398 U.S. 144 (1970), 79, Adickes v. S. H. Kress & Co.

Docket Nº:No. 79
Citation:398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142
Party Name:Adickes v. S. H. Kress & Co.
Case Date:June 01, 1970
Court:United States Supreme Court
 
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Page 144

398 U.S. 144 (1970)

90 S.Ct. 1598, 26 L.Ed.2d 142

Adickes

v.

S. H. Kress & Co.

No. 79

United States Supreme Court

June 1, 1970

Argued November 12, 1969

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Syllabus

Petitioner is a white school teacher who was refused service in respondent's lunchroom when she was accompanied by six Negro students, and who was arrested for vagrancy by the Hattiesburg, Mississippi, police when she left respondent's premises. She filed a complaint in the Federal District Court to recover damages alleging deprivation of her right under the Equal Protection Clause not to be discriminated against on the basis of race. The complaint had two counts, each based on 42 U.S.C. § 1983: (1) that she had been refused service because she was a "Caucasian in the company of Negroes" (under which she sought to prove that the refusal to serve her was pursuant to a "custom of the community to segregate races in public eating places") and (2) that the refusal of service and the arrest were the product of a conspiracy between respondent and the police (under which she alleged that the policeman who arrested her was in the store at the time of the refusal of service). The District Court ruled that, to recover under the first count, petitioner would have to prove a specific "custom of refusing service to whites who were in the company of Negroes" that was "enforced by the State" under its criminal trespass statute. The court directed a verdict for respondent on this count because petitioner failed to prove other instances of whites having been refused service while in company of Negroes in Hattiesburg. The Court of Appeals affirmed, holding that § 1983 requires the discriminatory custom be proved to exist in the locale where the discrimination took place and in the State generally, and that petitioner's proof was deficient on both points. The second count was dismissed before trial by the District Court on a motion for summary judgment, since petitioner "failed to allege any facts from which a conspiracy might be inferred." The Court of Appeals affirmed this determination.

Held:

1. The District Court, on the basis of this record, erred in granting summary judgment on the conspiracy count. Pp. 149-161.

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(a) The involvement of a policeman, a state official, whether or not his actions were lawful or authorized, in the alleged conspiracy would plainly provide the state action needed to show a direct violation of petitioner's Fourteenth Amendment rights entitling her to relief under § 1983, and private persons involved in such a conspiracy are acting "under color" of law, and can be liable under § 1983. Pp. 150-152.

(b) Respondent did not carry out its burden, as the party moving for summary judgment of showing the absence of a genuine issue as to any material fact, as it did not foreclose the possibility that there was a policeman in the store while the petitioner was awaiting service (from which the jury could infer an understanding between the officer and an employee of respondent that petitioner not be served), and its failure to meet that burden requires reversal. Pp. 153-159.

(c) Because respondent failed to meet its initial burden as the party moving for summary judgment, petitioner was not required to come forward with suitable opposing affidavits under Fed.Rule Civ.Proc. 56(e). Pp. 159-161.

2. Petitioner will have established a claim under § 1983 for violation of her equal protection rights if she proves that she was refused service by respondent because of a state-enforced custom requiring racial segregation in Hattiesburg restaurants. Pp. 161-174.

(a) Based upon the language of the statute legislative history, and judicial decisions, the words "under color of a . . . custom or usage, of [a] State," in § 1983, mean that the "custom or usage" must have the force of law by virtue of the persistent practices of state officials. Pp. 162-169.

(b) Petitioner would have shown an abridgment of her constitutional right of equal protection if she proved that respondent refused her service because of a state-enforced custom of racial segregation in public restaurants. Pp. 169-171.

(c) The District Court erred in its implicit assumption that a custom can have the force of law only if it is enforced by a state statute. Pp. 171-172.

(d) The District Court's ruling that proving a "custom" in this case required demonstrating a specific practice of not serving white persons in the company of Negroes in public restaurants was too narrow as the relevant inquiry is whether there was a longstanding and still prevailing state-enforced custom of segregating the races in public eating places. P. 173.

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(e) The courts below erred in suggesting that the custom must exist throughout the State, as a custom with the force of law in a political subdivision can offend the Fourteenth Amendment even though it lacks state-wide application. P. 173.

409 F.2d 121, reversed and remanded.

HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court.

Petitioner, Sandra Adickes, a white school teacher from New York, brought this suit in the United States District Court for the Southern District of New York against respondent S. H. Kress & Co. ("Kress") to recover damages under 42 U.S.C. § 19831 for an alleged violation of her constitutional rights under the Equal Protection Clause of the Fourteenth Amendment. The suit arises out of Kress' refusal to serve lunch to Miss Adickes at its restaurant facilities in its Hattiesburg, Mississippi, store on August 14, 1964, and Miss Adickes' subsequent arrest upon her departure from the store by the Hattiesburg police on a charge of vagrancy. At the time of both the refusal to serve and the arrest, Miss Adickes was with six young people, all Negroes, who were her students in a Mississippi "Freedom School" where she was

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teaching that summer. Unlike Miss Adickes, the students were offered service, and were not arrested.

Petitioner's complaint had two counts,2 each bottomed on § 1983, and [90 S.Ct. 1603] each alleging that Kress had deprived her of the right under the Equal Protection Clause of the Fourteenth Amendment not to be discriminated against on the basis of race. The first count charged that Miss Adickes had been refused service by Kress because she was a "Caucasian in the company of Negroes." Petitioner sought, inter alia, to prove that the refusal to serve her was pursuant to a "custom of the community to segregate the races in public eating places." However, in a pretrial decision, 252 F.Supp. 140 (1966), the District Court ruled that, to recover under this count, Miss Adickes would have to prove that, at the time she was refused service, there was a specific "custom . . . of refusing service to whites in the company of Negroes," and that this custom was "enforced by the State" under Mississippi's criminal trespass statute.3 Because petitioner was unable to prove at the trial that there were other instances in Hattiesburg of a white person having been refused service while in the company of Negroes,

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the District Court directed a verdict in favor of respondent. A divided panel of the Court of Appeals affirmed on this ground, also holding that § 1983

requires that the discriminatory custom or usage be proved to exist in the locale where the discrimination took place, and in the State generally,

and that petitioner's "proof on both points was deficient," 409 F.2d 121, 124 (1968).

The second count of her complaint, alleging that both the refusal of service and her subsequent arrest were the product of a conspiracy between Kress and the Hattiesburg police, was dismissed before trial on a motion for summary judgment. The District Court ruled that petitioner had "failed to allege any facts from which a conspiracy might be inferred." 252 F.Supp. at 144. This determination was unanimously affirmed by the Court of Appeals, 409 F.2d at 126-127.

Miss Adickes, in seeking review here, claims that the District Court erred both in directing a verdict on the substantive count, and in granting summary judgment on the conspiracy count. Last Term we granted certiorari, 394 U.S. 1011 (1969), and we now reverse and remand for further proceedings on each of the two counts.

As explained in Part I, because the respondent failed to show the absence of any disputed material fact, we think the District Court erred in granting summary judgment. With respect to the substantive count, for reasons explained in Part II, we think petitioner will have made out a claim under § 1983 for violation of her equal protection rights if she proves that she was refused service by Kress because of a state-enforced custom requiring racial segregation in Hattiesburg restaurants. We think the courts below erred (1) in assuming that the only proof relevant to showing that a custom was state-enforced related to the Mississippi criminal trespass statute; (2) in defining the relevant

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state-enforced custom as requiring proof of a [90 S.Ct. 1604] practice both in Hattiesburg and throughout Mississippi, of refusing to serve white persons in the company of Negroes, rather than simply proof of state-enforced segregation of the races in Hattiesburg restaurants.

I

Briefly stated, the conspiracy count of petitioner's complaint made the following allegations: while serving as a volunteer teacher at a "Freedom School" for Negro children in Hattiesburg, Mississippi, petitioner went with six of her students to the Hattiesburg Public Library at about noon on August 14, 1964. The librarian refused to allow the Negro students to use the library, and asked them to leave. Because they did not leave...

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