Brief Amicus Curiae — Reitman v. Mulkey

Supreme Court brief1967

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Text

MAR 15 1967".

F. DAVIS, CLERK

a > October Term, 1966 : :

No. 483

NEIL REITMAN, et al., and CLARENCE SNYDER,

‘Petitioners,

vs.

LINCOLN W. MULKEY, et al., and WILFRED J.

PRENDERGAST and CAROLA EVA PRENDERGAST,

_ Respondents.

On Writ of Certiorari a the Supreme Court

of the State of California

BRIEF OF NATIONAL COMMITTEE AGAINST

DISCRIMINATION IN HOUSING,

_AMICUS CURIAE

, JoszrH B. Rostson

15 East 84th Street

New York, New York 10028.

, } Sot RasKin

— 315 Lexington Avenue

New York, New York 10016

a oy Attorneys for National Committee Against

ar Discrimination in Housing, Amicus Curiae

Rosert CARTER “

JoHN CLaNncy

Jack GREENBERG :

- Marvin M. KarpatKiIn . ©

EPHRAIM MARGOLIN

Cart Raowuin :

Of Counsel

nai ;

TABLE OF CONTENTS

SU UF UT I ania seo ectcgesiccn scene

QUEsTIONS TO WHICH THIs BrieEF 1s ADDRESSED ..............

ARGUMENT

Pornt Oxe—The State of California has given leg-

islative recognition to the existence and evil

effects of discrimination in ee —

minority groups <2.2....200.0...000.cs Se Tiacasats

-A. Discrimination against minority groups

dominates the housing market in California

B. Residential segregation in California has

- harmful effects ................. ieee acaba teens

C. The State of California has recognized the

existence and harmful effects of racial dis-

crimination in housing by enacting legis-

lation. against such discrimination ..............

Point Two—Article I, Section 26 violates the Equal

Protection Clause of the Fourteenth Amend-

ment by encouraging, empowering and facilitat-

ing discrimin: tion in housing against minority

groups ...... Pe SES eneirer sea SSE OR

A. The Fourfeenth Amendment requires the

states to take appropriate action to prevent

inequality in housing ne ina cebermacad leach satin

| B. The momentum of California’ Ss involve-

~ment in regulation of discrimination in

housing makes its facilitation of discrimi--

nation state action within the reach of the

Fourteenth Amendment. ................000..00.00005

Bk i rea ek SL

- °

a a ed ee ee rr

OR get

Pe eT

PLO EDT I IVY en SO LIT

II ~

PAGE

C. Article I, Section 26 places the support of

the legal system of California behind racial

discrimination i in housing See A 26

D. Article I, Section 26 violates the Equal

Protection Clause because it authorizes

and facilitates racial -zoning ..............0.2...... - 32

E. The Fourteenth Amendment prohibits a

‘state from. disabling itself from. fulfilling ©

its constitutional responsibility to assure |

"* QOMMTALY TR TOUTE nas eesdh enn csetnsontisnnneneeen 36

Point Turer—Atticle I, Section 26 violates the

guarantee in 42 U. S. C., Section 1982 of the

right of all citizens of the United States to

equal: opportunity to purchase or lease prop-,

erty without discrimination based on race ........ . 38

A. History of Section 1982 ............00ccccee 38

B. The Thirteenth Amendment ...........:......0.:. 40 -

C. The Fourteenth Amendment oo... 41

D. The effect of Section 1982 on Article LL.

I or ra er Baar ane _ 46

2 oe . -

III ops scoad cosescs ivsconemev ices ccs ncor npn censeeneeh petkicen oct 47.

Tit

TABLE OF AUTHORITIES

PAGE

Cases:

Abstract Investment Co. v. Hutchinson, 204 Cal. App.

RRR ne cane AMI Ab ANE Re 28

Anderson v. Martin, 315 U- S. 399 (1964) 0... 27, 28, 30

Barrows v. J ackson, 346 U. BP CIBGS) 0. iccss:s. 28, 29

Bell*v. Maryland, 378 U. S. 226 (1964) .o.0.00...ccce.. 43

Block v. Hirsh, 256 U. S. 1385 (1921) 00... ca cccccecceceeeeees 25

Boman v. Birmingham Transit Company, 280 F. 2d. ;

HR CO TO ais csccoscsssceeseeccccnccssornonees . 28

Buchanan v. Warley, 245 U.S. 60 (1917) .........: TOVREA 27, 32

-. Burks v. Poppy Construction Co., 57 Cal. 2d “463

II sists ncwizeacusticcctsstt tas are a en 12, 17, 18

‘ Burton v. Wilmington Parking ‘Authority, 365.U. 8S. ,

715 (1961) shined Sage acisedcia ibappnaevin ae aatanlaccntoesatilcan (27

Civil Rights Cases, 109 U.S. 3, 22 (1883) ....39, 40, 41, 44, 45

Clyatt v. United States, 197 U. S. 207 (1905) oo... 39

Eisentrager v. Forrestal, 174 F. 2d°961 (1949), re-

versed on other grounds, 339 U. S. 765 (1950) ...... | 37

Evans v. Newton, 382 U. S. 296 (1966) ........ 22, 23, 24, 25, 27

Garner v. Louisiana, 368 U. S. 157 (1961) ......... ee 43

Gomillion v. Lightfoot, 364 U. S. 339 (1960) 00000000... 82

Griffin v. School Board, 377.U. S. 218 (1964) .o.00 0000... 31

Guinn v. United States, 238 U. S. 347 (1915) oo... = 82

Harmon v. Tyler, 273 U. S.’668 (1927) ooo... 33

Hawkins v. North Carolina Dental Society, 355 F. 2d

718 (C. A. 4, 1966) «*..........., hamAMAisee meen 23, 24, 25

Hurd v. Hodge, 334 U. S. 24 (1948) aura Aenea -41

* Jackson v. Pasadena City School District, 59 Cal. *

Fe acho scans oteccross anata _ 18

4 * ET OTR TIRE ER gr om penne renee bs ve

Ei OO ad 4,

PAGE

Lane v. Wilson, 307 U. S. 268 (1939) ........ meahionaledalaaninken 32

Lee v. O’Hara, 57 Cal. 2d 476, 370 P. 2d 321 (1962)... 17

Marsh v. Alabama, 326 U. S. 501 (1946) 2000... 25, 34

McCabe v. Atchison T. & S. F. Ry., 235 U. S. 151

RIE Te ee ee Aa OE Re ROR ON 28 .

Mulkey v. Reitman, 64 Cal. 2d 529, 413 P. 2d 825 .......... 2

Nixon v. Condon, 286 U.S. 73 2 SiC canaan .26, 28

Pennsylvania v. Board of Trusts, 353 U. 8. 230 (1957) _ 23 .

Prendergast v. Snyder, 64 Cal. 2d 877, 413 P. 2d 847 2

Richmond v. Deans, 281 U. S. 704 (1980) ..-ccco0o0 33

Second Slaughter House Case, Butchers’ ‘Union Co.

* v. Crescent City Co., 111 U. 8. 746 (1883) ............ 36

Shelley v. Kraemer, 334 U. 8. 1 (1948) ..0........... 27, 28, 33, 44

Smith v. Albright, 321 U. S. 649 (1944) tenet = 27,34 .

Terry v. Adams, 345 U. S. 461 (1953) | ceaaee Lee

Testa v. Katt, 330 U. S. 386 (1947) 0.0 37

Truax v. Corrigan, 257 U. S. 312 (1921) «0... 24

United States v. Guest, 383 U. S. 745 (1966) o.oo. 43, 44

United States v. Harris, 106 U. S. 629 (1882) ..........:. 40

United States v. Morris, 125 Fed. 322 (1903) ..........:.... 440

Wright v. Rockefeller, 376 U. S. 52 (1964) occ 82

PAGE

Statutes:

Cal. Stats. 1959, ¢. 1681, pp. 4074-7, Health agd Sanity

Code sections 35700-35741 ooo....oocccccceccccesseeveseereeven 17

Cal. Stats. 1959, ¢. 1866, p. 4424, Cal. Civil Code, Sees.

51-52 (1965) 0... suislesdinelessaedahsliadesieanie ta 17

Cal. Stats. 1963, ¢. 1853, See. 2, p. 3823 2... ees 18

Civil Rights Act of 1870, ch. 114, 16 Stat..140 (1870) 39

Se SIP SE GO I od icncsSicccictschaccdmrenrer secssssencnienion 45

Commission on Race. and Housing, Where Shall We. .

Live? REE ee A SRNR A TO 7, 9, 10,13 .

42 United States Code:

. _ Section NE ee eee aa ors 6,19, 38 -

Other Authorities: |

Abrams, Forbidden Neighbors IE scales india ceenh cas 7

50 Am. Jur., Statutes §441 ssnnewansnansnansuesausensusueantseacbenenese - 42

California Real Estate Magazine, Vol. XLIV, Issue

No. 2 (19638) 0.0.0.0... ae rae elope Reams Oe 30

Clark, Prejudice and Your Child (1955) ............ lame 11

Departments of Commerce and Housing and Urban ~

Development, ‘‘Construction Reports — Sale of*

‘ New One-Family Homes,’’ Series C25-26 (1963),

(25-27 (1964), C25-65-13 (1965) ....cccecccccecerren 33

Executive Order No. 11063, 27 Fed. Reg. 11527 (1962)* 19

Flack, The Adoption of .the Fourteenth Amendment

(Johns Hopkins Press, 1908) .................c0ce0cs 43

Governor’s Commission on the Los Angeles Riots

(Dec., 1965), Violence im the City—An End or a

Beginning Sk RR Moore POH OOO COT EAE THOM TS 16

Groner & Helfield, Race Discrimination in Housing,

_ BT Yale L. J. 426 (1948) 0... ces seanennnaloie 12

% .

PETE DE POLE OIE BOOS IT)

ri ar a a all wre

a ’

‘

OM PRE EMP. oe ih bp pten 6e

. ° .

. vI

. PAGE

Maslow, De Facto Public School Segregation, 6 Vill.

L. Rev. 353 (1961) ............. Cock Da gC 15

McEntire, Residence and Race (U. Cal. Press,

| CE ass sacsanernarsaraenes 8, 12, 33

Myrdal, An American Dilemma (1944) ................0000065 7,15 ©

National Committee Against Discrimination in Hous-

ing, ‘‘The Faiz, Housing Statutes and Ordi-

Neen ne cc c.kal van vpnnanaracenysanses 21

New York State Commission Against Discrimination, .

In Search of Housing, A Study of Experiences

of Negro Professional and Technical Personnel

in New York State — LES Oe 15

President’s Committee on Civil Rights, Report, To

Secure These mignts (1947 ) TGS. RS ve “) ae

Robison, J. B., ‘*The Possibility of a Frontal Assault

on the State Action Concept,’’ 41:Notre Dame

Lawyer 455 (1966) ...0.0.00.0..... se, 43

United States Commission on Civil es, 1959 Re-

are areas ad Macaca vasceniase 7, 9, 11, 12, 15

United States. Comaniecion on Civil Rights, 1961 Re-

| RR, BONNE Gy MIN nei snissrcigiccerrccsnsticcinnn 7, 12,13 ©

United States Commission on Civil Rights, ‘‘50 States

Report’’ (1961) ............ TE ICE sear eS 7, 14, 16

. se Weaver, The Negro Ghetto (1948)... Riebiiachaccs ae

ae, eg

IN THE

Supreme Court of the United States

: October Term, 1966 |

+. No, 483 ©

—_—_——EE- ee

NEIL Rurray, et al., and CLARENCE SNYDER,

Petitioners,

vs,

Lrvcouy W. Mutxey, et al., and Wiurrep J. PRenpercast

and Carota Eva PRENDERGAST,

On Writ of Certiorari to the Supreme Court

of the State of California

BRIEF OF NATIONAL COMMITTEE AGAINST

DISCRIMINATION IN HOUSING,

AMICUS CURIAE

The two proceedings before this Court on writ of cer-

tiorari to the California Supreme Court present the single

question whether a provision recently added to the Cali-

fornia Coiistitution violates the Constitution and laws. of

the. United States. In each case, it was asserted that the

_ owner of housing accommodations had violated a Cali-

fornia statute prohibiting discrimination in the sale or

Respondents.

om YORE TT OPE Y z

rental of housing on the basis of race, religion or national

origin. In each case, the owner asserted that the statute

had’ been invalidated by a clause added to the California

Constitution by action of the voters on Election Day in™

1964, on what was popularly known as ‘‘Proposition 14.”

The operative part of the clause, which is now Article J,

- Section 26 of the California Constitution, reads.as follows:

Neither the State nor “any. subdivision or agency

thereof shall deny, limit or abridge, directly or indi-

rectly, the right of any person, who is willing or de-

sires to sell, lease or’rent any part or all of his real

property; sto decline to sell, lease or rent such property

to such person or persons as he, in his absolute dis-

cretion, chooses.

The Supreme Court of California, ‘on May 10, 1966, iss

suéd its decisions' in these cases holding that Article I, —

Section 26, violated the Equal Protection Clause of the

Fourteenth Amendment. 7

“Interest of the Amicus ah

This brief is filed, with the consent of the parties, on’

behalf of the National Committee Against Discrimination

in Housing. The National Committee was founded in 1950.

Its constitution specifies the following purpose:

“To eliminate prejudice and discrimination, to lessen

neighborhood tensions, to defend. human and civil

rights secured by law, * * *

y 2 ;

1. Mulkey v. Reitman, 64 Cal. 2d 529, 413 P. 2d 825; Prender-

gast v. Snyder, 64 Cal..2d 877, 413 P. 2d 847.

ad ib

Its member organizations are as follows:

AFL-@IO

Amalgamated Clothing Workers of.

America, AFL-CIO

American Baptist Convention

American Civil Liberties Union

American Council on Human Rights

American Ethical Union ~

American Friends Service Committee

American Jewish Committee

American Jewish Congress

American Newspaper Guild, AFL-c10

American Veterans Committee

Americans for Democratic Action

Anti-Defamation League of B’nai B’rith

“Brotherhood of Sleeping’ Car Porters, *

AFL-CIO/CLC .

Commonwealth of Puerto Rico,

Department of Labor,

* Migration Division

Congress of Racial Reitie nanan

Cooperative League of the USA

Friendship House,

Industrial Union a AFL-CIO

International Ladies’ Garment

Workérs’ Union, AFL-c1o :

International Union of Electrical, Radio

and Machine Workers, AFL-cIo

Internationab Union, United

Automobile, Aerospace and

Agricultural Implement Workers

of America (UAW)

Jewish Labor Committee .

League for Industrial Democracy

The Methodist Church

. NAACP Legal Defense and Educational

Fund, Inc.

National Association for the Advance-

ment of Colored People—=nAAcP

National Association of Housing

Cooperatives

National Association of Negro Business

and Professional Women’s Clubs

National Catholic Conference for

Interracial Justice

National Committee on Tithing

in Investment

National Community Relations

Adivsory Council :

National Council of Churches of Christ

National Council of Jewish Women °

National Council of Negro Women

National Urban League

Protestant Episcopal Church

Scholarship, Education and Defense

Fund for Racial Equality

Southern Regional Council .

Synagogue Council of America

Union of American Hebrew

Congregations

-_ Unitarian Universalist Association

- United Church of Christ -

United Presbyterian Church

United Steelworkers of America, AFL-cIO0

Young Women’ s Christian Association

The National Cuttesities submits this brief because Ar-

- ticle I, Section 26 represents, in California and in all other:

states, a most potent device for indurating racial segrega-

tion in housing. The language ‘of Article I, Section 26 is

- general and unqualified.

‘No effort is made to catalogue

the considerations which the amendment would immunize

against state regulation or prohibition in a landowner’s de-

°:

termination to withhold property from particular individ-

TI em ar epee:

EPO PLOT LOMA LY OLR OT ONE PICT tame

YO RY

Pe Pee Po ee

4 .

uals. Rather, by vesting “absolute Gewretica >in the prop-

erty owner with respect to the "disposition of his property,

the amendment attempts to extend state constitutional pro-

tection to both reasonable and unreasonable motivations,

ethical and unethical considerations, reasons that under-

mine the general welfare as well as those_ — do not, for

selecting and rejecting willing buyers and’ renters.

J The major impact of the amendment falls upon mem-

bers of minority groups. *A constitutional amendment was

not needed to permit property owners to withhold a lease-

hold from lessees with pets, to withhold property in a sen-

ior citizens cornmunity from purchasers who do not meet |

an age requirement, or to withhold property for any num-

ber of considerations under commonly accepted tenets of

desirable social and economic behavior. However, in re-

cent years, the withholding of real property on purely. ra-

- eial.or religious grounds and the resultant creation of

segregated housing which denies equal opportunity for one

of the essentials of living has been.made the ‘occasion for

legal redress in California. Article I, Section 26 was pro-- °

posed. and passed for the precise objective of reversing

that trend by granting and guaranteeing the right to dis- -

criminate on racial and religious grounds in the selling and

leasing of real property.

The language of the amendment achieves that purpose.

Under .the phraseology used—‘‘absolute discretion’’ and

_“*decline to sell’’—all Mexicans seeking homes in Los An-

- . geles may be turned away because of their national origin

by owners whose houses are on the market; all Japanese

‘farmers may be denied farmland in the, San Joaquin Valley

—

: Pore seal eit

because they are-not Caucasian; all Negroes in San Fran-

cisco may be told that they cannot rent apartments because

of the color of their skin; all Jews may be excluded from

a housing project because of the, way they worship God.

In those instances, at least, the amendment undeniably

would sanction discrimination. It would even legalize total

exclusion of specified sie from whole communities.

It is the position of Amicus that. Article I, Section 26

of the California Constitution, by granting immunity from

the sanctions of state law to those who discriminate against

minority groups in selling ordeasing homes, by withholding

redress of state law from those who suffer such discrimi-

nation and by arbitrarily precluding the effective exercise

of state power to deal with the evils and dangers to the

state resulting from discrimination in the transfer of real

property, is in conflict with the Constitution and laws of

the United States. |

Questions to Which this Brief is Addressed ;

1. Whether, in view of the fact that discrimination

against minority groups dominates the market for housing

and deprives minority groups of equal opportunity to ob-

tain housing, California, by adopting Article I, Section 26

2. We have been authorized by the following organizations to

state that they,support the arguments set forth in this brief and wish

to be viewed as joining in its presentation: AFL-CIO; American

Civil Liberties Union; American Jewish Committee ; American. Jew- *

ish. Congress; Anti- Defamation League of B’nai B’ rith; Industrial

Union Department, AFL-CIO; International Ladies’ Garment Work-

frs’ Union, AFL-CIO; International Union, United Attomobile,

* /Aerospace and Agricultural Implement Workers of America

(UAW); NAACP Legal Defense and Educational’ Fund, Inc.; 2.

. National Association for the Advancement of Colored People; and

Scholarship, Education and Defense Fund for Racial .Equality..

oN ete igri ene mete mop aneneg

ee a CITY

has violated its obligation to take appropriate action to

prevent inequality in housing imposed upon it. by the Equal

Protection Clause of the Fourteenth Amendment.

: 2. Whether Article I, Section 26 violates the guarantee

in 42 U. S. C.; Section 1982 of the right of all citizens to

equal opportunity to purchase or lease Pla Tel without

discrimination. based on race. p

ARGUMENT

POINT ONE

The State of California has given legislative recog-

nition to the existence and evil effects of discrimina-

tion in housing against minority groups.

A. Discrimination against minority groups dominates

the housing market in. California

The ghetto pattern that disfigures residential areas

throughout the United States, including California, has

been revealed in every study made of the subject, whether

by public agencies or by private institutions. It means, in

practice, that almost every housing unit placed on the mar- ~

ket, for sale or rental, for slum dwellers or for millionaires,

bears an invisible label marking it as available for whites

only or for Negroes only. As a result, large numbers of

Negroes and members of other minority groups are denied

the opportunity to. purchase housing adequate for their

needs which they could otherwise afford and are compelled.

_to live in rasially, segregated areas of poorer quality and

status. .

In 1961, the U. 8. Commission on Civil Rights ob-

served :3 |

In 1959 the Commission found that ‘‘housing * * *

seems to be the one commodity in the American mar-

ket that is not freely available on equal terms to every-

one who can afford to pay.’’ Today, 2 years later, the

situation is not noticeably better. .

‘Throughout the country large groups of American

citizens—mainly Negroes but other minorities too—are

denied an equal opportunity to choose where they will

lite. Much of the housing market is closed to them for °

reasons unrelated to their personal worth or ability to -

pay. New housing, by and large, is available only to

- whites. And in the restricted market that issepen to

them, Negroes generally must pay more for equivalent

housing than do the favored majority. ‘‘The dollar in

a dark hand’’ does not ‘‘have the same purchasing

-power as a dollar in a white hand.”’

. And the California: Aavisory Committee to the U. S.

Commission on Civil Rights has reported :*

The State of California has a large and increasing

Negro. population. These people live mainly in segre-

_ gated patterns in the major urban centers of the State.

.. In most. cases, ‘Negro housing areas are considerably

less attractive than housing im other areas. :

* ¥ *

_3. Report of. the U. S. Commission on Civil Rights, Book 4,

Housing, p. 1 (1961). See also, Report of the President’s Commit-

tee on Civil Rights. To Secure These Rights, pp. 67-70 (1947) ;

Myrdal, An American Dilemma, pp. 618-27 (1944); Weaver, The ©

Negro ‘Ghetto (1948); Abrams, Forbidden Neighbors, pp. 70-81,:

137-49, 150-190, 227-243 (1955); Commission on Race and Hous-

‘ing, Where Shall We Live?, pp. 1-10 (1958) ; Report of the U. S.

Commission on, Civil Rights, pp. 336-374 (1959).»

4. U. S.-Commission on Civil Rights, “50 States Report”, pp. ..

43-46 (1961), sig r

LOOT IONE TY AAT ET

I pReTRe LBP

R . ’

As California’s Negro population incfeases, pres-

sure builds up in the great urban ghettos, and slowly

but perceptibly the segregated areas enlarge. The

Committee found that, as a general rule, Negro fami-

lies do not move individually throughout the commu-

nity. They move as a group. This is true in. most

eases of the relatively. high-wage Negro professional

group. It is practically universally true of Negroes

in the lower mass group. .

This Negro housing’problem is widespread. Ne-

groes encounter discrimination not only where houses

in subdivisions and in white neighborhoods are con-

‘cerned but also in regard to-trailer parks and motels.

Testimony received by the Committee indicated that

the trailer-park situation is particulatly acute and

that, especially in the southern part of the State, few,

if any, trailer parks will accept, Negroes.°

_ Unquestionably there is an established pattern of segre-

gation in housing,. and i in the sale and rental of real eatate,

in California. © 5 |

B. Residential segregation in California

has harmful ¢rfects.

Because of the pervasive nature of discrimination in -

housing, we have in effect two housing markets, one for’

whites and one for ‘non-whites. The resulting oppressive

effects on the direct victims of discrimination and on the

interests of the state as a whole are readily demonstrated.

5. The existence of housing bias in California’s two principal

metropolitan areas is further documented in McEntire, Residence

and Race (1960), in a chapter (pp. 32-67) studying residential pat- °

terns in 12 large cities representing the major regions of the country,

including Los Angeles and San Francisco. See particularly the maps

showing ‘racial concentration in those two Cities, pp. 61-66.

‘1. The most obvious price paid by those who are dis-

criminated against is a loss of freedom. ‘‘The opportunity

to compete for the housing of one’s choice is crucial to

both equality and freedom,’’ declares the Commission on

Race and Housing.®

Within their financial limits, majority groups in Amer-

ica are free to choose their homes on the basis of a number

of factors germane to their pursuit of happiness: the size.

of house needed to accommodate the family; preferences |

for particular styles of housing or kinds of neighborhoods ;

the availability of community facilities sith as churches,

schools, playgrounds, clubs, ‘shopping, and transportation.

This. freedom of choice is denied members of minority

groups. Granted the means a non-white person may. buy

any automobile, any furniture, any clothing, any food, any .

_ article of luxury/offered for sale. But it is not possible

for a non-white American to bargain freely, in an open,

competitive market, for the home of his choice, regardless _

of his intellect, integrity or wealth.

The U. 8. Commission on. Civil Rights, referring to the

‘‘white noose around the city,’’ has said:?

There may be relatively few Negroes able to afford

a home in the suburbs, and only some of these would

want such homes, but the fact is that this alternative

is generally closed to them. It is this shutting of the

' door of opportunity open to other Americans, this con-

finement behind invisible lines, that makes Negroes

call their residential areas a ghetto.

6. Report of Commission on Race. and a “Where Shall

We Live?, p. 3.(1958).

7. Commission on Civil Rights, 1959 Report, p. 378.

LLOEGR TT Rye

Housing discrimination also abridges the right of the

majority group owner freely. to sell or rent. his .property.

The mechanics of the dual, segregated housing market re-

strict the market within which the white seller may find

rospective purchasers. For practical purposes, he is eom-

pelled by the prevailing practices in the housing market

to offer his house to whites only or to Negroes only.

2. Housing Yiserimination imposes a heavy economic

penalty on the Negro. As the U. S. Commission on Civil

Rights pointed out in the portion of its 1961 Report quoted

above, ‘‘Negroes generally.must pay more for equivalent

housing than do the favored majority.’’** This is because

the discriminatory. practices that hold down the supply of

housing available to Negroes inevitably raise the price or

rent they must pay. |

McEntire, after reviewing all past studies as well as

those conducted for the Commission on Race and Housing,

concluded :° : .

Racial differences in the relation of housing equal-

ity and space to rent or value can be briefly summa-

rized. As of 1950, nonwhite households, both renters

-and owners, obtained a poorer quality of housing than

did whites at all levels of rent or value, in all regions

of the country. Nonwhite homeowners had better

quality dwellings than renters and approached more

closely to the white standard, but a significant differen-

8. Similarly, the Commission on Race and Housing, in ‘its Re-

- port, Where Shall We Live? (1958), p. 36, said: “* * * segregated

groups receive less housing value for. their dollars spent than do

whites, by a wide margin.’

9. Op. cit. supra, p. 155.

tial persisted, nevertheless, in most metropolitan areas

_and value classes. * * *

3. Other, less tangible, injuries are inflicted on the vic-

timg of discrimination in housing, with resultant evil ef-~

fects on the state itself.’° ‘“All of our community institu-

tions reflect the pattern of housing,’’ the president of the

Protestant Council of New York has stated. ‘‘It is inde- ©

scribable, the amount of frustration and bitterness, some-

times earefully shielded, but the anger and resentment in

these areas can scarcely be overestimated and can hardly

be’ described; and this kifid of bitterness is bound to seep,

as-it has already seeped, but increasingly, into our whole

body politic’? He said he could ‘‘think of nothing that is

more dangerous to the nation’s health, moral health as

well as physical health, than the matter’of these ghettos.’’™

Residential discrimination and segregation impede the

social progress and job opportunities of minority groups, |

and deprive the whole community of the contributions

these Americans might otherwise make.* It is questionable

whether we can fully comprehend the enormous harm to

the individual and to the community in terms of waste’ of

human ‘and economic resources.

4. Perhaps the most notorious effect of the ghetto sys-

tem is-its creation of slums, with all their attendant evils

—to the slum dweller and to the public weal. As ‘we have

seen, housing bias compels non-white groups. to live in the

10. See, in particular, Clark, Prejudice and Your Child (1955),

pp. 39-40.

11. U.S. Commission on Civil Rights, 1959 — p. 391.

error pene ar ae of

a ee ee ee ee

? .

Pod

~ restricted areas available to them. The California Supreme

Court summarized the results as follows in Burks v. Poppy

Construction Co., 57 Cal. 2d 463, 471 (1962) :

Discrimination in housing leads to lack of adequate

housing for minority groups [citations omitted], and

inadequate housing conditions contribute to disease,

and immorality.

In 1959, the U. S. Commission on Civil Rights described

the effects of residential discrimination as follows: ‘The

effect of slums, discrimination and inequalities is “more

slums, discrimination and inequalities. Prejudice feeds on

the conditions caused by prejudice. Restricted slum living ~

produces demoralized human beings—and their demoral-

ization then becomes a reason for ‘keeping them in their

place’ * *.* Not only are children denied opportunities but

the city and nation are deprived of their talents and pro-

ductive power.’’ *The Commission reported that a former

Secretary of Health, Education and Welfare estimated the

national economic loss-at 30 million dollars a year, repre-.

senting the diminution in productive power of those who

by virtue of the inferior status imposed upon them were »

unable ‘to produce their. full potential. -

Two years later, the Commission reiterated its conclu-

sion and added: ‘‘These problems are not limited to any

one region of the country. They are nationwide and their

implications are manifold * * *’?*

12. U. S. Commission gn Civil Rights, 1959 Report, p. 392; .

_ Commission on Race and Housing, op. cit. supra, pp. 5, 36-38; Gro-

’ ner & Helfeld, Race Discrimination in Housing, 57 Yale L. 5. 426,

428-9 (1948). |

13. U. S. Commission on Civil Rights, 1961 Report, Book 4,

“Housing,” p. 1. See also McEntire, op. cit. supra, pp: 93-94. \

+ >

‘

5. The raciat patterns of the slums resulting from

housing bias severely impede programs, of slum clearance

and urban renewal. The price paid for these civic improve-__.

ments in terms of forced moves and disrupted lives, is

_ often borne most heavily by the minority families that live

in the cleared areas.

The problem has been fully described by the U. S. Com-

frequently the principal inhabitants of the areas selected

. for slum clearance or urban renewal. But each of these

programs depends for success on the ability to relocate

some or all of the slum dwellers. Urban renewal obviously

ntemplates the destruction or renovation of obsolete slum

buildings, the residents of which must of course move. If

they are simply moved to another-segregated area, adding

to its population densities, a new slum is created. - In those

circumstances, the renewal. program represents little i in the

way of net reduction ef slums. :

14. U. S. Commission on Civil Rights, 1961 Report, Book 4,

“Housing,” c..4: “Urban Renewal,” especially pp. 82-83. See also

Commission on Race and Housing, op. cit. supra, pp. 37-40.

15. From the beginning of the Federal urban renewal program in

1949 up to’1960; slum clearance and urban renewal projects had re- . .

located 85,000 families. Of the 61,200 families whose color is known,

699% were non-white. Housing & Home Finance Agency, Reloca-

tion from Urban Renewal —— Areas through June 1960, p. .7

(1961).

16. “What is the Federal Government’s Role in Housing?” Ad-

dress to the Economic Club of Detroit, Feb. 8, 1954, quoted in Re-

port of the Commission on Race and Housing-~Where Shall We

Live?, p. 40 (1958).

As Albert M. Cole, former Federal Housing and Home.

“Finance Administrator, has said: -

. mission on Civil Rights.‘ It points out that minorities are _

| J

“ 14

Regardless of what measures are provided or de-

veloped to clear slums and meet low-income housing

needs, the critical factor in the situation which must

be met is the fact of racial exclusion from the greater

and better part of our housing supply. * * * No pro-

gram of housing or urban improvement, however well

conceived, well financed, or comprehensive, can hope

to make more than indifferent progress until we open

up adequate opportunities to minority families for de-

cent housing.

Tlie California Advisory Committee to the U. S. Com-

mission on Civil Rights discovered that these factors were _.

in full operation in that State, with clearly ‘visible harm .,

to the Negro population. It reported: ws

The Committee found that concentration of Negro

families into certain specified areas. within Calif rnia

cities seems to be augmented, rather than alleviated,

. by urban renewal projects. It appears that Negroes

displaced by such projects tend to find alternative

housing in pre-existing Negro sections. There seems.

* to belittle effort to guide displaced families in their

selection of homesites. The project moves forward

and Negro families along with other groups, -must

quickly find new homes. More often than not these

Negro families settle in adjacent ghettos already in

existence.

As the proportion of minority group members is

extremely high in the so-called ‘‘blighted\areas’”’ of

our State’s larger cities, this is a major problem for

those concerned with civil rights and minority hous-

ing. |

17. 50: States Report, supra, p. 45. °

15.

6. The harmful effects of residential segregation are

« not limited to housing. A conspicuous feature of the ghetto

system is its tendency to produce segregation in education.

and all other aspects of our daily livés.* It is primarily

responsible for the wide-spread de facto segregation that

hampers‘ Negroes-and persons of Puerto Rican and Mex-

ican origin in urban public schools.”® It has even impaired

the job opportunities opened up id fair employnient laws. ”

One of the most disturbing eediini of the physical pat-

tern of segregation, whether in housing or otherwise, is -

that it builds the.attitudes of racial, prejudice which, in

turn, strengthen the segregated conduet patterns. This

was recognized two decades ago by a Presidential Commit-

tees" 4

For these experiences demonstrate that segregation

is an-obstacle to establishing harmonious relationships

among groups. They prove that where the artificial

barriers which divide people and groups from one an-

other are broken, tension and conflict begin te be re-

18. Myrdal, An American Dilemma, p: 618 (1944) ; Commission

- on Race and Housing, ‘op. cit. supra, pp: 35-36.

19.- Maslow, De-Facto Public School Segregation, 6 Vill. L. Rev:

353, 354-5 (1961). In its 1959 Report, the Y. S. Commission on

Civil: Rights said (at p. 545): “The fundamental interrelationships

among the subjects of voting, education, and housing make it impos-

sible for the problem to be solved by the improvement of any one

factor alone.” See also pp. 389-90.

20. N. Y. State Commission Against Discrimination, In Search

of Housing, A Study of Experiences of Negro Professional and Tech-

nical Personnel in New York State (1959).

21. Report of the President's Committee on ‘Civil: Rights, To Se-

cure These Rights, pp. 82-7 (1947).

GOI PDA REE ORE: EA OLE INIT NET en ah Meine

Snoteatl seers ait Antic hina chief kotha maine tna eae eee a

tate

PIG TL, 9 porta

-16

placed by cooperative effort and an environment in

- which civil rights can thrive.** a

7. All the evils discussed above combine to crgate the

gravest danger of all to the security of ery. ever.

present threag-of violent race conflict. Virtually every in- |

stance of such-violence in the last two decades—outside

of the South—has reflected the ghetto system. It has arisen

either out of efforts by Negro families to move into pre-

viously all white areas or out of the tensions that build up

‘within the ghetto. It is enough to remind this Court of

the riots of 1965 in the Watts and other Negro districts of

Los Angeles that caused the loss of 34 lives and property

damages estimated at $40,000,000.2* California would not

have had a Watts riot if it had not had a Watts in the first

place.

22. The impact of housing discrimination is not limited aha

zens of our country. The California Advisory Committee to the U. S.

Commission on Civil Rights confirms this (50 States Report, supra,

p. 46): : ; a

Discrimination in housing directed against Negroes hag had

an unfortunate impact on foreign students whose skin colors are

dark. The Committee heard testimony from an Indian student

at Sacramento State College who indicated that he had been re-

fused accommodations in a number of ifistances because of his _

color. The testimony of student government leaders at the same

school indicated that this foreign student problem is significant.

Commendably, student groups at Sacramento State are trying to

do something about this situation t).rough investigation and con-

ference.

The Committee is very disturbed by the evident impact of

discriminatory treatment on foreign students whose preconcep- :

tions about American democracy have been rudely upset. These

students are potential leaders in their own countries and the -

image of America which they take back with them can be sig-

-nifitantly tarnished by such experiences. .

23. “Violence in the Citys-An End or a Beginning,” in by

the Governor’s Commission on be Los Angeles Riots (Dec., 1965),

p. 1.

; es -.

_C.. The State of California has recognized the existence

and harmful effects of racial discrimination in housing

by enacting legislation against such discrimination.

The State of California has given formal recognition

to the existence and evil effects of discrimination based on

--.raee, religion or national origin by the enactment of anti-

bias legislation. Iti is true that, as we note below, its policy .

has been far from consistent, particularly. i in housing. At

times, in fact, its laws have affirmatively facilitated and

even required discrimination. In recent years, however,

until the approval of Artigle I, Section 26 by referendum,

the California Legislature has’recognized reality by moving

progressively to curb the ghetto neon.

In 1959, California enacted a measure known as the

‘‘Hawkins Atct’’ which prohibited discrimination in ‘‘pub-

licly assisted housing- accommodations.’”** In the same

year, it-adopted the ‘‘Unruh Act’’ which revised its. law

dealing with places of public accommodation to make it

applicable to ‘‘all busines? establishments of every kind .

whatsoever.’’> This law was subsequently held to apply

to those in the business of selling or mane residential

housing.”*

24. Cal. Stats. 1959, c, 1681, pp. 4074-7, Health and Safety Code,

_ sections 35700-35741. a

25. Cal. Stats "1959, c. 1866, p. 4424, Cal. Civil Code, Secs. 51-

52 (1965).

26. Lee v. O’Hara, 57 Cal. 2d 476, 370 P. 2d 321 (1962) (reat °

estate brokers) ; Burks v. Poppy Construction Co., 57 Cal. 24 463

_ (1962) (developer of a tract of single family homes).

Ferdi Oy"

* ’

LOL TO. BR ORION ES

ye emer 4s

SLEPT NADIA ILE: OS ME POLY Oe BL

° . ;

In 1963, California dented the measure popularly .

known as the ‘‘Rumford Act,’’ which added sections 35700-

35744 to the Health and Safety Code?* and replaced the

provisions of.the ‘‘Hawkins Act.’’ The Rumford Act was

broader than the Hawkins Act in covering, inter alia, res-'

-idential housing containing more than four units, even

though not public’y assisted. In addition, the Legislature

vested the exclusive authority to adniinister the Rumford.

Act in the Fair Employment Practice Commission. The——

legislative policy which the Rumford Act implement

expressed as follows (Health and Safety Code, sec. 35700) :

The practice of discrimination because of race, col-

or, religion, national origin, or ancestry in housing: ac-

commodations is declared to be against public policy.

_ This part shall be deemed an exercise of the police

power of the State for the protection of the welfare,

health, and anes of the. people of this State.

The existence and evil effects of discrimination in hous-

ing have been recognized not only by the legislative branch .

of the state government but also by its judicial branch.

Burks v. Poppy Construction Co., supra, 57 Cal. 2d at 471;

Jackson v. Pasadena Gity School District,.59 Cal. 2d 876, |

881 (1963). 2

27. Cal. Stats. 1963, c. 1853, Sec..2, p. 3823.:

POINT TWO

Article I, Section 26 violates: the Equal Protection

Clause of the Fourteenth Amendment by encouraging,

empowering and facilitating discrimination in hous-

ing against minority groups. — ,

A. The F ourteenth Amendment requires the states to take |

appropriate action to prevent inequality in’ housing.

Article I, Section 26, if valid, would disable the state

and local legislative bodies of California from acting to

prevent discrimination by the owners of housing in sales

or rentals.** It would also preclude the state judiciary

~ from developing and applying common law principles that

limit such discrimination in any manner. At one stroke,

it would greatly limit if not undo the effect of all existing

state regulation in this field, prohibit future action at any

level of state government and assure to private owners of

realty freedom from any-state restraint on creation of the

discriminatory housing conditions that’ create many of |

California’s serious social problems. ‘We suggest that the

strictures of the Fourteenth Amendment cannot be so easily

avoided in matters of governmental responsibility.

28. Article I, Section 26 applies only to sales and rentals a the

property owner. Presumably, therefore, it leaves the existing state —

laws in effect insofar as they apply to discrimination initiated by real

estate brokers and discrimination by banks and other institutions in

the financing of housing. It also goes without saying that this pro-

. vision, even if valid, does not suspend the limitations of the Thir-

teenth and Fourteenth Amendment’ insofar as they apply to housing

benefitted by “state action.” Neither does it affect the power of the

Federal Government to deal with housing bias by legislation, such

as 42 U. S. C. Sec. 1982’ referred to below, or by executive action,

such as the Executive Order issued by President Kennedy in 1962

barring discrimination in housing receiving certain forms of Federal

assistance. Executive Order No. 11063, 27 Fed. Reg. 11527 (1962).

The purpose of the Fourteenth Amendment was to pro-

tect the rights of minority groups with respect to activities

in which, under our political system, the state is expected

to play a role. When this Court originally construed that

Amendment as dealing only with ‘‘state action,”’ it did so

on the assumption that the states would act appropriately

to prevent abuse of their legal systems so as to permit de-

nials of equal opportunity. Thus, in the Civil Rights Cases,

109 U. S. 3 (1883), where it held that the Federal Govern-

ment did not have power to prohibit discrimination by pri-

vate parties in operating places of public accommodation,

it proceeded on the assumption that individual rights ‘‘may

presumably be vindicated by resort to the laws of the State

for redress’’ (109 U.S. at 17). It said (at 19):

We.have discussed the question presented by the law

on the assumption that a right to enjoy equal accom-

modation and privileges in all inns, public conveyances,

and places of public amusement, is one of the essential

rights of the citizen which no State can abridge or in-

terfere with. Whether it is such a right, or not, isa.

different question which, in the view we have taken of

the validity of the law on the ground already stated,

it is not necessary to examine.

It also said (at 25):

Innkeepers and public carriers, by the laws of all the

States, so far as we are aware, are bound, to the extent

of their facilities, to furnish proper accommodation to

all unobjectionable persons who in good faith apply for

them.

This Court thus made it plain that our federal system

of government posits a responsibility on the part of the

- states to prevent inequality through protection of individual

rights. -That responsibility, like ‘‘state action,’’ is an ex- —

panding concept. Governmental responsibility generally

has necessarily grown with the proliferation of complex

problems ii contemporary life. State and individual have

more points of ‘contact today than in years gone by. In

the same way, the need for state action to insure equality 7

in basic rights has grown.

As we have shown in Point One, California is scarred

by minority group ‘ghettoes that cause severely harmful

effects both for the minority groups directly affected and

for the public at large. Those evil effects have been high- —

lighted by the tragic events of the Watts riots of 1965 and

the official report on its causes and consequences.

California, like 16 other states,2° has recognized the ob-

ligation that these facts impose upon it by enacting appro-

priate legislation to curb housing bias. By now adopting

Article I, Section 26, which in effect repudiates that obli-

gation, California has violated the mandate of the Four-

teenth Amendment,

B. The momentum of California’s involvement in regula-

tion of discrimination in housing makes its facilitation

of discrimination state action within the reach of the

Fourteenth Amendment. . .

“What i is at stake here i is the shaping of residential areas.

To a large extent, in our present complex society, that is

already ‘done ‘or controlled by state action—in the form of

zoning regulations, building restrictions, control over con:

29. The statutes are listed and summarized i in “The Fair Hous-

ing Statutes and Ordinances,” Report of the National Committee —

Against: Discrimination in Housing (June, 1966).

DED RIS AT HS

struction of roads and other forms of transportation as well

as the supply of public utilities and many other factors

that determine the nature of a community. Where there is

no regulation by the state of sales and rental policies, those

who own and control housing have the power to create a

pattern of segregation and impose it on a state’s entire |

_ complex of residential areas. Experience shows that they

do just that and that the result,is that large segments of

the population are denied equal opportunities because of

their race, religion ‘or national origin and are consequently

compelled to live in squalid, disease-breeding ghettoes

which create festering dangers to society.

On the basis of that experience, California recast its

laws so as to break the pattern of segregated housing. We

submit that this was, in effect, a fulfillment of its obliga-

tion, discussed in the preceding section, to use its legisla-

tive. powers to create and enforce individual rights so as

to prevent inequality. But whether or not we are right in

this, it is plain that regulation of the racial character of

neighborhoods so as to prevent denial of equality has be-

come an accepted aspect of government in California.

Whether or not California has an obligation to undertake

such regulation, it has done so. We submit that this Court’s

decision in Evans v. Newton, 382 U. S. 296 (1966) estab-

lishes that any further aétion by the state in this area must

be judged on the basis of whether or not it facilitates dis- —

_ crimination, even by private parties.

In the Evans case, the city of Macon, Georgia, had be-

came involved in the administratfon of a public park un-

der a private will which limited use of the park to white

persons. The city had recognized in recent years that,

under the Fourteenth Amendment, it could not exclude Ne-

groes from the park.. See Pennsylvania v. Board of Trusts,

353 U. S. 230 (1957). A suit was brought in the Georgia

courts by the Board of Managers of the park against the

city to compel it to resign as trustee so that the provision -

of the will requiring exclusion of Negroes could be ob-

served. The city thereupon tendered its resignation which

was accepted and private trustees were appointed by the.

state court. The only reason for the appointment of the

private trustees was to enable Negroes to be excluded from»

the park.

_ This Court reversed the action of the state court on

grounds which are pertinent to the present case. It pointed

out that, ‘‘The action of a city in serving as trustee of prop-

erty under a private will serving the segregated cause is

an obvious example’’ of ‘‘ [C]onduct that is formally ‘ pri-

vate’ ’’ but which has ‘‘be¢ome so entwined with govern-

mental policies or so impregnated with a governmental |

character as to become subject to the constitutional limita- :

tions placed upon state action.”’ Evans v. Newton, 382 .

U. S. at 299. The essence of the opinion was that the

state-private involvement which brought about Four teenth,

Amendment control had not become “disentangled”’ (id.

at 302).

‘The same week that this Court decided Evans v. N ewton,

the United States Court of Appeals for the Fourth Circuit

decided Hawkins v, North Carolina Dental Society, 355 F.

2d 718 (C. A. 4, 1966). The plaintiff .in that case, a Negro,

sued for admission as a member of ‘the North Carolina

”

ne OTE re oe Se

EF APT TOLD III LOI AE BOI By mee

. oy

» 24 , ‘

Dental Society, basing his claim primarily upon the fact

that members of the society, by statute, elected the State

Board of Dental Examiners, a governmental body. . Follow-.

ing the filing of the case, the state repealed the statute. The.

court nevertheless took note of the fact that, in actual prac-

tice, the Dental Society still exercised the powers it had had

under the statute. Accordingly, the court held that the limi-

tations of the Fourteenth Amendment. still applied and that.

‘the plaintiff was entitled to admission to this state agency.

a 2

These cases, Evans and Hawkins, have the common char-

acteristic that, once state control attaches, bringing in Four-

teenth Améndment limitations, repeal of the legislation or

other termination of the state control does not automati-

cally remove the impact of those limitations. At the very

minimum, the burden is upon those formerly subject to the

limitations to show that there has been complete ‘‘disen-

tanglement.’’

In this case, the State of California had enacted fair

housing legislation. This legislation was not a mere fortui-

tous sally into the area of housing regulation. It was a rec-

ognition: by the State that it had a duty under its police

power to take action against housing discrimination i in order

to prevent and eliminate inequality and other serious social

evils. Having recognized its obligation and having pro-

vided a remedy to enforce the right to that protection, the

state cannot now divest that right. Indeed,- Evans and

' Hawkins are but particular examples iri a racial context of

the constitutional rule established by this Court in Truax |

v. Corrigan, 257 U. S. 312, 329 (1921). ;

It is true that no one has a vested right in any par-

ticular rule of the common law, but it is also true that

the legislative power of a State can only be @xercised

in subordination to the fundamental principles of right

and justice which the guaranty of due process -in the

Fourteenth Amendment is intended to preserve, and

that a purely arbitrary or capricious exercise of that

power whereby a wrongful and highly injurious inva-

sion of property rights, as here, is practically sanc-

tioned and the owner stripped of all real remedy, is

*- wholly at variance with those principles. .. @

~\ implicit in the Evans'and Hawkins rulings is the concept

that it is the fact rather'than the legal structure of unequal

protection that determines application of the Fourteenth

‘Amendment. Tlie State will not be allowed to avoid its

~ constitutional obligation by attaching or removing labels

or by fraudulently seeming to -wash its hands of a respor-.

sibility which it cannot in truth avoid.

Over a period of years, the State of California enacted

a series of laws which recognized that its pre-existing legal

system resulted in unequal opportunity, because of race, to .

obtain a ‘‘necessary of life.’’ Block v. Hirsh, 256 U. S. 135,

156 (1921). In Evans, this Court said, ‘‘* * * when private

individuals or groups are endowed by the State with powers

or functions governmental in nature, they become agencies.

or instrumentalities of the State and subject to its constitu-

tional limitations’? (382 U. S. at 299). It also quoted its

earlier holding in Marsh v. Alabama, 326 U. S. 501, 509

(1946), that a State may not permit private “ieaiiien ‘*to

- govern a community of citizens so as to restrict deren! funda-

ental liberties 3 @ © 0

By repudiating the responsibility it acknowledged when

it adopted its laws against discrimination in housing, to deal

Re eed

a date

ae NT all Me ih aa Ik dee ed so re, Pie te)

i as 0 cea oat

with the evil of housing bias, California has done what these

cases say it may not do. It has restored the system under

which every housing unit placed on the market by private

enterprise carries a label marking it as available only to -

members of one race. It has given private builders and

other owners of real. property the power not merely. to

— ““govern’’ communities but to create them in a manner that

restricts ‘‘fundamental liberties.’’

It is also important that this Coat, in E vans, recognized

that discrimination in the park in question might not have

been unconstitutional if the City had never been involved

but that the involvement of the City created a ‘‘momentum”’

that could not simply be turned off by City withdrawal (382

U. S. at 301). So here, the state, recognizing thé funda-

mental inequality in housing opportunity created under its

laws, undertook to exercise its police power to bring about

_ equality. Its present porated of that decision constituted

affirmative action in support of inequality that violated

“the mandates of equality and likerty that bind officials

everywhere.” Nixon v. Condon, 286 U. S. 73, 88 (1932).

C. Article I, Section 26 places the support of

the legal system of California behind

* racial discrimination in housing. . %

The decisions of this Court establish that racial dis-

crimination by private individuals is not wholly beyond the

reach of the Fourteenth Amendment. ‘ While it has held

that there must be a nexus between individual action and

‘the state in order to bring the Federal Constitution into

play, state involvement need not rise to the level of direct

_ or affirmative. action to trigger application of-the Amend-

ment.

A state law’ requiring individual discriminatory ‘acts™

is perhaps the most obvious form of state action through

individual conduct but the application of the Fourteenth

‘Amendment has not been limited to such flagrant situations.

A state cannot exculpate itself merely by. showing that a

private person made the effective determination to engage

in invidious discrimination or some other invasion of funda-

mental rights.** . Implication of the state through official

authorization or encouragement of unequal treatment of the

races,” through the availability of its sanctions in support

of such inequality,* or through failure’to act in an area of

state responsibility involving discriminatory conduct,** all

have provided the occasion for invocation of the Fourteenth

Amendment. ; | —*

The new amendment to the California Constitution

places the state’s legal system squarely behind private acts

_ of housing discrimination. The landlord-who would deny

Negroes the opportunity to rent or purchase is given the

signal to proceed. But discrimination authorized or en-

_ eouraged by the ‘ktate has consistently been condemned un-

der the Fourteenth Amendment; even though the decision

to discriminate is left to private choice. See, e.g., Shelley

30. Buchanan v. Warley, 245 U. S.60 (1917).

31. Shelley v. Kraemer, 334 U.S. 1 (1948) ; Burton v. Wilming-

‘ton Parking Authority, 365 U. S. 715 (1961). -

32. Anderson v. Martin, 375 U. S. 399 (1964).

33. Shelley v. Kraemer, supra.

34. Smith v. Allright, 321 U. S. 649 (1944) ; Terry v. Adams,

345 U. S. 461 (1953); Evans v. Newton, 382 U. S. 296 (1966).

2°

_ .

e RT NFP NT EP IT Ge as OO RR IE OER —

P00 fhe PEE

ey ae

28 -

v. Picked 334 U. S. 1 (1948); Barrows v. Jackson, 346

U.S. 249 (1953) ; Anderson v. Martin, 375 U.S. 399 (1964) ;

McCabe v. Atchison T. é S. F. Ry., 235 U. S. 151 (1914) ;

Nixon v. Condon, 286 U. S. 73 (1932); Boman ve Birming- *

ham Transit Company, 280 F.2d 531 (C. A. 5, 1960).

The new amendment implicates state agencies in dis-

eriminatory practices in a manner no different in principle

‘than was the case in Shelley v. Kraemer, supra.’ There the

enforcement of private discriminatory practices by state

courts was determined to be state action within the Four-

teenth Amendment. Under the new amendment, the state

judiciary is brought into play on the side of discriminatory

practices in an equally meaningful way, i.e., through pro-

tecting the act of discrimination against legal interference.

The point is illustrated by Abstract Investment Co. v.

Hutchinson, 204 Cal. App. 2d 242 (1962), where the court —

, concluded that a Negro might defend an action of unlawful

detainer by showing that his rental property was being

taken from him solely on account of his color. Article I,

Section 26, however, would deprive the Negro defendant of

his defense on the ground that the landlord may decline

to rent on any ground he chooses. Thus, the California

courts would be required to strike the defense in a repeti-

tion of the Abstract Investment case: Plainly, if the Fed-

eral Constitution bars the state courts from enforcing evic-

tion on racial grounds, as held in Abstract Investment, and

the new amendment to the State Constitution prohibits the ,

judiciary from preventing such an eviction, the Federal —

Constitution and Article I, Section 26 are at war.

It is siniply not true that the new amendment merely

' places the state in a neutral position—neither encourag-

ing nor discouraging racial discrimination. The enact-

ment of.an affirmative state policy banning state interfer-

ence with landowners who discriminate against racial mi-

norities cannot be equated with the absence of statutory

,Jaw relating to discrimination.

Unlike the situation that would exist if present fair’

housing legislation were merely repealed, the new amend-

ment (1) prevents the development of common law judicial

remedies against private acts of racial discrimination, (2)

precludes future State and local legislative action against

private acts of racial discrimination, no matter how modex-

ate the action or how pressing its need, and (3) enshrines ©

‘in the California Constitution the grant of an ‘*absolute’’

right in owners of real property to discriminate on racial

and religious grounds. This we submit is not’‘‘neutrality.’’

It constitutes action of the State directly sanctioning, en-

couraging and empowering private acts of racial discrimi-

nation. There is, in fact, a difference in kind between state

failure to prohibit private acts of racial discrimination (ne

fair housing legislation) and amendment of a state con-

stitution making private acts of racial discrimination a pro-

tected ‘‘right.”? In the former instance, private acts of

‘racial discrimination are, to be sure, not prevented by legis-

lation, but’ in. the latter instance, they are actually en-

couraged and empowered by the State.

The new amendment on its face tends to encourage ra-

cial discrimination in housing on the part of those who de-

sire to engage-in it. As observed in Barrows v. Jackson,

346 U. S. 249, 254 (1953), there is unconstitutional encour:

agement of the practice of writing racially restrictive cove-

PEI ILS IIL NY LE PLETE IE MPP LAE RID He

- =>

nants when the state places “‘its sanction behind the [dis-_

eriminatory] covenants.’? Enactment of a constitutional

provision placing acts of discrimination by all those who

own real property beyond the reach of the state courts, the

State Legislature and every governmental agency in the

state encourages discrimination in housing just as surely

as placing race labels on.the baliot ‘‘require[s] or encour-

age[s]’’ discrimination in voting. Anderson v. Martin, 375

U. S. 399, 402 (1964). In neither case is discrimination

compelled by the state; in both, it is at least facilitated.

This is not ‘‘neutrality.’’ By adding Article I, Section 26

to its constitution, the state has placed its thumb-on the

seale and tipped it in favor of discrimination.

The encouragement and assistance which the new amend-

ment affords to discrimination becomes even clearer upon

consideration of the background events which led to its

adoption. The mieasure was sponsored by the California

Real Estate Association and the California Apartment

Owners Association, and it was made clear during the ef-

forts to obtain signatures on the initiative petition that the

proposal was intended to nullify the Rumférd Act and other

fair housing laws.** The official ballot argument in favor

of the measure disclosed the same purpose.** - It is of course

general public knowledge that the campaign respecting the

proposed amendment was prineipally concerned with the

issue “ racial discrimination. In short, the purpose and :

35. "See, for example, Editorial in Vol. XLIV, Issue No. 2 of

California Real Estate Magazine (Dec. 1963), the official publication

of the California. Real Estate Association.

36. The argument asserted that “Under the Rumford Act, any

person refused by a property owner may charge discrimination.” . It

. urged voters to enact the proposed amendment in order to free prop-

erty owners of any such charges.

expected effect of the measure was to free property owners

from legal restrictions against discriminatory practices. in

housing. Indeed, racial considerations in the transfer’ of

property constituted the only matters in controversy in_

respect to the amendment; neither proponents nor Qp-

ponents were in disagreement as to other considerations

that might motivate a landowner to decline an offer to buy .

-or rent, and there was no oécasion to propose legislation

in this respect. |

In light of this single-minded purpose of the new amend-

ment, its constitutionality need not be evaluated in terms of

its language alone. .State laws or actions which seem neu-

tral when considered in a vacuum are the equivalent of un-

constitutional discriminatory state action where, as in the —

circumstances that the purpose and necessary effect is to

bring about racial or religious discrimination. For exam-

ple, in Griffin v. School Board, 377 U. S. 218 (1964), the |

State of Virginia.closed its public schools in. one county but

continued to operate its public school system in the other

counties. This Court found it unnecessary to consider

whether the state had authority to close its schools for law-

ful reasons since it concluded, on the basis of external cir- .

cumstances surrounding the closing, that that was not the

ease. As the Court stated (377 U.S. at 231):

(The) public schools were closed and _ private

schools operated in their place with state and county ~

assistance, for one reason, and one reason only: (to

discriminate against Negro children). (Hmphasis

added.) |

In the ight of this motivation, the state action took on an

unconstitutional aspect.

‘

St a ie ha

LPOG LOE LILLIE NA NIL

To the same effect, see Wright v. Rockefeller, 376 U. S.

52 (1964), where the circumstances surrounding a state re-

apportionment act were inquired into for the purpose of

ascertaining whether the distridts were composed ‘with

racial considerations in mind.’’ See also, Guinn v. United

States, 238-U. S. 347 (1915); Lane v. Wilson, 307 U. S. 268

(1939) ; Gomillion v. Lightfoot, 364 U. S. 339 (1960).

The external evidence relating to the enactment of the

new amendment inescapably leads to the conclusion that it

was conceived, prepared, submitted for signatures, pre-

' sented to the voters and enacted with a single purpose in —

mind—emasculating fair housing legislation and i immuniz-

ing discriminatory landowners against state regulation.

In these circumstances, it cannot be validly argued that the

new amendment does not constitute state encouragement of

racial discrimination. Property owners have been told in

effect that the state law stands behind any refusal by them

to sell or. rent to Negroes or members of other minority

groups. And this is indeed the case. If the new amendment

is allowed to stand, no statutory or common law remedy

will be available under state law against racial discrimina-

tion in housing sales and rentals. The Fourteenth Amend-

ment, however, does not permit state involvement of this

character in discrimination of so invidious a nature. For

that reason alone; the amendment cannot stand. |

D. Article I, Section 26 ‘violates the Equal

Protection Clause because it authorizes

and facilitates racial zoning.

Fifty years ago, this Court held that the Fourteenth

Amendment bars state and local legislation dividing resi-

dential areas into ‘‘white’’ and ‘‘colored’’ zones. Buchanan

v. Warley, 245 U. S. 60 (1917) ; see also, Harmon v. Tyler,

273 U. S. 668 (1927); Richmond y. Deans, 281.U:.S. 704

(1930). ‘Subsequently, in the Shelley case, supra, it barred

attainment of the same result through court enforcement of

privately initiated racial covenants. Article I, Section 26

has the effect of authorizing and sanctioning achievement

of racial zoning by organized and concerted, or at least

parallel, action by those who control the housing market.

The result of permitting discrimination by those who

sell.or rent housing is not merely to sanction occasional re-

_ fusals here and there of individual housing units. The

principal result, and the only one involved here,*? is to

sanction the imposition of ‘‘whites only’’ barriers ‘at the

~ entrances to apartment houses, suburban developments and

growth in the size of housing developments—both rental

and for sale—since World War II,** the creation of whole

new towns by a single company has become commonplace.

_Artide I, Section 26 sanctions de facto racial zoning for

these areas.

The Buchanan case dealt with zoning at the block level.

Article I, Section 26 would in effect permit racial a by

private owners from the block to the city level.

«37. It should be remembered that the cases now before this Court

do not involve the sale or rental of single family homes but the rental

of apartments in multiple dwellings. Indeed, the California statutes

affected by Article I, Section 26 do not reach discrimination by

owner-occupants of single family homes. They apply only to the kind

of housing that is under the control of those to whom oe is a

business. .

38. McEntire, Residence and bis (U. Cal. er 1960); pp.

176-177. See also “Construction Reports—Sale of New One-Family

Homes,” Series C25, Departments of Commerce and Housing and

Urban Development, jointly—C25-26 (1963), 25-27 (1964), C25-

65-13 (1965), page 1 of each report.

PETA IT ER TE ies ANCOR |

a oar

€

. <@ . 34 ; :

‘ ‘ < .* °

We submit that such de facto. racial zoning cannot be

permitted on the theory that.it is initiated by private action

and that the state does no more than facilitate it‘by ae

‘sive legislation. The structuring of communities is a \gov-

ernmental function—no~different in constitutional signifi- ~

- eance from the, control of voting which this Court proteeted —

from discrimination by “private parties in Smith*y. All- -..

wright, 321 U. S. 649 (ae) There, this Court said (at

664) : :

This grant to the people of the opportunity for

choice is not to be nullified by a State through casting

its electoral process in a form which permits a private

organization to practice racial discrimination in the

election.

Here, it is the determination of occupancy patterns .

which the state is permitting by ‘‘casting’ its * * * [laws]

in a form which permits a private organization to practice

racial discrimination * * *.”’ Here, as there, constitutional —

-significance should be denied ‘‘so slight a a: in form

** *) (321 U. S. at 661). .

Directly applicable here, we awry is the line of argu-

ment that controlled this Court’s decision i in Marsh v. Ala-

bama, 326 U. S. 501 (1946). There, it was held that the

Fourteenth Amendment guarantee of due process (in its

application .to freedom of expression) protected the dis-

tribution of literature (on the streets of a privately-owned

company town. The. Gourt first noted that such distribu-

tion could not be barred by municipal action and then went.

on to say (at p. 505): |

* * * From these decisions it is clear that had the

people of Chickasaw owned all the homes, and all the

stores, and all the streets, and all the sidewalks, all

those owners together could not have set up a municipal

government with sufficient power to pas¢ an ordinance

completely barring te distribution of religious ante me

ture.

| ¢

The Court held that the same results could not be.

‘achieved by the action of a single owner, saying (at p. 506):

- *Ownership does not mean absolute dominion.’’ Referring

to the fact that the owner was-acting as a private entity, —

the Court said (at.p. 507):

| ** * Whether a corporation or a municipality owns

or possesses the town the public in either case has an

identical interest in thé functioning of the community

in such manner that the channels of communication re-

. main free.

It concluded that the action of the state in iiaiiie the

restriction by prosecuting those who distributed the litera-

ture violated the Fourteenth Amendment. .

Here, it is + eiaatinil that the state could not limit occu-

pancy in any area to persons of one race. Yet it is claimed

that Article I, Section 26 can constitutionally permit own-

ers of property to achieve.the same result. We submit that

the requirements of the Fourteenth Amendment cannot so

easily be evaded.

~The concept that the state cannot be viewed as a neutral |

party in the shaping of communities, and particularly the

racial aspect of communities, is buttressed here by the fact

that the state of California has never been neutral in this

matter. Whatever may be said about whether a state vio-

LGR GE DLE IE POLLED IEE ODS IO, fo ~

” * .

‘

36.

lates the qual Protection Clause simply by having a code

of-law which, by its silence, permits butdoes not discourage

housing discrimination, that is not the case here. .As shown

in the brief for respondents (pp..11-13), California has, for

- nearly a-century, played an active role through its laws in

affecting the racial composition of residential areas. It

~ makes little difference that at times the state policy has

*been to favor segregation and in “others to curb it. The

essential fact is that California law has not been ‘‘neutral.”’

It cannot now become ‘‘neutrail.’’ .

E. “The Fourteenth Amendment prohibits a state from

disabling itself from fulfilling its constitutional

responsibility to’ assure equality i in housing.

Even if it were assumed that the Fourteenth Amendment,

imposes no obligation or responsibility on a. ‘state.to enact

or maintain” urgently needed fair housing legislation, it

would impose, we submit, at least the obligation to maintain .

the availability of the police power of the state to act in

this area, In purporting to preclude exercise of, that .

remedial power by adopting Article I, Section 26, Cali.

fornia has done what this Court has said it may not do in

the Second Slaughter House Case, Butchers’ Union Co. v.

Crescent City Co., 111 U. S. 746, 753 (1883) :

No legislature can bargain away the public health

or the public morals. The people themselves cannot

do it, much less their servants. he supervision of

both these subjects of governmental power is continu-

ing in itsenature, and they are to be dealt -with as'the.

special. exigencies. of the moment may require. Gov-

ernmerit is organized with a view to their preservation,

and cannot devest (sic) itself of the power to provide

_..*

for. them. For this purpose the legislative discretion

is allowed, and the discretion cannot be_parted-with any

more than Oe power itself. (Emphasis added.)*

This is not to say that a state which has enacted fair.

housing legislation may never repeal it. There may, -of

course, be many situations in which the state could consti-

_ tutionally repeal such legislation, such as a= the Legisla-

ture finds that the need er sana. exists ere, however,

the state has gone beyond repeal and has disabled itself

from carrying out a responsibility laid upon it by the Four-

teenth Amendment. ‘It has thereby ‘‘parted with’’ the

‘legislative discretion’’ to deal with housing inequality

‘fas the special exigencies of the moment may require.’’

‘The Second Slaughter House case entablishes that that may, .

not be done. . F&F

oe ae

\ ‘39. The unconstitutionality of the snatgint -disablement is further

. ‘demonstrated by analogy to other illegal disablements of fundamerftal

. power. For example a state canot-disable its courts from hearing

- and granting relief on federal causes of action. Testa v. Katt, 330

U. S. 386 (1947). A government anno disable its courts, even in

a wartime emergency, from considermg a defense in a criminal case

that the law being enforced is invalid, unless an alternative and effec-

tive procedure for reviewing the validity of the law is available to -

the defendant. Yakus v. United States, 321 U. S. 414 (1944). Simi-

larly, it is extremely doubtful that courts could be disabled from ex-

ercising the power to issue writs of habeas corpus in appropriate cases.

See Eisentrager v. Forrestal, 174 F.2d 961, 965-966 att reversed

on other — 339 U. S. ~~ (1950).

fa *.

)

POINT THREE

Article I, Section 26 violates the guarantee in 42 |

U. S. C., Section 1982 of the right of all citizens of

the United States to equal opportunity to purchase or

lease praperty without dis¢timination based on race.

Article VI, Section 2 of the United States rn.

the Supremacy Clause, ‘prov ides:

This Constitution. ~ the Laws of the United States

which shall be made in pursuance thereof * * * ‘shall be

,the supreme Law of the Land; and the Judges in every

State shall be bound thereby, ‘an® Thing i in the Consti-

tution or Laws of any State to the Contrary notwith-

standing.

42 U. S. C.. See. 1982 reads as follows: \

All 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.

If, as we believe, Section 1982 validly guarantees to all :

citizens the right, to purchase or lease property free of dis-

erfmination based: ‘on race, it nullifies Article I, Section 26

to the extent that it ie ett to deny that right.

A. History of Section 1982 ; ; . ed

Less than four months after the adoption of the Thir-

teenth Amendment, Congress enacted the Civil Rights Act

of 1866,*° its first post-Civil War civil rights act. It did so

by overriding t e veto of President Andrew Johnson. _

40. Civil Rights Act of 1866, ch. 31, §1, 14 Stat. 27 (1866).

\ .

As ‘

Thirteenth Amendment had become law on December; 18,

’

1865. It abolished slavery and sought to eradicate all fore

- incidents of slavery and involuntary ‘servitude.*! It

axed and, vindicated those fundamental rights which

opal to (the essence of citizenship, and the enjoyment

or deprivation of which constitutes the essential istinction

between’ freedom and slavery. Section 1 of” the Civil

Rights Act of 1866 read in part:

e That all * * * citizens, of every race and enlee 2

shall have the same right in every State and Territory

_ in the United States * * * to inherit, purchase, !ease,

_ Sell, hold, and convey réal and personal property 3 * ***

The Fourteenth Amendment was not ratified until July

28, 1868, It read in part as follows:

Section 1. All persons born or naturalized in the

United States, and snbject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make’ or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty or proper,

without due procéss°of law, nor deny to any person

within its jurisdiction the equal protectibn of the laws. |

- Sections 2 and 5 of the Thirteenth and Fourteenth Amend-

ments, respectively, empower Congress,to enforce their pro-

visions by appropriate legislation.

€

Thereafter, on May 31, 1870, Congress enacted a second

Civil Rights a which sought to protect the recently freed

41. Clyatt v. United States, 197 U. S. 207, 217 (1905).

42. Civil Rights Cases, 109 U. S. 3, 22 (1883).

43. See fn. 40, supra.

44. Civil Rights Act of 1870, ch. 114, 16 Stat. 140 (1870).

manatee

wate

slaves from discrimination. . Included in this Act as Section {4°

18 thereof was a specific reenactment of the Civil Rights

Act of 1866. This act was thereafter recast and embodied

in its present form as it appears in Section 1982 of Title 42

in the general statutory revision of 1875 when it was desig-

“nated as Revised Statutes, See. 1978.

B. The Thirteenth Amendment

The Civil Rights Act of 1866 was first enacted after the .

adoption of the. Thirteenth Amendment and before the

adoption of the Fourteenth Amendment. It is clear that

the Thirteenth Amendment is applicable to the actions of

private persons and there is no need for ‘‘state action’? to

--tgigger federal power-and-action under. its terms. Even”

when this Court in the Civil Rights Cases, supra, was estab-

lishing. ‘‘state action’’ as a prerequisite for invoking the

- protections of, the Fourteenth Amendment and the civil

rights: acts enacted pursuant to Section 5 of that Amend-

ment, it also conceded that the Thirteenth Amendment gave

-*‘power to Congress to protect all persons within the juris-

diction of the United States from being in any way sub-

jected to slavery or involuntary servitude, except as a pun-

ishment for crime, and in the enjoyment of that freedom

which it was the object of the amendment to secure.’’*.

Hence, if the Civil Rights Act of 1866, our present Section

1982-of Title 42, which was enacted under the authority of

Section 2 of the Thirteenth Amendment," is read as*being

applicable to actions by private persons who violate rights

45. Civil Rights Cases, supra, 109,U. S. at 22. See also United

States v. Harris, 106 U. S. 629 (1882) ; Clyatt v. United States, fn.

41, supra:

46. United States v. Harris, tre, 106 uu. ae 640.

. | «

; it protects, without the slightest outed of “state: action’’,

it is clear that. such legislation is within the,power granted

to Congress 7 the Thirteenth Amendment.

<—

That it ron be sq read, we believe, follows from the

fact.that it was enacted to implement the Thirteenth Amend-

¢nent which was designed to end the incidents of slavery,

however manifested. That is the implication of this Court’s .

decision in the Civil Rights Cases, supra, 109 U: S. at 22:

Congress, as we have seen, by the Civil Rights Bill -

of 1866, passed in view of the Thirteenth Amendment,

before the Fourteenth was adopted, undertook to wipe

out these burdens and disabilities, the necessary inci-

_ dents of slavery, constituting its substance and visible

form, and to seewure to all citizens of every race and

color, and without regard to previous servitude, those

_ fundamental rights which are the essence of civil free-

dom, namely, the ‘same right to make and enforce con-

tracts, to sue, be parties, give evidence, and to inherit,

purchase, lease, sell and convey property, as is enjoyed

by white citizens.

C. The Fourteenth aitiliiiein

*As already noted, the Civil Rights Act of 1866 was re-

enacted as a portion of the Civil Rights Act of 1870. We

respectfully submit that this reenactment dfd not impose on

that Act the ‘‘state action’’ limitation of the Fourteenth

Amendment and that, consequently, this Court’s dictum in

Hurd v. Hodge, 334 U.S. 24, 31 (1948) that Section 1982 -

- applies to ‘“governmental action’’ ‘should not be treated as

a limitation on the section.

The history of the adoption of the two Amendments plus

the Fifteenth and the post-Civil War civil rights acts points .

7 °

LAOREET PT

4 strongly to an intent to expand and strengthen the safe;

ards embodied in those Amendments and acts. The aim

to insure the end of all uses of. private as well as pubiic

hie to seck to hold the freed Negro slaves in subjection

or to deny: them any of the rights essential to make them

free, full and equal participants in the body politic and the

economic life of the country with their white co-citizens.

The view of the 1866 Act contained in the Hurd dictum con- _

flicts with that history* and the intent of the framers of the

Amendments and the acts. The reenattment in 1870 -was -.

Clearly intended to extend the ban on priyate denial of the

right to purchase and lease pr roperty to any similar action

- by the state. A contrary reading would traysform into

words of limitation, words of expansion of statutory remedy

intendéd to meet new variations of the evil struck at. It

would ignore the familiar eqnon of statutory interpretation

that the reenactment of a statute effects no change in the :

law but mer ély continues the original law in force. 50 Am.

Jur., Statutes $441.

Also relevant to any consideration of the impact of the

reenactment of the 1866 Act in 1870 after the adoption of

the Fourteenth Amendment, is an examination of the un-

‘derstanding of scholars close in time to the original events.

A careful analysis of the legislative history of the Four-

teenth Amendment based on a study of the debates in-Con-

- gress-and newspaper reports on the ratification debates in

the various states, as embodied in a book published in 1908, °

led the author, H. E. Flack, to conclude that, when it was

_ approved by Congress, its proponents in that body believed

‘ that under it ‘‘Congress would be authorized to pass any

~ law which it might declare ‘appropriate and necessary’ to

o¢

secure i citizens their priv ileges ma immunities together

with the power to declare what were those priv ileges and

- Immunities.’ The author also expressed the view that

the framers of the Amendment believed they were making

a great change in the powers of the Federal Government’

‘and that ‘‘their failure to do, this is due to the strained

construction put upon their w ork by the Supreme Court. ine

Ife concluded, — .

‘Sabie futile were the efforts by Congress to

give vitality to the Amendment as interpreted by it-

self and by those who had the most to do with its

drafting and adoption, the fact remains that nearly all

the evidence goes to sustain the position of Congress

as far as the question of power and authority is con-

cerned. ‘[The evidence shows that] according to the

. purpose and intention of the Amendment as disclosed

in the debates in Congress and in the several state -

Legislatures and in other ways, ‘Congress had the con-

stitutional power-to enact di rect legislation to secure

. the rights of citizensagainst violation by individuals. -

as well as by the States.*

Recent decisions: of this Court reflect an acceptance by |

at least six members of the view expressed above about the

applicability of the provisions of the Fourteenth Amend-

ment to private actien.” These decisions indicate that Sec-

tion 5 authorizing Congress to enact: appropriate legisla- _

47. Flack, The Adoption of the Fourteenth Amendment oo

Hopkins Press, 1908), at p. 82.

48. Id., at p. 69.

49. Id., at p. 227.

50. Garner v. Louisiana, 368 U. S. 157 (1961) ; Bell v. Mary-.

land, 378 U. S. 226 (1964) ; United States v. Guest, 383 U. S. 745

(1966). The first two of ‘these cases are discussed in Robison, J.'B..

“The Possibility of a Frontal Assault on the State Action Concept, "

41 Notre Dame Lawyer 455, 458-60 (1966).

{

44 ~~.

tion to enforce the substantive guarantees of the Amend-

ment is a broad grant of power and that, even if that

Amendment, of its own force, does not forbid private dis-

crimitiation, Section 5 comprehends legislation punishing

private persons who for racial reasons engage in acts which

interfere. with Fourteenth Amendment rights. Included

. in those rights under the privileges ‘and immunities guar-—

anteed: to all is the right to purchase or lease property.

Civil Rights Cases, supra; United States v. Morris, 125 Fed.

322 (1903). In Shelley v. Kraemer, supra, this Court said

(334 U. S. at 10-11):

It cannot be doubted that among the civil rights in-

tended to be protected from discriminatory state action

by the Fourteenth Amendment are the rights to ac-

. quire, enjoy, own and dispose of property. Equality

in the enjoyment of property rights was regarded by

the framers of that Amendment as an essential pre-

condition to the realization of other basic civil rights

and liberties which the Amendment was intended to

guarantee.

In U. S. v. Guest, 383 U. S. 745 (1966), six members

of this Court, although not speaking for the Court, indi-

cated acceptance of the position that Congress has power

under the Fourteenth Amendment and, therefore, has had,

since the adoption of that Amendment, the power to enact

legislation directed against private conspiracies interfer-

ij ing with the exercise of rights protected under the Amend-

ment. Although Mr. Justice Stewart in his opinion for the

Court refused to re-examine the doctrine of a requirement

of state action, basing his decision on a finding that state

action was involved in the defendants’ conspiracy, Mr. J us-

tice Brennan, concurring in an opinion in which he was

" joined by the Chief Justice and Mr. Justice Douglas, noted

that ‘‘a majority of the members of the Court express the

-view today that (5 empowers Congress to enact laws pun-

ishing all conspiracies to interfere with the exercise of

Fourteenth Amendment rights, whether or not state offi-

cers or others acting under the color of state law are im-

plicated in the conspiracy’? (383 U. S. at 782). In a foot-

note, Mr. Tuttice Brennan noted that a majority of the

Court took this view, consisting of the three Justices join-

ing in his coneurring opinion plus the three joining in Mr.

Justice Clark’s opinion, Justices Clark, Black and Fortas.

These latter accepted Mr. Justice Stewart’s construction of

the indictment that it showed state action but also stated

their belief. that the specific language of Section 5 of the

amendment empowered Congress to enact laws punishing

all conspiracies—with or without state action—that inter-

-fere with Fouricenth Amendment rights.

If this is true in the case of rights under an Amendment

purporting to protect against state action, it is necessarily -

' true also with respect to rights established against all per-.

sons, private as well as state-authorized, as is the case un-

der the Thirteenth Amendment. But in any case, it is

as involving Fourteenth Amendment rights because of its

reenactment after the adoption of that Amendment, is with-

in the constitutional ‘power of Congress to enact and make

applicable to private action. It appears also that the au-

thority of the decision in the Civil Rights Cases and its

limitation of the Civil Rights Act of 1875, and possibly

those of 1870 and 1866, to state action, is now highly ques-

tionable if it has any weight at all.

a med

D. The Effect of Section 1982 on Article I, Section 26

_ We submit that Section 1982, viewed in the light of the

preceding’ pages, is directly at war with Article I, Section

26 of the California Constitution. Section 1982 secures to

Negroes and all others the right, essential under our free

democratic system, to purchase or lease real and personal

property equal to that held by white citizens. Article I,

Section 26 purports to secure to all owners of real property

in California the right to-decline to sell or lease their real

property on any basis, inclfiding the race of the would-be

purchaser. Each of these rights necessarily excludes and

contradicts the other. The power fo buy or lease real prop-

erty without discrimination cannot exist and be secured as

Tong as the right to sell or rent real property with discrim-

ination is protected by law. One of these conflicting rights

must yield. The Supremacy Clause epyune that Section |

1982 must prevail.

This conclusion is required regardless of whether Arti-

cle I, Seetion 26 is found to represent ‘‘state action’’ or

“neutrality”? on the part of the state in. the practice of

racial discrimination in housing. If, as we believe we have

shown, Section 1982 is a valid exercise of Congressional

* power, under the Thirteenth or Fourteenth. Amendments,

to prohibit discrimination by private persons, it is the ‘‘Su-

preme Law of the Land’? and Article I, Section 26 is

unconstitutional. |

—

Conclusion

It is respectfully submitted that the decision of the

California Supreme Court should be affirmed.

Respectfully submitted,

JosePH B. Rosison

Sot Raskin

Attorneys for National Committee Against

Discrimination in Housing, Amicus Curiae

Rosert Carter | ~ ;

JoHN CLaANocy

JacK GREENBERG

Marvin M. KarpatTKin

EPHRAIM MARGOLIN

Cart RacHuIn-

Of Counsel

"March, 1967 -

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.