The refusal of hotels, restaurants, theaters, and other public accommodations to serve blacks was not exclusively a southern phenomenon. In the South, however, the practice was an essential part of a system of racial dominance and dependency, long after the thirteenth amendment abolished slavery and the fourteenth amendment recognized the citizenship of the freed slaves. Aware of the role played by this form of racial discrimination in the system of white supremacy, Congress adopted the civil rights act of 1875, the last major civil rights act of the Reconstruction era. The law prohibited public accommodations, including railroads along with the types already mentioned, from denying access to any person on account of race. The Supreme Court held this law unconstitutional, saying that when Congress enforced the Fourteenth Amendment it had no power to reach private action. (See civil rights cases; state action.)
Later came the Jim Crow laws—state laws requiring racial segregation in all manner of public places, including public accommodations. This practice received the Court's blessing in plessy v. ferguson (1896), a case involving the segregation of seating in railroad cars. (See separate but equal doctrine.) By the end of the nineteenth century, the denial of access for blacks to public accommodations in the South was firmly rooted in both law and custom.
Soon after the Supreme Court decided brown v. board of education (1954), the modern civil rights movement turned to the problem of access to public accommodations. The reason for direct action such as freedom rides and sitins was not that seats in the front of the bus arrive at a destination before back seats do, or that black college students yearn to perch on lunch counter stools. Public accommodations became a target for civil rights demonstrators for exactly the same reason that they had been made the vehicles for racial discrimination in the first place: segregation and the refusal of service to blacks were powerful symbols of racial inferiority, highly visible denials of the entitlement of blacks to be treated as persons and citizens. Employment discrimination and housing discrimination might touch material interests of great importance, but no interest is more important than self-respect. The primary target of the civil rights movement was the stigma of caste.
Within a few years after the Brown decision, the Supreme Court had held unconstitutional nearly the whole range of Jim Crow laws. Racial segregation practiced by state institutions, or commanded or authorized by state laws, failed the test of the Fourteenth Amendment even before Congress reentered the public accommodations field. In most of the states of the North and West, civil rights laws commanded equal access not only to public accommodations—such laws merely reinforced the common law duties of innkeepers and common carriers—but also to other businesses. In the South, however, private discrimination continued in most hotels, restaurants, and barber shops. The Supreme Court was repeatedly invited to decide whether the Fourteenth Amendment established a right of access to such places, free of racial bias, but the Court repeatedly declined the invitation. (See bell v. maryland.)
As part of the civil rights act of 1964, Congress adopted a comprehensive public accommodations law, forbidding discrimination in the same types of places that had been covered by the 1875 act. (Railroads were forbidden to discriminate by modern interpretations of the Interstate Commerce Act of 1887.) Before the year was out, the Supreme Court had upheld the public accommodations portion of the 1964 act, on the basis of the power of Congress to regulate interstate commerce. (See heart of atlanta motel v. united states.)
The 1964 act is limited in its coverage, reaching an establishment only if it "affects commerce" or if its discrimination is "supported by state action." The act exempts both private clubs and small rooming houses lived in by their proprietors. Now that the Supreme Court has interpreted the civil rights act of 1866 as a broad guarantee against private racial discrimination in the sale of property and other contracting, and validated the law as a congressional enforcement of the Thirteenth Amendment, at least some of the limitations of the 1964 act have been made irrelevant. For example, a barber shop is covered by the 1964 act if it is located in a covered hotel, but not if it is independent. Under recent interpretations of the 1866 act, any barber shop would violate the law by refusing service on the basis of the customer's race. (See jones v. alfred h. mayer co. ; runyon v. mccrary.)
The substantive core of the Fourteenth Amendment is a principle of equal citizenship. (See equal protection of the laws.) Even in the absence of civil rights legislation, that principle demands that the organized community treat each of us, irrespective of race, as a respected, participating member. Racially based denial of access or segregation in places of public accommodations—even those privately owned—is a deliberate denial of the status of equal citizenship, as the sit-in demonstrators knew and helped the rest of us to understand.
Kenneth L. Karst
Lewis, Thomas P. 1963 The Sit-in Cases: Great Expectations. Supreme Court Review 1963:101–151.
Pollitt, Daniel H. 1960 Dime Store Demonstrations: Events and Legal Problems of the First Sixty Days. Duke Law Journal 1960:315–365.