Fourteenth Amendment, Section 1 — Equal Protection: Segregation in Other Contexts

Amdt14.S1.8.3.1 Overview of Segregation in Other Contexts

While school desegregation cases are perhaps the best known examples of the Supreme Court’s treatment of racial segregation under the Equal Protection Clause, the Court has struck down forced separation based on race in many other contexts. Indeed, the Court struck down several segregation laws before its landmark 1954 decision in Brown v. Board of Education, which effectively brought to a close the “separate but equal” precedent the Court had established in its 1896 decision Plessy v. Ferguson.¹ In most of these racial segregation cases, the parties disputed whether various levels of state involvement in private discrimination amounted to state action.

Amdt14.S1.8.3.2 Housing and Segregation

In the housing context, the Court addressed legal challenges to city ordinances, private covenants, and state constitutional amendments that imposed various racial restrictions. In 1917, for example, the Court in Buchanan v. Warley¹ invalidated an ordinance that prohibited “colored people” from occupying houses in blocks where the greater number of houses were occupied by any “white person,” and prohibited “white people” from living on blocks where the greater number of houses were occupied by “colored people.” The Court declined to apply Plessy v. Ferguson because, in Buchanan, the statute barred the plaintiff landowner from living on his property.² While it had approved the doctrine of “separate but equal” treatment of racial minorities in transportation and education, the Court said, the Fourteenth Amendment would not allow the state to interfere with property rights based on race.³ In 1948, the Court extended Buchanan to invalidate restrictive covenants—private title conditions that barred property transfer based on race. The Court held that although these private arrangements did not themselves violate the Equal Protection Clause, the judicial enforcement of them, either by injunctive relief or through damage actions, did.⁴

In its 1967 case, Reitman v. Mulkey,⁵ the Court again considered potential state involvement in private housing discrimination. It reviewed the referendum passage of a California state constitutional amendment that repealed a “fair housing” law and declared that a property seller could turn away any buyer for any reason. The Court held the amendment unconstitutional, pointing out that it aimed to repeal anti-discrimination measures and “intended to authorize, and does authorize, racial discrimination in the housing market.”⁶ The Court acknowledged it had no “infallible test” for determining when state involvement in private discrimination was unconstitutional.⁷ But, deferring to the state supreme court decision invalidating the amendment, it agreed that this provision effectively immunized private discrimination. “Those practicing racial discriminations need no longer rely solely on their personal choice,” the Court noted. “They could now invoke express constitutional authority . . .”⁸ In contrast, the Court, in its 1971 decision James v. Valtierra, held that a California constitutional requirement singling out low-rent housing projects for special referendum approval did not violate the Equal Protection Clause.⁹ The Court did not see the measure as drawing any racial distinctions, ruling that it was race-neutral in its terms and not racially motivated.¹⁰ The Court has also held that provision of publicly assisted housing must be nondiscriminatory, ordering the federal Department of Housing and Urban Development to remedy segregative practices.¹¹

Amdt14.S1.8.3.3 Transportation and Segregation

In 1896, the Supreme Court endorsed the “separate but equal” doctrine in the transportation context in Plessy v. Ferguson,¹ but after the Court dismissed the doctrine’s applicability in education in Brown v. Board of Education, the Court revisited the doctrine in transportation.² Even before Brown, the Court had found that a state statute that permitted carriers to provide sleeping and dining cars for White persons only violated equal protection;³ held that a carrier’s provision of unequal, or nonexistent, first class accommodations to Black travelers violated the Interstate Commerce Act;⁴ and voided state-required segregation on interstate carriers as a burden on commerce.⁵ In 1960, the Court in Boynton v. Virginia overturned a trespass conviction of an interstate Black bus passenger who had refused to leave a restaurant.⁶ The Court determined that the restaurant, essential to the facilities devoted to interstate commerce, fell under the Interstate Commerce Act.

Amdt14.S1.8.3.4 Public Facilities and Segregation

Beginning in the 1950s, the Court also struck down the segregation of publicly provided or supported facilities and functions, summarily vacating and remanding a long series of cases for reconsideration under Brown.¹ In 1963, the Court held segregated courtroom seating a “manifest violation” of equal protection.² That same year, the Court held that neither expense nor potential public unrest warranted granting Memphis more time for “gradual desegregation” of its parks.³ It also held that a municipality could not operate a racially segregated park, even though a private party, in bequeathing the park to the city, had imposed a Whites-only rule.⁴ As the Court saw it, “[c]onduct that is formally ‘private’ may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.”⁵ Such was the case with the park, which the city maintained even after private trustees were appointed.⁶ Rather than desegregate the park, however, the Court ruled that a state court could hold that the trust had failed and hand the park over to the decedent’s heirs.⁷ Similarly, the Court held in 1971 that a municipality under court order to desegregate its publicly owned swimming pools could comply by closing the pools instead, so long as it completely stopped operating them.⁸

Amdt14.S1.8.3.5 Private Businesses and Segregation

While the Constitution does not reach private discrimination, the Court will act if “to some significant extent the State in any of its manifestations has been found to have become involved in it.”¹ After Brown, the Court decided several cases finding state participation in segregating private businesses. Thus, the Court reversed trespass convictions for Black boys and girls who sat at a “Whites only” lunch counter, given that a city ordinance required separate dining facilities.² Extending this holding, the Court reversed convictions of patrons who refused a manager’s instructions to leave a “Whites only” restaurant, noting that the Florida state board of health required racially separate toilet facilities in restaurants.³ Even though Florida did not explicitly bar integrated dining spaces, the Court held that the segregation regulations “embody a state policy putting burdens upon any restaurant which serves both races, burdens bound to discourage the serving of the two races together.”⁴ This degree of state involvement violated equal protection. So did New Orleans city officials’ statements, even with no ordinance or regulation, that they would not tolerate “sit-in demonstrations.”⁵ Based on this official endorsement of local segregation customs, the Court overturned convictions for Black patrons who refused a manager’s order to leave a segregated lunch counter.⁶ The Court also found state action, and a constitutional violation, when a Delaware restaurant leasing city property refused to serve a Black patron.⁷ The Court held that the state, “[b]y its inaction” in permitting discriminatory uses of its property, “has not only made itself a party to the refusal of service, but has elected to place its power, property and prestige behind the admitted discrimination.”⁸