Jones v. Alfred H Mayer Company Memorandum for the United States as Amicus Curiae

    No. 645

J oseph L i e  J ones a n d  B a r b a r a  J o J ones, petitioners

A l f r e d  EL M a y e r  Company e t  al.

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

JOHN DOAR,
; Assistant Attorney General,
LOUIS F. CLAIBORNE,
RICHARD A. POSNER,

Assistants to the Solicitor General,
Department of Justice, 

Washington, D.C. 20530.



t r * *  i i c t u  3 1 1  F.*~f S 1

J i t  the jSitjjreme flfmirt of ilte United States
October Term , 1967

No. 645

J oseph Lee J ones and B arbara J o J ones, petitioners

v.

Alfred H. Mayer Company et al.

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

MEMORANDUM FOR THE UNITED STATES AS AMICUS CURIAE

The petition for a writ of certiorari presents the 
question whether the racially motivated refusal of the 
developer of a large residential subdivision to sell a 
house to Negroes contravenes federal Law. In the view 
of the United States, the question is one of large pub­
lic importance and merits this Court’s review. We 
urge that the writ be granted.

1. The causes of the racial tensions which beset the 
Nation at the present time are many; but none, per­
haps, is more fundamental than the situation in hous­
ing. Many Negroes are not only excluded from the 
experience of integrated living but are commonly 
denied decent living conditions, social services and 
educational and employment opportunities. One of the

(i)
279- 717— 67— — 1



2

significant factors which has created, and tends to 
maintain, residential segregation is the widespread 
refusal of real estate developers to sell new suburban 
housing to Negroes.1 Few issues tendered to this Court 
in recent years are more vital in their practical con­
sequences than the legality of this practice.

2. The petitioners argue that the refusal to sell a 
house and lot to them in Paddock Woods constitutes 
a denial of equal protection of the laws within the 
meaning of Section 1 of the Fourteenth Amendment. 
To be sure, that provision is addressed to action by 
the State, not private individuals, and, nominally, no 
State official is implicated in the conduct of the de­
veloper here. But this Court has rejected a mechani­
cal view of State action that would limit the protec­
tions of the Fourteenth Amendment to obvious exer­
cises of governmental power. In Marsh v. Alabama, 
326 U.S. 501, the Court held that the right of free 
speech extended to the privately owned streets of a 
company town. In Shelley v. Kraemer, 334 U.S. 1, it 
held that judicial enforcement of racially restrictive 
convenants violated the Fourteenth Amendment, since, 
as Mr. Justice Black explained in his dissenting opin­
ion in Bell v. Maryland, 378 U.S. 226, 329, such cov­
enants were “in reality the equivalent of and had the 
effect of state and municipal zoning laws, accomplish­
ing the same kind of racial discrimination as if the 
State had passed a statute instead of leaving this ob­
jective to be accomplished by a system of private con­

1 We are advised that a significant proportion of new dwel­
lings are being built in areas comparable to the developments 
involved here.



3

tracts, enforced by the State.” And, just two Terms 
ago, in Evans v. Newton, 382 U.S. 296, the Court 
found sufficient indication of a public character in a 
private park in Macon, Georgia, to make the exclusion 
of Negroes from it unlawful State action.

These decisions—and others (Terry v. Adams, 345 
U.S. 461; Public Utilities Comm’n v. Poliak, 343 U.S. 
451; Republic Aviation Corp. v. National Labor Rela­
tions Board, 324 U.S. 793; Smith v. AUwright„ 321 
U.S. 649)—establish the principle that a private in­
dividual who is permitted by the State to perform an 
essentially public function assumes, along with the 
governmental powers of the State, its constitutional 
obligations. We urge that the Court consider whether 
the facts of the present case bring it within the scope 
of this rule. According to the allegations of the com­
plaint (which must be taken as true, since the case 
was dismissed at the pleading stage), the petitioners 
were refused on racial grounds the right to purchase 
a house and lot in a large real estate development 
otherwise open to the public. When completed, the 
development will house 1,000 people and form part of 
an even larger complex of similar developments con­
structed in the area by the same developer with fi­
nancing by the Federal Housing Administration. This 
complex—which will house a total of some 2,700 fami­
lies—will include recreational facilities (golf course 
plus tennis and bath club) built by the developer for 
the primary benefit of the residents. The developer 
has laid out streets for the use of the residents and 
has undertaken to provide such community services as 
garbage collection, all controlled by a board of trustees



4

appointed by him. The board will also have the legal 
authority to levy assessments and to collect them 
through judicial action.

Involved here, in short, is the creation of a com­
plete suburban community. To fence out Negroes from 
such a community would appear to be essentially no 
different from fencing them out from a company 
town, a private park, or (by means of racial restric­
tive covenants) an already developed residential area.

3. Petitioners urge as an alternative basis for up­
holding the complaint—assuming the State is not suf­
ficiently implicated to justify invoking the Equal Pro­
tection Clause itself—that this case falls within Sec­
tion 1978 of the Revised Statutes, 42 U.S.C. 1982, 
which provides: “ All citizens of the United States 
shall have the same right, in every State and Terri­
tory, as is enjoyed by white citizens thereof to inherit, 
purchase, lease, sell, hold, and convey real and per­
sonal property.” To be sure, literally read, the provi­
sion could be viewed as merely lifting the former 
total disability of slaves to acquire rights in real 
property, but that limited interpretation was rejected 
long ago. Buchanan v. Warley, 245 U.S. 60; Harmon 
v. Tyler, 273 U.S. 668; Richmond v. Deans, 281 U.S. 
704; Hurd v. Hodge, 334 U.S. 24. Those cases hold ex­
pressly that any substantial “fencing out” of Negroes 
from an area is forbidden by Section 1978, and that is 
certainly the effect here.

The more difficult question here is whether the 
statute reaches wholly private action. We recognize 
that in Corrigan v. Buckley, 271 U.S. 323, the Court 
took the view that it did not. But that decision was



5

premised on the supposition that Section 1978 was 
Fourteenth Amendment legislation and that Congress 
lacked power to implement the Equal Protection 
Clause by controlling the conduct of private persons. 
I t is arguable, however, that the provision—originally 
enacted in 1866 (Act of April 9, 1866, § 1, 14 Suit. 27) 
before the Fourteenth Amendment was adopted—-per­
missibly implements the Thirteenth Amendment by 
removing a vestige of slavery. And, at all events, it 
may be appropriate to reconsider Corrigan in light 
of the prevailing view with respect to congressional 
power under the Fourteenth Amendment. We take it 
as now settled that a construction of Section 1978 
as guaranteeing the enumerated rights against pri­
vate abridgment would encounter no constitutional 
obstacle—even if the section were viewed as wholly 
Fourteenth Amendment legislation. See United States 
v. Guest, 383 U.S. 745, 761-762 (concurring opinion 
of Mr. Justice Clark), 774-784 (separate opinion of 
Mr. Justice Brennan) ; Katsenbach v. Morgan, 384 
U.S. 641.

Nothing in the text of Section 1978 limits its reach 
to action by State officials.2 Although other provisions

2 In  its original form, the provision ended with the phrase 
“any law, statute, ordinance, regulation or custom to the con­
trary, notwithstanding.” Putting aside the dictum  in the Civil 
Rights Cases, 109- U.S. 3, 16, we view these as words of empha­
sis, not of limitation—like the comparable words of the Su­
premacy Clause of the Constitution. U.S. Const., Art. YI, cl. 2. 
The sense of the provision, as we read it, is that equality of 
civil lights is guaranteed even as against hostile State enact­
ments. But freedom to enjoy those rights free of racial dis­
crimination is secured also where no State law compels or author­
izes the interference, indeed, even where State law prohibits it. Cf.



6

of the Act in terms dealt only with conduct taken 
“under color” of State law (e.g., §2, now 18 U.S.C. 
242), it is arguable that the more sweeping outlawry 
of discriminations based on race invoked here was not 
similarly confined. That would not be inconsistent 
with other civil rights legislation of the period.3 
Moreover, one need not judge the matter entirely 
from the limited viewpoint of 1866. Because the cen­
tral preoccupation of that time was to combat clas­
sical State action in the form of the Black Codes,4 
it was natural for the Congress to focus its remedy 
on those who would enforce or invoke those hostile 
laws. The reenactment of the statute in 1870,5 in 
changed circumstances, may well have had a broader 
objective. At that point- the Nation was concerned 
with unofficial action and it is reasonable to suppose
Monroe v. Pape, 365 U.S. 167. This reading is, of course, con­
sistent with the Revision of 1874 which deleted the quoted phrase, 
presumably as surplusage. See R.S. § 1978.

3 Thus, while Sections 2 and 3 of the Enforcement Act of 
May 31, 1870 (16 Stat. 140) reached only officers, Section 4 
(invalidated in United States v. Reese, 92 U.S. 214), Section
5 (invalidated in James v. Boivman, 190 U.S. 127), and Section
6 (now 18 U.S.C. 241), reached private conspiracies as well. So 
it is with the Ku Klux Act of April 20, 1871 (17 Stat. 13): 
Section 1 (now 42 U.S.C. 1983) reached only acts done “under 
color” of State law, but Section 2 (the criminal portion of 
which was declared unconstitutional in United States v. Harris, 
106 U.S. 629, and Baldwin v. Franks, 120 U.S. 678, the civil 
provision surviving as 42 U.S.C. 1985) encompassed private 
conspiracies. And the pattern is the same in the Act of March 
1, 1875 (18 Stat. 335) : Sections 1 and 2 (invalidated in the 
Civil Rights Cases, 109 U.S. 3) reached private action, while 
Section 4 (sustained in E x Parte Virginia, 100 U.S. 339, now 
18 U.S.C. 243) reached only officials.

4 Even then, however, there were occasional indications of a 
broader concern. See, e.gn Cong. Globe, 39th Cong., 1st Sess., 
P art 2, 1120, 1124, 1160.

5 Act of May 31, 1870, § 18, 16 Stat. 140, 144.



7

that the Congress which dealt most explicitly with 
private conspiracies (see 18 U.S.C. 241) likewise in­
tended to reach unofficial interference with the rights 
guaranteed by the provision here at issue.6 The later 
reenactment in the Revisions of 1874 and 1878 appear 
to point in the same direction.7 Thus, there may be 
sound basis for arguing that Section 1978 forbids 
private action which, in practical effect, frustrates 
the right of the Negro to live in the community of 
his choice.

In conclusion, we stress that this case does not in­
volve the validity of a single, isolated refusal to sell to 
a Negro when comparable housing in the same area is 
readily available to him. Such an individual act of dis-

6 Indeed, the decision in Hodges v. United States, 203 U.S. 1, 
seems to so assume with respect to the rights guaranteed by 
Section 1977, the companion provision also derived from Sec­
tion 1 of the Act of 1866. The holding tha t Congress cannot 
constitutionally reach an unofficial conspiracy interfering with 
the exercise of the right to contract has been qualified by recent 
decisions. See, also, the dictum  of Mr. Justice Bradley, on cir­
cuit, in United States v. Oruikshank, 1 Woods 308, 319, 25 Fed. 
Cas. 707, 712, in which he apparently construes Section 1978, 
together with 18 U.S.C. 241, as protecting the right of a Negro 
to lease a farm against the interference of a wholly private con­
spiracy of hostile whites.

7 Between 1870 and 1878, Congress had twice more addressed 
itself to private action interfering with the exercise of federal 
rights. See § 2 of the Ku Klux Act of April 20, 1871, and §§ 1 
and 2 of the Act of March 1, 1875, both discussed at n. 3, 
supra. I t  is also noteworthy that the Revised Statutes expanded 
the practical scope of both of the other surviving provisions of 
the Civil Bights Act of 1866—Section 2, the criminal provision, 
reenacted as R.S. § 5510 (now 18 U.S.C. 242); and Section 3, the 
removal provision, re-enacted as B.S. 641 (now 28 U.S.C. 1443). 
See Screws v. United States, 325 U.S. 91, 98-100, 120; Georgia v. 
Rachel, 384 U.S. 780, 788-789. Cf. United States v. Mosley, 238 
U.S. 383, 386-388.



8

crimination may well be beyond the reach of the Lqual
Protection Clause and of Section 1978. The only issue 
here is whether a discriminatory course of conduct 
which has the effect of wholly excluding Negroes from 
an entire community is not so substantial an abridg­
ment of the right to acquire property as to offend the 
statute or so like an exercise of governmental power 
as to fall under the ban of the Constitution. In our 
view, the question is substantial and merits this 
Court’s consideration.

Respectfully submitted.
R alph  S. Spritzer,

Acting Solicitor General.
.John  D oar,

Assistant Attorney General.
Louis P . Claiborne,
R ichard A. P osner,

Assistants to the Solicitor General.

October 1967.

GOVERNMENT PRINTING OFFICE: 1967