FRONTISPIECE

"It is the policy of the United States to prevent, and the right of every person to be protected against, discrimination on account of race, color, religion, or national origin in the purchase, rental, lease, financing, use and occupancy of housing throughtout the nation." H.R. 14765, S. 3296, Title IV, Section 401. "Title IV applies to all housing and prohibits discrimination on account of race, color, religion or national origion by property owners, tract developers, real estate brokers, lending institutions and all others engaged in the sale, rental or financing of housing.

"It also prohibits coercion or intimidation intended to interfere with the right of a person to obtain housing without discrimination-for example, the coercion of a mob attempting to prevent a Negro family from moving into a neighborhood. "And it prohibits retaliatory action by real estate boards or associations against real estate agents who refused to discriminate against Negroes or other persons of minority groups.

"Title IV provides a judicial remedy. An individual aggrieved by a discriminatory housing practice would be enabled to bring an action in either a Federal district court or a state or local court for injunctive relief and for any damages he may have sustained. In the court's discretion, he could also be awarded up to $500 exemplary damages.

"The title empowers the Attorney General to initiate suits in Federal courts to eliminate a 'pattern or practice' of discrimination, and to intervene in private suits brought in Federal courts.

"Title IV is based primarily on the Commerce Clause of the Constitution and on the Fourteenth Amendment. I have no doubts whatsoever as to its constitutionality.” (Italic added.)

(Statement by Attorney General Katzenbach before Subcommittee No. 5, House Committee on the Judiciary in support of H.R. 14765, May 4, 1966.) THE POWER of Congress TO PROHIBIT RACIAL DISCRIMINATION IN THE RENTAL, SALE, USE AND OCCUPANCY OF PRIVATE HOUSING

Title IV of the Administration's proposed Civil Rights Act of 1966 would prohibit discrimination on account of race, religion or national origin in the sale or rental of every house and every apartment or room in every house in the United States. The Administration's spokesmen have no doubt that constitutional bases for its proposal are to be found in the Fourteenth Amendment and the Commerce Clause. There are others, however, who have pronounced doubts about the efficacy of the one or the other of these constitutional provisions as a basis for federal legislation restricting rights which have heretofore been considered so personal and transactions which have been considered so local that no power of Congress could reach them.

Those who doubt that the Fourteenth Amendment is an adequate basis for such legislation point out that in 1883 the Court held unconstitutional some provisions in the Civil Rights Act of 1875 because they purported to prohibit privatelyowned inns, places of amusement and carriers from refusing service on account of race. The Fourteenth Amendment prohibited acts of discrimination under color of State law but not private acts of discrimination. Civil Rights Cases, 109 U.S. 3 (1883). Administration spokesmen point out that there have been hints in recent cases that the 1883 decision will be overruled and that Congress, under Section 5 of the Fourteenth Amendment, will be held to have the power to protect Fourteenth Amendment rights against any acts which interfere with them whether or not there is any color of State participation in them. E.g. United States v. Guest, 383 U.S.- (decided March 28, 1966), concurring opinion of Mr. Justice Clark and opinion, concurring in part and dissenting in part, of Mr. Justice Brennan.

Those who doubt that the Commerce Clause is an adequate basis for such legislation point out that, even in the decisions which interpret the commerce power very broadly, the Court has recognized the existence of transactions so local that they have no substantial effect upon interstate commerce and therefore cannot be reached by Congress. They argue that the selection by a home owner of the person to whom he will sell it and more especially the rental by a home owner of an apartment or room in the house he lives in are such transactions. Among the cases to which the Administration would point in refutation of this argument are Wickard v. Fillburn, 317 U.S. 111 (1945), which held that Congress could penalize a man for growing more wheat than the law allowed even though it was to be consumed on his own farm rather than sold, and Katzenbach v.

McClung, 379 U.S. 294 (1964), which held that Congress could prohibit a local barbecue stand from refusing service on account of race because some of the products it sold had moved in commerce.

The first part of this paper will deal with some of the cases most relevant to a determination of the adequacy of the Fourteenth Amendment as a basis for Title IV. The second part will deal with the scope of the power of Congress under the Commerce Clause.

The ultimate resolution of the constitutional issues raised by Title IV must of course await action by the Supreme Court. The Congress, however, has an obligation to make its own initial determination. Indeed, when Congress, in its deliberations, explores the constitutional issues thoroughly, when it sets forth in the record the facts which occasion the enactment of a law, its determination that a measure is constitutional is given great weight by the Court in its subsequent deliberations. It is hoped that this paper will have served its purpose if it describes the constitutional issues raised by Title IV as well as the principles enumerated by the Court in its earlier opinions and on which it might rely in resolving them.

THE POWER OF CONGRESS UNDER THE FOURTEENTH AMENDMENT

1

From 1883, when it decided the Civil Rights Cases, 109 U.S. 3 (1883), through March 28, 1966, when it decided United States v. Price, 383 U.S. 786, and United States v. Guest, 383 U.S. 745, the Supreme Court has consistently held that the Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals. As it stated in Shelly v. Kraemer, 334 U.S. 1, 13 (1948):

"*** 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. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful."

Most recently, in United States v. Guest, supra (decided March 28, 1966, slip opinion, p. 9), the Court said:

"It is a commonplace that rights under the Equal Protection Clause itself arise only where there has been involvement of the State or of one acting under the color of its authority. The Equal Protection Clause 'does not *** add anything to the rights which one citizen has under the Constitution against another." United States v. Cruikshank, 92 U.S. 542, 554-555. As Mr. Justice Douglas more recently put it, "The Fourteenth Amendment protects the individual against state action, not against wrongs done by individuals.” United States v. Williams, 341 U.S. 70, 92 (dissenting opinion). This has been the view of the Court from the beginning. United States v. Cruikshank, supra; United States v. Harris, 106 U.S. 629; Civil Rights Cases, 109 U.S. 3; Hodges v. United States, 203 U.S. 1; United States v. Powell, 212 U.S. 564. It remains the Court's view today. See e.g. Evans v. Newton, U.S. -; United States v. Price, 383 U.S. 786.

In the Civil Rights Cases, supra, the Court did more than hold that the Fourteenth Amendment itself did not reach an individual's acts of discrimination; it held that Congress, in the exercise of its power to enforce the Fourteenth Amendment, could not reach an individual's acts of discrimination. It held unconstitutional Sections 1 and 2 of the Civil Rights Act of 1875 (c. 114 §§ 1 & 2, 18 Stat. 335, 336) which guaranteed all persons the right to equal enjoyment of the accommodations and privileges of inns, public conveyances on land and water, theaters and other places of public amusement without regard to race or color, and punished violations of those rights. Although this case has not been overruled, that aspect of it which would deny to Congress the power to punish individuals for interfering with rights guaranteed by the Fourteenth Amendment may well be overruled as soon as the Court is presented with a case in which such a holding would be appropriate. Before discussing the separate opinions in United States v. Guest, supra, in which a "majority of the Court express the view *** that § 5 [of the Fourteenth Amendment] empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amend

1 Sections 1 and 5 of Amendment XIV provide as follows:

Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

ment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy" (United States v. Guest, supra, opinion of Mr. Justice Brennan, joined by the Chief Justice and Mr. Justice Douglas, concurring in part and dissenting in part, slip opinion, pp. 8-9), and their possible effect upon the constitutionality of Title IV, it would be well to consider the cases in which the Court has dealt with discrimination in housing.

The City of Louisville had an ordinance which prohibited Negroes from occupying residences in any block of houses predominantly occupied by white persons and which prohibited white persons from occupying residences in any block predominantly occupied by Negroes. In Buchanan v. Warley, 245 U.S. 60 (1917) the Court considered a suit for specific performance brought by a white houseowner who had contracted to sell his house to a Negro. The Negro, though willing to purchase the house, conditioned the sale upon his being permitted to occupy the house. The Court reveiwed the provisions of the Fourteenth Amendment and the statutes enacted to enforce it, then asked:

"In the light of these constitutional and statutory provisions, can a white man be denied, consistently with due process of law, the right to dispose of his property to a purchaser by prohibiting the occupation of it for the sole reason that the purchaser is a person of color intending to occupy the premises as a place of residence?" Id. at 78.

The Court answered that question in the negative and in holding the ordinance invalid it stated:

"The right which the ordinance annulled was the civil right of a white man to dispose of his property if he saw fit to do so to a person of color and of a colored person to make such disposition to a white person." Id. at 81.

It went on to say:

"It is urged that this proposed segregation will promote public peace by preventing race conflicts. Desirable as this is, and important as is the preservation of the public peace, this aim cannot be accomplished by laws or ordinances which deny rights created and protected by the Federal Constitution. Id at 81.

"We think this attempt to prevent the alienation of the property in question to a person of color was not a legitimate exercise of the police power of the State, and is in direct violation of the fundamental law enacted in the Fourteenth Amendment of the Constitution preventing state interference with property rights except by due process of law." Id. at 82.

Although the Court's holding was based upon the ordinance's violation of the due process clause by interfering with the white owner's right to sell, it should be pointed out that it also recognized the Negro's right to be free from the discriminatory operation of such ordinances, stating:

"The Fourteenth Amendment and these statutes enacted in furtherance of its purpose operate to qualify and entitle a colored man to acquire property without without state legislation discriminating against him solely because of color." Id at 79.

When "homogeneous" neighborhoods could not longer be maintained by municipal ordinances, there was a widespread resort to restrictive covenants. Real estate developers and groups of neighboring householders caused to be included in their property deeds prohibitions on sale to or occupancy by Negroes and, depending upon their particular prejudices, by Jews, Catholics, Orientals, Mexicans, or Arabs, as well. The users of such covenants were given aid and comfort by the Supreme Court when it held that the covenants themselves did not violate the Fifth, Thirteenth or Fourteenth Amendments. Corrigan v. Buckley, 271 U.S. 323 (1926). The Fifth and Fourteenth Amendments are directed at acts of the Federal and State Governments, respectively and not at acts of individuals; the Thirteenth Amendment, though directed at acts of individuals as well as governments, prohibits slavery and involuntary servitude but does not protect individual rights of Negroes in other matters. Id. at 330.

Cove

The issue of judicial enforcement of racially restrictive covenants, left undecided in Corrigan, supra, was reached in Shelley v. Kraemer, 334 U.S. 1 (1948). nants restricting occupancy to members of the Caucasian race had been enforced by State court orders which enjoined Negro purchasers from continuing to occupy the properties. The Supreme Court held that judicial enforcement of racially restrictive covenants was state action prohibited by the Fourteenth Amendment. In an opinion to which there was no dissent, though three Justices did not participate, Mr. Chief Justice Vinson noted, however, that the Fourteenth Amendment "erects no shield against merely private conduct, however discriminatory or wrongful" and stated:

"We conclude therefore, that the restrictive agreements standing alone cannot be regarded as violative of any rights guaranteed to petitioners by the Fourteenth

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Amendment. So long as the purposes of those agreements are effectuated by voluntary adherence to their terms, it would appear clear that there has been no action by the State and the provisions of the Amendment have not been violated." Id. at 13.

On the same day, the Court considered arguments that enforcement of such covenants by courts in the District of Columbia violated the due process clause of the Fifth Amendment. In Hurd v. Hodge, 334 U.S. 24 (1948), the Court found it unnecessary to decide that constitutional question, holding instead that enforcement by District of Columbia courts violated a statute derived from § 1 of the Civil Rights Act of 1866. That statute provides:

"All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property." [Now found at 42 U.S.C. § 1982 (1964)]

Of that statute, the Court said:

"We may start with the proposition that the statute does not invalidate private restrictive agreements so long as the purposes of those agreements are achieved by the parties through voluntary adherence to the terms. The action toward which the provisions of the statute under consideration is directed is governmental action." Id. at 31.

The Court also stated, however, that, even in the absence of the statute, the District of Columbia courts could not have enforced such restrictive covenants because it would have been contrary to the public policy of th United States to permit them "to exercise general equitable powers to compel action denied the state courts where such state action has been held to be violative of the equal protection of the laws." Id. at 35. It should be emphasized that in both of these cases third parties sought the aid of the courts to defeat the rights of a willing seller and a willing purchaser.

In Shelly and Hodge the Court had held that restrictive covenants could not be enforced by injunction. It was in Barrows v. Jackson, 346 U.S. 249 (1953), that the Court held that judicial enforcement of such covenants by assessment of damages was prohibited. But again in Barrows, the Court cited with approval the language of Shelley indicating that racially restrictive covenants were not prohibited by the Fourteenth Amendment. Id. at 253. Here again, a third party had sought the aid of the Court to penalize a seller because he was willing to sell his property to a willing Negro purchaser.

In 1954, the Court had an opportunity to explore another aspect of the restrictive covenant question: Does the Fourteenth Amendment prohibit a state court from permitting a racially restrictive covenant to be raised as a defense in an action for money damages? At first, an evenly divided Court affirmed, per curiam, an Iowa decision that it did not. Rice v. Sioux City Memorial Park Cemetery, 348 U.S. 880 (1954). It would be rather difficult to find a case more highly charged with emotional factors. Sgt. John Rice, who was 11/16 Winnebago Indian, had been killed on active duty in Korea. His widow, who was white, had purchased a plot and made arrangements for burial at a private cemetery. While the graveside service was being held, the cemetery managers noticed that most of the mourners were American Indians. They inquired of the funeral director whether Sgt. Rice had been an Indian and upon learning that he had, removed the body from the gravesite and informed Mrs. Rice that they could not bury her husband because he was not a Caucasian. In Mrs. Rice's suit for damages, the Iowa court permitted the cemetery to interpose its contract with Mrs. Rice, as a defense, refusing to hold that the restriction of burial privileges only to Caucasians was invalid even though it was unenforceable.

After it had affirmed the Iowa Court's decision, the Supreme Court granted a petition for rehearing when its attention was called to an Iowa statute, enacted since the commencement of the suit, which prohibited cemeteries, other than those operated by churches or established fraternal organizations, from refusing burial solely because of the race or color of the decedent. Rice v. Sioux City Cemetery, 349 U.S. 70 (1955). Delivering the opinion of the Court, Mr. Justice Frankfurter, after reviewing the facts, stated:

"The basis for [Mrs. Rice's] resort to this Court was primarily the Fourteenth Amendment, through the Due Process and Equal Protection Clauses. Only if a State deprives any person or denies him enforcement of a right guaranteed by the Fourteenth Amendment can its protection be invoked. Such a claim involves the threshold problem whether, in the circumstances of this case, what Iowa, through its courts, did amounted to "state action". This is a complicated problem which for long has divided opinion in this Court. [Citations omitted.]

Were this hurdle cleared, the ultimate substantive question, whether in the circumstances of this case the action complained of was condemned by the Fourteenth Amendment, would in turn present no easy constitutional problem.

"The case was argued here and the stark fact is that the Court was evenly divided." 348 U.S. 880. Id. at 72-3.

Thereafter, the opinion discussed the Iowa statute prohibiting racial discrimination by cemeteries, and in the light of it, vacated its earlier affirmance of the lowa court's decision, and dismissed its original writ of certiorari as having been improvidently granted. Id. at 75-80.

There stands the matter of racially restrictive covenants. They are not enforceable but they are not void. Though the Court was evenly divided in Rice, an additional vote to reverse the Iowa court would not have had the necessary results of invalidating such covenants, or even of subjecting all such covenantors to damage suits. The Court could have adopted with respect to cemeteries the approach it adopted in Marsh v. Alabama, 326 U.S. 501 (1946) with respect to discrimination by a privately owned company town:

"The more an owner, for his own advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it." Id. at 506.

Such an approach would be more consistent with earlier, as well as more recent, decisions with respect to Fourteenth Amendment violations than to hold that the right to purchase or occupy property without discrimination on account of race is so secured by that Amendment that the individual home owner cannot with imputy refuse to sell or rent his home or any part of it on such a ground.

The more recent decisions, though they do not deal with residences, do deal with privately owned facilities or private acts of one kind or another. The rationale the Court has used to find in them violations of the Fourteenth Amendment is to find in them links with the State which convert them from individual action to "state action". Thus, in Terry v. Adams, 345 U.S. 461 (1953), the Court prohibited the Jaybird Party in Texas, a private club, from excluding Negroes because the function it performed was an integral part of the election process even though not formally recognized by State law. The function the club performed was so much a public one that its private act of discrimination constituted "state action" prohibited by the Fourteenth Amendment.

The Court found another kind of link with the State in the discriminatory act of a private restaurant operator in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). This case involved refusal of service to a Negro by a private restaurant operator on premises leased from an agency of the State of Delaware. The restaurant was located in a building constructed with public funds and used for a public purpose, that is, a municipal parking facility. The restaurant was one of several leased areas in the facility which the Court found to be an "indispensable part of the State's plan to operate its project as a self sustaining unit." Id. at 723-24. The opinion by Mr. Justice Clark very carefully pointed out that the Court's conclusions in this case could not be considered "universal truths on the basis of which every state leasing agreement is to be tested." Id. at 725. In defining the limits of its inquiry, the Court stated:

"*** What we hold today is that when a State leases public property in the manner and for the purpose shown to have been the case here, the proscriptions of the Fourteenth Amendment must be complied with as certainly as though they were binding covenants written into the agreement itself." Id. at 726.

The "sit-in" cases offered the Court several opportunities to broaden the thrust of the Fourteenth Amendment. In those cases, Negroes had been arrested for trespass or disorderly conduct for remaining at white-only lunch counters after the owners had refused to serve them because of their race and then asked them to leave. Some had thought the Court would extend the principle of Shelley and Barrows by finding the arrests and convictions to be state action in support of private discriminatory acts and therefore violative of the Fourteenth Amendment. Others thought the Court might extend the principle of Marsh v. Alabama and find that the restaurant owner, because he opened up his property, for his own advantage, for use by the public in general, had circumscribed his right to discriminate among his patrons on account of race. The Court did neither of these things in any of the cases, though in each of them it found some link between the acts of the proprietors and the government to warrant striking down the convictions as violative of the Fourteenth Amendment.

In Peterson v. Greenville, 373 U.S. 244 (1963), the link was found in a city ordinance requiring separation of the races in restaurants. In Lombard v. Louisiana, 373 U.S. 267 (1963), there was neither a State statute nor a city ordinance