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Public Accommodation Laws
Related in some ways to custom is the law of public accommodations, which crystallized in the common law into a set of defined duties to the general public. At common law, common carriers such as ferries, coaches, and later railroads, and common callings such as inns, had special duties that accompanied their holding themselves out to the public as being in those businesses: They had a duty of nondiscrimination (first come, first served, unless there was good cause to exclude a potential patron) and reasonable charge (which could vary by customer as long as it was in the range of reasonableness). Later these duties were codified, and you often see a reflection of them on the back of hotel room doors (another duty was to stick to announced maximum rates). Originally the duties of public accommodations sprang from the local monopoly an inn or ferry might enjoy, which threatened travelers in unfamiliar areas with unfair surprise given their vulnerability. The concept of public accommodations was eventually broadened to include other facilities such as grist mills and grain elevators, on the grounds the owner had either received a public subsidy (e.g., eminent domain power) or the business was “affected with a public interest.”17
The enactment of civil rights statutes has recently led to a further expansion of the notion of public accommodation. The historical connection between public accommodations and race discrimination is a contested topic: Some see the common-law definition of public accommodation as having narrowed during the era of Jim Crow, in order to give business owners more of an opportunity to exclude African Americans, whereas others see the scope of public accommodation remaining unchanged and fixed on
17.See Munn v. Illinois, 94 U.S. 113, 126 (1877) (holding that state has power to regulate the rates charged by grain elevators).
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travel-related businesses.18 Title II of the Civil Rights Act of 1964 contains a very broad definition of “public accommodation.” Included are (1) inns, hotels, and motels, unless there are five or fewer rooms and the owner lives on the premises; (2) any restaurant, cafeteria, or lunch counter; (3) “any motion picture house, theater, concert hall, sports arena, stadium or other place of exhibition or entertainment.”19 Private clubs or other establishments “not open to the public” are excluded.20 The provision regarding entertainment venues in particular goes beyond the common-law definition. It appears that the expansive definition of public accommodation in the 1964 Act has had some gravitational effect on the commonlaw definition, with the New Jersey Supreme Court finding, for example, that casinos, a heavily regulated business, had lost their common-law right to exclude for any or no reason, in this case card counters.21 Other courts have stuck with the narrower commonlaw approach: As long as the facility is not discriminating based on a protected status (like race), it can revoke a license to enter a facility such as a casino or racetrack for any or no reason at all as these are not public accommodations.
We will return to the issue of takings in Chapter 9, but might the owner claim that a governmental expansion of duties not to exclude constitutes a taking? Civil rights statutes are not vulnerable on this ground, because the harm-prevention rationale is clear. But what about the inability to exclude card counters? Or what if a state prohibits a shopping mall from excluding political pamphleteers? This was the question in PruneYard Shopping Center v. Robins.22
18.Compare Joseph William Singer, No Right to Exclude: Public Accommodations and Private Property, 90 Nw. U. L. Rev. 1283 (1996), with A. K. Sandoval-Strausz,
Travelers, Strangers, and Jim Crow: Law, Public Accommodations, and Civil Rights in America, 23 Law & Hist. Rev. 53 (2005).
19.42 U.S.C. § 2000a(b).
20.Id. § 2000a(e).
21.Uston v. Resorts Int’l Hotel, Inc., 445 A.2d 370 (N.J. 1982).
22.447 U.S. 74 (1980).
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The U.S. Supreme Court held that because the owners had already invited the public in generally, they did not lose much when prohibited from excluding political pamphleteers. At the state level, the New Jersey Supreme Court, again the outlier, held that Princeton University’s custom of openness prevented it from excluding a person peacefully distributing political literature.23 What all these statutes and opinions have in common is a partial withdrawal of the delegation of gatekeeping authority to owners. In the interest of openness and free speech (and card counting?), the owner’s freedom to control the business atmosphere is sacrificed. In the case of race discrimination, our next topic, society has given a clear answer. In some of these other contexts the question is far closer, especially where the original antimonopoly rationale for public accommodations does not hold. Some might see a shopping mall as a local monopolistic substitute for the town square (others might not), but it is harder to see casinos in this light.
Antidiscrimination Laws
As just noted, antidiscrimination laws have expanded public accommodation law and forbidden discrimination on the grounds of protected classes like race, sex, religion, and national origin. But antidiscrimination law has far-reaching impacts on owners’ exclusion rights outside the context of public accommodations as well.
Some antidiscrimination law flows directly from the U.S. Constitution, and the Fourteenth Amendment in particular. In the famous case of Shelley v. Kraemer,24 African Americans were sold property, but neighboring landowners sued to enforce a covenant attached to the property prohibiting the property from being occupied by “any person not of the Caucasian race.” Overruling the
23.See State v. Schmid, 423 A.2d 615 (N.J. 1980).
24.334 U.S. 1 (1948).
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Missouri Supreme Court, the U.S. Supreme Court held that judicial enforcement of the covenant was state action and would violate the Fourteenth Amendment.
What gave courts and commentators difficulty (and still does) is delineating when public enforcement of private property rights is state action (and when it is not) for purposes of the Fourteenth Amendment. Generally it is assumed that owners can invoke the law of trespass to exclude unwanted guests even if the owner is discriminating on a basis that would be unconstitutional if it were accompanied by state action. Thus, mere court involvement is not the test. The enforcement of racially discriminatory wills is a closer question. In Shelley, one of the factors, hearkening back to public accommodations law, was that the interlocking covenants attempted in some sense to monopolize a whole area. They were the functional equivalent of zoning, which would clearly be state action. To this one might add that covenants are contracts, and one might expect that racially discriminatory covenants would be unenforceable on grounds of public policy. Perhaps the state courts’ withholding of a public policy exception, in an area where such exceptions are routinely made, itself constitutes state action.
Among the statutes that cover antidiscrimination are some that focus specifically on housing. In the federal Fair Housing Act (FHA) of 1968,25 Congress prohibited discrimination on the basis of race, color, religion, sex, familial status, or national origin, and more recently disability, with respect to availability of housing (section 3604(a)), terms and conditions (section 3604(b)), advertising (section 3604(c)), lying about availability (section 3604(d)), and blockbusting (section 3604(d)). There are very narrow exceptions, for buildings with four or fewer apartments one of which the owner occupies (the so-called “Mrs. Murphy” exception, the name itself an example of stereotyping) and for sporadic nonprofessional sales of houses. Religious institutions and senior communities receive
25. 42 U.S.C. §§ 3601–19, 3631
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limited exceptions as well. The vision behind the FHA was an integrationist one, but the rights conferred are individual.
As in the rest of antidiscrimination law, the harm is in part economic, in part individual dignitary injury, and in part a matter of suppressing messages of subordination. In this regard it is important that neither the Mrs. Murphy exception nor the small-time seller exception applies to advertising. Thus the small live-in landlord cannot be sued for refusing to rent to a member of a protected class, which is a concession to the associational interests of what is thought to be a close-knit living arrangement. But an advertisement for “whites only” or even “persons speaking Polish, German, or Swedish” would give rise to liability.26 As this last example shows, proof issues are important in this area, with courts using the familiar mechanism of a prima facie case to shift the burden to the defendant to demonstrate a proper justification once disparate treatment or effect is shown. Despite its origins in an integrationist vision, the FHA has been held to ban discrimination in order to maintain integration (for example, where a complex is oversubscribed by minorities and undersubscribed by whites in comparison to their proportions of the population).27
It is also worth remembering that other antidiscrimination laws can come to bear on a problem and they are cumulative. The Civil Rights Act of 1866 provides that “[a]ll citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”28 This statute has been held to incorporate an expansive nineteenth-century notion of “race” so that ethnic and national groups, such as Arabs, Chinese, Jews,
26.See Holmgren v. Little Village Community Reporter, 342 F. Supp. 512 (N.D. Ill. 1971).
27.United States v. Starrett City Assoc., 840 F.2d 1096 (2d Cir. 1988).
28.42 U.S.C. § 1982.