Segregation in Other Contexts
Fourteenth Amendment, Section 1:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce 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 jurisdiction the equal protection of the laws.
Buchanan v. Warley1 invalidated an ordinance that prohibited “colored people” from occupying houses in blocks where the greater number of houses were occupied by any “white person” and that prohibited “white people” from living on blocks where the greater number of houses were occupied by “colored people” . Although racially restrictive covenants do not themselves violate the Equal Protection Clause, the judicial enforcement of them, either by injunctive relief or through entertaining damage actions, does.2 Referendum passage of a constitutional amendment repealing a “fair housing” law and prohibiting further state or local action in that direction was held unconstitutional in Reitman v. Mulkey,3 though on somewhat ambiguous grounds, whereas a state constitutional requirement that decisions of local authorities to build low-rent housing projects in an area must first be submitted to referendum, although other similar decisions were not so limited, was found not to violate the Equal Protection Clause.4 Private racial discrimination in the sale or rental of housing is subject to two federal laws prohibiting most such discrimination.5 Provision of publicly assisted housing, of course, must be on a nondiscriminatory basis.6
The “separate but equal” doctrine won Supreme Court endorsement in the transportation context,7 and its passing in the education field did not long predate its demise in transportation as well.8 During the interval, the Court held invalid a state statute that permitted carriers to provide sleeping and dining cars for white persons only,9 held that a carrier’s provision of unequal, or nonexistent, first class accommodations to African Americans violated the Interstate Commerce Act,10 and voided both state-required and privately imposed segregation of the races on interstate carriers as burdens on commerce.11 Boynton v. Virginia12 voided a trespass conviction of an interstate African American bus passenger who had refused to leave a restaurant that the Court viewed as an integral part of the facilities devoted to interstate commerce and therefore subject to the Interstate Commerce Act.
In the aftermath of Brown v. Board of Education, the Court, in a lengthy series of per curiam opinions, established the invalidity of segregation in publicly provided or supported facilities and of required segregation in any facility or function.13 A municipality could not operate a racially segregated park pursuant to a will that left the property for that purpose and that specified that only white people could use the park,14 but it was permissible for the state courts to hold that the trust had failed and to imply a reverter to the decedent’s heirs.15 A municipality under court order to desegregate its publicly owned swimming pools was held to be entitled to close the pools instead, so long as it entirely ceased operation of them.16
- 245 U.S. 60 (1917). See also Harmon v. Tyler, 273 U.S. 668 (1927); Richmond v. Deans, 281 U.S. 704 (1930).
- Shelley v. Kraemer, 334 U.S. 1 (1948); Hurd v. Hodge, 334 U.S. 24 (1948); Barrows v. Jackson, 346 U.S. 249 (1953). Cf. Corrigan v. Buckley, 271 U.S. 323 (1926).
- 387 U.S. 369 (1967).
- James v. Valtierra, 402 U.S. 137 (1971). The Court did not perceive that either on its face or as applied the provision was other than racially neutral. Justices Marshall, Brennan, and Blackmun dissented. Id. at 143.
- Civil Rights Act of 1866, 14 Stat. 27, 42 U.S.C. § 1982, see Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), and Title VIII of the Civil Rights Act of 1968 (the Fair Housing Act), 82 Stat. 73, 42 U.S.C. §§ 3601 et seq.
- See Hills v. Gautreaux, 425 U.S. 284 (1976).
- Plessy v. Ferguson, 163 U.S. 537 (1896).
- Gayle v. Browder, 352 U.S. 903 (1956), aff’g 142 F. Supp. 707 (M.D. Ala.) (statute requiring segregation on buses is unconstitutional). “We have settled beyond question that no State may require racial segregation of interstate transportation facilities. . . . This question is no longer open; it is foreclosed as a litigable issue.” Bailey v. Patterson, 369 U.S. 31, 33 (1962).
- McCabe v. Atchison, T. & S.F. Ry., 235 U.S. 151 (1914).
- Mitchell v. United States, 313 U.S. 80 (1941).
- Morgan v. Virginia, 328 U.S. 373 (1946); Henderson v. United States, 339 U.S. 816 (1950).
- 364 U.S. 454 (1960).
- E.g., Mayor & City Council of Baltimore v. Dawson, 350 U.S. 877 (1955) (public beaches and bathhouses); Holmes v. City of Atlanta, 350 U.S. 879 (1955) (municipal golf courses); Muir v. Louisville Park Theatrical Ass’n, 347 U.S. 971 (1954) (city lease of park facilities); New Orleans City Park Improvement Ass’n v. Detiege, 358 U.S. 54 (1958) (public parks and golf courses); State Athletic Comm’n v. Dorsey, 359 U.S. 533 (1959) (statute requiring segregated athletic contests); Turner v. City of Memphis, 369 U.S. 350 (1962) (administrative regulation requiring segregation in airport restaurant); Schiro v. Bynum, 375 U.S. 395 (1964) (ordinance requiring segregation in municipal auditorium).
- Evans v. Newton, 382 U.S. 296 (1966). State courts had removed the city as trustee but the Court thought the city was still inextricably bound up in the operation and maintenance of the park. Justices Black, Harlan, and Stewart dissented because they thought the removal of the city as trustee removed the element of state action. Id. at 312, 315.
- Evans v. Abney, 396 U.S. 435 (1970). The Court thought that in effectuating the testator’s intent in the fashion best permitted by the Fourteenth Amendment, the state courts engaged in no action violating the Equal Protection Clause. Justices Douglas and Brennan dissented. Id. at 448, 450.
- Palmer v. Thompson, 403 U.S. 217 (1971). The Court found that there was no official encouragement of discrimination through the act of closing the pools and that inasmuch as both white and black citizens were deprived of the use of the pools there was no unlawful discrimination. Justices White, Brennan, and Marshall dissented, arguing that state action taken solely in opposition to desegregation was impermissible, both in defiance of the lower court order and because it penalized black citizens for asserting their rights. Id. at 240. Justice Douglas also dissented. Id. at 231.
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