1. INTRODUCTION TO RACIAL DISCRIMINATION 2/07/08

2. Burton v. Wilmington Parking Authority (1961) ISSUE: It is a violation of the equal protection clause of the 14th amendment for the Eagle Coffee Shoppe to discriminate on the basis of race? YES HOLDING: It is a violation of the equal protection clause of the 14th amendment for a private restaurant that leases its space from a governmental entity to discriminate on the basis of race.

3. Moose Lodge #107 v. Irvis (1972) KEY TO REASONING: Does the issuance of a liquor license create sufficient state involvement in the operation of a private club to justify treating the discriminatory actions of the license holder as constituting state action under the 14 th amendment?

4. Moose Lodge #107 v. Irvis (1972) APPLICATION OF PRECEDENT CASES Civil Rights Cases holds that 14 th amendment does not apply to actions by private individuals. Burton v. Wilmington Parking Authority holds that when private businesses discriminate on property that is leased from the government, there is sufficient government involvement to make the 14 th amendment apply. How did the Justices apply these two precedents?

5. Moose Lodge #107 v. Irvis (1972) REASONING: OPINION OF THE COURT Six of the Justices (Rehnquist, Blackmun, Burger, Powell, Stewart, and White): Distinguished Burton v. Wilmington Parking Authority on the basis that: Burton involved a “public activity” (restaurant open to general public) while the Moose Lodge was a private club. Burton involved a lessor-lessee relationship, while the only connection the Moose Lodge had with the government was the issuance of the liquor license. –Granting of liquor license viewed as being similar to providing police and fire protection, rather than becoming a partner in the club’s enterprise.

6. Moose Lodge #107 v. Irvis (1972) REASONING OF DISSENTING JUSTICES : Three justices (Brennan, Douglas and Marshall) Applied rather than distinguished Burton v. Wilmington Parking Authority on the basis that: The issuance of liquor license creates state action because it involves a pervasive regulatory scheme in which the state dictates and oversees many aspects of the business. –Number and types of regulations related to liquor licenses are greater than those involved in leasing property.

7. Attitudes and Values of Judges Moose Lodge decision illustrates how much discretion Justices exercise in deciding which are the appropriate precedent cases to follow. It also illustrates the significance of the attitudes and values the Justices bring with them to the Supreme Court.

8. Burton v. Wilmington Parking Authority (1961) HOLDING: It is a violation of the equal protection clause of the 14th amendment for a private restaurant that leases its space from a governmental entity to discriminate on the basis of race.

9. Anti-Discrimination Laws Covering Private Businesses and Individuals Although the Supreme Court ruled in The Civil Rights Cases that the 14 th amendment doesn’t prohibit private individuals from discriminating, states clearly have the authority to pass statutes which do so under the “state police power” to legislate on matters that involve the “health, welfare, safety, or morals of the people.” However, since the federal government must tie its legislation to a power that is specifically delegated in the constitution.

10. The Civil Rights Cases (1883) ISSUE #1 : Does the 14th amendment authorize the federal government to enforce the public accommodations provisions of Civil Rights Act of 1875? NO (8-1) REASONING Court uses literal interpretation of 14th amendment to conclude that it is a limitation on actions of the state and does not give federal government authority to regulate actions of non- governmental activities. Enforcement clause of 14th is limited to enforcing the prohibition on state action and doesn’t apply to individuals.

11. The Civil Rights Cases (1883) ISSUE #2 : Does the 13th amendment authorize the federal government to enforce the public accommodations provisions of Civil Rights Act of 1875? NO (8-1) REASONING  Court uses literal interpretation of 13th amendment to conclude that Congress has the authority to enact laws designed to obliterate and prevent slavery, but  Concludes that discrimination in public accommodations is not a form of slavery.

12. The Civil Rights Cases (1883) DISSENT: Justice Harlan: The 14th amendment does authorize the Civil Rights Act. –The right to nondiscrimination in public accommodations is part of the privileges and immunities of citizenship protected by the 14 th –While social rights are not protected by the constitution, the rights to use accommodations of a public highway, etc. are civil rights rather than social ones.

13. The Civil Rights Cases (1883) DISSENT: Justice Harlan: 13th amendment was intended to not only abolish the institution of slavery, it was also suppose to establish civil freedom throughout the United States. Since the institution of slavery rested on the idea of an inferior race, its abolishment necessarily involves immunity from and protection against discrimination against them.

14. The Civil Rights Cases (1883) DISSENT: Justice Harlan: Congress has adequate authority to pass the Civil Rights Act as a means of enforcing the 14th amendment. –Prior to passage of 13th amendment, Supreme Court had ruled that Constitutional provision giving slave owner right to have a run-a- way slave brought back, created an implied power for Congress to pass legislation enforcing the slave owners right. If Congress was able to enforce right of private slave holder it must also have power to enforce new rights given to the former slaves. Sites Prigg v. Commonwealth of Pennsylvania for principle that clauses of the constitution that confer rights should be interpreted expansively and include remedial power adequate to protect those rights. Munn v. Illinois and Olcott v. Supervisors are sited for principle that railroads and inns have special legal status of being for public use rather than traditional private property.

15. Other Federal Anti-Discrimination Statutes Although it took almost a hundred years, Congress renewed its attempts to develop statutory protections against discrimination in the 1950’s and 60’s. See Box IV-1 E&W pp. 622-623 Note Civil Rts. Act of 1964, which prohibited racial discrimination in public accommodations which affect interstate commerce.

16. Heart of Atlanta Motel v. United States (1964) HOLDING #1 The Commerce Clause gives Congress the power to prohibit racial discrimination in public accommodations which have an effect upon interstate commerce.

17. Heart of Atlanta Motel v. U.S. (1964) REASONING ON COMMERCE CLAUSE The Civil Rights Cases are distinguished because the statute in that case was based on the 14th amendment rather than the commerce clause. The legislative record of the act in question demonstrates that discrimination in public accommodations places burdens on interstate commerce.

18. Heart of Atlanta Motel v. United States (1964) HOLDING #2 It is not a violation of the due process clause of the 5th amendment for the federal government to prohibit private individuals from discriminating in public accommodations.

19. Heart of Atlanta Motel v. U.S. (1964) REASONING ON 5 TH AMENDMENT CHALLENGE: Since Congress had a rational basis for finding that racial discrimination by motels affected commerce, the law is a reasonable and appropriate way of achieving legitimate governments goals. It is doubtful that appellants will suffer long term economic harm and even if they do suffer economic loss, that fact alone is not enough to invalidate the law.

20. Heart of Atlanta Motel v. United States (1964) HOLDING #3 It is not a violation of the 13th amendment for the federal government to prohibit private individuals from discriminating in public accommodations.

21. Heart of Atlanta Motel v. U.S. REASONING FOR 13 TH AMENDMENT CHALLENGE: There is no basis for appellants contention that forcing them to accept black visitors is equivalent to involuntary servitude under the terms of the 13th amendment.

22. Comparison of Heart of Atlanta & Katzback Cases Compare and contrast the facts of Heart of Atlanta Hotel and Katzback v. McClung. In what ways were the two cases similar? How did the two cases differ?

23. Katzback v. McClung (1964) ISSUE: Could the Civil Rights Act of 1964 be enforced against Ollie’s? YES HOLDING: The commerce Clause gives Congress the power to prohibit racial discrimination in public accommodations which utilize goods that are transported through interstate commerce.

24. Katzback v. McClung (1964) REASONING: Previous court decisions have ruled that the Commerce Clause (Art. 1, Sec. 8) gives Congress the power to not only regulate commerce among the states but to also regulate actions that have an effect upon interstate commerce. Loss of potential customers due to racial segregation has an impact on amount of food moving through interstate commerce. Existence of segregation in public accommodations negatively impacts the ability to blacks to travel and discourages them from taking jobs in areas where there is discrimination in public accommodations.

25. Statutes on Discrimination in Housing In 1968, Congress used its interstate commerce power to prohibit discrimination in the sale and rental of housing in the Civil Rights Act of 1968. That same year, in Jones v. Mayer the Supreme Court upheld the constitutionality of the old 1800s Civil Rights Act on housing based on the 13 th amendment. –Supreme Court ruled that discrimination against blacks in the sale and rental of property was a "badge and incident of slavery.“ There are also numerous state and local open housing laws.

26. Statutes on Employment Discrimination Title VII of Civil Rights Act of 1964 [See Box IV-1 p622-623] prohibits employers from discriminating on the basis of race, gender, religion, national origin, etc. In 1974 it was amended to include discrimination based on sex.