adickes kress argued november decided june petitioner white school teacher refused service respondent lunchroom accompanied six negro students arrested vagrancy hattiesburg mississippi police left respondent premises filed complaint federal district recover damages alleging deprivation right equal protection clause discriminated basis race complaint two counts based refused service caucasian company negroes sought prove refusal serve pursuant custom community segregate races public eating places refusal service arrest product conspiracy respondent police alleged policeman arrested store time refusal service district ruled recover first count petitioner prove specific custom refusing service whites company negroes enforced state criminal trespass statute directed verdict respondent count petitioner failed prove instances whites refused service company negroes hattiesburg appeals affirmed holding requires discriminatory custom proved exist locale discrimination took place state generally petitioner proof deficient points second count dismissed trial district motion summary judgment since petitioner failed allege facts conspiracy might inferred appeals affirmed determination held district basis record erred granting summary judgment conspiracy count pp involvement policeman state official whether actions lawful authorized alleged conspiracy plainly provide state action needed show direct violation petitioner fourteenth amendment rights entitling relief private persons involved conspiracy acting color law liable pp respondent carry burden party moving summary judgment showing absence genuine issue material fact foreclose possibility policeman store petitioner awaiting service jury infer understanding officer employee respondent petitioner served failure meet burden requires reversal pp respondent failed meet initial burden party moving summary judgment petitioner required come forward suitable opposing affidavits fed rule civ proc pp petitioner established claim violation equal protection rights proves refused service respondent custom requiring racial segregation hattiesburg restaurants pp based upon language statute legislative history judicial decisions words color custom usage state mean custom usage must force law virtue persistent practices state officials pp petitioner shown abridgment constitutional right equal protection proved respondent refused service custom racial segregation public restaurants pp district erred implicit assumption custom force law enforced state statute pp district ruling proving custom case required demonstrating specific practice serving white persons company negroes public restaurants narrow relevant inquiry whether longstanding still prevailing custom segregating races public eating places courts erred suggesting custom must exist throughout state custom force law political subdivision offend fourteenth amendment even though lacks application eleanor jackson piel argued cause petitioner briefs melvin wulf sanford litvack argued cause respondent briefs james withrow alfred hoddinott justice harlan delivered opinion petitioner sandra adickes white school teacher new york brought suit district southern district new york respondent kress kress recover damages alleged violation constitutional rights equal protection clause fourteenth amendment suit arises kress refusal serve lunch miss adickes restaurant facilities hattiesburg mississippi store august miss adickes subsequent arrest upon departure store hattiesburg police charge vagrancy time refusal serve arrest miss adickes six young people negroes students mississippi freedom school teaching summer unlike miss adickes students offered service arrested petitioner complaint two counts bottomed alleging kress deprived right equal protection clause fourteenth amendment discriminated basis race first count charged miss adickes refused service kress caucasian company negroes petitioner sought inter alia prove refusal serve pursuant custom community segregate races public eating places however pretrial decision supp district ruled recover count miss adickes prove time refused service specific custom refusing service whites company negroes custom enforced state mississippi criminal trespass statute petitioner unable prove trial instances hattiesburg white person refused service company negroes district directed verdict favor respondent divided panel appeals affirmed ground also holding requires discriminatory custom usage proved exist locale discrimination took place state generally petitioner proof points deficient second count complaint alleging refusal service subsequent arrest product conspiracy kress hattiesburg police dismissed trial motion summary judgment district ruled petitioner failed allege facts conspiracy might inferred determination unanimously affirmed appeals miss adickes seeking review claims district erred directing verdict substantive count granting summary judgment conspiracy count last term granted certiorari reverse remand proceedings two counts explained part respondent failed show absence disputed material fact think district erred granting summary judgment respect substantive count reasons explained part ii think petitioner made claim violation equal protection rights proves refused service kress custom requiring racial segregation hattiesburg restaurants think courts erred assuming proof relevant showing custom related mississippi criminal trespass statute defining relevant custom requiring proof practice hattiesburg throughout mississippi refusing serve white persons company negroes rather simply proof segregation races hattiesburg restaurants briefly stated conspiracy count petitioner complaint made following allegations serving volunteer teacher freedom school negro children hattiesburg mississippi petitioner went six students hattiesburg public library noon august librarian refused allow negro students use library asked leave leave librarian called hattiesburg chief police told petitioner students library closed ordered leave library petitioner students proceeded respondent store wished eat lunch according complaint group sat eat policeman came store observed miss adickes company negro students waitress came booth petitioner sitting took orders negro students refused serve petitioner white person company negroes complaint goes allege refusal service petitioner students left kress store group reached sidewalk outside store officer law previously entered store arrested petitioner groundless charge vagrancy took custody basis underlying facts petitioner alleged kress hattiesburg police conspired deprive right enjoy equal treatment service place public accommodation cause arrest false charge vagrancy conspiracies public officials private persons governing principles terms make plain two elements necessary recovery first plaintiff must prove defendant deprived right secured constitution laws second plaintiff must show defendant deprived constitutional right color statute ordinance regulation custom usage state territory second element requires plaintiff show defendant acted color law noted earlier read counts petitioner complaint allege discrimination based race violation petitioner equal protection rights principles law firmly stitched constitutional fabric proposition state must discriminate person race race companions way act compel encourage racial segregation although lawsuit private party state one officials cases make clear petitioner made violation fourteenth amendment rights entitled relief prove kress employee course employment hattiesburg policeman somehow reached understanding deny miss adickes service kress store cause subsequent arrest white person company negroes involvement state official conspiracy plainly provides state action essential show direct violation petitioner fourteenth amendment equal protection rights whether actions police officially authorized lawful monroe pape see classic screws williams moreover private party involved conspiracy even though official state liable private persons jointly engaged state officials prohibited action acting color law purposes statute act color law require accused officer state enough willful participant joint activity state agents price summary judgment moving summary judgment kress argued uncontested facts established conspiracy existed kress employee police support assertion kress pointed first statements deposition store manager powell communicated police prearranged tacit signal ordered food counter supervisor see miss adickes refused service fearful riot store customers angered seeing mixed group whites blacks eating together kress also relied affidavits hattiesburg chief police two arresting officers effect store manager powell requested petitioner arrested finally kress pointed statements petitioner deposition knowledge communication kress employee member hattiesburg police relying circumstantial evidence support contention arrangement kress police petitioner opposing summary judgment pointed respondent failed moving papers dispute allegation petitioner complaint statement deposition unsworn statement kress employee effect policeman store time refusal serve policeman subsequently arrested petitioner argued although knowledge agreement kress police sequence events created substantial enough possibility conspiracy allow proceed trial especially given fact evidence conspiracy come adverse witnesses submitted affidavit specifically disputing manager assertion situation store time refusal explosive thus creating issue fact motives might ordering refusal service think basis record error grant summary judgment moving party respondent burden showing absence genuine issue material fact purposes material lodged must viewed light favorable opposing party respondent carry burden failure foreclose possibility policeman kress store petitioner awaiting service policeman reached understanding kress employee petitioner served true powell store manager claimed deposition seen communicated policeman prior tacit signal miss baggett supervisor food counter respondent submit affidavits miss baggett miss freeman waitress actually refused petitioner service either might well seen communicated policeman store find particularly noteworthy two officers involved arrest failed affidavit foreclose possibility store petitioner upon seeing petitioner negroes communicated disapproval kress employee thereby influencing decision serve petitioner given unexplained gaps materials submitted respondent conclude respondent failed fulfill initial burden demonstrating critical element aspect case policeman store policeman present think open jury light sequence followed infer circumstances policeman kress employee meeting minds thus reached understanding petitioner refused service summary judgment inferences drawn underlying facts contained moving party materials must viewed light favorable party opposing motion diebold think respondent failure show policeman store requires reversal pointing rule amended respondent argues incumbent petitioner come forward affidavit properly asserting presence policeman store rely fact avoid summary judgment respondent notes regard none materials upon petitioner relied met requirements rule argument withstand scrutiny however commentary background amendment conclusively show intended modify burden moving party rule show initially absence genuine issue concerning material fact advisory committee note amendment changes designed affect ordinary standards applicable summary judgment comment directed specifically contention like respondent committee stated evidentiary matter support motion establish absence genuine issue summary judgment must denied even opposing evidentiary matter presented respondent meet initial burden establishing absence policeman store petitioner required come forward suitable opposing affidavits respondent met initial burden example submitting affidavits policemen denying presence store time question rule required petitioner done simply rely contrary allegation complaint avoided conceding fact purposes summary judgment petitioner come forward either affidavit someone saw policeman store affidavit rule explaining time impractical even though essential defeat respondent motion submission affidavit preferable course petitioner counsel followed one commentator said always perilous opposing party neither proffer countering evidentiary materials file affidavit peril rightly continues amendment rule yet party moving summary judgment burden show entitled judgment established principles discharge burden entitled judgment defense insufficient showing required moore federal practice pp ed ii remains discussed substantive count petitioner complaint showing necessary petitioner prove respondent refused service color custom usage state violation rights equal protection clause fourteenth amendment custom usage came existence ku klux klan act april stat chairman house select committee drafted legislation described modeled civil rights act criminal provision also contained language forbade certain acts person color law statute ordinance regulation custom stat civil rights cases said statute law clearly corrective character intended counteract furnish redress state laws proceedings customs force law sanction wrongful acts specified emphasis added moreover exhaustive examination legislative history act majority dissenting opinions jones alfred mayer concluded civil rights act intended limited deprivations perpetrated color law emphasis added quite apart construction identical color provision act legislative history act lineal ancestor also indicates provision question intended encompass conduct supported state action limitation intended seen examination statements actions supporters opponents ku klux klan act first reporting committee recommendations house representative shellabarger chairman house select committee drafted ku klux klan act said terms carefully confined giving civil action wrongs citizenship done color state laws abridge rights emphasis added senator edmunds chairman senate committee judiciary also supporter bill said provision first section one believe nobody objects defining rights secured constitution assailed state law color state law merely carrying principles civil rights bill since become part constitution emphasis added thus house leader favoring bill expressly stated understanding limited deprivations rights done color law congress intended limit scope actions taken color law seen contrasting legislative history sections act one hand comparatively little debate ku klux klan act eventually enacted form identical introduced house history thus stands sharp contrast sections act example act provision aimed private conspiracies color law requirement created great storm controversy part thought encompass private conduct senator thurman example one leaders opposition act although objecting grounds admitted constitutionality characterized refer ring deprivation color law either statute law custom usage become common law emphasis added senator insisted vociferously absence congressional power fourteenth amendment penalize conspiracy private individuals violate state law comparative lack controversy concerning context heated debate provisions suggests opponents act minor exceptions like proponents understood limited conduct color law addition legislative history exists unbroken line decisions extending back many years declared action color law predicate cause action criminal counterpart moreover possible exception exceedingly opaque district opinion every lower opinion aware considered issue concluded custom usage purposes requires state involvement simply practice reflects longstanding social habits generally observed people locality finally language statute points direction expressly requires custom usage state simply people living state sum background think clear custom usage state purposes must force law virtue persistent practices state officials congress included customs usages within definition law persistent widespread discriminatory practices state officials areas south representative garfield said ven laws equal face yet systematic maladministration neglect refusal enforce provisions portion people denied equal protection although authorized written law practices state officials well permanent well settled constitute custom usage force law interpretation custom recognizes settled practices state officials may imposing sanctions withholding benefits transform private predilections compulsory rules behavior less legislative pronouncements authority needed truism found nashville browning held although statutory provision suggested different note law tennessee established longstanding practice state officials railroads public utilities taxed full cash value justice frankfurter wrote seems equally apt narrow conception jurisprudence confine notion laws found written statute books disregard gloss life written upon settled state practice establish state law equal protection clause write empty formalism constitution deeply embedded traditional ways carrying state policy petitioner complains often tougher truer law dead words written text state action amendment violation analyzing problem useful state two polar propositions easily identified resolved one hand fourteenth amendment plainly prohibits state discriminating race hand fourteenth amendment forbid private party acting backdrop state compulsion involvement discriminate basis race personal affairs expression personal predilections said shelley kraemer supra hat amendment erects shield merely private conduct however discriminatory wrongful point two extremes state involvement refusal becomes sufficient make private refusal serve violation fourteenth amendment far clear case law state law requiring private person refuse service race clear beyond dispute law violate fourteenth amendment declared invalid enjoined enforcement state enforce law requiring discrimination either convictions proprietors refuse discriminate trespass prosecutions patrons denied service pursuant law refuse honor request leave premises question relevant case however slightly different one whether decision owner restaurant discriminate basis race compulsion state law offends fourteenth amendment although explicitly decided fourteenth amendment state action issue implicit question underlying decisions cases notion state responsible discriminatory act private party state law compelled act said peterson city greenville state commanded particular result saved power determine result thereby significant extent become involved moreover much support lower opinions conclusion discriminatory acts private parties done compulsion state law offend fourteenth amendment baldwin morgan supra fifth circuit held act posting maintaining separate waiting room facilities done railroad terminal commanded state orders action state went say pointed state may use race color basis distinction may direct action medium others state compulsion emphasis added think principle governs state action purposes makes difference course whether racially discriminatory act private party compelled statutory provision custom force law either case state commanded result law without deciding whether less substantial involvement state might satisfy state action requirement fourteenth amendment conclude petitioner show abridgment equal protection right proves kress refused service custom segregating races public restaurants three additional points first district pretrial opinion seems suggest exclusive means available petitioner demonstrating state enforcement custom relevant showing state used criminal trespass statute purpose disagree district implicit assumption custom force law enforced state statute limitation restrictive state official might act give custom force law variety ways least two examples suggested record one thing petitioner may able show police subjected false arrest vagrancy purpose harassing punishing attempting eat black people alternatively might shown remand hattiesburg police intentionally tolerate violence threats violence directed toward violated practice segregating races restaurants second think district wrong ruling proof relevant showing custom case demonstrating specific practice serving white persons company black persons public restaurants judge waterman pointed dissent petitioner possibly prove long unvarying habit serving black persons mixed party whites blacks simple reason civil rights act became law opportunity served mississippi white restaurants like judge waterman think district viewed matter narrowly petitioner complaint relevant inquiry whether time episode question longstanding still prevailing custom segregating races public eating places custom course perforce encompass particular kind refusal serve challenged case third district majority opinion appeals suggested petitioner show relevant custom existed throughout state proof force law hattiesburg political subdivision state insufficient think error way law whose source town ordinance offend fourteenth amendment even though less application custom force law political subdivision state offend fourteenth amendment even though lacks application summary petitioner show existence custom segregating races public eating places hattiesburg time incident question kress refusal serve motivated custom made claim foregoing reasons think petitioner entitled new trial substantive count complaint judgment appeals reversed case remanded proceedings consistent opinion ordered footnotes district denied petitioner request amend complaint include third count seeking liquidated damages civil rights act stat although certiorari petition petitioner challenged ruling asked revive statute overruling holding civil rights cases examination record shows petitioner never raised issue concerning statute appeals accordingly second circuit rule contentions issues neither raised considered appeals ordinarily consider lawn husty duignan decline statute miss code ann inter alia gives owners managers employees business establishments right choose customers refusing service see monroe pape price first count petitioner complaint alleges kress refusal serve petitioner deprived privilege equal enjoyment place public accommodation reason association negroes thereby discriminated race violation constitution title code section app emphasis added conspiracy count alleges inter alia kress hattiesburg police conspired together deprive plaintiff right enjoy equal treatment service place public accommodation language complaint might read generously support contention petitioner alleging violation title ii public accommodations provision civil rights act stat clear respondent seemingly concedes refusal serve petitioner violation act doubtful however kress violation miss adickes rights public accommodations title properly serve basis recovery congress deliberately provided damages remedy public accommodations act provides injunction remedy exclusive means enforcing rights based title moreover legislative history makes quite plain congress intend violations public accommodations title enforced damages provisions see cong rec remark floor manager language necessary otherwise result civil liability damages see also cong rec johnson held violations public accommodations title serve basis criminal prosecution another civil rights statute outsiders relation owners proprietors places public accommodations notwithstanding exclusive remedy provision doubtful whether johnson reasoning allow recovery kress alleged violation indeed petitioner otherwise contend johnson holding limitation apply violations stated provision inserted make clear substantive rights public accommodation defined enforced exclusively injunction event think clear recovery conduct violates fourteenth amendment even though conduct might also violate public accommodations title neither provides damages remedy basis action section public accommodations title expressly provides nothing title shall preclude individual asserting right based federal state law inconsistent title pursuing remedy civil criminal may available vindication enforcement right therefore quite apart whether precludes enforcement one rights public accommodations title damages action think evident enforcement one constitutional rights inconsistent public accommodations act brown board education cf barrows jackson although price concerned criminal prosecution involving previously held color law means thing monroe pape supra majority opinion opinion frankfurter price supra deposition powell admitted knowing hugh herring chief police hattiesburg said seen talked two occasions prior incident miss adickes app asked often arresting officer ralph hillman came store powell stated know precisely maybe every day however powell said august recall seeing policemen either inside outside store app denied called police agreed public official deny miss adickes use library agreed public official refuse miss adickes service kress store day question asked public official miss adickes arrested app signal according powell nod head powell claimed meeting month earlier miss baggett food counter supervisor told serve white person group shook head give sign go ahead serve anybody app powell stated prearranged tacit signal miss baggett quite lot violence hattiesburg directed towards whites colored people call mixed group app powell described circumstances refusal follows particular day shortly estimate people store lunch counter pretty pretty well capacity full going towards front store one aisles looking towards front store group colored girls white woman came north door next lunch counter one thing really stopped called attention group fact dressed alike looked like light blue denim skirt best remember almost identical came door people coming stopped look went booths happened two empty one group white woman sat one rest sat second group almost immediately mean take seconds time came door sit already people began mill around store started coming towards lunch counter time close candy counter wide open view people real sour looks faces nobody joking corny carrying looked like frightened mob really seen mobs korea riots know actually got looked towards front call windows backs look store right street north window looks right lunch counter people standing looking across street even jewelry store people standing looked really bad looked like one person yelled let get happened cause group turn mob quickly made mind avoid riot protect people store employees far people mob going get hurt knew something going break loose app affidavit chief police appears present arrest relevant part powell made request arrest miss sandra adickes person fact know powell personally day statement cf powell statement deposition supra powell discussed arrest person day statement never previously discussed way app affidavits sergeant boone officer hillman state identical language contacted date john williams representative genesco owners kress company requested make statement concerning alleged conspiracy connection aforesaid arrest arrest made public streets hattiesburg mississippi officers discretion arrest consulted powell manager kress company hattiesburg know name date one kress store asked arrest made consult anyone prior arrest app asked whether saw policeman store time refusal service miss adickes answered back door one students saw policeman come app went identify student carolyn trial carolyn moncure one students petitioner testified five minutes group sat still waiting service saw policeman come store stated came store face facing front store came store passed stopped right end booth stood looked around smiled went back store came right back left app testimony corroborated dianne moncure carolyn sister also part group testified group waiting service policeman entered store stood awhile looking group walked back store app discovery respondent gave petitioner unsworn statement miss irene sullivan girl statement miss sullivan said seen patrolman hillman come store hortly noon petitioner group store said traded hello greeting walked past counter toward back store line vision went minutes later patrolman hillman left store northerly front door slightly ahead group composed several negroes accompanied white woman hillman stepped onto sidewalk outside store police car pulled across street alley alongside store police car stopped patrolman hillman escorted white woman away negroes police car app see diebold moore federal practice ed supplemental brief filed respondent lodged copy unsworn statement miss baggett denying contact police day question apart fact statement unsworn see fed rule civ proc statement record proceedings therefore considered trial manifestly properly considered us disposition case discovery petitioner attempted depose miss baggett however kress successfully resisted convincing district miss baggett managing agent without power make managerial decisions record contain unsworn statement miss freeman contact police ask anyone else contact police make arrest subsequently occurred app emphasis added statement unsworn meet requirements fed rule civ proc relied respondent moving summary judgment moreover foreclose possibility miss freeman influenced refusal serve miss adickes contact policeman present store amendment added following rule motion summary judgment made supported provided rule adverse party may rest upon mere allegations denials pleading response affidavits otherwise provided rule must set forth specific facts showing genuine issue trial respond summary judgment appropriate shall entered petitioner statement deposition see supra course hearsay statement miss sullivan see supra unsworn rule specifies reliance allegations complaint sufficient see fed rule civ proc purpose amendment overturn line cases primarily third circuit held party opposing summary judgment successfully create dispute material fact asserted affidavit moving party simply relying contrary allegation complaint frederick hart recordgraph ex rel kolton halpern see advisory committee note amendment subdivision rule ibid emphasis added first national bank cities service petitioner claimed lower courts misapplied rule shift burden imposed rule rejecting contention said essentially lower courts held case rule placed upon petitioner burden producing evidence conspiracy alleged respondent conclusively showed facts upon relied support allegation susceptible interpretation sought give emphasis added case hand hold respondent failed show conclusively fact alleged petitioner susceptible interpretation might give rise inference conspiracy petitioner also appears argue quite apart custom refused service color state trespass statute supra noted however trespass statute terms compel segregation races although trespass statute might well invalid applications used compel segregation races state trespass convictions see robinson florida statute used case miss adickes although refused service asked leave store arrested trespass arising refusal leave pursuant statute majority thought code provision merely restated common law allowing restaurateurs serve whomever wished concluded private discrimination basis race pursuant provision fulfill state action requirement necessary show violation fourteenth amendment judge waterman dissent argued statute changed common law operated encourage racial discrimination factual predicate statutory relief yet established think inappropriate present posture case decide constitutional issue whether proof private person knowingly discriminated basis race pursuant state trespass statute like one involved make violation fourteenth amendment whatever else may also necessary show person acted color statute purposes see infra think essential act knowledge pursuant statute courts made factual determinations concerning whether kress refusal serve miss adickes result action kress employee knowledge trespass statute acting pursuant cong globe app statement shellabarger majority opinion harlan dissenting arguing act predecessor meant cover private well governmental interference certain rights jones said indeed intended grant nothing immunity governmental interference much made sense section provided fines prison terms certain individuals deprived others rights secured protected carefully drafted exempt private violations criminal sanctions imposed hence structure act well language points conclusion deprivations perpetrated color law criminally punishable jones cited legislative history support conclusion section carefully drafted exempt private violations punish governmental interference cong globe app emphasis added quoted monroe pape supra see also cong globe supra app perry understood remedy injuries done color state authority compare app stat see app garfield throughout debates example moderates expressed opposition objected proposals saw allowing federal government take state traditional role punishing unlawful conduct private parties see trumbull author act poland app garfield section ku klux klan act amended collins hardyman order avoid deciding whether congressional power allow civil remedy purely private conspiracies effect interpreted require action color law even though element found express terms statute dissent joined justice black justice douglas justice burton said language statute refutes suggestion action color state law necessary ingredient cause action recognizes congress period intend limit comparable civil rights legislation action color state law said unmistakable terms citing quoting without intimating view concerning correctness interpretation collins agree dissenters case congress enacting said unmistakable terms action color law necessary cong globe supra app app see also app sloss app pierson ray monroe pape supra smith allwright price williams supra screws supra classic supra section direct descendant civil rights act see supra gannon action supp mo opinion one hand said section requires action redress sought color state law went decide defendants color custom sic usage state missouri undisturbed worship citizens according dictates consciences entered louis cathedral disrupted service thus deprived plaintiffs constitutional rights freedom assembly speech worship use enjoy property violation section see vand rev williams howard johnson cir williams hot shoppes app argument based upon custom usage language statute join unanimous decision fourth circuit support proposition customs people state constitute state action within prohibition fourteenth amendment quoting williams howard johnson restaurant cir app bazelon dissenting see slack atlantic white tower system supp md aff cir also noted dissenting opinion thought custom usage force law cong globe app justice brennan post infers statement garfield thought meant provide remedy circumstances state failed take affirmative action prevent widespread private discrimination reading statement broad however garfield said state practices officials deny person equal protection laws systematic maladministration neglect refusal enforce written laws equal face official inaction sense neglecting enforce laws already books quite different inaction implicit failure enact corrective legislation peterson city greenville robinson florida see lombard louisiana shuttlesworth birmingham thought petitioner failed prove existence custom majority second circuit explicitly refused decide whether petitioner prove custom usage enforced state statute together civil rights workers also prosecuted vagrancy charges miss adickes separate action removed state vagrancy prosecution federal ground arrest prosecution retaliation attempt exercise rights public accommodations title civil rights act district remanded charge state courts fifth circuit reversed finding utter baselessness conceivable contention vagrancy statutes prohibited conduct persons engaged merely buttresses undisputed evidence trial order remand entered protected acts attempts enjoy equal public accommodations hattiesburg city library restaurant nationally known kress store constituted conduct arrested achtenberg mississippi cir although one judge dissented ground miss adickes case properly removable georgia rachel thought vagrancy charges miss adickes shown baseless unsophisticated subterfuge see supra notion private person necessarily immune liability color requirement statute put rest holding price supra see supra context conspiracy said act color law require accused officer state enough willful participant joint activity state core congressional concern enacting provide remedy violations equal protection clause arising racial discrimination think private person discriminates basis race knowledge pursuant custom requiring discrimination participant joint activity state acting color custom purposes intimate views concerning relief might appropriate violation shown see williams hot shoppes app bazelon dissenting parties briefed remedial issues violation proved best explored first instance light new record developed remand mean determine juncture whether defenses available defendants actions like one hand cf pierson ray justice black concurring judgment petitioner sandra adickes brought suit respondent kress recover damages alleged violations one count complaint alleged police officer city hattiesburg mississippi conspired employees kress deprive rights secured constitution joint action state official private individuals sufficient constitute violation alleged another count kress refusal serve company negroes action color custom refusing serve negroes whites together mississippi action violation trial judge granted motion summary judgment favor kress conspiracy allegation full presentation evidence petitioner granted motion directed verdict favor respondent custom allegation decisions rested conclusions issues fact supported sufficient evidence require jury trial think trial appeals affirmed wrong allowing summary judgment conspiracy allegation assuming present purposes trial statutory interpretation concerning custom usage correct also error direct verdict count judgment record petitioner permitted jury consider claims summary judgments may granted pleadings depositions answers interrogatories admissions file together affidavits show genuine issue material fact fed rule civ proc petitioner case alleged went kress company negroes waitress refused serve stating serve colored going serve whites come petitioner alleged left store friends soon stepped outside policeman arrested charged vagrancy basis facts argued conspiracy store officer deprive federally protected rights store filed affidavits denying conspiracy trial granted motion summary judgment concluding petitioner alleged basic facts sufficient support finding conspiracy existence nonexistence conspiracy essentially factual issue jury trial judge decide case petitioner may prove case impeaching store witnesses appealing jury disbelieve said true affidavits right confront impeach adverse witnesses one fundamental rights sought preserved seventh amendment provision jury trials civil cases advantages trial live jury live witnesses possibilities considering human factors eliminated substituting trial affidavit sterile bareness summary judgment witnesses present subject credibility weight given testimony appraised trial affidavit substitute trial jury long hallmark even handed justice poller columbia broadcasting second error trial judge direct verdict favor respondent custom count trial judge surveyed evidence concluded insufficient prove existence custom serving white people company negroes thereupon took case away jury directing verdict respondent appeals affirmed conclusion opinion clear error petitioner testified trial follows occasion know specific instances white persons company negroes discriminated yes many instances recall think three moment describe three instances us know people turned away white church integrated group turned away white church hattiesburg present explained saw rabbi beaten company negroes white rabbi yes people turned away drug store hattiesburg integrated group remember name drug store basis studied basis observed basis conversations persons come conclusion regard custom usage regard white community towards serving persons white persons company negroes yes conclusion conclusion white persons custom usage serve white persons company negroes find necessary time pass validity statutory provision concerning custom usage trial views concurred appeals proper interpretation term assuming trial interpretation correct provision interpreted valid enough evidence record warrant submitting entire question custom usage jury accordance instructions framed reflect views foregoing reasons concur judgment reversing appeals remanding new trial counts justice douglas dissenting part statutory words color statute ordinance regulation custom usage state seriously emasculated today ruling custom said must force law law read opinion used hamiltonian sense requires state involvement enforcement custom custom actionable means according custom purposes must force law virtue persistent practices state officials construction borrow phrase first justice harlan narrow artificial civil rights cases dissenting opinion section terms protects rights secured constitution laws basic right exemption discrimination account race exemption stems equal protection clause fourteenth amendment also thirteenth amendment myriad laws enacted congress far concerned sufficient deprivation right color custom state custom actionable must obviously reflect prejudices must reflect dominant communal sentiment ii custom state course include predominant attitude backed direct indirect sanctions inscribed law books thus garner louisiana another restaurant case involving racial discrimination state law municipal ordinance terms required segregation races restaurants segregation basic structure louisiana community revealed mosaic laws concurring opinion true mississippi present case time discrimination perpetrated case numerous mississippi laws designed continue regime segregation races state legislature passed resolution condemning brown board education decisions unconstitutional infringements rights miss laws senate concurrent resolution part mississippi program perpetuate segregated way life state sovereignty commission miss code ann et seq governor chairman charged duty perform acts things deemed necessary proper protect sovereignty state mississippi encroachment thereon federal government miss code ann required entire executive branch government state mississippi prohibit lawful peaceful constitutional means causing mixing integration white negro races public schools public parks public waiting rooms public places amusement recreation assembly state branch federal government every word deed state officer agent employee connected maintaining segregated schools mississippi deemed sovereign act sovereign state mississippi supp unlawful white student attend school high school lower level also attended negro students separate junior college districts established blacks whites ellisville state school required provide separate maintenance blacks whites state insane hospital required keep two races separate south mississippi charity hospital separate entrances required maintained state hospitals black white patients responsibility authority furnish sufficient number negro nurses attend negro patients negro nurses supervision white supervisors unlawful negro white convicts confined worked together county sheriffs required maintain segregated rooms jails unlawful taxicab drivers carry black white passengers together railroad depots cities inhabitants required separate closets blacks whites crime overthrow segregation laws state situation thus similar existed garner although law terms required segregation races restaurants plain discrimination perpetrated pursuant deeply entrenched custom louisiana least powerful law garner louisiana supra concurring opinion cf robinson florida iii custom state however much pervasive includes unwritten commitment stronger ordinances statutes regulations men live arrange lives bronislaw malinowski famed anthropologist speaking cake custom melanesian community safeguarding life property personality said religious sanction rules fear superstitious rational enforces tribal punishment visits breach even stigma public opinion moral blame forces make rules binding shall lay bare find simple clearly definable described one word one concept real none less binding forces melanesian civil law found concatenation obligations fact arranged chains mutual services give take extending long periods time covering wide aspects interest activity added conspicuous ceremonial manner legal obligations discharged binds people appeal vanity love display thus binding force rules due natural mental trend ambition vanity set play special social mechanism obligatory actions framed restricted kind search certainly compelled grammar word many meanings one indicates thing person whence anything originates comes acquired sought oxford english dictionary definition iii words color custom state describe geographical area political entity custom originates found philosophy black codes reached much sanctions actually prescribed federal judges entered early school desegregation decrees often felt ostracism community though local law never even purported place penalties judges acts forty years ago washington black found sun set northwest section district chevy chase circle arrested though crime waiting bus take home caddying plush golf course environs law sanctioning arrest done color custom nation capital harry golden recently wrote southerners drew line prohibited negroes crossing doomed lifetime guarding line fearing breached white southerner must forever watch line negro intrudes upon white every level life title derived ku klux klan act stat color provisions act turn derived civil rights act stat meaning color custom context act therefore relevant meaning phrase used color provisions mean thing direct descendant act ante custom community state one targets civil rights act section upheld jones alfred mayer provided civil remedy specified private acts racial discrimination section act provided criminal sanctions acts done color custom state congress bent nullification racist laws restricting strictly state action ban racial discrimination partly respects private actions partly state law hamiltonian sense partly color custom course act cover purely private actions act point discussion jones alfred mayer co come grips fact actions taken color custom covered act quite apart actions taken color statute ordinance regulation words quite apart actions taken color law traditional sense instead seems divide actions two groups constituting state action constituting purely private action coverage limited former reach private violations reach discrimination based color custom far beyond realm mere private predilection prejudice despite suggestion contrary use term color law jones alfred mayer merely shorthand reference color provisions relevance specific problem defining meaning color custom section like involved jones alfred mayer bottomed thirteenth amendment enacted fourteenth amendment adopted stated jones alfred mayer surely congress power thirteenth amendment rationally determine badges incidents slavery authority translate determination effective legislation wrong done individual color custom alone ingredients cause action satisfied adoption fourteenth amendment expanded substantive rights covered act covered act expanded coverage make state action necessary ingredient remedial provisions act neither act successor intended conditioned need state complicity moreover majority held guest fourteenth amendment enables congress punish interferences constitutional rights whether state officers others acting color state law implicated statute involved proscribed conspiracies impair right secured constitution majority agreed order conspiracy qualify need involve state action reasoning custom state used need involve official state development maintenance participation reach constitutional rights including fourteenth amendment congress rightfully concerned full protection whoever might instigator offender repeat one means whereby congress exercised power vested fourteenth amendment enforce provisions amendment monroe pape supra yet powers exercised congress may stem one constitutional source mcculloch maryland wheat veazie bank fenno wall edye robertson gettysburg electric moreover protects rights secured constitution laws makes unmistakably clear cover reach protect secure fourteenth amendment rights thirteenth amendment enabling legislation cover wide range rights designed rid us badges slavery said phrase color custom derives act rested thirteenth amendment whose enforcement turn state action failure come face realities leads regressive decision announced today time stopped niggardly construing civil rights legislation time kept congress construed laws full amplitude needed rid enforcement lingering tolerance racial discrimination sanction today federalist essential idea law attended sanction words penalty punishment disobedience penalty annexed disobedience resolutions commands pretend laws fact amount nothing advice recommendation penalty whatever may inflicted two ways agency courts ministers justice military force coercion magistracy coercion arms malinowski crime custom savage society book guide boston sunday herald traveler february section act discussed jones alfred mayer made criminal offense person color law statute ordinance regulation custom subject inhabitant state territory deprivation right secured protected act direct descendant earlier form classic screws section provides whoever color law statute ordinance regulation custom willfully subjects inhabitant state territory district deprivation rights privileges immunities secured protected constitution laws different punishments pains penalties account inhabitant alien reason color race prescribed punishment citizens shall fined imprisoned one year emphasis added section provides civil remedy reads every person color statute ordinance regulation custom usage state territory subjects causes subjected citizen person within jurisdiction thereof deprivation rights privileges immunities secured constitution laws shall liable party injured action law suit equity proper proceeding redress emphasis added meaning color custom jones alfred mayer language opinion case taken context highly misleading example language quoted opinion case distinguished private violations covered act deprivations perpetrated color law covered act interprets use phrase color law exclude actions taken color custom sans state action realistic interpretation quoted language however color law merely used shorthand phrase color statute ordinance regulation custom usage state without way addressing question meaning custom merely using phrase distinguish purely private violations trial restricted evidence custom related specific practice serving white persons company black persons public restaurants evidence necessarily limited points fact civil rights act went effect blacks served white restaurants mississippi although agree brother black evidence introduced narrow definition custom outlined opinion sufficient require jury trial question also agree conclusion definition employed trial far restrictive petitioner argued relevant custom custom integration races refusal serve white person company blacks merely specific manifestation custom think petitioner definition custom correct one abundant evidence record custom racial segregation mississippi hattiesburg particular fact trial judge conceded certainly dispute shown custom usage discrimination past certainly way life far people mississippi concerned case concerns meaning custom state words used involve question whether certain circumstances custom constitute state action purposes fourteenth amendment see garner louisiana supra concurring opinion justice brennan concurring part dissenting part petitioner contends respondent acting color statute color custom usage state mississippi subjected deprivation right equal protection clause fourteenth amendment denied service respondent restaurant due racial discrimination state mississippi involved therefore respondent liable damages recover petitioner must prove two separate independent elements first respondent subjected deprivation right secured constitution laws second respondent acted color statute ordinance regulation custom usage state mississippi whether person suing must show state action first element deprivation right secured constitution laws depends nature particular right asserted example person may deprived right secured constitution private person acting completely independently state government see jones alfred mayer hand constitutional right equal protection laws unelaborated statute violated action involving state discussion reese hunt dissenting various constitutional uses word state suggests original matter state equal protection clause might interpreted several ways moreover thought historical evidence points interpretation covering categories state inaction face wholly private conduct see bell maryland goldberg concurring harris quest equality tenbroek equal law however cases held equal protection clause applies action state government officials significantly involved shelley kraemer burton wilmington parking authority whether person suing must show state action second element action color statute ordinance regulation custom usage state depends analysis text legislative history policy see part ii infra two inquiries wholly different thought particular cases showing state action one element may suffice present case petitioner alleged first element deprivation right equal protection therefore cases must show state action asserts state action two different respects first contends conspiracy respondent local police discriminate restaurant service white person sought service accompanied negro friends treats aspect claim part opinion join petitioner contends alternatively respondent discrimination authorized encouraged mississippi statutes contention turn doctrine reflects profound judgment denials equal treatment particularly denials account race color singularly grave government shares responsibility government social organ society look promotion liberty justice fair equal treatment setting worthy norms goals social conduct therefore something uniquely amiss society government authoritative oracle community values involves racial discrimination accordingly cases come us condemned significant state involvement racial discrimination however subtle indirect may whatever form may taken see burton wilmington parking authority supra evans newton hunter erickson decisions represent vigilant fidelity constitutional principle state shall significant way lend authority sordid business racial discrimination among cases nearly resemble present one cases decided peterson city greenville petitioners convicted trespass refusing leave lunch counter kress store south carolina greenville ordinance time imposed proprietors restaurants duty segregate races establishments evidence kress manager aware ordinance held existence ordinance together showing kress manager excluded petitioners solely negroes sufficient constitute discriminatory state action violation fourteenth amendment state commanded particular result saved power determine result thereby significant extent become involved fact removed decision sphere private choice consequently convictions stand even assuming respondent contends manager acted independently existence ordinance rationale peterson extended lombard louisiana petitioners convicted trespass refusing leave restaurant denied service prior arrests mayor superintendent police new orleans publicly stated demonstrations undesirable relevant trespass laws fully enforced although statements unlike ordinance peterson discriminatory face interpreted evidencing state support system racial segregation prevalent private institutions petitioners directed moreover statements unlike ordinance peterson command restaurateurs discriminate restaurateur new orleans unlike one greenville integrate services without violating law although evidence restaurateur actions influenced official statements rely factor held basis statements alone degree state involvement private discriminatory denial service petitioners sufficient make denial state action violative fourteenth amendment peterson analysis state action turn actual enforcement state criminal law lombard therefore advances least two propositions first authoritative expression state policy nondiscriminatory face may found discriminatory considered factual background promulgation cf guinn gomillion lightfoot second state policy enforces privately chosen racial discrimination places public accommodation renders private discrimination unconstitutional state action regardless whether private discriminator motivated influenced principles peterson lombard extended robinson florida case also involved trespass convictions arising segregated restaurant time florida regulation required restaurants maintain separate lavatory toilet facilities race well sex however regulation require segregation restaurant convictions demonstrators result anything respect facilities subject regulation nevertheless reversed convictions ground virtue regulation state become sufficiently involved privately chosen segregation restaurant make segregation state action commented florida regulations directly expressly forbid restaurants serve white colored people together certainly embody state policy putting burdens upon restaurant serves races burdens bound discourage serving two races together step peterson lombard robinson present case small one indeed may step since cases together hold state policy discouraging privately chosen integration encouraging privately chosen segregation even though policy expressed form nondiscriminatory face unconstitutional taints privately chosen segregation seeks bring precedents suggest question state action case whether petitioner contends mississippi statutes fact manifest state policy encouraging supporting restaurant segregation respondent alleged privately chosen segregation unconstitutional state action establish existence state statutory policy maintain segregation restaurant facilities petitioner relies principally miss code ann face authorizes empowers owners hotels restaurants places public accommodation amusement refuse serve whomsoever choose decision whether serve particular individual left unfettered discretion restaurant management may refuse service reason reason thus explicit command segregated eating facilities maintained refusal serve basis race alone falls clearly within broad terms statute restaurateur informed essence may discriminate racial reasons may call upon police power state make private decision effective trespass sanctions expressly incorporated clear extent statute authorizes empowers restaurateurs discriminate basis race pass muster fourteenth amendment burton wilmington parking authority supra stewart concurring burton involved statute permitted restaurateur refuse service persons whose reception entertainment offensive major part customers justice stewart took position state courts construed legislative enactment authorizing discriminatory classification based exclusively color justices frankfurter harlan whittaker justices dealt length statute agreed violate fourteenth amendment construed however thought construction adopted state courts insufficiently clear make possible final determination issue language considerably broader involved burton although apparently authoritatively interpreted state courts plain language clearly authorizes restaurateur refuse service reason obviously includes refusal based upon race conceivable doubt intended authorize inter alia discriminatory classification based exclusively color completely dispelled consideration historical context enacted legislative constitutional provision need considered isolation may examined terms immediate objective ultimate effect historical context conditions existing prior enactment reitman mulkey supra cf lombard louisiana supra mississippi inflexible undeviating official policy segregation city jackson cir wisdom see generally silver mississippi closed society section originally enacted wake decisions brown board education passed contemporaneously numerous statutes resolutions condemning brown requiring racial segregation various transportation facilities committing state government continued adherence principles racial segregation together statutes resolutions indexed mississippi session laws segregation races prior state declared unlawful conspiracy overthrow violate segregation laws state subsequent passage breach peace vagrancy trespass statutes similar enacted employed give local officials additional weapons combat attempts desegregate places public accommodation see dilworth riner cir illustrative practical effect various provisions incident gave rise litigation petitioner arrested vagrancy shortly unsuccessfully sought service respondent store ordering dismissal charges removal prosecutions federal courts appeals fifth circuit noted utter baselessness conceivable contention vagrancy statutes prohibited conduct persons engaged concluded arrests made solely petitioner attempted receive service city library respondent store company negro friends achtenberg mississippi cir sum may said various statutes resolutions constituted mississippi response brown bound together parts single plan plan may make parts unlawful swift holmes section integral part scheme foster encourage practice segregation places public accommodation elsewhere furthered authorizing discrimination affording elected discriminate basis race remedy state law indeed difficult conceive purpose enactment make clear authorization private discrimination express authorization exist previously cf mulkey reitman cal aff judge waterman dissenting appeals common law innkeeper analogy restaurateur right serve whomever wished discriminate basis race selecting customers see bell maryland goldberg concurring since common law presumed apply mississippi western union telegraph goodman miss judge waterman concludes state drastically changed common law enacting support view found preamble provision confer upon person right refuse sell render service person miss laws emphasis added formulation suggests legislature intended alter existing state law completely clear however common law regard innkeepers restaurateurs understood judge waterman ever widely enforced mississippi racial matters reconstruction times state enacted civil rights law forbade discrimination places public accommodation amusement see miss laws lxiii upheld applied donnell state miss law however quickly fell desuetude thus question exists whether mississippi changed law existed state least said however mississippi enacting clarified state law elected place full authority state behind private acts discrimination since authorizes discrimination basis race invalid applied authorize discrimination particular cases remaining question concerning aspect present case nexus respondent alleged discrimination petitioner must show establish discrimination state action violative fourteenth amendment prior decisions leave doubt mere existence efforts state legislation otherwise authorize encourage otherwise support racial discrimination particular facet life constitutes illegal state involvement pertinent private acts discrimination subsequently occur see peterson city greenville supra lombard louisiana supra robinson florida supra noted reitman mulkey supra whether private discriminator actually influenced commission act policy state thus private action conforms state policy becomes manifestation policy thereby drawn within ambit state action sum individual discriminates basis race conformity state policy authorize encourage discrimination neither state private party heard say mutual involvement outside prohibitions fourteenth amendment therefore light statutory scheme including authorized encouraged restaurant segregation petitioner fully satisfy requirement fourteenth amendment establishes refused service basis race turn elements petitioner case ii title derives civil rights act stat entitled act enforce provisions fourteenth amendment constitution purposes act popularly known ku klux klan act legislative history makes absolutely clear response outrages committed klan many parts south conditions gave rise act discussed extensively monroe pape context case pointed although act engendered activities klan language purposes restricted evil see see also mosley justice holmes speaking commented enforcement act stat amended words applicable fourteenth amendment adopted view protection colored race found equally important application rights statute general scope used general words become important ku klux passed away allow past far affect present deprive citizens general protection face statute reasonably affords act congress undertook provide broad federal civil remedies interference exercise actual enjoyment constitutional rights particularly right equal protection section provided civil remedy deprivation constitutional right person acting color law statute ordinance regulation custom usage state section surviving part provided civil criminal remedy conspiratorial interference person enjoyment equal protection section cast net civil liability even widely providing remedy person ability reasonable diligence prevent violation fails remedies bolstered criminal provisions previously enacted criminal laws section civil rights act stat enforcement act stat amended provided criminal remedy amounts violation section enforcement act stat amended provided criminal remedy conspiracies interfere exercise enjoyment federal right history scheme remedies protection civil rights recently one virtual nullification key provisions declared unconstitutional given unduly narrow construction wholly keeping purposes harris invalidated criminal provision ku klux klan act criminal analogue ground congress authorized fourteenth amendment prohibit interference private persons exercise fourteenth amendment rights except perhaps extreme remote circumstances essential holding recognition language plainly reaches conspiracies involving state officials see also baldwin franks statute rev stat repealed stat collins hardyman influence harris construed pointing language exactly except remedy provided language statute condemned harris thought necessary read limitation section conspiracies involving state action order sustain constitutionality limiting construction necessarily carried whose scope keyed section fared little better statute indicated deals generally conspiracies interfere exercise federal rights established soon enactment reaches conspiracies among private persons interfere rights arise relationship individual federal government williams opinion frankfurter see ex parte yarbrough waddell logan quarles however concept arising given narrow construction cruikshank moreover williams supra divided question whether reaches private conspiracies interfere exercise fourteenth amendment rights arise relation individual state four members thought protect exercise fourteenth amendment rights placed considerable reliance argument unconstitutional construed otherwise see see also hodges although principal criminal statute protecting civil rights criminal analogue construed protect fourteenth amendment rights nonetheless held constitutional however statute violation found defendant acted willfully specific intent deprive person federal right made definite decision rule law see screws moreover never occasion consider whether reaches wholly nonofficial conduct thus recently construction surviving remedial civil rights statutes narrowed placed doubt restrictive view power congress fourteenth amendment view congressional power completely rejected guest price expressly held protect fourteenth amendment rights thereby squarely resolving issue divided williams conspiracy guest alleged carried private persons acting conjunction state officials found unnecessary consider whether constitutional construed reach wholly private conspiracies interfere exercise fourteenth amendment rights however put point beyond doubt six members guest expressly stated view congress power fourteenth amendment protect fourteenth amendment rights interference private persons without regard state involvement private interference see guest supra opinion clark joined black fortas jj opinion brennan joined warren douglas general view congressional power expressly adopted katzenbach morgan said including draftsmen sought grant congress specific provision applicable fourteenth amendment broad powers expressed necessary proper clause art cl correctly viewed positive grant legislative power authorizing congress exercise discretion determining whether legislation needed secure guarantees fourteenth amendment thus holding harris civil rights cases congress protect exercise fourteenth amendment rights private interference overruled see guest supra opinion brennan consequently interpretation civil rights statutes need longer warped unwarranted concern congress lacks power reach conduct persons public officials doubt protects fourteenth amendment rights see monroe pape supra opinion frankfurter accordingly substantial question branch present case whether intended congress reach nonofficial conduct kind issue petitioner contends respondent discrimination within scope either two grounds first claims respondent acted color mississippi statutory law particular mississippi code second claims respondent acted color custom usage mississippi prescribed segregation races dining facilities petitioner claim respondent acted color mississippi statutory law similar claim respondent action constituted state action indeed two claims proved factual showing respondent state official acted virtue official capacity private party acting conjunction state official state official acts virtue official capacity precisely use misuse state authority makes action state action however private party acts alone must shown view establish acts color state statute authority needed show action constitutes state action pointed part supra constitutional principle state shall significant involvement whatever racial discrimination prior cases mere existence state policy authorizing encouraging otherwise supporting racial discrimination particular kind service sufficient render private discrimination service state action however statutory term color statute narrower meaning constitutional concept state action color language serves generally limit kinds constitutional violation section provides remedy understand language applies private persons helpful consider application state officials legal usage word color color authority color law color office color title colorable suggests kind holding means appearance semblance simulacrum necessarily reality see black law dictionary rev ed however word appears covers actions actually authorized state see myers anderson nixon herndon lane wilson misuse state authority ways intended state see monroe pape supra screws supra latter situations holding official uses actual authority give appearance authority take particular action taking cases abuse power palpable victim observer may well aware official exceeding authority holding authority wholly transparent cases misuse authority alone enough warrant recovery see monroe pape supra classic catlette cir thus public official acting virtue official capacity always acts color state statute law whether overtly relies authority support action whether action violates state law private person acts color state statute law like official way acts consciously pursuant law gives aid comfort incentive cf griffin maryland flemming south carolina elec gas cir appeal dismissed acts conjunction state official price supra present case mississippi statutory law authorize encourage respondent discriminate petitioner basis race therefore petitioner establish respondent acted color mississippi statutory law showing respondent aware body law prescribing encouraging authorizing legitimating effectuating otherwise supporting refusal serve petitioner vice action color statute exists wherever private discriminator consciously draws state statute kind support discrimination therefore irrelevant petitioner arrested trespass provision petitioner second contention respondent discriminated color custom usage mississippi presents difficulty found prior cases construing phrase color custom usage context litigated though context briefly discussed opinions jones alfred mayer supra true occasion summed statutory language color statute ordinance regulation custom usage state territory meaning color law incorporating requirement state action akin equal protection clause see price supra loose vague phrase color law always used context cases reliance put something custom usage never held even intimated custom usage means law indeed justice harlan dissenting jones alfred mayer supra used different formula summarizing color language said referred action taken pursuant state community authority moreover referred discriminations legitimated state community sanction sufficiently powerful deserve name custom emphasis added see also monroe pape supra harlan concurring abuses recurrent amount custom usage thus color law formula used members summarize parallel language also true phrase color law occurs debates act see infra since original version introduced enacted word law first word enumeration following color use color law handy formula debate readily explained importantly phrase never taken considered comprehensive authoritative summation provisions said century ago since repeated expounding statute must guided single sentence member sentence look provisions whole law object policy boisdore heirs taney mastro plastics nlrb richards dandridge williams marshall dissenting legislative history provides direct guidance interpretation phrase custom usage much lengthy debate concerned truth allegations kkk outrages constitutionality wisdom sections act little attention given precise wording sustained discussion meaning custom usage consequently view called analyze purposes congress sought achieve enacting context civil rights act relating phrase custom usage congressional purposes properly interpret apply statutory language today seeking determine purposes important recall originated part statute directed depredations private army cong globe remarks kelley supporter bill klan recognized congress widespread conspiracy operating wholly outside law jones alfred mayer supra employing variety methods coerce negroes others forgo exercise civil rights theoretically protected constitution federal statutes areas south klan strong enough paralyze operations state government representative coburn supporter bill noted character outrages numerous repeated continued month month year year extending many similar character aimed similar class citizens palliated excused justified absolutely denied class men like local outbreaks sometimes appearing particular districts mob band regulators may time commit crimes defy law every mark attribute systematic persistent organization fixed purpose regular plan action development condition affairs work day even year nature things must slow one fact piled another week week year year occurrences show effective plan thousands men deprived equal protection laws arresting power fettered witnesses silenced courts impotent laws annulled criminal goes free persecuted citizen looks vain redress condition affairs extends counties many places rule exception cong globe senator schurz moderate opponent behalf president personally investigated disorders south summed condition dealt real evil southern find baffled tendency prevailing diseased public sentiment partly vents violent acts partly winks partly permits overawed public sentiment terrorizing timid people corrupting overawing thus obstructing functions justice chief complaint laws state unequal even laws equal face yet systematic maladministration neglect refusal enforce provisions portion people denied equal protection app debates houses also make clear many gave careful attention conditions called bill provisions bill problems constitutionality policy presented think federal government undertook provide federal remedy every isolated act private persons amounted interference exercise constitutional right see remarks trumbull opponent remarks poland supporter conferee app remarks garfield app remarks perry supporter example injury federal rights result genuinely individual act private prejudice said state local authorities failing give equal protection countenancing major interference exercise federal rights indeed instances rightly said acts discrimination isolated precisely state affirmatively fulfilling obligation afford equal protection circumstances useful purpose served providing federal remedy isolated wrong resulting federal intrusion state affairs unjustified near conclusion debate garfield observed believe speaker last secured bill trenchant provisions reaches heart ku klux organization yet guarded preserve intact autonomy machinery state governments municipal organizations established state laws first category involving action color authority derived state government category invasions clearly within state officials private persons acting consciously state support participate interference exercise federal rights interference assumes far graver cast otherwise authority state brought conflict authority constitution see monroe pape supra opinion frankfurter second category involving conspiracy within ambit well recognized criminal law conspiratorial agreements concerted action present aggravated dangers society see rabinowich pinkerton krulewitch jackson concurring note developments law criminal conspiracy harv rev general reason exemplified activities ku klux klan congress provided civil remedy conspiratorial interference right equal protection third category absence overt elements conspiracy constitutional rights violated widespread habitual practices conventions regarded prescribing norms conduct supported common consent official unofficial community sanctions short customs usages violation constitutional rights customary violation definition widespread enduring therefore worthy congressional response read response made provision remedy person color custom usage state subjects causes subjected citizen person within jurisdiction thereof deprivation rights privileges immunities secured constitution recently said construing another early civil rights statutes think history leaves doubt give statute scope origins dictate must accord sweep broad language price supra language imposes obstacle interpretation carrying congressional purposes identified think clearly possible private person entity like respondent subject person cause subjected deprivation constitutional right quoted words used monroe pape supra held cause action stated allegation police officers invaded petitioners home violation fourth fourteenth amendments certainly deprivation means something like extinguishment cause action stated policeman even state government whole extinguish constitutional right least sits cf panhandle oil knox holmes dissenting constitutional right extinguished amendment constitution deprivation meant extinguishment also nullity thus cases finding violations sections must taken held deprivation used statutes means extinguishment rather something like violation denial infringement cf jones alfred mayer supra cong globe remarks trumbull manager civil rights bill present case illustrates possible private action circumstances constitute state action violating constitutional right action amounts deprivation within meaning discussing petitioner contention respondent acted color state law already indicated understanding words color see supra apply understanding well read custom usage mean usually meant common law widespread longstanding practice commonly regarded prescribing norms conduct backed sanctions see strother lucas pet arredondo pet sanctions need imposed state custom effect force law even backed force state see adams otterback merchants bank state bank wall cf jones alfred mayer supra power custom generate impose rules conduct even without support state long recognized see mercer county hacket wall blackstone commentaries cardozo nature judicial process course custom usage within custom state territory recognized debate ku klux klan act word state refer state government texas white wall decided two years debate said word state used constitution describes sometimes people community individuals less closely political relations inhabiting temporarily permanently country often denotes country territorial region inhabited community unfrequently applied government people live times represents combined idea people territory government difficult see senses primary conception people community people whatever territory dwelling either temporarily permanently whether organized regular government looser less definite relations constitute state undoubtedly fundamental idea upon republican institutions country established constitution term state frequently expresses combined idea noticed people territory government state ordinary sense constitution political community free citizens occupying territory defined boundaries organized government sanctioned limited written constitution established consent governed eschews attempt interpret background rational scheme congressional purposes instead relies basically three sets materials support restrictive interpretation statute first cases make casual use vague phrase color law summation color language rest interpret significance custom either erroneous theory constitutional law outside specific context altogether already shown cases hardly relevant much less controlling see supra second set authorities consists three quotations legislative history purporting explain scope already shown quotations set reliable guide interpretation see supra given demonstrable lack consensus among debaters precise issue highly misleading select two three statements arguably favorable one view pronounce authoritative moreover already indicated see supra remarks representative shellabarger senator edmunds consist merely handy formula debate directed matters draftsmanship subject varying interpretation finally dwells relative lack controversy contrast heated debate act however despite senator edmunds complacent prediction opposed opposed vigorously senator johnston commented senator vermont senator edmunds said objection first section bill section view slight objection unconstitutional cong globe app representative mchenry called outrage flagrant infraction constitution representative edward rice characterized bringing lambs slaughter said provision dragging persons homes neighbors vicinage witnesses redress private grievances federal courts see also app remarks thurman moreover adequately characterize controversy act originally proposed made federal crime conspiracy state commit act committed federal enclave constitute murder manslaughter mayhem robbery assault battery perjury subornation perjury criminal obstruction legal process resistance officers discharge official duty arson larceny see app remarks shellabarger extreme opponents bill attacked section attacked sections moderate opponents objected section reached private conduct ousted broad range criminal jurisdiction even successfully meeting constitutional obligation provide equal protection see remarks arthur opponent representative garfield example criticized original see app praised voted final bill including understood reach private conduct see intrinsic merits conclusion custom purposes must force law wholly acceptable phrase force law meant common law merely custom must effect law generally regarded normative force whether enforced otherwise supported government clear however meaning takes position custom acquire force law virtue persistent practices state officials little debate supports narrow reading statute statement representative garfield relies ante refers merely permanent official practices broadly systematic laws neglect refusal enforce short representative garfield theory equal protection clause private customary violations constitutional rights basis race denials equal protection failure state prevent remedy mere state inaction converted customary private discrimination denial equal protection congress power remedy see also cong globe remarks hoar moderate supporter remarks lowe supporter cases never explicitly held state inaction alone face purely private discrimination constitutes denial equal protection cf burton wilmington parking authority supra catlette cir lynch cir henkin shelley kraemer notes revised opinion rev see also supra nevertheless constitutional theory men enacted remains relevant interpretation meaning representative garfield theory fourteenth amendment congressional power strong support debate see harris supra recognition theory fortiori principal theory among bill supporters radical view fourteenth amendment empowers congress assert plenary jurisdiction state affairs see ibid provides confirmation conclusion custom means custom people state custom state officials iii since case remanded think proper express views kinds relief petitioner may entitled prevail merits section effect authorizes federal courts protect rights secured constitution laws invoking remedies known arsenal law standards governing granting relief developed federal courts accordance purposes statute matter federal common law see tenney brandhove monroe pape supra pierson ray basista weir cir cf sullivan little hunting park case borak course justice requires federal district courts enrich jurisprudence looking remedies provided wherein sit resort state law cases reason federal remedial law made adequate carry purposes statute section general impose strict liability come within prohibitions certain broad immunities recognized see tenney brandhove supra monroe pape supra pierson ray supra types cases wrong closely analogous wrong recognized law torts appropriate federal apply relevant tort doctrines bearing particular mental elements existence amount liability see pierson ray supra whirl kern cir types cases however common law torts may divided important questions defenses relief may inadequate carry purposes statute thus common law infallible guide development particular denial equal protection basis race central evil designed stamp basis recovery relief depend vagaries general common law governed uniform effective federal standards appropriateness particular remedy given case depends circumstances case especially degree culpability defendant view plaintiff shows voluntary denial equal protection ground race amounting violation entitled recover compensation actual damages simply basis proved violation question compensatory damages one allocation actual loss innocent plaintiff defendant deliberately discriminates basis race think faithful statutory purposes impose loss discriminator even unaware discrimination constituted state action denying equal protection proof evil motive specific intent deprive person constitutional right generally required monroe pape supra whirl kern supra indeed nixon herndon lane wilson upheld complaints seeking recoveries state election officials merely carried official duty prevent plaintiffs voting discriminatory state statutes made ineligible vote course may cases proper give declaratory injunctive relief without damages see williams hot shoppes app bazelon dissenting recover punitive damages believe plaintiff must show bare violation hand need show defendant specifically intended deprive recognized federal right required word willfully see screws supra need show actual damages basista weir supra tracy robbins sufficient plaintiff show either defendant acted color statute ordinance regulation custom usage state territory actual knowledge violating right secured constitution laws defendant acted reckless disregard whether thus violating right cf mccormick handbook law damages however view proprietor place public accommodation discriminates basis race decision peterson city greenville supra enactment civil rights act reckless disregard matter law therefore may found liable punitive damages course proper factfinder consider degree recklessness actual knowledge circumstances assessing amount punitive damages award particular case may argued inequitable impose punitive damages defendant restaurateur example knowingly recklessly violates constitutional right fear lose customers argument plainly unacceptable protection constitutional rights may watered members public actively oppose exercise constitutional rights others cooper aaron give weight argument encourage popular opposition compliance constitution moreover argument particularly devoid merit context enacted congress determined stamp widespread violations constitutional rights virtually cost imposed liability even persons simply failed prevent certain violations see cong globe remarks poland given interpretation befitting purposes threat withdrawal patronage largely empty since place public accommodation community better position discriminate prospect substantial punitive damages may effective means persuade proprietors places public accommodation respect constitutional rights agree statement page opinion second element requires plaintiff show defendant acted color law see part ii infra section reads follows every person firm corporation engaged public business trade profession kind whatsoever state mississippi including restricted hotels motels tourist courts lodging houses restaurants dining room lunch counters barber shops beauty parlors theatres moving picture shows places entertainment amusement including public parks swimming pools stores kind wherein merchandise offered sale hereby authorized empowered choose select person persons desires business authorized empowered refuse sell wait upon serve person owner manager employee public place business desire sell wait upon serve public place business may desires display sign posted said place business serving notice upon general public management reserves right refuse sell wait upon serve person however display sign shall prerequisite exercising authority conferred act person enters public place business state upon premises thereof requested ordered leave therefrom owner manager employee thereof requested ordered leave refuses shall guilty trespass upon conviction therefor shall fined five hundred dollars imprisoned jail six months fine imprisonment found state action different ground miss laws senate concurrent resolution miss laws cc miss code ann miss laws miss code ann see inaugural address former governor james coleman miss house journal see also miss code ann enacted session mississippi legislature produced many statutes resolutions including dealing separation races heading segregation index general laws volume session races addition miss laws following chapters general laws mississippi enacted february march april cited heading chapter maximum penalty incestuous interracial marriage chapter miss code ann act prohibit fomenting agitation litigation chapter miss code ann entire executive branch state government prohibit lawful means causing mixing integration white negro races public schools public parks public waiting rooms public places amusement recreation assembly chapter miss code ann standards admitting foreign lawyers practice mississippi chapter miss code ann act prohibit person creating disturbance breach peace public place business chapter miss code ann act require railroad companies bus companies common carriers passengers owning operating leasing depots bus stations terminals provide separate accommodations sic races traveling intrastate travel chapter miss code ann act require railroad companies bus companies common carriers hire maintaining operating waiting rooms passengers provide separate toilet facilities races traveling intrastate travel chapter miss code ann act require persons traveling intrastate travel use occupy waiting rooms marked provided persons prohibit persons traveling intrastate travel entering using waiting rooms marked provided persons chapter act prohibit use profane vulgar indecent offensive slanderous language telephone chapter separate schools maintained white black children see miss code ann unlawful whites attend integrated schools chapter repeal compulsory education laws chapter miss code ann creation state sovereignty commission chapter senate concurrent resolution condemning protesting brown board education addition foregoing enactments numerous statutes force thereafter repealed manifest mississippi segregation policies see miss code ann punishment guilty printing publishing circulating matter urging presenting public acceptance general information arguments suggestions favor social equality intermarriage whites negroes provisions purport require segregation taxicabs except servants miss code ann state insane hospital miss code ann schools miss art miss laws miss code ann explicit reference segregation omitted conspiracy statute miss code ann supp miss code ann enacted enacted see generally bailey patterson cir cf city jackson cir involving segregation railroad bus terminals appeals noted one sophisticated methods circumventing law local police eschew segregation laws using place conventional breach peace trespass laws instruments enforcing segregation euphemistically termed separation see also lewis greyhound supp bailey patterson supp miss rives dissenting vacated remanded see donnell state miss among customs call common law come us remote past rules special application sustain quasi public relation community wayfarer traveler right demand food lodging common carrier bound accept passengers goods offered transportation according means soo sic applied admission public shows amusements entitled admission instance refusal action case lay unless sufficient reason shown state civil rights statute deals subjects always legal control state civil rights law took form amendment miss rev code forbade inter alia segregation races railroads stage coaches steamboats none provisions amended statutes though apparently never explicitly repealed appear mississippi code subsequent codifications state law mississippi legislature enacted criminal statute provided railroads shall provide equal separate accommodations white colored races prior statutes conflict therewith repealed pro tanto miss laws also see mccabe atchison topeka santa fe evans abney brennan dissenting evans newton opinion white burton wilmington parking authority supra stewart concurring see also mulkey reitman supra originally enacted act provided person color law statute ordinance regulation custom usage state shall subject cause subjected person within jurisdiction deprivation rights privileges immunities secured constitution shall law statute ordinance regulation custom usage state contrary notwithstanding liable party injured action law suit equity proper proceeding redress proceeding prosecuted several district circuit courts subject rights appeal review upon error remedies provided like cases courts provisions act ninth april eighteen hundred entitled act protect persons civil rights furnish means vindication remedial laws nature applicable cases section presently provides every person color statute ordinance regulation custom usage state territory subjects causes subjected citizen person within jurisdiction thereof deprivation rights privileges immunities secured constitution laws shall liable party injured action law suit equity proper proceeding redress language changed without comment present form codified revised statutes see id revision statutes draft jurisdictional provisions act appear purposes opinion assume linguistic differences original present immaterial see monroe pape opinion frankfurter cf jones alfred mayer military remedy designed become available remedies inadequate created act see generally comment federal intervention suppression domestic violence constitutionality statutory power policy duke numerous criminal civil remedies created prior civil rights acts principally protect voting rights see act stat act stat et seq act stat statutes repealed see stat stat declared unconstitutional see reese act held unconstitutional james bowman act held unconstitutional see generally gressman unhappy history civil rights legislation rev guest appeal dismissal indictment failure state offense laws see generally cox foreword constitutional adjudication promotion human rights harv rev purposes part opinion put aside petitioner allegation conspiracy justice frankfurter made passing reference custom separate opinion monroe pape supra see infra lower courts phrase custom usage received thorough consideration given different interpretations compare williams hot shoppes app gannon action supp mo hot shoppes case construed custom usage include requirement solely basis doubts congressional power reach private interference fourteenth amendment rights doubts completely removed decisions see supra two cases williams howard johnson restaurant cir williams howard johnson cir subsequent appeal sub nom williams lewis cir en banc appeals fourth circuit held private custom usage amount state action case dealt custom usage first element deprivation constitutional right second element action color statute ordinance regulation custom usage two decisions constructions equal protection clause true slack atlantic white tower system supp md aff cir cited moreover case occasion consider elements custom took judicial notice reports showing defendant area fact custom restaurant segregation sense see presently codified begins whoever color law statute ordinance regulation custom willfully subjects inhabitant state territory district deprivation rights privileges immunities secured protected constitution laws language differs comparable language supra several respects example law precedes statute usage follows custom entire enumeration statute usage qualified state territory refers rights secured whereas refers rights secured protected covers rights secured constitution laws emphasis added whereas covers rights secured protected constitution laws emphasis added reaches acts done willfully limited originally enacted modeled precursor differences coverage material see cong globe app remarks shellabarger apart inclusion word willfully see monroe pape supra linguistic differences mentioned thought substantive see opinion frankfurter price supra see supra legislative history concerning precise congressional understanding custom usage inconclusive least four possible interpretations suggested representative blair opponent bill argued operated state legislation nullity see cong globe app see also app remarks sloss opponent cases squarely reject limited construction see monroe pape supra second view reached deprivations constitutional rights color law see app remarks shellabarger remarks edmunds see remarks edmunds since representative shellabarger senator edmunds managers bill commentary ordinarily entitled great weight point either explain meant color law representative kerr opponent employed formula color state laws predicted give rise flood litigation involving types injury person property see app third view reflected comment senator thurman opponent said passing refers deprivation color law either statute law custom usage become common law app little support debate reading statute though apparently adopted without discussion justice frankfurter see monroe pape supra opinion frankfurter precise meaning senator thurman formula unclear may referring customs expressly recognized approved state courts may mind ancient principle general custom really part common law louisville nashville reverman see blackstone commentaries moreover senator thurman joined several others taking fourth position reaches private persons see app remarks thurman app remarks johnston opponent remarks mchenry opponent remarks rice opponent cf remarks poland supporter conferee speeches debate consideration purposes statute make clear congress intend reach every private interference constitutional right see infra finally two members house expressed view compatible preceding positions thought principal effect remove possible defense defendant acted state authority see remarks biggs opponent app remarks maynard supporter section patterned civil rights act stat see cong globe app remarks shellabarger legislative history latter section enlightening precise meaning color law statute ordinance regulation custom comments similar language see cong globe veto message president johnson remarks loan supporter wilson manager remarks johnson opponent remarks stewart supporter remarks trumbull manager similar language appeared freedmen bureau bill also debated first session congress addition word custom appeared bill see however precise language sections received virtually attention debate though indication custom recognized different law see remarks hendricks opponent see also infra see generally harris quest equality consider narrow construction given collins hardyman longer binding see supra section fits legislative scheme providing remedy individuals share responsibility conspiratorial wrongs failing make reasonable use power prevent perpetration wrongs think also adequate answer argument made civil rights cases supra private party differs state former whereas latter deprive person constitutional right sense extinguishing right neither private person state extinguish impair constitutional right although state certainly violate infringe fail protect constitutional right private person violate infringe constitutional right due factual circumstances action constitutes state action wholly private conduct violates constitutional prohibition conduct thirteenth amendment cf civil rights cases supra clyatt bailey alabama private person also course wholly private conduct interfere exercise enjoyment constitutional rights run guest supra opinion brennan thus interference occur even violation constitutional right party duty correlative jones alfred mayer supra noted session congress passed civil rights act also passed freedmen bureau bill extended military jurisdiction parts south consequence state local law ordinance police regulation custom prejudice civil rights belonging white persons refused denied egroes account race color previous condition slavery involuntary servitude see cong globe pointed although bill vetoed president johnson nonetheless significant recognition right purchase property right refused denied custom prejudice well state local law also observed course abrogation civil rights made consequence custom prejudice might easily perpetrated private individuals unofficial community activity state officers armed statute ordinance agree reasons stated opinion relevant custom case one segregating races dining facilities rather one refusing serve white persons company negroes course agree custom must shown state enforced texas white overruled unrelated issue morgan thereafter quoted approvingly meaning state mcpherson blacker superficially odd violation constitutional right may actionable violation occurs one state custom another state cases impose liability violator however congress interested providing remedy called major violations reason liability may vary one state another similarly privately chosen discrimination constitute state action others depending public policies different result dictated sound considerations principle policy though reflected constitution rather statute moreover evidence respondent attention expressly called civil rights act