
the process of continued addition to the Con­
stitution, until that purpose was supposed to 
be accomplished, as far as constitutional law 
can accomplish it.

The unity is also pertinent in reading the Congres­
sional debates. The Thirteenth Amendment, its im­
plementing legislation (the abortive first supplemen­
tary Freedmen’s Bureau Bill which failed of enact-



113

menj after it had been vetoed by President John­
son;206 the second supplementary Freedmen’s Bureau 
Bill, varying in minor respects from the first, which 
was enacted into law and extended the life, and en­
larged the powers, of the Freedmen’s Bureau; 207 and 
the Civil Bights Act of 1866 which originated as a 
companion measure to the first supplementary Breed- 
men’s Bureau B ill),208 209 210 the Fourteenth and Fifteenth 
Amendments, the Ku Klux Act of 1871,208 and the 
Civil Rights Act of 1875 210 were all parts of a con­
tinuing legislative process. Many of the same Sena­
tors and Congressmen had the leading roles through­
out the debates. Oftentimes, what they said and did 
in connection with one proposal helps to show their 
understanding of another.211

206 S. 60, 39th Cong., 1 st Sess., Cong. Globe, p. 943.
207 14 Stat. 173.
208 14 Stat. 27.
209 17 Stat. 13.
21018 Stat. 335.
211 In view of the pressure of time, we do not attempt to 

summarize the Congressional history of the Thirteenth, Four­
teenth and Fifteenth Amendments. The most pertinent studies 
are: Supplemental Brief for the United States on Reargument 
and the Appendix thereto in Brown v. Board of Education, 
Nos. 1 , 2 , 4, 8 , and 10, October Term, 1953; Kendrick, Journal 
of the Joint Committee on Reconstruction (1914); James, 
The Framing of the Fourteenth Amendment (1956); Flack, 
The Adoption of the Fourteenth Amendment (1908); ten- 
Broek, The Antislavery Origins of the Fourteenth Amendment 
(1951) ; Harris, The Quest for Equality (1960); Collins, The 
Fourteenth Amendment and the States (1912); Frank and 
Munro, The Original Understanding of “Equal Protection of 
the Law s” 50 Col. L. Rev. 131 (1950); Bickel, The Original 
Understanding and the Segregation Decision, 69 Harv. L. Rev. 
1 (1955); Graham, Our “Declaratory” Fourteenth Amendment, 
7 Stan, L. Rev. 3 (1954); Warsoff, Equality and the Law 
(1938); Randall, Thes Civil War and Reconstruction (1937); 
Nye, Fettered Freedom (1949).



114

The thrust of the movement was to make Negroes 
free and equal members of the community sharing 
the public rights and privileges and enjoying the op­
portunities of other men. During slave-holding days 
Negroes were not only held in bondage as if chattels; 
even when free they were subjected throughout the 
country to the elaborate disabilities of a caste system. 
See pp. 42-45 above. After the Civil War, Southern 
States promptly enacted “Black Codes” imposing dis­
abilities so harsh as to make the emancipated Negroes 
“slaves of society,” even though no longer the chattels 
of individual masters.212 See pp. 45-48 above. Those 
disabilities, both the old and the new, were the central 
target of a movement whose ideal was to apply to all 
men the Declaration that “all men are created equal.”

The legislation began in the Thirty-Ninth Con­
gress.213 One group, apparently a majority, found 
authority to remove the disabilities by federal legisla­
tion under Section 2 of the Thirteenth Amendment. 
E.g., Cong. Globe, 39th Cong., 1st Sess., 322, 474-476 
(remarks of Senator Trumbull), 503 (remarks of Sen­
ator Howard), 1124, 1159. Representative Ward had 
articulated that view while the Thirteenth Amend-

212 Cong. Globe, 39th Cong., 1st Sess., p. 39.
213 The 39th Congress considered (1) a bill introduced by Sen­

ator Wilson of Massachusetts (S. 9, 39th Cong., 1st Sess.) to 
maintain the freedom of the inhabitants in the rebelling States; 
(2 ) the first supplementary Freedmen’s Bureau Bill (S. 60), 
which originated, in part, from the Wilson bill; and (3) S. 
61, the bill which became the Civil Rights Act of 1866 (14 Stat. 
27). I t  also enacted (after the submission of the Fourteenth 
Amendment to the States), the second supplementary Freed­
men’s Bureau Bill (14 Stat. 173).



115

.merit was under consideration (Cong. Globe, 38th 
Cong., 2d Sess., p. 177) :

. . . we are now called upon to sanction a joint 
resolution to amend the Constitution so that all 
persons shall be equal under the law without 
regard to color, and so that no person shall 
hereafter be held in bondage.214

Another group doubted the sufficiency of existing 
constitutional authority and sought a new amendment. 
E.g., Cong. Globe, 39th Cong., 1st Sess., pp. 500, 1120, 
1268, 1290-1293. Among the latter was Representa­
tive Bingham, later the principal author of section 1 
of the Fourteenth Amendment. Id., at 1290-1293. 
But for both groups the overall purpose was clear; it 
was to remove the disabilities, old and new, North and 
South, that belied the equality announced in the Dec­
laration of Independence,

To secure that ideal the proponents sought to guar­
antee equal “civil rights.” The exact contours of the 
term went undefined. “Civil rights” were contrasted 
with “ social rights,” for which the proponents dis­
claimed concern (id., 1117, 1159), and “ political 
rights,” which at first they were reluctant to espouse 
(id., 476, 599, 606, 1117, 1151, 1154, 1159, 1162, 1263), 
although the more liberal view prevailed in the F if­
teenth Amendment, Quite possibly “ civil rights,” in

214 See also id. at 154; Cong. Globe, 38th Cong., 1st Sess., p. 
2989. Senator Yates expounded this view in the debates on 
the Fourteenth Amendment. He asserted that the Thirteenth 
Amendment “did not confer freedom upon the slave, or upon 
anybody, without conferring upon him the muniments of free­
dom, the rights, franchises, privileges that appertain to an 
American citizen or to freedom, in the proper acceptation of 
that term.” Cong. Globe, 39th Cong., 1 st Sess., p. 3037.

719- 946— 64------------10



116

this context, meant rights in areas conventionally 
ruled by law (id., 476-477, 1117, 1122, 1291), which 
would include the relationships between members of 
the public and businesses affected with a public in­
terest. Whatever the difficulty of exact definition, 
there is no doubt of the purpose to obliterate both the 
vestiges of slavery and also the caste system. “ ‘All 
men are created equal’ excludes the idea of race, 
color, or caste,” Senator Morrill of Maine declared. 
(Id., 570-571.) Representative Hubbard of Con­
necticut similarly asserted that the words ‘ ‘ caste, race, 
color” were unknown to the Constitution. He viewed 
the various proposals to protect the civil rights of 
freedmen as evidence that the nation was “fast becom­
ing what it was intended to be by the fathers—the 
home of liberty and an asylum for the oppressed of 
all the races and nations of men.” (Id. at 630.)215 
To Mr. Donnelly of Minnesota, it was “ as plain * * * 
as the sun at noonday, that we must make all citizens 
of the country equal before the law; that we must 
break down all walls of caste; that we must offer equal 
opportunities to all men.” (Id. at 589.) Senator 
Wilson declared, “The whole philosophy of our ac­
tion is * * * that we cannot degrade any portion of our 
population, or put a stain upon them, without leaving 
heartburnings and difficulties that will endanger the

215 Mr. Garfield of Ohio spoke in a similar vein, declaring 
that “The spirit of onr Government demands that there shall 
be no rigid, horizontal strata running across our political so­
ciety, through which some classes of citizens may never pass 
up to the surface; but it shall be rather like the ocean where 
every drop can seek the surface and glisten in the sun” (id.. 
App. p. 67). See also id. at 1 1 1 .



117

future of our country. * * * [T]lie country demands 
* * * the elevation of a race.” (Id. at 341.) Sen­
ator Trumbull, who was not one of the so-called Rad­
icals, described the purpose as to “ secure to all 
persons within the United States practical freedom” 
and “privileges which are essential to freemen” (id. 
at 474-475).

The Civil Rights Act of 1866 was passed over Presi­
dent Johnson’s veto, although its most sweeping terms 
were narrowed.216 The Act links the Thirteenth and 
Fourteenth Amendments, for the Fourteenth Amend­
ment put an end to the debate over the powers of 
Congress under the Thirteenth. Sections 1 and 5 of

216 Section 1 of the Civil Rights Act of 1866, 14 Stat. 27, 
provided:
“That all persons born in the United States and not subject to 
any foreign power, excluding Indians not taxed, are hereby 
declared to be citizens of the United States/  and such citizens, 
of every race and color, without regard to any previous condi­
tion of slavery or involuntary servitude, except as a punish­
ment for crime whereof the party shall have been duly con­
victed, shall have the same right, in every State and Territory 
in the United States, to make and enforce contracts, to sue, be 
parties, and give evidence, to inherit, purchase, lease, sell, hold, 
and convey real and personal property, and to full and equal 
benefit of all laws and proceedings for the security of person 
and property, as is enjoyed by white citizens, and shall be 
subject to like punishment, pains, and penalties, and to none 
other, any law, statute, ordinance, regulation, or custom, to the 
contrary notwithstanding.” (Emphasis added.)

The original bill contained, in lieu of the italicized material 
above, the following clause:
“That there shall be no discrimination in civil rights or immuni­
ties among the inhabitants of any State or Territory of the 
United States on account of race, color or previous condition 
of slavery.”

The circumstances and significance of the change are discussed 
at p. 139 infra.



1 1 8

the Fourteenth Amendment, according to one group 
in Congress, would put the principles of the Civil 
Rights Act of 1866 into the Constitution beyond the 
reach of a new Congress. See Cong. Globe, 39th 
Cong., 1st Sess., pp. 2459, 2462, 2465, 2467, 2538; see, 
also, Monroe v. Pape, 365 U.S. 167, 171; Harris, The 
Quest for Equality (1960), p. 40. Others thought 
that it would provide the Act with a surer constitu­
tional foundation. Id. at 2461, 2511, 2961; Flack, 
The Adoption of the Fourteenth Amendment (1908), 
p. 94. It is not unnatural, therefore, that the aim to 
abolish the inequalities associated with caste found 
expression in the debates on the Fourteenth Amend­
ment. Senator Howard of Michigan, in reporting the 
resolution to the Senate on behalf of the Joint Com­
mittee on Reconstruction, announced that it “abolishes 
all class legislation in the States and does away with 
the injustice of subjecting one caste of persons to a 
code not applicable to another” (Cong. Globe, 39th 
Cong., 1st Sess., p. 2766). Senator Doolittle wished 
“to put an end forever not only to slavery but to the 
aristocracy that was founded upon it * * (Id. at 
2897.) 217

The broad generalizations must be read in the light 
of history and applied to current institutions with an

For many similar references, see, id. at 2498, 2503, 2530, 
2531, 2459, 2510, 2539, 2961, 3034. In  the debates on the 
Stevens “apportionment” amendment, which was a precursor of 
the present section 2  of the Fourteenth Amendment, Senator 
Sumner indicated that, in his view, Congress had decreed, in 
the Civil Eights Act of 1866, “that colored persons shall enjoy 
the same civil rights as white persons; in other words, that, 
with regard to civil rights, there shall be no Oligarchy, Aristoc­
racy, Caste, or Monopoly, but that all should be equal before 
the law without distinction of color” (id. at 684).



119

understanding of their underlying significance. The 
declarations of equality were aimed at well-known 
disabilities, associated with caste, that barred Ne­
groes from being equal members of the public. In 
1865 a Negro who was barred from a train or other 
public conveyance, or from an inn or like place of pub­
lic accommodation, was subjected to a special disability 
because of his race. In 1960, these petitioners were 
subjected to an identical stigma because of their race. 
In each case the discrimination was solely a mark of 
caste.

We do not overlook either the force of the direct 
opposition or the doubts of the moderates, both of 
which helped to shape the Fourteenth Amendment. 
See pp. 137-143 below. It will be helpful, however, 
first to note the evidence bearing upon the specific 
problem of equality in places of public accommoda­
tion. The evidence convincingly shows, despite the 
paucity of direct references, that unequal access to 
public places, including inns, hotels, public convey­
ances, and places of public amusement, fell in the 
general category of disabilities with which the fram­
ers were concerned.

1. The framers were undoubtedly concerned about 
freedom of movement in the broadest sense. In the 
Thirty-Ninth Congress, while denouncing the Black 
Codes as “inconsistent with the idea that these freed- 
men have rights,” Senator Wilson asserted that the 
freedmen were as free as he was “to work when they 
please, to play when they please, to go where they 
please * * *” (id. at 41) (emphasis added). The 
Black Codes should be annulled so that



12 0

[T]he man made free by the Constitution of 
the United States, sanctioned by the voice of 
the American people, is a freeman indeed; that 
he can go where he pleases, work when and for 
whom he pleases; that he can sue and be sued; 
that he can lease and buy and sell and own 
property, real and personal; that he can go into 
the schools and educate himself and his chil­
dren; that the rights and guarantees of the good 
old common law are his, and that he walks the 
earth, proud and erect in the conscious dignity 
of a free man * * *. [Id. at 111; emphasis 
added.]218

Senator Sherman of Ohio, who objected to the Wilson 
bill because it did not specify what rights were to be 
protected, favored an attempt at a more precise defi­
nition. “For instance,” he explained, Congress could 
agree that every man should have the right, inter alia, 
“to go and come at pleasure * * *” (id. at 42). That 
was “ among the natural rights of free men” (ibid.). 
Senator Trumbull thought it was “idle to say'that a 
man is free who cannot go and come at pleasure, who 
cannot buy and sell, and who cannot enforce his 
rights” (id. at 43). Introducing the first supple­
mentary Freedmen’s Bureau Bill, Trumbull pro­
nounced it to be the duty of Congress to declare null 
and void all laws which would not permit the Negro, 
inter alia, “to buy and sell, and to go where he

218 Wilson’s bill would have rendered null and void all State 
laws, statutes, acts, ordinances, rules and regulations “whereby 
or wherein any inequality of civil rights and immunities * * * 
is recognized, authorized, established or maintained,” by reason 
of color, race, or previous condition of servitude (Globe, 39th 
Cong., 1st Sess., p. 39).



121

pleases” (id. at 322).219 Again in the debates upon 
S. 61, the bill which became the Civil Rights Act of 
1866, Senator Trumbull, who introduced it, mentioned 
“the right to go and come at pleasure” as one of the 
fundamental rights secured by the bill. Id. at 477.220

219 Sections 7 and 8 of the first supplementary Freedman’s 
Bureau Bill applied only to those States in which the ordinary 
course of judicial proceedings had been interrupted by the 
rebellion. Under section 7 the President was given the duty 
to extend military protection and jurisdiction over all cases 
where any of the civil rights or immunities of white persons 
were denied to anyone in consequence of local law, custom or 
prejudice, on account of race, color, or previous condition of 
servitude; or where different punishment or penalties were 
inflicted on Negroes than were prescribed for white persons 
committing like offenses. The rights specifically enumerated 
in the section were the right to make and enforce contracts; 
to sue; be parties, and give evidence; to inherit, purchase, 
lease, sell, hold, and convey real and personal property, and 
“to have full and equal benefit of all laws and proceedings for 
the security of person and estate * * The eighth section 
made it a misdemeanor for any person “under color of any 
State or local law, ordinance, police, or other regulation or 
custom,” to deprive anyone on account of race or color or 
previous condition of servitude “of any civil right secured to 
white persons * * (Cong. Globe, 39th Cong., 1st Sess., 
p. 318.)

220 As originally introduced, the Civil Bights Bill (S. 61) 
contained a provision stating that “there shall be no discrimi­
nation in civil rights or immunities among the inhabitants 
of any State or Territory of the United States on account of 
race, color, or previous condition of slavery or involuntary 
servitude * * (Cong. Globe, 39th Cong., 1st Sess., p. 474.) 
This provision was in the bill when Trumbull uttered the words 
quoted in the text. The provision was deleted before enact­
ment, id. at 1366, but plainly the Act invalidated any racial re­
strictions upon freedom of movement. See p. 117 n. 216 supra.



1 2 2

Some of the Black Codes barred Negroes from 
towns or other specified areas, and forbade their move­
ment at certain hours,2" but the purpose of securing' 
the “right to come and go at pleasure” must have 
been to remove barriers to freedom of movement in 
the public life of the community.221 222 Even in 1866 
equal opportunities to use trains and public convey­
ances and to stop at inns and hotels were essential to 
civil equality. The soda fountain, the lunch counter 
and the roadside restaurant were unknown, but today 
the premises of those places of public accommodation

221 An ordinance of the City of Opelousas, Louisiana, referred 
to in the Report of General Schurz on conditions in the South 
(Senate Executive Document No. 2 , 39th Cong., 1st Sess., pp. 
92-93) and in the Congressional debates (Cong. Globe, 39th 
Cong., 1 st Sess., pp. 516-517), provided, inter alia, that “no 
negro or freedman shall be allowed to come within the limits 
of the town of Opelousas without special permission from his 
employers, specifying the object of his visit and the time neces­
sary for the accomplishment of the same” ; that “evei'y negro 
or freedman who shall be found on the streets of Opelousas 
after ten o’clock at night without a written pass or permit 
from his employers shall be imprisoned and * * * pay a fine” ; 
that “ [n]o negro or freedman shall reside within the limits of 
the town * * *” if not “in the regular service of some white 
person or former owner * * *” ; nor, with narrow exceptions, 
engage in public meetings or congregations within the town 
limits without permission of the mayor or the president of the 
Board of Police; nor “sell, barter, or exchange any articles of 
merchandise or traffic within the limits of Opelousas without 
permission in writing from his employer or the mayor or presi­
dent of the board * *

222 A witness before the Joint Committee on Reconstruction 
testified that the people of Virginia were “reluctant even to 
consider and treat the negro as a free man, to let him have his 
half of the sidewalk or the street crossing.” House Report 
No. 30, 39th Cong., 1st Sess., Testimony, P art I I ,  p. 4.



123

serve a function little different from the public square 
a century earlier. See pp. 136-137 below.

2. Both the civil rights legislation and the Four­
teenth Amendment sought to guarantee equality be­
fore the law. Members of the public not suffering 
from racial disability had long had a legal right to 
use public conveyances and to enter and obtain serv­
ice in inns, hotels and, quite possibly, places of public 
entertainment and amusement. Removal of the racial 
disability, therefore, would extend that same legal 
right to enter and be served, to Negroes. The logic 
is so inescapable that we may feel sure that any mem­
ber of Congress would have answered affirmatively if 
he had been asked in 1868 whether the Civil Rights 
Act of 1866 and the Fourteenth Amendment would 
have the effect of securing Negroes the same right as 
other members of the public to use hotels, trains and 
public conveyances.223

The Congressional debates between 1864 and 1874 
reflect an awareness of the right conferred by the 
common law to nondiscriminatory service in many 
places of public accommodation, such as inns, hotels,

223 There is also some indication that the courts followed this 
reasoning. In  Ferguson v. fries, 82 Mich. 358, 365 (1890), 
where a Negro had sued for damages arising from the refusal 
of a restaurant owner to serve him at a table reserved for 
whites, the Michigan Supreme Court held that a Michigan 
statute enacted in 1885, prohibiting the denial of “full and 
equal” privileges of inns, restaurants, eating houses, barber 
shops, public conveyances and theatres to any citizen, was only 
declaratory of the common law; that prior to the time when 
Negroes were made citizens of the State unjust discrimination 
in such public places would have given a white man a claim 
for damages; and that the Negro had gained a similar right 
on becoming a citizen.



124

and common carriers.224 The subject was discussed at 
some length in connection with bills to ban discrimi­
nation and set 'egation on trains and street cars in the 
District of Columbia.225 Some thought that theatres 
and places of public amusement generally were also 
subject to the common law rule.226 While perhaps 
they were wrong, such institutions, it was well known, 
were regulated, and in a sense created, by the law and 
therefore subject to special responsibilities. See the 
debates on the Civil Rights Act of 1875, discussed 
pp. 130-135 below.

3. The proponents of the abortive Freedmen’s Bu­
reau Bill and the Civil Rights Act of 1866 never 
denied the frequent charge that those measures would 
grant Negroes the right to equal treatment in places 
of public accommodation. The apparent reason is 
that they regarded the “ charge” true; as we have 
explained, it was the inevitable consequence of mak­
ing Negroes equal with other members of the public 
before the law even in the narrowest sense of the 
words.

224 See the remarks of Senator Sumner (Cong. Globe, 42nd 
Cong., 2 d Sess., p. 381-383); remarks of Senator Harlan of 
Iowa (38th Cong., 1st Sess., p. 839); remarks of Senator P ratt 
of Indiana ( 2  Cong. Rec. 4081-4082).

225 Note especially the argument of Reverdy Johnson, a con­
servative Senator and notable constitutional lawyer. (Cong. 
Globe, 38th Cong., 1 st Sess., p. 1156-1157.) For a general dis­
cussion of this legislation and the attitude of the post-Civil 
W ar Congresses towards discrimination in public conveyances 
and places of public accommodation, see Frank and Munro, 
The Original Understanding of uEqual Protection of the 
Law s” 50 Col. L. Rev. 131.

226 2 Cong. Rec. 4081.



125

During the debate in the House on the first sup­
plementary Freedmen’s Bureau Bill, Representative 
Rousseau, of I entucky, who opposed the bill, sug­
gested that the grant of equal "'‘civil rights and im­
munities” gave Negroes the same privileges in 
theatres and railway cars. With respect to the latter, 
he expressly defied the proponents of the bill to “ com­
bat that position.” (Cong. Globe, 39th Cong., 1st Sess., 
App. 70). Although he was frequently interrupted, 
his construction of the bill was not disputed. (Id. 
at App. 68-71.) Representative Dawson, of Pennsyl­
vania, observed that the bill constituted only a part of 
a broad policy to enforce equality for Negroes so that 
they should be “ * * * admitted to the same tables at 
hotels [and] to occupy the same seats in railroad cars.” 
(Id. at 541.)

After the Freedmen’s Bureau Bill passed the 
House, it was vetoed by the President, in part because 
it failed to define the “ ‘civil rights and immunities’ 
which are thus to be secured to the freedman by 
military law. * * * ” (Id. at 916.) Senator Davis of 
Kentucky, speaking in support of the veto, protested 
that “ commingling with [white persons] in hotels, 
theaters, steamboats, and other civil rights and priv­
ileges, were always forbid to free negroes,” until 
recently granted by Massachusetts. (Id. at 936.) Al­
though Senator Trumbull delivered a long speech in 
opposition to the veto, he did not question Senator 
Davis’s assertion that such rights were secured by 
the bill. (Id. at 936-943.) Indeed, Senator Trumbull 
remarked that he should “ rejoice” when the Southern 
States “ shall abolish all civil distinctions between



126

their inhabitants on account of race or color; and 
when that is done one great object of the Freedmen’s 
Bureau will have been accomplished.” (Id. at 943.)

The first Freedmen’s Bureau Bill failed to become 
law, although, on July 16, 1866, it was re-enacted with 
minor changes over a second presidential veto. 14 
Stat. 173. After the first veto was upheld, the Civil 
Bights Bill was taken up, debated at length, passed 
by both Houses and then vetoed. (Id. at 1679.) In  
the course of the debate on the veto, Senator Davis ob­
jected to the bill, declaring, as he had declared with 
respect to the Freedmen’s Bureau Bill, that it 
obliterated discrimination between the races with 
respect to the facilities of steamboats, railway cars, 
and hotels.227 The veto was overriden, without de­
bate in the House.

227 Sen. Davis said (id. at Appendix 183):
“ [T]his measure proscribes all discriminations against negroes 
in favor of white persons that may be made anywhere in the 
United States by any ‘ordinance, regulation, or custom,’ as well 
as by ‘law or statute.’

*  * *  *  *  *

“But there are civil rights, immunities, and privileges ‘which 
ordinances, regulations, and customs’ confer upon white persons 
everywhere in the United States, and withhold from negroes. 
On ships and steamboats the most comfortable and handsomely 
furnished cabins and state-rooms, the first tables, and other 
privileges; in public hotels the most luxuriously appointed 
parlors, chambers, and saloons, the most sumptuous tables, and 
baths; in churches not only the most softly cushioned pews, 
but the most eligible sections of the edifices; on railroads, 
national, local, and street, not only seats, but whole cars, are 
assigned to white persons to the exclusion of negroes and 
mulattoes. All these discriminations * * * are established by 
ordinances, regulations, and customs. This bill proposes to 
break down and sweep them all away, and to consummate 
their destruction * *



127

4. The general public understanding of the Civil 
Rights Act of 1866, which was the direct precursor of 
the Fourteenth Amendment (see pp. 117-118 above), 
seems to have been that it would open to Negroes pub­
lic conveyances and places of public accommodation 
and amusement. The best survey is Flack, The Adop­
tion of the Fourteenth Amendment (1908), pp. 11-54. 
Flack concludes (p. 45)—

There also seems to have been a general impres­
sion among the press that negroes would, by the 
provisions of the bill, be admitted, on the same 
terms and conditions as the white people, to 
schools, theaters, hotels, churches, railway ears, 
steamboats, etc.

He also cites (pp. 46-47) accounts of numerous inci­
dents showing a similar widespread belief among mem­
bers of the public.

5. The understanding is further reflected in the 
equal public accommodations laws enacted during the 
Reconstruction Period. Many of the Southern States 
passed such laws between 1868 and 1873. Thus, as 
early as April, 1868, the people of Louisiana ratified a 
new constitution expressly providing that:

All persons shall enjoy equal rights and 
privileges, upon any conveyance of a public 
character; and all places of business, or of 
public resort, or for which a license is required 
by either State, parish, or municipal authority, 
shall be deemed places of a public character, 
and shall be opened to the accommodation and 
patronage of all persons, without distinction or 
discrimination on account of race or color. * * *



128

And the constitutional 228 mandate was carried out by 
implementing legislation in 1869, 229 230 in 1870, 230 and 
again in 1873.231 South Carolina followed with a simi­
lar enactment in 1869.232 In the ensuing years, equal 
public accommodation laws were passed in Georgia 
(1870), 233 Arkansas (1873),234 Mississippi (1873),235 236 
and Florida (1873).286

There can be no doubt that these measures were 
enacted in response to the Fourteenth Amendment. 
To be sure, they were the product of “reconstructed” 
legislatures, in which Negroes, for the first time, par­
ticipated. In some cases, perhaps, they were dictated 
by federal authorities. At the least, they reflect a 
contemporary view that freedom from discrimination 
in public places of accommodation was part of the 
promise of equal protection. This was the view of the 
military authorities administering the Reconstruction 
program,237 presumably in accordance with the will of

228 La. Const. 1868, Art. 13.
229 La. Acts 1869, p. 37. See Rail v. De Guir, 95 U.S. 485.
230 La. Acts 1870, p. 57.
231 La. Acts 1873, p. 156. In  addition, the Louisiana legisla­

ture asked Congress to adopt Sumner’s supplementary civil rights 
bill (infra, p. 132), pending in 1872. La. Acts, 1872, p. 29.

232 14 S.C. Stat. 179. See, also, the statute of 1870 reprinted 
in 2  Fleming, op. cit., pp. 285-288.

233 Ga. Laws 1870, pp. 398, 427-428.
234 Ark. Laws 1873, pp. 15-19.
235 Miss. Laws 1873, p. 6 6 .
236 Fla. Laws 1873, p. 25, ch. 1947.
237 See, e.g., G. O. No. 32, 2 d Military District (applicable to 

North Carolina and South Carolina), in 1  Fleming, op. cit., 
pp. 435, 437:

“8 . In  public conveyances on railroads, highways, streets, or 
navigable waters no discrimination because of color or caste 
shall be made, and the common rights of all citizens thereon 
shall be recognized and protected. * * *”



129

Congress. It was a view that apparently gained some 
general acceptance in the South.238 The most percep­
tive exposition was made by Justice Horatio Simrall 
for the Supreme Court of Mississippi, in 1873, in 
Donnell v. State, 48 Miss. 661. A Kentuckian by 
birth, Justice Simrall was a law professor, plantation 
owner and a Mississippi State Legislator before the 
Civil War. He served for nine years on Mississippi’s 
highest court, the last three as Chief Justice, and later 
lectured at the University of Mississippi which 
granted him an honorary doctorate.239 In upholding 
the equal public accommodation law of Mississippi, 
Justice Simrall, after noting that “The 13th, 14th and 
15th amendments of the constitution of the United 
States, are the logical results of the late civil war, 
now more distinctly seen than immediately succeeding 
its termination” (id. at 675), pointed out that “The 
fundamental idea and principle pervading these 
amendments, is an impartial equality of rights and 
privileges, civil and political * * *” (id. at 677), and 
he then sustained the Mississippi equal public aceom-

238 We have already noticed that these equal accommodation 
laws were not immediately repealed when Reconstruction ended. 
See note 90, supra. Xor were they mere dead-letter, at least for 
a time. See, e.g., Donnell v. State, 48 Miss. 661; Sauvinet v. 
Walker, 27 La. Aim. 14, affirmed, 92 U.S. 90; Joseph v. Bid- 
well, 28 La. Ann. 382. I t  is also worth noting that some re­
sponsible Southerners were arguing for freedom from racial 
discrimination in places of public accommodation. See, e.g., 
Cable, “The Freedman’s Case in Equity” (1884) and “The Silent 
South” (1885), in Cable, The Negro Question (Turner ed., 
1958), pp. 56-82, 85-131.

239 y  National Cyclopedia of American Biography (1907), 
p. 456. See also, X X X V III id., pp. 225-226; Rowland, Courts, 
Judges and Lawyers of Mississippi 1798-1935 (1935), pp. 98- 
99.



130

modations law as applied to a theatre which sought to 
segregate a Negro patron.240 Cf. Coger v. The North 
West. Union Packet Co., 37 Iowa 145 (1873) (refusal 
of a steamship company to serve Negro in main cabin 
violated both State constitution and the Fourteenth 
Amendment).

Nor were those in the “occupied” States of the Con­
federacy alone in this understanding of the Fourteenth 
Amendment. Other States, subject to no federal 
intervention, were responding in similar vein to the 
command of the Amendment. Massachusetts had 
already enacted an equal accommodation law in 1865.241 
New York did so in 1873,242 Kansas in 1874,243 and 
fifteen other States were to follow their lead before 
the turn of the century.244

6. Granting that the membership of both Houses 
of Congress had undergone some changes and that 
opinions expressed after the event must be read with 
caution, the presence of Senators and Representa­
tives who had been prominent on the Committee of 
Fifteen on Reconstruction and in the consideration 
of the Fourteenth Amendment gives both the debate 
upon, and the enactment of, the Civil Rights Act

240 The argument of the Attorney General of Mississippi is 
even more explicit in relating the public accommodations law 
to the Thirteenth and Fourteenth Amendments; he argued that 
without such a statute there would be a plausible pretext for 
interference by the federal government to enforce by appro­
priate legislation the equal protection of the laws. 48 Miss, at 
664-673.

241 Mass. Acts 1865, p. 650.
242 N.Y. Laws 1873, p. 303.
243 Kan. Laws 1874, p. 82.
244 See n. 19, supra.



131

of 1875 significance as an exposition of the original 
understanding. Both confirm the view that the Four­
teenth Amendment was expected to bring equality 
in places of public accommodation and amusement, 
and to authorize Congress to enact appropriate legisla­
tion when a State denied this form of equal protection 
of the laws.

The Civil Rights Act of 1875 originated with a bill 
introduced by Senator Sumner on December 20, 1871, 
to amend the Civil Rights Act of 1866. The bill in 
its original form provided that all persons, without 
distinction of race or color, should be entitled to “equal 
and impartial” enjoyment of any accommodation, 
advantage, facility, or privilege furnished by inns, 
public conveyances, theaters, or other places of public 
amusement, public schools, churches and cemeteries.2448 
In explaining his bill, Sumner declared:

The new made citizen is called to travel for 
business, for health, or for pleasure, but here 
his trials begin. The doors of the public hotel, 
which from the earliest days of our jurispru­
dence have always opened hospitably to the 
stranger, close against him, and the public con­
veyances, which the common law declares 
equally free to all alike, have no such freedom 
for him. He longs, perhaps, for respite and 
relaxation at some place of public amusement, 
duly licensed by law, and here also the same 
adverse discrimination is made.245 *

2443 Cong. Globe, 42d Cong., 2 d Sess., p. 244.
245 Cong. Globe, 42d Cong., 2 d Sess., p. 381.

719- 94.6— 64-------------11



132

After quoting Holingshed, Story, Kent and Par­
sons on the common law duties of innkeepers and 
common carriers to treat all alike, Sumner continued:

As the inn cannot close its doors, or the pub­
lic conveyance refuse a seat to any paying trav­
eler, decent in condition, so it must be with the 
theatre and other places of public amusement. 
Here are institutions whose peculiar object is 
the “ pursuit of happiness,” which has been 
placed among the equal rights of all.246

Sumner’s bill, which had been adversely reported 
in 1870 and 1871, was introduced on December 20, 
1871, and attached as an amendment to the Amnesty 
Bill. The Amnesty Bill, as amended, failed to secure 
the requisite two-thirds vote, but there were thirty- 
three affirmative to nineteen negative votes, which 
seemingly indicates that a great majority thought that 
the amendment was constitutional. Among the ma­
jority were fifteen Senators who had participated in 
the consideration of the Fourteenth Amendment.247

Senator Sumner’s bill was not considered in the 
House at that Congress. A resolution was offered de­
claring that it would be contrary to the Constitution 248

248 Id. at 382-383. See also 2 Cong. Rec. 11 (“Our colored 
fellow-citizens must be admitted to complete equality before the 
law. In  other words, everywhere, in everything regulated hy 
law, they must be equal with all their fellow-citizens. There is 
the simple principle on which this bill stands.”) [Emphasis 
added.] See, also, Cong. Globe, 42d Cong., 2d Sess., p. 381 
(“The precise rule is Equality before the Law; * * * that is, 
that condition before the Law in which all are alike—being 
entitled without any discrimination to the equal enjoyment of 
all institutions, privileges, advantages and conveniences created 
or regulated hy law * * *.”) [Emphasis added.]

247 Flack, The Adoption of the Fourteenth Amendment 
(1908), 259-260.



133

for Congress to force mixed schools upon States or to 
pass any law interfering with churches, public car­
riers, or innkeepers, such subjects of legislation be­
longing exclusively to the States. The resolution was 
defeated by a vote of eighty-four to sixty-one. Among 
those voting against the resolution—and thus to sus­
tain the power of Congress—were Representatives 
Bingham, Dawes, Garfield, Hoar and Poland, all active 
in Congress’ submission of the Fourteenth Amend­
ment to the States.248

In the Forty-third Congress Representatives Butler 
of Massachusetts, Chairman of the House Judiciary 
Committee, reported a bill which was in all material 
respects the same as Sumner’s bill, and which ulti­
mately (after the provisions with respect to schools, 
churches, and cemeteries were eliminated in commit­
tee) was enacted as the Civil Rights Act of March 1, 
1875. Butler, like Sumner, declared that the purpose 
of the bill was to secure equality in public establish­
ments licensed by law: 248 249

The bill gives to no man any rights which he 
has not by law now, unless some hostile State 
statute has been enacted against him. He has 
no right by this bill except what every member 
on this floor and every man in this District 
has and every man in Hew England has, and 
every man in England has by the common law 
and the civil law of the country. Let us examine 
it for a moment. Every man has a right to

248 Cong. Globe, 42d Cong., 2d Sess., 1582.
249 2 Cong. Kec., 43d Cong., 1st Sess., 340. See, also, 3 Cong. 

Ilec., 43d Cong., 2d Sess., 1005, 1006.



134

go into a public inn. Every man has a right 
to go into any place of public amusement or 
entertainment for which a license by legal au­
thority is required. [Emphasis added.]

During the same session, Senator Sumner again 
presented his bill. It was reported to the Senate on 
April 29, 1874, by Senator Frelinghuysen, who argued 
that Congress had power to pass the bill under its 
power to implement the equal protection clause: 250

Inns, places of amusement, and public con­
veyances are established and maintained by 
private enterprise and capital, but bear that 
intimate relation to the public, appealing to 
and depending upon its patronage for support, 
that the law has for many centuries measura­
bly regulated them, leaving at the same time a 
wide discretion as to their administration in 
their proprietors. This body of law and this 
discretion are not disturbed by this bill, ex­
cept when the one or the other discriminates 
on account of race, color, or previous servitude.

In addition to Senator Erelinghuysen, Senators 
Morton,251 Edmunds,252 * and Boutwell,263 who had been 
a member of the Reconstruction Committee, all ex­

250 2  Cong. Rec., 43d Cong., 1 st Sess., 3452.
251 Senator Morton said (id: at Appendix 361) :
“* * * the very highest franchise that belongs to any 

citizen of the United States as such is the right to go into 
any State and there to have the equal enjoyment of every 
public institution, whether it be the court, whether it be the 
school, or whether it be the public conveyance, or whether 
it be any other public institution, for pleasure, business, or 
enjoyment, created or regulated by law.”

252 Id. at 4171.
258 Id. at 4116.



135

pressed the opinion that the rights enumerated in 
the Sumner Bill were secured by the Fourteenth 
Amendment. The Sumner Bill passed the Senate on 
May 23, 1874, by a vote of 29 to 16.254 There were 
nine Senators supporting the bill who had taken part 
in the enactment of the Fourteenth Amendment. 
Only two Senators who voted for the Amendment 
were opposed.255

The House, however, took up the Butler bill, which 
was almost identical with the Sumner bill. It passed 
the House on February 4, 1875,256 the Senate on Feb­
ruary 27, 1875,257 and became law on March 1, 1875.258

The Civil Rights Act of 1875 manifestly went be­
yond the power of Congress under the Fourteenth 
Amendment insofar as it attempted to create a di­
rect federal right to equal service in places of public 
accommodation without a finding that a State had 
denied equal protection of its laws. Civil Rights 
Cases, 109 U.S. 3. Curiously, the bill’s sponsors ap­
pear to have been proceeding upon the theory that 
the legislation was necessitated by the failure of some 
States to secure that equality (see p. 133 above), 
yet they failed to recite the justification in the bill 
and the Solicitor General did not urge it in his argu­
ment. The Court then assumed both that the right to 
nondiseriminatory treatment in places of public ac­
commodation was secured by the Fourteenth Amend­

254 Id. at 4176.
255 Flack, Adoption of the Fourteenth Amendment (1908), 

270, 271.
25&3 Cong. Rec., 43d Cong., 2 d Sess., 1011.
257 Id. at 1870.
258 Id. at 2013.



136

ment and, also, that the right was in fact protected 
by the States. The decision rests upon those assump­
tions. 109 U.S. at 19, 21, 24. See also pp. 73-77 
above.

Taking together all the evidence under the forego­
ing heads, it is an inescapable inference that Con­
gress, in recommending the Fourteenth Amendment, 
expected to remove the disabilities barring Negroes 
from the public conveyances and places of public ac­
commodation with which they were familiar, and thus 
to assure Negroes an equal right to enjoy these as­
pects of the public life of the community. The dis­
ability, then, as now, was plainly of caste. Removing 
it was within the broad purposes of the Amendments.

While the thrust of history points towards the con­
clusion that the Amendments were intended to secure 
Negroes equal treatment in places of public accommo­
dation, in two respects events outstripped the 
framers’ foresight. First, a whole new class of estab­
lishments grew up, notably the lunch counters, soda 
fountains, restaurants and numerous places of amuse­
ment now so familiar in the public life of the com­
munity. Second, the law of many jurisdictions, in­
stead of extending to these new public enterprises the 
traditional duty of those engaged in public callings, 
retrenched and gave no person a legal right to enjoy 
their facilities.259

The first development hardly affects the case. It is 
a constitution we are interpreting, and the framers

259 But see the remarks of Representative Lawrence upon the 
Civil Rights Act of 1866 for implied general recognition of a 
State’s power to enlarge or contract the civil rights of all citi­
zens. Cong. Globe, 39th Cong., 1st Sess., 1832.



137

of the Amendments appear to have been well aware 
that they were writing a constitution. See Bickel, The 
Original Understanding and the Segregation Decision, 
69 Harv. L. Rev. 1, 59-64 (1955). Today’s widely 
known places of public accommodation have some 
characteristics of the inn and common carrier, and 
some of the streets and public squares. Both were 
within the conception of the framers. I f  the prolifer­
ation of commercial establishments has made men less 
dependent than formerly upon the proprietor who 
pursues a public calling, the easier access to the 
premises and the increasingly casual nature of the 
contacts in the new places of public accommodation 
now make exclusion even more plainly a mark of 
caste. In the circumstances of our times eviction 
from a lunch counter, public restaurant or amuse­
ment park is scarcely different from the earlier inhi­
bitions against coming and going upon the street or 
in the public square. Any personal contacts are more 
casual and evanescent than the relationships between 
travelers in the carriers and inns of the mid-nine­
teenth century.

The second development raises a serious difficulty. 
The expectation, as we have said, was that Negroes 
would be secured a right to equal treatment in places 
of public accommodation under State law by virtue 
of the constitutional compulsion to extend to them the 
same familiar legal right possessed by other members 
of the public. Withholding the legal right from 
everyone cut part of the ground from under the 
expectations and thus raises a question whether the 
dominant intent was to secure equality in places of



13 8

public accommodation as segments of public life 
closely regulated by law, or was to proyide such 
equality only to the extent of applying the same legal 
doctrines to members of both races without regard 
to the resulting discrimination in fact.

The answer would be easier if  the question did 
not involve one of the critical issues in the evolution 
of the Fourteenth Amendment. The dominant pur­
pose of its sponsors was to eradicate the caste system. 
Dealing with constitutional rights, they must have 
been concerned with substance, not form; and plainly 
racial discrimination in places of public accommoda­
tion was a substantial mark of caste. Yet across the 
forward thrust of the dominant purpose cut two 
arguments which had considerable influence upon the 
Senators and Representatives who held the balance 
of power. One argument was that the civil rights 
bills asserted, and the proposed constitutional amend­
ments would give Congress, excessive power to legis­
late directly concerning rights and duties which had 
been, and ought to be, the domain of the States (Cong. 
Globe, 39th Cong., 1st Sess., pp. 113, 363, 499, 598, 
623, 628, 936, 1268, 1270-1271, 2940; App. p. 158). 
The other was that the radicals’ excessive zeal was 
leading them to impose equality upon the whole com­
munity, not only in civil rights but also in social and 
political rights {id. at 343, 477, 541, 606, 1122, 1157). 
In this context there was criticism of the vagueness 
of the measures {id. at 41, 96, 342, 1157, 1270-1271) 
and possibly some tendency to exaggerate their scope 
{id. at 601-602; App. p. 70).



139

At one time the latter objection seems to have car­
ried weight with the moderates and to have influenced 
Representative Bingham, who was the principal au­
thor of Section 1 of the Fourteenth Amendment.260 
Before the Civil Rights Act of 1866 could be enacted, 
general language forbidding “discrimination in civil 
rights or immunities” was eliminated so that the Act 
conferred equality in respect of specific rights plus 
“full and equal benefit of all laws and proceedings for 
the security of person and property.” 261

Whether this criticism also influenced the draft­
ing of the Fourteenth Amendment seems questionable, 
but the effect of the argument against superseding 
State laws is plain. Representative Bingham’s orig­
inal equal rights amendment as reported by the Joint 
Committee on Reconstruction on February 26, 1866 
read:

The Congress shall have power to make all 
laws which shall be necessary and proper to 
secure to the citizens of each State all privileges 
and immunities of citizens in the several States 
(Art. 4, sec. 2 ); and to all persons in the 
several States equal protection in the rights of 
life, liberty, and property (5th amendment).262

Had that language been adopted, Congress would have 
had unquestionable power to secure “equal protection

260 Bickel, The Original Understanding and the Segregation 
Decision, 69 Harv. L. Rev. 1, 22-24 (1955).

261 See n. 216, supra.
262 Journal of the Joint Committee on Reconstruction, S. 

Doc. Ro. 711, 63d Cong., 3d Sess., p. 17, hereafter cited as 
“Committee Journal.”



140

in the rights of life, liberty and property,” without 
regard to State law. Within the area of “the rights 
of life, liberty and property” there would have been 
no room for arguing a technical equality of no-right; 
substantial equality, as Congress judged it, would 
have become the test.

The Bingham equal rights amendment was aban­
doned in the face of overwhelming opposition to 
giving Congress direct power to legislate regardless 
of the States, but its core was carried forward into 
the first and fifth sections of the Fourteenth Amend­
ment with important modifications:

Section 1. * * * 1STo State shall make or en­
force any law which shall abridge the privileges 
or immunities of citizens of the United States; 
nor shall any State deprive any person of life, 
liberty, or property, without due process of 
law; nor deny to any person within its juris­
diction the equal protection of the laws. 

* * * * *
Section 5. The Congress shall have power 

to enforce, by appropriate legislation, the pro­
visions of this article.

The revision makes it plain that Congress may 
legislate to secure equal protection only when there 
has been a denial of equal protection by a State.

It is more difficult to sense where the balance was 
struck upon the question of the scope of the promised 
equality. Professor Bickel, whose reading of the 
history is more restrained than that of many current 
commentators, concludes that “ the new phrase, while 
it did not necessarily, and certainly not expressly, 
carry greater coverage than the old, was neverthe­



141

less roomier, more receptive to Tatitudinarian’ con­
struction” (Bickel, op, cit., 61), but he also empha­
sizes the phrase “ of the laws” {id. at 45). Quite 
possibly the upshot was that the framers, by granting 
exact equality in the formal rules of law and nothing 
more, sidestepped the problem of defining “ civil 
rights” except as it might enter into the interpreta­
tion of the privileges and immunities clause.263 Cer­
tainly the proponents of the amendment emphasized 
the idea of equal laws. This was the explanation 
given by Thaddeus Stevens, who introduced the reso­
lution in the House (Cong. Globe, 39th Cong., 1st 
Sess., p. 2459) :

This amendment * * * allows Congress to cor­
rect the unjust legislation of the States, inso­
far that the law which operates upon one man 
shall operate equally upon all. Whatever law 
punishes a white man for a crime shall punish 
the black man precisely in the same way. * * * 
Whatever law protects the white man shal] 
afford “ equal” protection to the black man. 
Whatever means of redress is afforded to one 
shall be afforded to all. Whatever law allows 
the white man to testify in court shall allow 
the man of color to do the same.

Senator Howard, opening the debate in the Senate, 
explained that the equal protection clause {id. at 
2765) :

abolishes all class legislation in the States and 
does away with the injustice of subjecting one

263 A thorough historical investigation of the intent of the 
framers with respect to equality of treatment in places of pub­
lic accommodation -would have to go behind the Slaughter-House 
Oases, 16 Wall. 36, to consider whether this was not originally 
conceived to be one of the privileges and immunities of citizens.



142

caste of persons to a code not applicable to 
another. It prohibits the hanging of a black 
man for a crime for which the white man is 
not to be hanged. It protects the black man 
in his fundamental rights as a citizen with the 
same shield which it throws over the white 
man.

Yet the guarantee of equal protection suggests more 
than a guarantee of equal legal formulas. It was 
read later to mean equality “in everything regulated 
by law” and “the equal enjoyment of all institutions, 
privileges, advantages and conveniences created or reg­
ulated by law.” 264 At that time the area thus de­
scribed was well defined; it was roughly coextensive 
with the public life of the community. Nor was some 
vagueness objectionable. The amendment was pri­
marily intended to lay a foundation for future con­
gressional action; then, as now, men were willing to 
resolve differences by leaving the final incidence of 
imprecise words to be unfolded by the future. There 
is ample evidence that the framers intended to give 
Congress power to act when the States failed to give 
equal protection in the actual administration of the 
laws,265 and so well informed a man as justice Bradley 
believed at one time that the obligation involved a 
duty to enact protective legislation.266 Beyond doubt 
the scope of the guarantee was limited, but there is 
scant reason to suppose that it was limited to techni­

264 2 Cong. Rec., 43d Cong., 1st Sess., p. 11; Cong. Globe, 42d 
Cong., 2d Sess., p. 381.

265 Cong. Globe, 39th Cong., 1st Sess., pp. 2465, 2542.
266 See p. 75, supra; see also Harris, The Quest for Equality 

(1960), p. 37.



143

cal inequalities in the laws themselves and did not 
extend to segments of public life that the laws custom­
arily regulated. The narrower reading, as applied to 
today’s places of public accommodation, poses the 
stark incongruity of a community-wide stigma of 
racial inferiority, in a State-regulated area of public 
life, flourishing in the face of the promise of the 
Amendments.

We pursue the inquiry no further. There is no 
need to determine in these cases whether a State’s 
failure to grant Negroes a right to equal treatment 
in places of public accommodation involves a denial 
of equal protection of the laws, and, if so, whether 
Congress, in order to remedy a State’s default, may 
provide the right by direct legislation. Wherever 
the purposive and limiting forces that shaped the 
Amendment reached equilibrium as applied to a situa­
tion in which the State has scrupulously refrained 
from acting, the consensus surely was not one of re­
luctance to provide for the invalidation of the slight­
est affirmative State interference on the side of caste. 
The very closeness of the balance with respect to 
the duty to provide equality in all public vehicles or 
places of public accommodation implies ready con­
demnation, at least in that area, of any product of 
unequal legislation.

Here respondents have never been truly neutral. 
The community-wide fabric of segregation is filled 
with threads of law and governmental policy woven 
by the State through a warp of custom laid down by 
historic prejudice. Discrimination in places of public 
accommodation is an indivisible part of that fabric.



1 4 4

It cannot be severed from the community-wide system 
of segregation and examined in isolation even in areas 
where State law never dealt with if directly. Past 
involvement in the larger scheme forbids a present 
posture of aloof indifference in places thrown open 
by the proprietor to the public life of the community. 
The States must at least take the trouble to notice 
what they have done and what is the effect of their 
current action. I f  the real consequence of a suit, 
whether civil or criminal, is to lend support to dis­
crimination against the Negro in places of public 
accommodation—discrimination that the State has 
helped to encourage—then the State must stay its 
hand. Whether or not the State must act, it may not, 
under such circumstances, keep its finger on the scale 
in favor of the caste system.

That is the whole of our argument. That much, 
we submit, is compelled by the legitimate expectation 
of the framers of the Amendments in the light of 
contemporary realities. It is unimportant that the 
framers failed to foresee either the succession of 
events or the precise forms of State involvement. 
“ * * * no human purpose possesses itself so com­
pletely in advance as to admit of final definition. 
Life overflows its moulds and the will outstrips its 
own universals. * * * It should be, and it may be, 
the function of the profession to manifest such pur­
poses in their completeness if it can achieve the genu­
ine loyalty which comes not from obedience, but from 
the according will, for interpretation is a mode of the 
will and understanding is a choice.” L. Hand, The 
Speech of Justice, 29 Harv. L. Rev. 617, 620 (1916).



145

After a century it is not too much to say that the 
States must scrupulously avoid continuing to support, 
even indirectly, a stigma serving no function but to 
preserve public distinctions of caste which the Amend­
ments promised to eliminate.

C O N C LU SIO N

The judgments of conviction should be reversed.
Respectfully submitted.

Archibald Cox,
Solicitor General. 

Burke Marshall,
Assistant Attorney General. 

R alph S. Spritzer,
Louis F. Claiborne, 

Assistants to the Solicitor General. 
H arold H . Greene,
David Rubin,

J anuary 1964.
Attorneys.