ADICKES V. S. H. KRESS & CO., 398 U. S. 144 (1970)
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U.S. Supreme Court
Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970)
Adickes v. S. H. Kress & Co.
No. 79
Argued November 12, 1969
Decided June 1, 1970
398 U.S. 144
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Syllabus
Petitioner is a white school teacher who was refused service in respondent's lunchroom when she was accompanied by six Negro students, and who was arrested for vagrancy by the Hattiesburg, Mississippi, police when she left respondent's premises. She filed a complaint in the Federal District Court to recover damages alleging deprivation of her right under the Equal Protection Clause not to be discriminated against on the basis of race. The complaint had two counts, each based on 42 U.S.C. § 1983: (1) that she had been refused service because she was a "Caucasian in the company of Negroes" (under which she sought to prove that the refusal to serve her was pursuant to a "custom of the community to segregate races in public eating places") and (2) that the refusal of service and the arrest were the product of a conspiracy between respondent and the police (under which she alleged that the policeman who arrested her was in the store at the time of the refusal of service). The District Court ruled that, to recover under the first count, petitioner would have to prove a specific "custom of refusing service to whites who were in the company of Negroes" that was "enforced by the State" under its criminal trespass statute. The court directed a verdict for respondent on this count because petitioner failed to prove other instances of whites having been refused service while in company of Negroes in Hattiesburg. The Court of Appeals affirmed, holding that § 1983 requires the discriminatory custom be proved to exist in the locale where the discrimination took place and in the State generally, and that petitioner's proof was deficient on both points. The second count was dismissed before trial by the District Court on a motion for summary judgment, since petitioner "failed to allege any facts from which a conspiracy might be inferred." The Court of Appeals affirmed this determination.
Held:
1. The District Court, on the basis of this record, erred in granting summary judgment on the conspiracy count. Pp. 398 U. S. 149-161.
(a) The involvement of a policeman, a state official, whether or not his actions were lawful or authorized, in the alleged conspiracy would plainly provide the state action needed to show a direct violation of petitioner's Fourteenth Amendment rights entitling her to relief under § 1983, and private persons involved in such a conspiracy are acting "under color" of law, and can be liable under § 1983. Pp. 398 U. S. 150-152.
(b) Respondent did not carry out its burden, as the party moving for summary judgment of showing the absence of a genuine issue as to any material fact, as it did not foreclose the possibility that there was a policeman in the store while the petitioner was awaiting service (from which the jury could infer an understanding between the officer and an employee of respondent that petitioner not be served), and its failure to meet that burden requires reversal. Pp. 398 U. S. 153-159.
(c) Because respondent failed to meet its initial burden as the party moving for summary judgment, petitioner was not required to come forward with suitable opposing affidavits under Fed.Rule Civ.Proc. 56(e). Pp. 398 U. S. 159-161.
2. Petitioner will have established a claim under § 1983 for violation of her equal protection rights if she proves that she was refused service by respondent because of a state-enforced custom requiring racial segregation in Hattiesburg restaurants. Pp. 398 U. S. 161-174.
(a) Based upon the language of the statute legislative history, and judicial decisions, the words "under color of a . . . custom or usage, of [a] State," in § 1983, mean that the "custom or usage" must have the force of law by virtue of the persistent practices of state officials. Pp. 398 U. S. 162-169.
(b) Petitioner would have shown an abridgment of her constitutional right of equal protection if she proved that respondent refused her service because of a state-enforced custom of racial segregation in public restaurants. Pp. 398 U. S. 169-171.
(c) The District Court erred in its implicit assumption that a custom can have the force of law only if it is enforced by a state statute. Pp. 398 U. S. 171-172.
(d) The District Court's ruling that proving a "custom" in this case required demonstrating a specific practice of not serving white persons in the company of Negroes in public restaurants was too narrow as the relevant inquiry is whether there was a longstanding and still prevailing state-enforced custom of segregating the races in public eating places. P. 398 U. S. 173.
(e) The courts below erred in suggesting that the custom must exist throughout the State, as a custom with the force of law in a political subdivision can offend the Fourteenth Amendment even though it lacks state-wide application. P. 398 U. S. 173.
409 F.2d 121, reversed and remanded.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Petitioner, Sandra Adickes, a white school teacher from New York, brought this suit in the United States District Court for the Southern District of New York against respondent S. H. Kress & Co. ("Kress") to recover damages under 42 U.S.C. § 1983 [Footnote 1] for an alleged violation of her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment. The suit arises out of Kress' refusal to serve lunch to Miss Adickes at its restaurant facilities in its Hattiesburg, Mississippi, store on August 14, 1964, and Miss Adickes' subsequent arrest upon her departure from the store by the Hattiesburg police on a charge of vagrancy. At the time of both the refusal to serve and the arrest, Miss Adickes was with six young people, all Negroes, who were her students in a Mississippi "Freedom School" where she was
teaching that summer. Unlike Miss Adickes, the students were offered service, and were not arrested.
Petitioner's complaint had two counts, [Footnote 2] each bottomed on § 1983, and each alleging that Kress had deprived her of the right under the Equal Protection Clause of the Fourteenth Amendment not to be discriminated against on the basis of race. The first count charged that Miss Adickes had been refused service by Kress because she was a "Caucasian in the company of Negroes." Petitioner sought, inter alia, to prove that the refusal to serve her was pursuant to a "custom of the community to segregate the races in public eating places." However, in a pretrial decision, 252 F.Supp. 140 (1966), the District Court ruled that, to recover under this count, Miss Adickes would have to prove that, at the time she was refused service, there was a specific "custom . . . of refusing service to whites in the company of Negroes," and that this custom was "enforced by the State" under Mississippi's criminal trespass statute. [Footnote 3] Because petitioner was unable to prove at the trial that there were other instances in Hattiesburg of a white person having been refused service while in the company of Negroes,
the District Court directed a verdict in favor of respondent. A divided panel of the Court of Appeals affirmed on this ground, also holding that § 1983
"requires that the discriminatory custom or usage be proved to exist in the locale where the discrimination took place, and in the State generally,"
and that petitioner's "proof on both points was deficient," 409 F.2d 121, 124 (1968).
The second count of her complaint, alleging that both the refusal of service and her subsequent arrest were the product of a conspiracy between Kress and the Hattiesburg police, was dismissed before trial on a motion for summary judgment. The District Court ruled that petitioner had "failed to allege any facts from which a conspiracy might be inferred." 252 F.Supp. at 144. This determination was unanimously affirmed by the Court of Appeals, 409 F.2d 126-127.
Miss Adickes, in seeking review here, claims that the District Court erred both in directing a verdict on the substantive count, and in granting summary judgment on the conspiracy count. Last Term we granted certiorari, 394 U.S. 1011 (1969), and we now reverse and remand for further proceedings on each of the two counts.
As explained in 398 U. S. because the respondent failed to show the absence of any disputed material fact, we think the District Court erred in granting summary judgment. With respect to the substantive count, for reasons explained in 398 U. S. we think petitioner will have made out a claim under § 1983 for violation of her equal protection rights if she proves that she was refused service by Kress because of a state-enforced custom requiring racial segregation in Hattiesburg restaurants. We think the courts below erred (1) in assuming that the only proof relevant to showing that a custom was state-enforced related to the Mississippi criminal trespass statute; (2) in defining the relevant
state-enforced custom as requiring proof of a practice both in Hattiesburg and throughout Mississippi, of refusing to serve white persons in the company of Negroes, rather than simply proof of state-enforced segregation of the races in Hattiesburg restaurants.
I
Briefly stated, the conspiracy count of petitioner's complaint made the following allegations: while serving as a volunteer teacher at a "Freedom School" for Negro children in Hattiesburg, Mississippi, petitioner went with six of her students to the Hattiesburg Public Library at about noon on August 14, 1964. The librarian refused to allow the Negro students to use the library, and asked them to leave. Because they did not leave, the librarian called the Hattiesburg chief of police, who told petitioner and her students that the library was closed, and ordered them to leave. From the library, petitioner and the students proceeded to respondent's store, where they wished to eat lunch. According to the complaint, after the group sat down to eat, a policeman came into the store "and observed [Miss Adickes] in the company of the Negro students." A waitress then came to the booth where petitioner was sitting, took the orders of the Negro students, but refused to serve petitioner because she was a white person "in the company of Negroes." The complaint goes on to allege that, after this refusal of service, petitioner and her students left the Kress store. When the group reached the sidewalk outside the store, "the Officer of the Law who had previously entered [the] store" arrested petitioner on a groundless charge of vagrancy and took her into custody.
On the basis of these underlying facts, petitioner alleged that Kress and the Hattiesburg police had conspired (1) "to deprive [her] of her right to enjoy equal treatment and service in a place of public accommodation";
and (2) to cause her arrest "on the false charge of vagrancy."
A. CONSPIRACIES BETWEEN PUBLIC OFFICIALS AND
PRIVATE PERSONS -- GOVERNING PRINCIPLES
The terms of § 1983 make plain two elements that are necessary for recovery. First, the plaintiff must prove that the defendant has deprived him of a right secured by the "Constitution and laws" of the United States. Second, the plaintiff must show that the defendant deprived him of this constitutional right "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." This second element requires that the plaintiff show that the defendant acted "under color of law." [Footnote 4]
As noted earlier, we read both counts of petitioner's complaint to allege discrimination based on race in violation of petitioner's equal protection rights. [Footnote 5] Few principles
of law are more firmly stitched into our constitutional fabric than the proposition that a State must not discriminate against a person because of his race
or the race of his companions, or in any way act to compel or encourage racial segregation. [Footnote 6] Although this is a lawsuit against a private party, not the State or one of its officials, our cases make clear that petitioner will have made out a violation of her Fourteenth Amendment rights and will be entitled to relief under § 1983 if she can prove that a Kress employee, in the course of employment, and a Hattiesburg policeman somehow reached an understanding to deny Miss Adickes service in the Kress store, or to cause her subsequent arrest because she was a white person in the company of Negroes.
The involvement of a state official in such a conspiracy plainly provides the state action essential to show a direct violation of petitioner's Fourteenth Amendment equal protection rights, whether or not the actions of the police were officially authorized, or lawful; Monroe v. Pape, 365 U. S. 167 (1961); see United States v. Classic, 313 U. S. 299, 313 U. S. 326 (1941); Screws v. United States, 325 U. S. 91, 325 U. S. 107-111 (1945); Williams v. United States, 341 U. S. 97, 341 U. S. 99-100 (1951). Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under § 1983.
"Private persons, jointly engaged with state officials in the prohibited action, are acting 'under color' of law for purposes of the statute. To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents,"
United States v. Price, 383 U. S. 787, 383 U. S. 794 (1966). [Footnote 7]
SUMMARY JUDGMENT
We now proceed to consider whether the District Court erred in granting summary judgment on the conspiracy count. In granting respondent's motion, the District Court simply stated that there was
"no evidence in the complaint or in the affidavits and other papers from which a 'reasonably minded person' might draw an inference of conspiracy,"
252 F.Supp. at 144, aff'd, 409 F.2d 126-127. Our own scrutiny of the factual allegations of petitioner's complaint, as well as the material found in the affidavits and depositions presented by Kress to the District Court, however, convinces us that summary judgment was improper here, for we think respondent failed to carry its burden of showing the absence of any genuine issue of fact. Before explaining why this is so, it is useful to state the factual arguments, made by the parties concerning summary judgment, and the reasoning of the courts below.
In moving for summary judgment, Kress argued that "uncontested facts" established that no conspiracy existed between any Kress employee and the police. To support this assertion, Kress pointed first to the statements in the deposition of the store manager (Mr. Powell) that (a) he had not communicated with the police, [Footnote 8] and that (b) he had, by a prearranged tacit
signal, [Footnote 9] ordered the food counter supervisor to see that Miss Adickes was refused service only because he was fearful of a riot in the store by customers angered at seeing a "mixed group" of whites and blacks eating together. [Footnote 10] Kress also relied on affidavits from the Hattiesburg
chief of police, [Footnote 11] and the two arresting officers, [Footnote 12] to the effect that store manager Powell had not requested that petitioner be arrested. Finally, Kress pointed to the statements in petitioner's own deposition that she had no knowledge of any communication between any Kress employee and any member of the Hattiesburg police, and was relying on circumstantial evidence to support her
contention that there was an arrangement between Kress and the police.
Petitioner, in opposing summary judgment, pointed out that respondent had failed in its moving papers to dispute the allegation in petitioner's complaint, a statement at her deposition, [Footnote 13] and an unsworn statement by a Kress employee, [Footnote 14] all to the effect that there was a policeman in the store at the time of the refusal to serve her, and that this was the policeman who subsequently
arrested her. Petitioner argued that, although she had no knowledge of an agreement between Kress and the police, the sequence of events created a substantial enough possibility of a conspiracy to allow her to proceed to trial, especially given the fact that the noncircumstantial evidence of the conspiracy could only come from adverse witnesses. Further, she submitted an affidavit specifically disputing the manager's assertion that the situation in the store at the time of the refusal was "explosive," thus creating an issue of fact as to what his motives might have been in ordering the refusal of service.
We think that, on the basis of this record, it was error to grant summary judgment. As the moving party, respondent had the burden of showing the absence of a genuine issue as to any material fact, and, for these purposes, the material it lodged must be viewed in the light most favorable to the opposing party. [Footnote 15] Respondent here did not carry its burden, because of its failure to foreclose the possibility that there was a policeman in the Kress store while petitioner was awaiting service, and that this policeman reached an understanding with some Kress employee that petitioner not be served.
It is true that Mr. Powell, the store manager, claimed in his deposition that he had not seen or communicated with a policeman prior to his tacit signal to Miss Baggett, the supervisor of the food counter. But respondent did not submit any affidavits from Miss Baggett, [Footnote 16] or from
Miss Freeman, [Footnote 17] the waitress who actually refused petitioner service, either of whom might well have seen and communicated with a policeman in the store. Further, we find it particularly noteworthy that the two officers involved in the arrest each failed in his affidavit to foreclose the possibility (1) that he was in the store while petitioner was there; and (2) that, upon seeing petitioner with Negroes, he communicated his disapproval to a Kress employee, thereby influencing the decision not to serve petitioner.
Given these unexplained gaps in the materials submitted by respondent, we conclude that respondent failed to fulfill its initial burden of demonstrating what is a critical element in this aspect of the case -- that there was no policeman in the store. If a policeman were present, we think it would be open to a jury, in light of the sequence that followed, to infer from the circumstances that the policeman and a Kress employee had a "meeting of the minds," and thus reached an understanding that petitioner should be refused service. Because,
"[o]n summary judgment, the inferences to be drawn from the underlying facts contained in [the moving party's] materials must be viewed in the light
most favorable to the party opposing the motion,"
United States v. Diebold, Inc., 369 U. S. 654, 369 U. S. 655 (1962), we think respondent's failure to show there was no policeman in the store requires reversal.
Pointing to Rule 56(e), as amended in 1963, [Footnote 18] respondent argues that it was incumbent on petitioner to come forward with an affidavit properly asserting the presence of the policeman in the store, if she were to rely on that fact to avoid summary judgment. Respondent notes in this regard that none of the materials upon which petitioner relied met the requirements of Rule 56(e). [Footnote 19]
This argument does not withstand scrutiny, however, for both the commentary on and background of the 1963 amendment conclusively show that it was not intended to modify the burden of the moving party under Rule 56(c) to show initially the absence of a genuine issue concerning any material fact. [Footnote 20] The Advisory Committee
note on the amendment states that the changes were not designed to "affect the ordinary standards applicable to the summary judgment." And, in a comment directed specifically to a contention like respondent's, the Committee stated that,
"[w]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter s presented. [Footnote 21]"
Because respondent did not meet its initial burden of establishing the absence of a policeman in the store, petitioner here was not required to come forward with suitable opposing affidavits. [Footnote 22]
If respondent had met its initial burden by, for example, submitting affidavits from the policemen denying their presence in the store at the time in question, Rule 56(e) would then have required petitioner to have done more than simply rely on the contrary allegation in her complaint. To have avoided conceding this fact for purposes of summary judgment, petitioner would have had to come forward with either (1) the affidavit of someone who saw the policeman in the store or (2) an affidavit under Rule 56(f) explaining why at that time it was impractical to do so. Even though not essential here to defeat
respondent's motion, the submission of such an affidavit would have been the preferable course for petitioner's counsel to have followed. As one commentator has said:
"It has always been perilous for the opposing party neither to proffer any countering evidentiary materials nor file a 56(f) affidavit. And the peril rightly continues [after the amendment to Rule 56(e)]. Yet the party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden, then he is not entitled to judgment. No defense to an insufficient showing is required."
6 J. Moore, Federal Practice ¦ 56.22 [2], pp. 2824-2825 (2d ed.1966).
II
There remains to be discussed the substantive count of petitioner's complaint, and the showing necessary for petitioner to prove that respondent refused her service "under color of any . . . custom, or usage, of [the] State" in violation of her rights under the Equal Protection Clause of the Fourteenth Amendment. [Footnote 23]
A. CUSTOM OR USAGE
We are first confronted with the issue of whether a "custom" for purposes of § 1983 must have the force of law, or whether, as argued in dissent, no state involvement is required. Although this Court has never explicitly decided this question, we do not interpret the statute against an amorphous backdrop.
What is now 42 U.S.C. § 1983 came into existence as § 1 of the Ku Klux Klan Act of April 20, 1871, 17 Stat. 13. The Chairman of the House Select Committee which drafted this legislation described [Footnote 24] § 1 as modeled after § 2 of the Civil Rights Act of 1866 -- a criminal provision that also contained language that forbade certain acts by any person "under color of any law, statute, ordinance, regulation, or custom," 14 Stat. 27. In the Civil Rights Cases, 109 U. S. 3, 109 U. S. 16 (1883), the Court said of this 1866 statute:
"This law is clearly corrective in its
character, intended to counteract and furnish redress against State laws and proceedings, and customs having the force of law, which sanction the wrongful acts specified."
(Emphasis added.) Moreover, after an exhaustive examination of the legislative history of the 1866 Act, both the majority and dissenting opinions [Footnote 25] in Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968), concluded that § 2 of the 1866 Civil Rights Act was intended to be limited to "deprivations perpetrated under color of law.'" [Footnote 26] (Emphasis added.)
Quite apart from this Court's construction of the identical "under color of" provision of § 2 of the 1866 Act, the legislative history of § 1 of the 1871 Act, the lineal ancestor of § 1983, also indicates that the provision in question here was intended to encompass only conduct supported by state action. That such a limitation was intended for § 1 can be seen from an examination of the statements and actions of both the supporters and opponents of the Ku Klux Klan Act.
In first reporting the Committee's recommendations to the House, Representative Shellabarger, the Chairman of the House Select Committee which drafted the Ku Klux Klan Act, said that § 1 was,
"in its terms, carefully confined to giving a civil action for such wrongs against citizenship as are done under color of State laws which abridge these rights. [Footnote 27]"
(Emphasis added.) Senator Edmunds, Chairman of the Senate Committee on the Judiciary and also a supporter of the bill, said of this provision:
"The first section is one that I believe nobody objects to, as defining the rights secured by the Constitution of the United States when they are assailed by any State law or under color of any State law, and it is merely carrying out the principles of the civil rights bill, which have since become a part of the Constitution. [Footnote 28]"
(Emphasis added.) Thus, in each House, the leader of those favoring the bill expressly stated his understanding that § 1 was limited to deprivations of rights done under color of law.
That Congress intended to limit the scope of § 1 to actions taken under color of law is further seen by contrasting its legislative history with that of other sections of the same Act. On the one hand, there was comparatively little debate over § 1 of the Ku Klux Klan Act, and it was eventually enacted in form identical to that, in which it was introduced in the House. [Footnote 29] Its history thus stands in sharp contrast to that of other sections
of the Act. [Footnote 30] For example, § 2 of the 1871 Act, [Footnote 31] a provision aimed at private conspiracies with no "under color of law" requirement, created a great storm of controversy, in part because it was thought to encompass private conduct. Senator Thurman, for example, one of the leaders of the opposition to the Act, although objecting to § 1 on other grounds, admitted its constitutionality [Footnote 32] and characterized it as "refer[ring] to a deprivation under color of law, either statute law or custom or usage' which has become common law." [Footnote 33] (Emphasis added.) This same Senator insisted vociferously on the absence of congressional power under § 5 of the Fourteenth
Amendment to penalize a conspiracy of private individuals to violate state law. [Footnote 34] The comparative lack of controversy concerning § 1, in the context of the heated debate over the other provisions, suggests that the opponents of the Act, with minor exceptions, like its proponents, understood § 1 to be limited to conduct under color of law.
In addition to the legislative history, there exists an unbroken line of decisions, extending back many years, in which this Court has declared that action "under color of law" is a predicate for a cause of action under § 1983, [Footnote 35] or its criminal counterpart, 18 U.S.C. § 242. [Footnote 36] Moreover, with the possible exception of an exceedingly opaque district court opinion, [Footnote 37] every lower court opinion of which we are aware that has considered the issue has concluded that a "custom or usage," for purposes, of § 1983 requires state involvement, and is not simply a practice that reflects longstanding social habits, generally
observed by the people in a locality. [Footnote 38] Finally, the language of the statute itself points in the same direction, for it expressly requires that the "custom or usage" be that "of any state," not simply of the people living in a state. In sum, against this background, we think it clear that a "custom, or usage, of [a] State" for purposes of § 1983 must have the force of law by virtue of the persistent practices of state officials.
Congress included customs and usages within its definition of law in § 1983 because of the persistent and widespread discriminatory practices of state officials in some areas of the post-bellum South. As Representative Garfield said:
"[E]ven where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them. [Footnote 39]"
Although not authorized by written law, such
practices of state officials could well be so permanent and well settled as to constitute a "custom or usage" with the force of law.
This interpretation of custom recognizes that settled practices of state officials may, by imposing sanctions or withholding benefits, transform private predilections into compulsory rules of behavior no less than legislative pronouncements. If authority be needed for this truism, it can be found in Nashville, C. & St. L.R. Co. v. Browning, 310 U. S. 362 (1940), where the Court held that, although a statutory provision suggested a different note, the "law" in Tennessee as established by longstanding practice of state officials was that railroads and public utilities were taxed at full cash value. What Justice Frankfurter wrote there seems equally apt here:
"It would be a narrow conception of jurisprudence to confine the notion of 'laws' to what is found written on the statute books, and to disregard the gloss which life has written upon it. Settled state practice . . . can establish what is state law. The Equal Protection Clause did not write an empty formalism into the Constitution. Deeply embedded traditional ways of carrying out state policy, such as those of which petitioner complains, are often tougher and truer law than the dead words of the written text."
Id. at 310 U. S. 369.
And in circumstances more closely analogous to the case at hand, the statements of the chief of police and mayor of New Orleans, as interpreted by the Court
in Lombard v. Louisiana, 373 U. S. 267 (1963), could well have been taken by restaurant proprietors as articulating a custom having the force of law. Cf. Garner v. Louisiana, 368 U. S. 157, 368 U. S. 176-185 (DOUGLAS, J., concurring) (1961); Wright v. Georgia, 373 U. S. 284 (1963); Baldwin v. Morgan, 287 F.2d 750, 754 (C.A. 5th Cir.1961).
B. STATE ACTION -- 14TH AMENDMENT VIOLATION
For petitioner to recover under the substantive count of her complaint, she must show a deprivation of a right guaranteed to her by the Equal Protection Clause of the Fourteenth Amendment. Since the "action inhibited by the first section of the Fourteenth Amendment is only such action as may fairly be said to be that of the States," Shelley v. Kraemer, 334 U. S. 1, 334 U. S. 13 (1948), we must decide, for purposes of this case, the following "state action" issue: is there sufficient state action to prove a violation of petitioner's Fourteenth Amendment rights if she shows that Kress refused her service because of a state-enforced custom compelling segregation of the races in Hattiesburg restaurants?
In analyzing this problem, it is useful to state two polar propositions, each of which is easily identified and resolved. On the one hand, the Fourteenth Amendment plainly prohibits a State itself from discriminating because of race. On the other hand, § 1 of the Fourteenth Amendment does not forbid a private party, not acting against a backdrop of state compulsion or involvement, to discriminate on the basis of race in his personal affairs as an expression of his own personal predilections. As was said in Shelley v. Kraemer, supra, § 1 of "[t]hat Amendment erects no shield against merely private conduct, however discriminatory or wrongful." 334 U.S. at 334 U. S. 13.
At what point between these two extremes a State's involvement in the refusal becomes sufficient to make the private refusal to serve a violation of the Fourteenth Amendment is far from clear under our case law. If a State had a law requiring a private person to refuse service because of race, it is clear beyond dispute that the law would violate the Fourteenth Amendment, and could be declared invalid and enjoined from enforcement. Nor can a State enforce such a law requiring discrimination through either convictions of proprietors who refuse to discriminate, or trespass prosecutions of patrons who, after being denied service pursuant to such a law, refuse to honor a request to leave the premises. [Footnote 40]
The question most relevant for this case, however, is a slightly different one. It is whether the decision of an owner of a restaurant to discriminate on the basis of race under the compulsion of state law offends the Fourteenth Amendment. Although this Court has not explicitly decided the Fourteenth Amendment state action issue implicit in this question, underlying the Court's decisions in the sit-in cases is the notion that a State is responsible for the discriminatory act of a private party when the State, by its law, has compelled the act. As the Court said in Peterson v. City of Greenville, 373 U. S. 244, 373 U. S. 248 (1963):
"When the State has commanded a particular result, it has saved to itself the power to determine that result, and thereby, 'to a significant extent' has 'become involved' in it."
Moreover, there is much support in lower court opinions for the conclusion that discriminatory acts by private parties done under the compulsion of state law offend the Fourteenth
Amendment. In Baldwin v. Morgan, supra, the Fifth Circuit held that
"[t]he very act of posting and maintaining separate [waiting room] facilities when done by the [railroad] Terminal as commanded by these state orders is action by the state."
The Court then went on to say:
"As we have pointed out above, the State may not use race or color as the basis for distinction. It may not do so by direct action or through the medium of others who are under State compulsion to do so."
Id. at 755-756 (emphasis added). We think the same principle governs here.
For state action purposes, it makes no difference, of course, whether the racially discriminatory act by the private party is compelled by a statutory provision or by a custom having the force of law -- in either case, it is the State that has commanded the result by its law. Without deciding whether less substantial involvement of a State might satisfy the state action requirement of the Fourteenth Amendment, we conclude that petitioner would show an abridgment of her equal protection right if she proves that Kress refused her service because of a state-enforced custom of segregating the races in public restaurants.
C. THREE ADDITIONAL POINTS
For purposes of remand, we consider it appropriate to make three additional points.
First, the District Court's pretrial opinion seems to suggest that the exclusive means available to petitioner for demonstrating that state enforcement of the custom relevant here would be by showing that the State used its criminal trespass statute for this purpose. We disagree with the District Court's implicit assumption that a custom can have the force of law only if it is enforced
by a state statute. [Footnote 41] Any such limitation is too restrictive, for a state official might act to give a custom the force of law in a variety of ways, at least two examples of which are suggested by the record here. For one thing, petitioner may be able to show that the police subjected her to false arrest for vagrancy for the purpose of harassing and punishing her for attempting to eat with black people. [Footnote 42] Alternatively, it might be shown on remand that the Hattiesburg police would intentionally tolerate violence or threats of violence directed toward those who violated the practice of segregating the races at restaurants. [Footnote 43]
Second, we think the District Court was wrong in ruling that the only proof relevant to showing a custom in this case was that demonstrating a specific practice of not serving white persons who were in the company of black persons in public restaurants. As Judge Waterman pointed out in his dissent below, petitioner could not possibly prove a "long and unvarying" habit of serving only the black persons in a "mixed" party of whites and blacks for the simple reason that "it was only after the Civil Rights Act of 1964 became law that Afro-Americans had an opportunity to be served in Mississippi white' restaurants" at all, 409 F.2d 128. Like Judge Waterman, we think the District Court viewed the matter too narrowly, for under petitioner's complaint the relevant inquiry is whether, at the time of the episode in question, there was a longstanding and still prevailing state-enforced custom of segregating the races in public eating places. Such a custom, of course, would perforce encompass the particular kind of refusal to serve challenged in this case.
Third, both the District Court and the majority opinion in the Court of Appeals suggested that petitioner would have to show that the relevant custom existed throughout the State, and that proof that it had the force of law in Hattiesburg -- a political subdivision of the State -- was insufficient. This too we think was error. In the same way that a law whose source is a town ordinance can offend the Fourteenth Amendment even though it has less than state-wide application, so too can a custom with the force of law in a political subdivision of a State offend the Fourteenth Amendment even though it lacks state-wide application.
In summary, if petitioner can show (1) the existence of a state-enforced custom of segregating the races in public eating places in Hattiesburg at the time of the incident
in question; and (2) that Kress' refusal to serve her was motivated by that state-enforced custom, she will have made out a claim under § 1083. [Footnote 44]
For the foregoing reasons, we think petitioner is entitled to a new trial on the substantive count of her complaint.
The judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE MARSHALL took no part in the decision of this case.
Rev.Stat. § 1979 42 U.S.C. § 1983 provides:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
The District Court denied petitioner's request to amend her complaint to include a third count seeking liquidated damages under §§ 1 and 2 of the Civil Rights Act of 1875, 18 Stat. 335. Although, in her certiorari petition, petitioner challenged this ruling, and asked this Court to revive this statute by overruling the holding in the Civil Rights Cases, 109 U. S. 3 (1883), examination of the record shows that petitioner never raised any issue concerning the 1875 statute before the Court of Appeals. Accordingly, the Second Circuit did not rule on these contentions. Where issues are neither raised before nor considered by the Court of Appeals, this Court will not ordinarily consider them. Lawn v. United States, 355 U. S. 339, 355 U. S. 362-363, n. 16 (1958); Husty v. United States, 282 U. S. 694, 282 U. S. 701-702 (1931); Duignan v. United States, 274 U. S. 195, 274 U. S. 200 (1927). We decline to do so here.
The statute, Miss.Code Ann. § 2046.5 (1956), inter alia, gives the owners, managers, or employees of business establishments the right to choose customers by refusing service.
See, e.g., Monroe v. Pape, 365 U. S. 167, 365 U. S. 184, 365 U. S. 187 (1961); United States v. Price, 383 U. S. 787, 383 U. S. 793, 383 U. S. 794 (1966).
The first count of petitioner's complaint alleges that Kress' refusal to serve petitioner
"deprived [her] of the privilege of equal enjoyment of a place of public accommodation by reason of her association with Negroes and [she] was thereby discriminated against because of race in violation of the Constitution of the United States and of Title 42 United States Code, Section 1983."
(App. 4.) (Emphasis added.) The conspiracy count alleges, inter alia, that Kress and the Hattiesburg police "conspired together to deprive plaintiff of her right to enjoy equal treatment and service in a place of public accommodation."
The language of the complaint might, if read generously, support the contention that petitioner was alleging a violation of Title II, the Public Accommodations provisions, of the 1964 Civil Rights Act, 78 Stat. 243, 42 U.S.C. § 2000a. It is clear, and respondent seemingly concedes, that its refusal to serve petitioner was a violation of § 201 of the 1964 Act, 42 U.S.C. § 2000a. It is very doubtful, however, that Kress' violation of Miss Adickes' rights under the Public Accommodations Title could properly serve as a basis for recovery under § 1983. Congress deliberately provided no damages remedy in the Public Accommodations Act itself, and § 207(b) provides that the injunction remedy of § 206 was the "exclusive means of enforcing the rights based on this title." Moreover, the legislative history makes quite plain that Congress did not intend that violations of the Public Accommodations Title be enforced through the damages provisions of § 1983. See 110 Cong.Rec. 9767 (remark of floor manager that the language of 207(b) "is necessary because otherwise it . . . would result . . . in civil liability for damages under 42 U.S.C. § 1983"); see also 110 Cong.Rec. 7384, 7405.
In United States v. Johnson, 390 U. S. 563 (1968), the Court held that violations of § 203(b) of the Public Accommodations Title could serve as the basis for criminal prosecution under 18 U.S.C. § 241 (another civil rights statute) against "outsiders," having no relation to owners and proprietors of places of public accommodations, notwithstanding the "exclusive" remedy provision of § 207(b). It is doubtful whether the Johnson reasoning would allow recovery under § 1983 for Kress' alleged violation of § 201, and indeed the petitioner does not otherwise contend. The Court, in Johnson, in holding that the § 207(b) limitation did not apply to violations of § 203, stated:
"[T]he exclusive remedy provision of § 207(b) was inserted only to make clear that the substantive rights to public accommodation defined in § 201 and § 202 are to be enforced exclusively by injunction."
390 U.S. at 390 U. S. 567.
In any event, we think it clear that there can be recovery under § 1983 for conduct that violates the Fourteenth Amendment, even though the same conduct might also violate the Public Accommodations Title, which itself neither provides a damages remedy nor can be the basis of a § 1983 action. Section 207(b) of the Public Accommodations Title expressly provides that nothing in that title
"shall preclude any individual . . . from asserting any right based on any other Federal or State law not inconsistent with this title . . . or from pursuing any remedy, civil or criminal, which may be available for the vindication or enforcement of such right."
Therefore, quite apart from whether § 207 precludes enforcement of one's rights under the Public Accommodations Title through a damages action under 42 U.S.C. § 1983, we think it evident that enforcement of one's constitutional rights under § 1983 is not "inconsistent" with the Public Accommodations Act.
E.g., Brown v. Board of Education, 347 U. S. 483 (1954); cf. Barrows v. Jackson, 346 U. S. 249 (1953).
Although Price concerned a criminal prosecution involving 18 U.S.C. § 242, we have previously held that "under color of law" means the same thing for § 1983. Monroe v. Pape, supra, at 365 U. S. 185 (majority opinion), 365 U. S. 212 (opinion of Frankfurter, J.); United States v. Price, supra, at 383 U. S. 794 n. 7.
In his deposition, Powell admitted knowing Hugh Herring, chief of police of Hattiesburg, and said that he had seen and talked to him on two occasions in 1964 prior to the incident with Miss Adickes. (App. 123-126.) When asked how often the arresting officer, Ralph Hillman, came into the store, Powell stated that he didn't know precisely, but "Maybe every day." However, Powell said that, on August 14, he didn't recall seeing any policemen either inside or outside the store (App. 136), and he denied (1) that he had called the police, (2) that he had agreed with any public official to deny Miss Adickes the use of the library, (3) that he had agreed with any public official to refuse Miss Adickes service in the Kress store on the day in question, or (4) that he had asked any public official to have Miss Adickes arrested. App. 154-155.
The signal, according to Powell, was a nod of his head. Powell claimed that, at a meeting about a month earlier with Miss Baggett, the food counter supervisor, he
"told her not to serve the white person in the group if I shook my head no, but, if I didn't give her any sign, to go ahead and serve anybody."
App. 135.
Powell stated that he had prearranged this tacit signal with Miss Baggett because "there was quite a lot of violence . . . in Hattiesburg" directed towards whites "with colored people, in what you call a mixed group." App. 131.
Powell described the circumstances of his refusal as follows:
"On this particular day, just shortly after 12 o'clock, I estimate there was 75 to 100 people in the store, and the lunch counter was pretty -- was pretty well to capacity there, full, and I was going up towards the front of the store in one of the aisles, and looking towards the front of the store, and there was a group of colored girls, and a white woman who came into the north door, which was next to the lunch counter."
"And the one thing that really stopped me and called my attention to this group was the fact that they were dressed alike. They all had on what looked like a light blue denim skirt. And the best I can remember is that they were -- they were almost identical, all of them. And they came into the door, and people coming in stopped to look, and they went on to the booths. And there happened to be two empty there. And one group of them and the white woman sat down in one, and the rest of them sat in the second group."
"And almost immediately there -- I mean this, it didn't take just a few seconds from the time they came into the door to sit down, but already the people began to mill around the store and started coming over towards the lunch counter. And by that time, I was up close to the candy counter, and I had a wide open view there. And the people had real sour looks on their faces, nobody was joking, or being corny, or carrying on. They looked like a frightened mob. They really did. I have seen mobs before. I was in Korea during the riots in 1954 and 1955. And I know what they are. And this actually got me."
"I looked out towards the front, and we have what they call see-through windows. There is no backs to them. You can look out of the store right into the street. And the north window, it looks right into the lunch counter. 25 or 30 people were standing there looking in, and across the street even, in a jewelry store, people were standing there, and it looked really bad to me. It looked like one person could have yelled 'Lets get them,' which has happened before, and cause this group to turn into a mob. And, so, quickly I just made up my mind to avoid the riot, and protect the people that were in the store, and my employees, as far as the people in the mob who were going to get hurt themselves. I just knew that something was going to break loose there."
App. 133-134.
The affidavit of the chief of police, who it appears was not present at the arrest, states in relevant part:
"Mr. Powell had made no request of me to arrest Miss Sandra Adickes or any other person; in fact, I did not know Mr. Powell personally until the day of this statement. [But cf. Powell's statement at his deposition, n 8, supra.] Mr. Powell and I had not discussed the arrest of this person until the day of this statement, and we had never previously discussed her in any way."
(App. 107.)
The affidavits of Sergeant Boone and Officer Hillman each state, in identical language:
"I was contacted on this date by Mr. John H. Williams, Jr., a representative of Genesco, owners of S. H. Kress and Company, who requested that I make a statement concerning alleged conspiracy in connection with the aforesaid arrest."
"This arrest was made on the public streets of Hattiesburg, Mississippi, and was an officer's discretion arrest. I had not consulted with Mr. G. T. Powell, Manager of S. H. Kress and Company in Hattiesburg, and did not know his name until this date. No one at the Kress store asked that the arrest be made, and I did not consult with anyone prior to the arrest."
(App. 110, 112.)
When asked whether she saw any policeman in the store up to the time of the refusal of service, Miss Adickes answered: "My back was to the door, but one of my students saw a policeman come in." (App. 75.) She went on to identify the student as "Carolyn." At the trial, Carolyn Moncure, one of the students who was with petitioner, testified that, "about five minutes" after the group had sat down and while they were still waiting for service, she saw a policeman come in the store. She stated:
"[H]e came in the store, my face was facing the front of the store, and he came in the store and he passed, and he stopped right at the end of our booth, and he stood up and he looked around and he smiled, and he went to the back of the store, he came right back and he left out."
(App. 32.) This testimony was corroborated by that of Dianne Moncure, Carolyn's sister, who was also part of the group. She testified that, while the group was waiting for service, a policeman entered the store, stood "for awhile" looking at the group, and then "walked to the back of the store." (App. 291.)
During discovery, respondent gave to petitioner an unsworn statement by Miss Irene Sullivan, a check-out girl. In this statement, Miss Sullivan said that she had seen Patrolman Hillman come into the store "[s]hortly after 12:00 noon," while petitioner's group was in the store. She said that he had traded a "hello greeting" with her, and then walked past her check-out counter toward the back of the store "out of [her] line of vision." She went on:
"A few minutes later, Patrolman Hillman left our store by the northerly front door just slightly ahead of a group composed of several Negroes accompanied by a white woman. As Hillman stepped onto the sidewalk outside our store, the police car pulled across the street and into an alley that is alongside our store. The police car stopped and Patrolman Hillman escorted the white woman away from the Negroes and into the police car."
(App. 178.)
See, e.g., United States v. Diebold, Inc., 369 U. S. 654, 369 U. S. 655 (1962); 6 J. Moore, Federal Practice 56.15[3] (2d ed.1966).
In a supplemental brief filed in this Court, respondent lodged a copy of an unsworn statement by Miss Baggett denying any contact with the police on the day in question. Apart from the fact that the statement is unsworn, see Fed.Rule Civ.Proc. 56(e), the statement itself is not in the record of the proceedings below, and therefore could not have been considered by the trial court. Manifestly, it cannot be properly considered by us in the disposition of the case.
During discovery, petitioner attempted to depose Miss Baggett. However, Kress successfully resisted this by convincing the District Court that Miss Baggett was not a "managing agent," and "was without power to make managerial decisions."
The record does contain an unsworn statement by Miss Freeman in which she states that she "did not contact the police or ask anyone else to contact the police to make the arrest which subsequently occurred." (App. 177) (Emphasis added.) This statement, being unsworn, does not meet the requirements of Fed.Rule Civ.Proc. 56(e), and was not relied on by respondent in moving for summary judgment. Moreover, it does not foreclose the possibility that Miss Freeman was influenced in her refusal to serve Miss Adickes by some contact with a policeman present in the store.
The amendment added the following to Rule 56(e):
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment if appropriate shall be entered against him."
Petitioner's statement at her deposition, see n 13, supra, was, of course, hearsay; and the statement of Miss Sullivan, see n 14, supra, was unsworn. And, the rule specifies that reliance on allegation in the complaint is not sufficient. See Fed.Rule Civ.Proc. 56(e).
The purpose of the 1963 amendment was to overturn a line of cases, primarily in the Third Circuit, that had held that a party opposing summary judgment could successfully create a dispute as to a material fact asserted in an affidavit by the moving party simply by relying on a contrary allegation in a well pleaded complaint. E.g., Frederick Hart & Co. v. Recordgraph Corp., 169 F.2d 580 (1948); United States ex rel. Kolton v. Halpern, 260 F.2d 590 (1958). See Advisory Committee Note on 1963 Amendment to subdivision (e) of Rule 56.
Ibid. (emphasis added).
In First National Bank v. Cities Service, 391 U. S. 253 (1968), the petitioner claimed that the lower courts had misapplied Rule 56(e) to shift the burden imposed by Rule 56(c). In rejecting this contention, we said:
"Essentially all that the lower courts held in this case was that Rule 56(e) placed upon [petitioner] the burden of producing evidence of the conspiracy he alleged only after respondent . . . conclusively showed that the facts upon which he relied to support his allegation were not susceptible of the interpretation which he sought to give them."
Id. at 391 U. S. 289 (Emphasis added.) In this case, on the other hand, we hold that respondent failed to show conclusively that a fact alleged by petitioner was "not susceptible" of an interpretation that might give rise to an inference of conspiracy.
Petitioner also appears to argue that, quite apart from custom, she was refused service under color of the state trespass statute, supra, n 2. It should be noted, however, that this trespass statute, by its terms, does not compel segregation of the races. Although such a trespass statute might well have invalid applications if used to compel segregation of the races through state trespass convictions, see Robinson v. Florida, 378 U. S. 153 (1964), the statute here was not so used in this case. Miss Adickes, although refused service, was not asked to leave the store, and was not arrested for a trespass arising from a refusal to leave pursuant to this statute. The majority below, because it thought the code provision merely restated the common law "allowing [restauranteurs] to serve whomever they wished," 409 F.2d 126, concluded that a private discrimination on the basis of race pursuant to this provision would not fulfill the "state action" requirement necessary to show a violation of the Fourteenth Amendment. Judge Waterman, in dissent, argued that the statute changed the common law, and operated to encourage racial discrimination.
Because a factual predicate for statutory relief under § 1983 has not yet been established below, we think it inappropriate in the present posture of this case to decide the constitutional issue of whether or not proof that a private person knowingly discriminated on the basis of race pursuant to a state trespass statute like the one involved here would make out a violation of the Fourteenth Amendment. Whatever else may also be necessary to show that a person has acted "under color of [a] statute" for purposes of § 1983, see n 44, infra we think it essential that he act with the knowledge of and pursuant to that statute. The courts below have made no factual determinations concerning whether or not the Kress refusal to serve Miss Adickes was the result of action by a Kress employee who had knowledge of the trespass statute, and who was acting pursuant to it.
Cong.Globe, 42d Cong., 1st Sess., App. 68 (statement by Rep. Shellabarger).
392 U.S. at 392 U. S. 424-426 (majority opinion); id. at 392 U. S. 454-473 (HARLAN, J., dissenting).
Id. at 392 U. S. 426. In arguing that § 1 of the 1866 Act (the predecessor of what is now 42 U.S.C. § 1982) was meant to cover private, as well as governmental, interference with certain rights, the Court in Jones said:
"Indeed, if § 1 had been intended to grant nothing more than an immunity from governmental interference, then much of § 2 would have made no sense at all. For that section, which provided fines and prison terms for certain individuals who deprived others of rights 'secured or protected' by § 1, was carefully drafted to exempt private violations of § 1 from the criminal sanctions it imposed. . . . Hence, the structure of the 1866 Act, as well as its language, points to the conclusion . . . [that] only those deprivations perpetrated 'under color of law' were to be criminally punishable under § 2."
Id. 392 U. S. 424-426. The Court in Jones cited the legislative history of § 2 to support its conclusion that the section "was carefully drafted to exempt private violations" and punish only "governmental interference." Id. at 392 U. S. 424-425 and n. 33.
Cong.Globe, 42d Cong., 1st Sess., App. 68.
Id. at 568 (emphasis added), quoted in Monroe v. Pape, supra, at 365 U. S. 171; see also Cong.Globe, supra, at App. 79 (Rep. A. Perry) (§ 1 understood to remedy injuries done "under color of State authority").
Compare id. at App. 68 with 17 Stat. 13. See id. at 568; App. 153-154 (Rep. Garfield).
Throughout the debates, for example, "moderates" who expressed no opposition to § 1 objected to other proposals that they saw as allowing the Federal Government to take over the State's traditional role of punishing unlawful conduct of private parties. See, e.g., id. at 578-579 (Sen. Trumbull, the author of the 1866 Act); 514 (Rep. Poland); App. 53 (Rep. Garfield).
Section 2 of the Ku Klux Klan Act is as amended, 42 U.S.C. § 1985(3). In Collins v. Hardyman, 341 U. S. 651 (1951), in order to avoid deciding whether there was congressional power to allow a civil remedy for purely private conspiracies, the Court in effect interpreted § 1985(3) to require action under color of law even though this element is not found in the express terms of the statute. In a dissent joined by MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS, Mr. Justice Burton said of § 1985(3):
"The language of the statute refutes the suggestion that action under color of state law is a necessary ingredient of the cause of action which it recognizes. . . . When Congress, at this period, did intend to limit comparable civil rights legislation to action under color of state law, it said so in unmistakable terms,"
citing and quoting what is now § 1983. Id. at 341 U. S. 663-664. Without intimating any view concerning the correctness of the Court's interpretation of § 1985(3) in Collins, we agree with the dissenters in that case that Congress, in enacting what is now § 1983, "said . . . in unmistakable terms" that action under color of law is necessary.
Cong.Globe, supra, at App. 216.
Id. at App. 217; see also id. at App. 268 (Rep. Sloss).
Id. at App. 218.
E.g., Pierson v. Ray, 386 U. S. 547, 386 U. S. 554 (1967); Monroe v. Pape, supra; Smith v. Allwright, 321 U. S. 649 (1944).
United States v. Price, 383 U. S. 787, 383 U. S. 794 n. 7 (1966); Williams v. United States, supra; Screws v. United States, supra, at 325 U. S. 109; United States v. Classic, supra, at 313 U. S. 326-329. Section 242 of 18 U.S.C. is the direct descendant of § 2 of the 1866 Civil Rights Act. See n 26, supra.
In Gannon v. Action, 303 F.Supp. 1240 (D.C.E.D. Mo.1969), the opinion, on the one hand, said that "Section 1983 . . . requires that the action for which redress is sought be under color' of state law." It then went on to decide that the defendants under color of a "custom of [sic] usage of the State of Missouri . . . [of] undisturbed worship by its citizens according to the dictates of their consciences" entered a St. Louis cathedral, disrupted a service, and thus
"deprived plaintiffs of their constitutional rights of freedom of assembly, speech, and worship, and to use and enjoy their property, all in violation of section 1983,"
id. at 1245. See 23 Vand.L.Rev. 413, 419-420 (1970).
Williams v. Howard Johnson's, Inc., 323 F.2d 102 (C.A.4th Cir.1963); Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 363, 293 F.2d 835 840 (1961) ("As to the argument based upon the custom or usage' language of the statute we join with the unanimous decision of the Fourth Circuit in. support of the proposition that -- `The customs of the people of a state do not constitute state action within the prohibition of the Fourteenth Amendment,'" quoting from Williams v. Howard Johnson's Restaurant, 268 F.2d 845, 848 (C.A.4th Cir.1959)), and 110 U.S.App.D.C. at 367-368, 293 F.2d 844-845 (Bazelon, J., dissenting); see Slack v. Atlantic White Tower System, 181 F.Supp. 124, 127-128, 130 (D.C. Md.), aff'd, 284 F.2d 746 (C.A.4th Cir.1960).
It should also be noted that the dissenting opinion below thought a "custom or usage" had to have the force of law. 409 F.2d 128.
Cong.Globe, 42d Cong., 1st Sess., App. 153. MR. JUSTICE BRENNAN, post at 398 U. S. 219, 398 U. S. 230, infers from this statement that Rep. Garfield thought § 1983 was meant to provide a remedy in circumstances where the State had failed to take affirmative action to prevent widespread private discrimination. Such a reading of the statement is too broad, however. All Rep. Garfield said was that a State, through the practices of its officials, could deny a person equal protection of the laws by the "systematic maladministration" of, or "a neglect or refusal to enforce" written laws that were "just and equal on their face." Official inaction in the sense of neglecting to enforce laws already on the books is quite different from the inaction implicit in the failure to enact corrective legislation.
E.g., Peterson v. City of Greenville, 373 U. S. 244 (1963); Robinson v. Florida, 378 U. S. 153 (1964); see Lombard v. Louisiana, 373 U. S. 267 (1963); Shuttlesworth v. Birmingham, 373 U. S. 262 (1963).
Because it thought petitioner had failed to prove the existence of a custom, the majority of the Second Circuit explicitly refused to decide whether petitioner had to prove "the custom or usage was enforced by a state statute," 409 F.2d 125.
Together with some other civil rights workers also being prosecuted on vagrancy charges, Miss Adickes, in a separate action, removed the state vagrancy prosecution against her to a federal court on the ground that the arrest and prosecution were in retaliation for her attempt to exercise her rights under the Public Accommodations Title of the 1964 Civil Rights Act. The District Court remanded the charge to the state courts, but the Fifth Circuit reversed, finding that
"[t]he utter baselessness of any conceivable contention that the vagrancy statutes prohibited any conduct in which these persons were engaged merely buttresses the undisputed evidence before the trial court when the order of remand was entered that these protected acts [i.e., 'attempts to enjoy equal public accommodations in the Hattiesburg City Library, and a restaurant in the nationally known Kress store'] constituted the conduct for which they were then and there being arrested."
Achtenberg v. Mississippi, 393 F.2d 468, 474 (C.A. 5th Cir.1968). Although one judge dissented on the ground that Miss Adickes' case was not properly removable under Georgia v. Rachel, 384 U. S. 780 (1966), he too thought that the "vagrancy charges against Miss Adickes were shown to be baseless and an unsophisticated subterfuge," id. at 475.
See n 10, supra.
Any notion that a private person is necessarily immune from liability under § 1983 because of the "under color of" requirement of the statute was put to rest by our holding in United States v. Price, supra, see n 7, supra. There, in the context of a conspiracy, the Court said:
"To act 'under color' of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State . . ."
id. at 383 U. S. 794. Because the core of congressional concern in enacting § 1983 was to provide a remedy for violations of the Equal Protection Clause arising from racial discrimination, we think that a private person who discriminates on the basis of race with the knowledge of and pursuant to a state-enforced custom requiring such discrimination is a "participant in joint activity with the State," and is acting "under color of" that custom for purposes of § 1983.
We intimate no views concerning the relief that might be appropriate if a violation is shown. See Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 370-371 293 F.2d 835, 847-848 (1961) (Bazelon, J., dissenting). The parties have not briefed these remedial issues, and if a violation is proved they are best explored in the first instance below in light of the new record that will be developed on remand. Nor do we mean to determine at this juncture whether there are any defenses available to defendants in § 1983 actions like the one at hand. Cf. Pierson v. Ray, 386 U. S. 547 (1967).
MR. JUSTICE BLACK, concurring in the judgment.
The petitioner, Sandra Adickes, brought suit against the respondent, S. H. Kress & Co., to recover damages for alleged violations of 42 U.S.C. § 1983. In one count of her complaint, she alleged that a police officer of the City of Hattiesburg, Mississippi, had conspired with employees of Kress to deprive her of rights secured by the Constitution, and that this joint action of a state official and private individuals was sufficient to constitute a violation of § 1983. She further alleged in another count that Kress' refusal to serve her while she was in the company of Negroes was action "under color of" a custom of refusing to serve Negroes and whites together in Mississippi, and that this action was a violation of § 1983. The trial judge granted a motion for summary judgment in favor of Kress on the conspiracy allegation and, after full presentation of evidence by the petitioner, granted a motion for a directed verdict in favor of the respondent on the custom allegation. Both decisions rested on conclusions that there were no issues of fact supported by sufficient evidence to require a jury trial. I think the trial court and the Court of Appeals which affirmed were wrong in allowing summary judgment on the conspiracy allegation. And -- assuming for present purposes that the trial court's statutory interpretation concerning "custom or usage" was correct -- it was also error to direct a verdict on that count. In my judgment, on this record, petitioner should have been permitted to have the jury consider both her claims.
Summary judgments may be granted only when
"the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact. . . ."
Fed.Rule Civ.Proc. 56(c). Petitioner in this case alleged that she went into Kress in the company of Negroes
and that the waitress refused to serve her, stating "[w]e have to serve the colored, but we are not going to serve the whites that come in with them." Petitioner then alleged that she left the store with her friends and as soon as she stepped outside a policeman arrested her and charged her with vagrancy. On the basis of these facts she argued that there was a conspiracy between the store and the officer to deprive her of federally protected rights. The store filed affidavits denying any such conspiracy and the trial court granted the motion for summary judgment, concluding that petitioner had not alleged any basic facts sufficient to support a finding of conspiracy.
The existence or nonexistence of a conspiracy is essentially a factual issue that the jury, not the trial judge, should decide. In this case, petitioner may have had to prove her case by impeaching the store's witnesses and appealing to the jury to disbelieve all that they said was true in the affidavits. The right to confront, cross-examine and impeach adverse witnesses is one of the most fundamental rights sought to be preserved by the Seventh Amendment provision for jury trials in civil cases. The advantages of trial before a live jury with live witnesses, and all the possibilities of considering the human factors, should not be eliminated by substituting trial by affidavit and the sterile bareness of summary judgment.
"It is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of 'even handed justice.'"
Poller v. Columbia Broadcasting, 368 U. S. 464, 368 U. S. 473 (1962).
Second, it was error for the trial judge to direct a verdict in favor of the respondent on the "custom"
count. The trial judge surveyed the evidence and concluded that it was insufficient to prove the existence of a custom of not serving white people in the company of Negroes. He thereupon took the case away from the jury, directing a verdict for the respondent. The Court of Appeals affirmed this conclusion. In my opinion this was clear error.
Petitioner testified at trial as follows:
"Q. Did you have occasion to know of specific instances where white persons in the company of Negroes were discriminated against? A. Yes."
"Q. How many such instances can you recall? A. I can think of about three at the moment."
"Q. Will you describe the three instances to us? A. I know that people were turned away from a white church, an integrated group was turned away from a white church in Hattiesburg. I was not present, but this was explained to me. I saw a rabbi being beaten because he was in the company of Negroes."
"Q. This was a white rabbi? A. Yes. And people were turned away from a drug store in Hattiesburg, an integrated group. I don't remember the name of the drug store."
"Q. On the basis of what you studied and on the basis of what you observed, and on the basis of your conversations with other persons there, did you come to a conclusion with regard to the custom and usage with regard to the white community towards serving persons, white persons, in the company of Negroes? A. Yes."
"Q. What was that conclusion? A. The conclusion was that white persons it was a custom and usage not to serve white persons in the company of Negroes.
This evidence, although weakened by the cross-examination, was sufficient, I think, to require the court to let the case go to the jury and secure petitioner's constitutionally guaranteed right to a trial by that jury. See Galloway v. United States, 319 U. S. 372, 319 U. S. 396 (1943) (BLACK, J., dissenting)."
I do not find it necessary at this time to pass on the validity of the statutory provision concerning "custom or usage" or on the trial court's views, concurred in by the Court of Appeals, on the proper interpretation of that term. Assuming that the trial court's interpretation was correct and that the provision as so interpreted is valid, there was enough evidence in this record to warrant submitting the entire question of custom or usage to the jury in accordance with instructions framed to reflect those views.
For the foregoing reasons, I concur in the judgment reversing the Court of Appeals and remanding for a new trial on both counts.
MR. JUSTICE DOUGLAS, dissenting in part.
I
The statutory words "under color of any statute, ordinance, regulation, custom, or usage, of any State," 42 U.S.C. § 1983, are seriously emasculated by today's ruling. Custom, it is said, must have "the force of law"; and "law," as I read the opinion, is used in the Hamiltonian sense. [Footnote 2/1]
The Court requires state involvement in the enforcement of a "custom" before that "custom" can be actionable under 42 U.S.C. § 1983. That means, according to the Court, that "custom" for the purposes of § 1983 "must have the force of law by virtue of the persistent practices of state officials." That construction of § 1983 is, to borrow a phrase from the first Mr. Justice Harlan, "too narrow and artificial." Civil Rights Cases, 109 U. S. 3, 109 U. S. 26 (dissenting opinion).
Section 1983, by its terms, protects all "rights" that are "secured by the Constitution and laws" of the United States. There is no more basic "right" than the exemption from discrimination on account of race -- an exemption that stems not only from the Equal Protection Clause of the Fourteenth Amendment, but also from the Thirteenth Amendment and from a myriad of "laws" enacted by Congress. And, so far as § 1983 is concerned, it is sufficient that the deprivation of that right be "under color" of "any . . . custom . . . of any State." The "custom," to be actionable, must obviously reflect more than the prejudices of a few; it must reflect the dominant communal sentiment.
II
The "custom . . . of any State" can, of course, include the predominant attitude backed by some direct or indirect sanctions inscribed in law books. Thus, in Garner v. Louisiana, 368 U. S. 157, another restaurant case involving racial discrimination, there was no state law or municipal ordinance that, in terms, required segregation of the races in restaurants. But segregation was basic to the structure of Louisiana as a community, as revealed by a mosaic of laws. Id. at 368 U. S. 179-181 (concurring opinion).
The same is true of Mississippi in the present case.
In 1964, at the time of the discrimination perpetrated in this case, there were numerous Mississippi laws that were designed to continue a regime of segregation of
the races. The state legislature had passed a resolution condemning this Court's Brown v. Board of Education decisions, 347 U. S. 347 U.S. 483, 349 U. S. 349 U.S. 294, as "unconstitutional" infringements on States' rights. Miss.Laws 1956, c. 466, Senate Concurrent Resolution No. 125. Part of the Mississippi program to perpetuate the segregated way of life was the State Sovereignty Commission, Miss.Code Ann. § 9028-31 et seq. (1956), of which the Governor was chairman and which was charged with the duty
"to do and perform any and all acts and things deemed necessary and proper to protect the sovereignty of the State of Mississippi . . . from encroachment thereon by the Federal Government. . . ."
Id. § 9028-35. Miss.Code Ann. § 4065.3 (1956) required
"the entire executive branch of the government of the State of Mississippi . . . to prohibit by any lawful, peaceful, and constitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government. . . ."
Every word and deed of a state officer, agent, or employee that was connected with maintaining segregated schools in Mississippi was deemed to be "the sovereign act . . . of the sovereign State of Mississippi." Id. § 4065.4 (Supp. 1968). It was unlawful for a white student to attend any school of high school or lower level that was also attended by Negro students. Id. § 6220.5. Separate junior college districts were established for blacks and whites. Id. § 6475-14 (1952). The Ellisville State School for the feeble-minded was required to provide for separate maintenance of blacks and whites. Id. § 6766. The State Insane Hospital was required to keep the two races separate, id. § 6883, as was the South Mississippi Charity Hospital. Id. § 6927. Separate entrances were required to be maintained at state hospitals
for black and white patients. Id. § 6973. It was the responsibility of those in authority to furnish a sufficient number of Negro nurses to attend Negro patients, but the Negro nurses were to be under the supervision of white supervisors. Id. § 6974. It was unlawful for Negro and white convicts to be confined or worked together. Id. § 7913 (1956). County sheriffs were required to maintain segregated rooms in the jails. Id. § 4259. It was unlawful for taxicab drivers to carry black and white passengers together. Id. § 3499. Railroad depots in cities of 3,000 or more inhabitants were required to have separate "closets" for blacks and whites. Id. § 7848. And it was a crime to overthrow the segregation laws of the State. Id. § 2056(7).
The situation was thus similar to that which existed in Garner. Although there was no law that, in terms required segregation of the races in restaurants, it was plain that the discrimination was perpetrated pursuant to a deeply entrenched custom in Louisiana that was "at least as powerful as any law." Garner v. Louisiana, supra, at 368 U. S. 181 (concurring opinion); cf. Robinson v. Florida, 378 U. S. 153, 378 U. S. 156.
III
The "custom . . . of any State," however, can be much more pervasive. It includes the unwritten commitment, stronger than ordinances, statutes, and regulation, by which men live and arrange their lives. Bronislaw Malinowski, the famed anthropologist, in speaking of the "cake of custom" of a Melanesian community "safeguarding life, property and personality" said: [Footnote 2/2]
"There is no religious sanction to these rules, no fear, superstitious or rational, enforces them, no
tribal punishment visits their breach, nor even the stigma of public opinion or moral blame. The forces which make these rules binding we shall lay bare and find them not simple, but clearly definable, not to be described by one word or one concept, but very real nonetheless. The binding forces of Melanesian civil law are to be found in the concatenation of the obligations, in the fact that they are arranged into chains of mutual services, a give and take extending over long periods of time and covering wide aspects of interest and activity. To this there is added the conspicuous and ceremonial manner in which most of the legal obligations have to be discharged. This binds people by an appeal to their vanity and self-regard, to their love of self-enhancement by display. Thus, the binding force of these rules is due to the natural mental trend of self-interest, ambition and vanity, set into play by a special social mechanism into which the obligatory actions are framed."
This concept of "custom" is, I think, universal, and as relevant here as elsewhere. It makes apparent that our problem under 42 U.S.C. § 1983 does not make our sole aim the search for "state action" in the Hamiltonian sense of "law."
That restricted kind of a search certainly is not compelled by grammar. "Of" is a word of many meanings, one of which indicates "the thing or person whence anything originates, comes, is acquired or sought." 7 Oxford English Dictionary (definition III). The words "under color of any . . . custom . . . of any State" do no more than describe the geographical area or political entity in which the "custom" originates and where it is found.
The philosophy of the Black Codes reached much further than the sanctions actually prescribed in them. Federal judges, who entered the early school desegregation
decrees, often felt the ostracism of the community, though the local "law" never even purported to place penalties on judges for doing such acts. Forty years ago in Washington, D.C. a black who was found after the sun set in the northwest section of the District on or above Chevy Chase Circle was arrested, though his only "crime" was waiting for a bus to take him home after caddying at a plush golf course in the environs. There was no "law" sanctioning such an arrest. It was done "under color" of a "custom" of the Nation's Capital.
Harry Golden [Footnote 2/3] recently wrote:
"Southerners drew a line and prohibited Negroes crossing it. They doomed themselves to a lifetime of guarding that line, fearing it would be breached. Because the white Southerner must forever watch that line, the Negro intrudes upon the white at every level of life."
Is not the maintenance of that line by habit a "custom?"
Title 42 U.S.C. § 1983 was derived from § 1 of the "Ku Klux Klan Act" of 1871, 17 Stat. 13. The "under color of" provisions of § 1 of the 1871 Act, in turn, were derived from § 2 of the Civil Rights Act of 1866, 14 Stat. 27. The meaning of "under color of . . . custom" in the context of the 1866 Act is therefore relevant to the meaning of that phrase as it is used in § 1983, for, as the Court states, the "under color of" provisions mean the same thing for § 1983 as they do for 18 U.S.C. § 242, the direct descendant of § 2 of the 1866 Act. [Footnote 2/4] Ante at 398 U. S. 152 n. 7.
A "custom" of the community or State was one of the targets of the Civil Rights Act of 1866. Section 1, which we upheld in Jones v. Alfred H. Mayer Co., 392 U. S. 409, provided a civil remedy for specified private acts of racial discrimination. Section 2 of that Act provided criminal sanctions for acts done "under color of any" custom of a State. A Congress that, in 1866, was not bent only on "the nullification of racist laws," id. at 392 U. S. 429, was not restricting itself strictly to state action; it was out to ban racial discrimination partly as respects private actions, partly under state law in the Hamiltonian sense, and partly under the color of "custom."
Of course, § 2 of the 1866 Act did not cover purely private actions as did § 1 of the Act, and that was the point of our discussion of § 2 in Jones v. Alfred H. Mayer Co. But the Court does not come to grips with the fact that actions taken "under color of any . . . custom" were covered by § 2 of the 1866 Act quite apart from
actions taken under "color of any statute, ordinance, [or] regulation" -- in other words, quite apart from actions taken under "color of law" in the traditional sense. Instead, the Court seems to divide all actions into two groups -- those constituting "state action" and those constituting purely "private action" -- with coverage of § 2 limited to the former. While § 2 did not reach "private violations," it did reach discrimination based on "color of custom," which is far beyond the realm of a mere private predilection or prejudice. And, despite the Court's suggestion to the contrary, the use of the term "under color of law" by the Court in Jones v. Alfred H. Mayer Co. was merely a shorthand reference for all the "under color of" provisions in § 2, and had no relevance to the specific problem of defining the meaning of "under color of . . . custom." [Footnote 2/5]
Section 2, like § 1, involved in Jones v. Alfred H. Mayer Co., was bottomed on the Thirteenth Amendment, for it was enacted before the Fourteenth Amendment was adopted. As we stated in Jones v. Alfred H. Mayer Co.:
"Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the
authority to translate that determination into effective legislation."
Id. at 392 U. S. 440.
While the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment are each protective of the individual as against "state" action, the guarantees of the Thirteenth Amendment and various laws of the United States are not so restricted. And § 1983 protects not only Fourteenth Amendment rights, but "any rights . . . secured by the Constitution and laws." With regard to § 1983's scope of protection for violations of these rights, Congress in § 1983 aimed partly at "state" action and it was with that aspect of it that we were concerned in Monroe v. Pape, 365 U. S. 167.
If the wrong done to the individual was under "color" of "custom" alone, the ingredients of the cause of action were satisfied. [Footnote 2/6] The adoption of the Fourteenth Amendment
expanded the substantive rights covered by § 1 of the 1871 Act vis-a-vis those covered by § 2 of the 1866 Act. But that expanded coverage did not make "state action" a necessary ingredient in all of the remedial provisions of § 1 of the 1871 Act. Neither all of § 1 of the 1871 Act nor all of its successor, § 1983, was intended to be conditioned by the need for "state" complicity.
Moreover, a majority of the Court held in United States v. Guest, 383 U. S. 745, 383 U. S. 761, 383 U. S. 774, 383 U. S. 782 and n. 6, that § 5 of the Fourteenth Amendment enables Congress to punish interferences with constitutional rights "whether or not state officers or others acting under the color of state law are implicated." Id. at 383 U. S. 782. There, the statute involved (18 U.S.C. § 241) proscribed all conspiracies to impair any right "secured" by the Constitution. A majority agreed that, in order for a conspiracy to qualify it need not involve any "state" action. By the same reasoning the "custom . . . of any State" as used in § 1983 need not involve official state development, maintenance, or participation. The reach of § 1983 is constitutional rights, including those under the Fourteenth Amendment; and Congress rightfully was concerned with their full protection, whoever might be the instigator or offender.
To repeat, § 1983 was "one of the means whereby Congress exercised the power vested in it by § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment." Monroe v. Pape, supra, at 365 U. S. 171. Yet powers exercised by Congress may stem from more than one constitutional source. 17 U. S. 421; 75 U. S. 548-549; Edye v. Robertson, 112 U. S. 580, 112 U. S. 595-596; United States v. Gettysburg Electric R. Co., 160 U. S. 668, 160 U. S. 683. Moreover, § 1983 protects "any rights" that are "secured" by "the Constitution and laws"
of the United States, which makes unmistakably clear that § 1983 does not cover, reach, protect, or secure only Fourteenth Amendment rights. The Thirteenth Amendment and its enabling legislation cover a wide range of "rights" designed to rid us of all the badges of slavery. And, as I have said, the phrase "under color of any . . . custom" derives from § 2 of the 1866 Act which rested on the Thirteenth Amendment whose enforcement does not turn on "state action." [Footnote 2/7] The failure of the Court to come to face with those realities leads to the regressive decision announced today.
It is time we stopped being niggardly in construing civil rights legislation. It is time we kept up with Congress and construed its laws in the full amplitude needed to rid their enforcement of the lingering tolerance for racial discrimination that we sanction today.
The Federalist, No. 15:
"It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms."
B. Malinowski, Crime and Custom in Savage Society 66-67 (1932).
Book Guide, Boston Sunday Herald Traveler, February 22, 1970, p. 2.
Section 2 of the 1866 Act, which we discussed in Jones v. Alfred H. Mayer Co., 392 U. S. 409, 392 U. S. 424-426, made it a criminal offense for any person "under color of any law, statute, ordinance, regulation, or custom" to subject any inhabitant of "any State or Territory to the deprivation of any right secured or protected by this act." The direct descendant of § 2 is 18 U.S.C. § 242, which, in an earlier form, was before the Court in United States v. Classic, 313 U. S. 299, and Screws v. United States, 325 U. S. 91. Section 242 provides:
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both."
(Emphasis added.)
Section 1983 of 42 U.S.C. provides a civil remedy. It reads:
"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."
(Emphasis added.)
The meaning of "under color of . . . custom" was not before the Court in Jones v. Alfred H. Mayer Co., and language from the Court's opinion in that case, taken out of context, can be highly misleading. For example, the language quoted in n. 26 of the Court's opinion in this case distinguished "private violations" covered by § 1 of the 1866 Act from "deprivations perpetrated under color of law'" covered by § 2 of the Act. The Court here interprets that use of the phrase "under color of law" to exclude actions taken "under color of . . . custom" sans state action. A more realistic interpretation of the quoted language, however, is that "under color of law" was merely being used by the Court as a shorthand phrase for "under color of any statute, ordinance, regulation, custom, or usage, of any State," and that the Court, without in any way addressing the question of the meaning of "custom," was merely using the phrase to distinguish purely private violations.
The trial court restricted the evidence on custom to that which related to the specific practice of not serving white persons who were in the company of black persons in public restaurants. Such evidence was necessarily limited, as the Court points out, by the fact that it was only after the Civil Rights Act of 1964 went into effect that blacks could be served in "white' restaurants" in Mississippi at all. Although I agree with my Brother BLACK that the evidence introduced under this narrow definition of custom, as outlined in his opinion, was sufficient to require a jury trial on that question, I also agree with the Court's conclusion that the definition employed by the trial court was far too restrictive. Petitioner argued that the relevant custom was the custom against integration of the races, and that the refusal to serve a white person in the company of blacks was merely a specific manifestation of that custom. I think that petitioner's definition of custom is the correct one. There is abundant evidence in the record of a custom of racial segregation in Mississippi, and in Hattiesburg in particular. In fact, the trial judge conceded,
"I certainly don't dispute that it could be shown that there was a custom and usage of discrimination in the past. . . . It is certainly a way of life so far as the people in Mississippi were concerned."
This case concerns only the meaning of "custom . . . of any State" as those words are used in § 1983. It does not involve the question whether, under certain circumstances, "custom" can constitute state action for purposes of the Fourteenth Amendment. See Garner v. Louisiana, supra, at 368 U. S. 178-179 (concurring opinion).
MR. JUSTICE BRENNAN, concurring in part and dissenting in part.
Petitioner contends that, in 1964, respondent, while acting "under color of . . . statute" or "under color of . . . custom, or usage" of the State of Mississippi, subjected her to the deprivation of her right under the Equal Protection Clause of the Fourteenth Amendment not to be denied service in respondent's restaurant due to racial discrimination in which the State of Mississippi was involved, and that, therefore, respondent is liable to her in damages under 42 U.S.C. § 1983. To recover under 1983, petitioner must prove two separate and independent elements: first, that respondent subjected her to the
deprivation of a right "secured by the Constitution and laws"; and, second, that, while doing so, respondent acted under color of a statute, ordinance, regulation, custom, or usage of the State of Mississippi.
Whether a person suing under § 1983 must show state action in the first element -- the deprivation of a right "secured by the Constitution and laws" -- depends on the nature of the particular right asserted. For example, a person may be deprived of a right secured by the Constitution and 42 U.S.C. § 1982 by a private person acting completely independently of state government. See Jones v. Alfred H. Mayer Co., 392 U. S. 409 (1968). On the other hand, the constitutional right to equal protection of the laws, unelaborated by any statute, can be violated only by action involving a State. The discussion in United States v. Reese, 92 U. S. 214, 92 U. S. 249-252 (1876) (Hunt, J., dissenting), of various constitutional uses of the word "State" suggests that, as an original matter, "State" in the Equal Protection Clause might have been interpreted in any of several ways. Moreover, some have thought that historical evidence points to an interpretation covering some categories of state inaction in the face of wholly private conduct, see, e.g., Bell v. Maryland, 378 U. S. 226, 378 U. S. 286-316 (1964) (Goldberg, J., concurring); R. Harris, The Quest for Equality 24-56 (1960); J. tenBroek, Equal Under Law 201-239 (1965). However, our cases have held that the Equal Protection Clause applies only to action by state government or officials and those significantly involved with them. Shelley v. Kraemer, 334 U. S. 1, 334 U. S. 13 (1948); Burton v. Wilmington Parking Authority, 365 U. S. 715, 365 U. S. 721-722 (1961). Whether and when a person suing under 1983 must show state action in the second element -- action under color of a statute, ordinance, regulation, custom, or
usage of a State -- depends on an analysis of the text, legislative history, and policy of § 1983. See 398 U. S. infra. These two inquiries are wholly different, though, in particular cases, a showing of state action under one element may suffice under the other.
In the present case, petitioner alleged as the first element under § 1983 a deprivation of her right to equal protection. Therefore, under our cases, she must show state action. She asserts that there was state action in two different respects. First, she contends that there was a conspiracy between respondent and local police to discriminate against her in restaurant service because she, a white person, sought service while accompanied by Negro friends. The Court treats this aspect of her claim in 398 U. S. which I join. [Footnote 3/1] Petitioner contends, alternatively, that respondent's discrimination was authorized and encouraged by Mississippi statutes. To that contention I now turn.
I
The state action doctrine reflects the profound judgment that denials of equal treatment, and particularly denials on account of race or color, are singularly grave when government has or shares responsibility for them. Government is the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct. Therefore something is uniquely amiss in a society where the government, the authoritative oracle of community values, involves itself in racial
discrimination. Accordingly, in the cases that have come before us this Court has condemned significant state involvement in racial discrimination, however subtle and indirect it may have been and whatever form it may have taken. See, e.g., Burton v. Wilmington Parking Authority, supra; Evans v. Newton, 382 U. S. 296 (1966); Hunter v. Erickson, 393 U. S. 385 (1969). These decisions represent vigilant fidelity to the constitutional principle that no State shall in any significant way lend its authority to the sordid business of racial discrimination.
Among the state action cases that most nearly resemble the present one are the sit-in cases decided in 1963 and 1964. In Peterson v. City of Greenville, 373 U. S. 244 (1963), the petitioners were convicted of trespass for refusing to leave a lunch counter at a Kress store in South Carolina. A Greenville ordinance at that time imposed on the proprietors of restaurants the duty to segregate the races in their establishments, and there was evidence that the Kress manager was aware of the ordinance. We held that the existence of the ordinance, together with a showing that the Kress manager excluded the petitioners solely because they were Negroes, was sufficient to constitute discriminatory state action in violation of the Fourteenth Amendment:
"When the State has commanded a particular result, it has saved to itself the power to determine that result, and thereby 'to a significant extent,' has 'become involved' in it, and, in fact, has removed that decision from the sphere of private choice. . . ."
"Consequently these convictions cannot stand, even assuming as respondent contends, that the manager would have acted as he did independently of the existence of the ordinance."
373 U.S. at 373 U. S. 248.
Although the case involv