The Civil Rights Act of 1964: An Overview

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R46534

SUMMARY

The Civil Rights Act of 1964: An Overview

The Civil Rights Act of 1964, comprised of eleven titles and numerous sections, has been called

the “most comprehensive undertaking” to prevent and address discrimination in a wide range of

contexts.

R46534

September 21, 2020

Christine J. Back

Legislative Attorney

From discriminatory voter registration practices to racial segregation in business establishments

and public schools, the Civil Rights Act of 1964 enacted new prohibitions and protections

targeting discriminatory conduct in different forms and diverse contexts. The Act not only

created new statutory rights, but also designed distinct methods of enforcing these rights, and established federal entities

responsible for the enforcement or facilitation of these protections as well. “In our time,” the Supreme Court has stated, “few

pieces of federal legislation rank in significance.”

Although the titles address discrimination based on race, color, religion, national origin, or sex, the Civil Rights Act of 1964

was principally a legislative response to ongoing and pervasive conditions of racial segregation and discrimination in the

United States. Such conditions included the enforced exclusion of black citizens from a host of services and establishments

affecting much of daily life: public libraries, public parks and recreation systems, public schools and colleges, restaurants,

hotels, businesses, performance halls, hospitals and medical facilities, and any other setting designated as “white-only.”

Legislative history reflects that Titles II, III, IV, and VI, for example, were enacted to address these forms of race-based

segregation and discrimination.

Though its titles share a thematic focus on discrimination, the 1964 Act—from a legal perspective—is perhaps best

understood as a series of unique and distinct statutes. The titles vary in terms of the actions and practices they prohibit,

whether and how an individual may seek relief for the violation of a title’s requirements, and available remedies for particular

violations. Relatedly, where provisions of a title are enforced in federal courts, they have given rise to distinct lines of case

law, questions of interpretation, and application. Federal courts have also interpreted the titles as having been enacted on

different constitutional bases—the Commerce Clause, the Spending Clause, and the Fourteenth and Fifteenth Amendments.

The eleven titles differ in other respects as well. Some, such as Titles II and VI, enacted altogether new laws while others,

such as Titles I and V, amended earlier federal civil rights laws. Among the titles which enacted new laws, one finds further

differentiation: some, such as Titles II and VII, created new statutory rights and protections against private actors, while

others, such as Titles III and IV, addressed the federal enforcement of constitutional rights and protections against state

actors. These differences may have unique legal implications when amending one particular title or another.

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The Civil Rights Act of 1964: An Overview

Contents

Introduction ................................................................................................................... 1

Title I: Prohibiting discriminatory voter registration “tactics”................................................. 2

General Background: Different Standards for Qualifying Black Voters............................... 5

Title I Substantive Provisions ...................................................................................... 6

Mandating Uniform Standards for Qualifying Individuals to Vote ................................ 6

Prohibition of Literacy or Interpretation Tests, with Exceptions ................................... 6

Immaterial Errors or Omissions on Voting Applications, Registrations, or Records ......... 7

Title I Enforcement.................................................................................................... 8

Expedited Judicial Review of Cases Brought by the Attorney General .......................... 8

Title II: Addressing discrimination and segregation in business establishments ....................... 11

General Background: Racial Segregation in Business and Travel .................................... 11

Title II Provisions: “Full and Equal Enjoyment” ........................................................... 13

In a “Place of Public Accommodation” .................................................................. 13

Private Club Exemption ...................................................................................... 18

Barring State or Local Segregation Mandates............................................................... 20

A Prohibition Against Deprivation, Intimidation, or Punishment ..................................... 21

Title II Enforcement................................................................................................. 22

Litigation by Private Individuals for Injunctive Relief & Attorney’s Fees Only ............ 22

Intervention or “Pattern or Practice” Enforcement Actions by the Attorney

General .......................................................................................................... 25

Title III: The Equal Protection Clause and De Jure Segregated Public Facilities ...................... 26

General Background: Racial Segregation in Public Park Systems, Libraries, and

Other Public Facilities ........................................................................................... 27

Title III: Provisions .................................................................................................. 29

Enforcement Actions by the Attorney General......................................................... 29

Title IV: The Equal Protection Clause and De Jure Segregated Public Schools and

Colleges.................................................................................................................... 31

General Background: “Dual” Systems of Public Education Based on Race ....................... 32

Title IV Provisions: Federal Intervention by DOJ and ED .............................................. 34

Enforcement Actions by the Attorney General......................................................... 35

Technical Assistance for Desegregating Public Schools ............................................ 38

Title V: Amendments concerning the U.S. Commission for Civil Rights (USCCR) .................. 40

General Background ................................................................................................ 41

Title V Provisions .................................................................................................... 42

Title VI: Race Discrimination in Federally Funded Programs ............................................... 43

General Background: Race-Based Segregation and Discrimination in Hospitals,

Schools, and Other Federally Funded Programs ......................................................... 45

“Discrimination” Prohibited by Title VI Under Sections 601 and 602 ................................ 47

Section 601 of Title VI: Addressing Intentional Discrimination ................................. 47

Section 602: Addressing Discrimination including Disparate Impac t

Discrimination ................................................................................................ 49

The Supreme Court and “Discrimination” Prohibited by Title VI ............................... 50

Federal Agencies: Administrative Enforcement and Title VI Regulations.......................... 54

Methods of “Effectuating” Title VI’s Antidiscrimination Mandate ............................. 55

Judicially-Implied Private Right of Action................................................................... 60

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The Civil Rights Act of 1964: An Overview

Title VII: Discrimination in Employment .......................................................................... 60

General Background: Underemployment, Income Disparities, and the Removal of

Discriminatory Practices that Favor White Employees ................................................ 62

Title VII: General Coverage and Scope ....................................................................... 63

Private and Federal Employers Subject to Title VII’s Requirements ........................... 63

Protected Categories Under Title VII ..................................................................... 65

Prohibitions Against Intentional and Disparate Impact Discrimination ............................. 66

Intentional Discrimination Under Title VII ............................................................. 66

Causation Standards for Proving Intentional Discrimination ...................................... 69

Disparate Impact Discrimination Under Title VII .................................................... 71

Unlawful Retaliation........................................................................................... 77

Title VII Exemptions and Permitted Practices .............................................................. 78

Bona Fide Occupational Qualification (BFOQ): Sex, Religion, National Origin ........... 79

Religious Employers and Educational Institutions ................................................... 79

Title VII Enforcement: Private Sector, Federal, and State Employers ............................... 81

EEOC Title VII Enforcement: Private Sector Employers .......................................... 83

EEOC Coordination of Title VII Compliance by Federal Employers........................... 84

Remedies for Title VII Violations ............................................................................... 85

Title VIII: Voting and Voter Registration Statistics ............................................................. 87

General Background: “Fragmentary” Voting and Registration Data ................................. 88

Title VIII Provision.................................................................................................. 88

Title IX: Appeals and Attorney General Intervention........................................................... 89

General Background: State Prosecutions for Exercising Civil Rights ............................... 90

Title IX Provisions................................................................................................... 92

Section 901: Allowing Appeal of Remand Orders in § 1443 Civil Rights Cases............ 92

Section 902: Intervention by the Attorney General in Equal Protection Clause

Cases ............................................................................................................. 93

Title X: The Community Relations Service ....................................................................... 94

General Background ................................................................................................ 94

Title X Provisions: Functions and Role of Community Relations Service ......................... 95

Unique Functions Relating to Title II of the 1964 Act............................................... 96

CRS Activities: Conciliation and Cooperation......................................................... 96

Title XI: Miscellaneous Provisions .................................................................................. 98

Criminal Contempt Arising Under the Act ................................................................... 98

Double Jeopardy Relating to Criminal Contempt .......................................................... 99

Preemption of Conflicting State Laws......................................................................... 99

Conclusion and Considerations for Congress ................................................................... 102

Contacts

Author Information ..................................................................................................... 104

Congressional Research Service

The Civil Rights Act of 1964: An Overview

Introduction

The Civil Rights Act of 19641 addresses a range of subjects, including discriminatory voting

tactics;2 discrimination in service or access to commercial establishments;3 the desegregation of

public facilities 4 and schools;5 discrimination in employment; 6 race discrimination in federally

funded programs;7 and federal enforcement in these areas. 8 The Act also created two federal

agencies (the Equal Employment Opportunity Commission 9 and the Community Relations

Service10 ) to enforce or facilitate certain civil rights protections.

As originally enacted, every title that created or enforced protections addressed discriminatory

actions on the basis of race, color, religion, or national origin, 11 with one title—Title VII—

including a prohibition against sex discrimination. 12 Since then, Congress has enacted various

amendments to the Civil Rights Act of 1964, including amendments to Titles IV and IX

authorizing the Attorney General’s enforcement against certain equal protection violations based

on sex, 13 and numerous other amendments specific to Title VII, including the codification of

disparate impact liability. 14

This report is intended to provide a general legal understanding of the Act’s titles and

requirements. Importantly, given the breadth of the Act, and the significant and considerable

range of legal issues that can arise under each title, 15 this overview is not exhaustive. Rather, this

1 See T he Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241. T he Act became law on July 2, 1964. See id.

2 See 52 U.S.C. § 10101(a)(2) (codified as amended). See also id. § 10101(a)(1) (providing that all citizens who are

otherwise qualified voters “shall be entitled and allowed to vote at all such elections, without distinction of race, color,

or previous condition of servitude”).

See 42 U.S.C. § 2000a (addressing “discrimination or segregation on the ground of race, color, religion, or national

origin”).

4 Id. § 2000b et seq. (addressing the “right to the equal protection of the laws, on account of his race, color, religion, or

national origin,” in the context of “equal utilization of any public facility”).

5 See Pub. L. No. 88-352, 78 Stat. 246-248 (addressing federal enforcement and technical assistance concerning the

desegregation of public schools based on race, color, religion, or national origin).

6 42 U.S.C. § 2000e et seq. (addressing discrimination in the workplace based on “race, color, religion, sex, or national

origin”).

Id. § 2000d et seq. (addressing discrimination “on the ground of race, color, or national origin” in any program or

activity receiving federal financial assistance).

8 See, e.g., id. § 2000h-2.

9 See id. § 2000e-4.

10 Id. § 2000g et seq. See also About CRS, Community Relations Service, Dep’t of Justice,

https://www.justice.gov/crs/about/faq (stating that the Community Relations Service “is an agency within DOJ that is

congressionally mandated by T itle X of the Civil Rights Act of 1964 to assist communities in resolving conflicts based

on race, color, and national origin.”).

11 See supra notes 2-7.

12 See Pub. L. No. 88-352, § 703, 78 Stat. at 255 (reflecting T itle VII provisions, as originally enacted, addressing

discrimination in employment based on “race, color, religion, sex, or national origin”).

See Pub. L. No. 92-318, § 906(a), 86 Stat. 235, 375, (“ Sections 401(b), 407(a) (2), 410, and 902 of the Civil Rights

Act of 1964 (42 U.S.C. §§ 2000c(b), 2000c-6(a) (2), 2000c-9, and 2000h-2) are each amended by inserting the word

‘sex’ after the word ‘religion.’”).

See, e.g., T he Civil Rights Act of 1991, Pub. L. No. 102-166, § 105, 105 Stat. 1071, 1074-75.

15 Such issues might include, for example, the relationship between specific titles of the 1964 Act and other federal

civil rights statutes; the methods of proving violations under each title, judicially -created defenses or theories of

liability under a part icular title; implications that might arise from certain amendments to a particular title or provision;

the evidence that courts have found sufficient or insufficient to show violations of a statutory provision in a title;

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The Civil Rights Act of 1964: An Overview

report offers discussion relating to the general background of each title, each title’s principal

statutory sections, the methods of enforcing their requirements, and the constitutional bases for

their enactment (as reflected in legislative history or interpreted by federal courts). The report also

includes some limited discussion of legal issues that have arisen under a given title’s provisions.

This report addresses each title of the Act in separate sections, which vary in length and depth of

treatment. This variability largely corresponds to the unique operation of each title, and the

questions of interpretation, application, and enforcement that may have arisen under each. A title

comprised of more complex or frequently litigated provisions, for example, invites more

discussion of resulting case law and agency interpretations than a title with less frequently

litigated or debated provisions.

In discussing legislative history, this report relies primarily upon two sources: the House Judiciary

Committee report (House Report No. 88-914) 16 which accompanied H.R. 7152, the bill that

would become the 1964 Act;17 and the Senate Commerce Committee report (Senate Report No.

88-872), 18 which addressed provisions that were incorporated into Title II of the Act. The report

does not discuss or draw upon other aspects of the voluminous congressional record relating to

the passage of the 1964 Act, or other historical or contemporaneous developments. When federal

courts have discussed legislative history relating to the 1964 Act, or the historical context and

purposes of a specific title, this overview includes discussion from such decisions.

This report concludes with potential legislative considerations regarding amendments to the Act.

Title I: Prohibiting discriminatory voter registration

“tactics”

Title I19 of the 1964 Act amended voting provisions of an earlier statute, the Civil Rights Act of

1957 (1957 Civil Rights Act), 20 to address “problems encountered in the operation and

differing views among federal courts on how to construe and apply various sections and exemptions under a title;

interpretations by federal agencies of statutory provisions in the 1964 Act (including competing or apparently

conflicting interpretations); and other complex questions that have arisen with respect to a particular t itle.

16 H. REP . NO . 88-914 (1963) (report from the Committee on the Judiciary, to accompany H.R. 7152). H. REP . NO . 914

is divided into two parts. Part I, submitted on November 20, 1963, includes a general statement of the bill, and a

general “sectional analysis,” followed by the inclusion of individual views expressed by various Members, and

additional majority and minority views. See id. at pt, 1, at 1-121. Citations in this overview to Part I are either to its

opening general statement, or its sectional analysis. Part II of H. REP . NO . 914 was submitted on December 2, 1963, and

reflects additional views on H.R. 7152 of William M. McCullough, John V. Lindsay, William T . Cahill, Garner E.

Shriver, Clark MacGregor, Charles Mathias, and James E. Bromwell. Because Part II contains a more detailed

discussion of the factual background and testimony presented before Congress, as discussed by proponents of H.R.

7152, than the general statement and sectional analysis in Part I, this overview often cites to Part II for such discussion.

17 See Hayes v. United States, 464 F.2d 1252, 1261 (5th Cir. 1972) (“House Report Number 914, November 20, 1963,

accompanied H.R. 7152, the version which eventually became the Civil Rights Act of 1964.”).

S. REP . NO . 88-872 (1964) (report from the Committee on Commerce, together with individual views, to accompany

S. 1732). T he Supreme Court, when addressing T itle II of the 1964 Act, has repeatedly cited this report. See, e.g.,

Katzenbach v. McClung, 379 U.S. 294, 299-300 (1964) (citing S. REP . NO . 872); Heart of Atlanta Motel, Inc. v. U. S.,

379 U.S. 241, 250, 252 (1964) (same).

T itle I was originally codified through various subsections in 42 U.S.C. § 1971. See Florida State Conf. of NAACP

v. Browning, 522 F.3d 1153, 1173 (11th Cir. 2008) (“Section 1971(a)(2)(B) was originally enacted as part of T itle I of

the Civil Rights Act of 1964”). T he provisions enacted through T itle I are now codified at 52 U.S.C. § 10101,

preceding the statutory provisions that comprise the Voting Rights Act of 1965, codified at 52 U.S.C. § 10301 et seq.

20 T he Civil Rights Act of 1957, Pub. L. No. 85-315, 71 Stat. 634 (codified as amended at 52 U.S.C. § 10101). T he

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The Civil Rights Act of 1964: An Overview

enforcement” of these earlier provisions. 21 Title I was not the first time Congress amended the

1957 Civil Rights Act—it had previously done so through the Civil Rights Act of 1960. 22 These

earlier legislative efforts, however, had failed to effectively “counteract state and local

government tactics of using, among other things, burdensome registration requirements to

disenfranchise African–Americans.”23 Title I thus amended the 1957 Act to “outlaw[] some of the

tactics used to disqualify Negroes from voting.”24

The voting provisions of Title I and the 1957 Civil Rights Act are distinct from the Voting Rights

Act of 1965 (VRA), 25 and generally lesser known—a circumstance that some scholars have

attributed to the effectiveness of the VRA, which was enacted just a year after Title I. 26 Provisions

1957 Civil Rights Act, which amended provisions of an earlier civil rights statute (see id. at 637), provided, among

other things, that: “All citizens of the United States who are otherwise qualified by law to vote at any election by the

people in any State, T erritory, district, county, city, parish, township, school district, municipality, or other territorial

subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous

condition of servitude; any constitution, law, custom, usage, or regulation of any State or T erritory, or by or under its

authority, to the contrary notwithstanding.” 52 U.S.C. § 10101(a)(1 ). T he 1957 Civil Rights Act also “ authorized the

Attorney General to seek injunct ions against public and private interference with the right to vote on racial grounds.”

See South Carolina v. Katzenbach, 383 U.S. 301, 313 (1966) (describing voting provisions of the 1957 Act).

21 See H. REP . NO . 914, Part I at 19 (“ Title I is designed to meet problems encountered in the operation and enforcement

of the Civil Rights Acts of 1957 and 1960, by which the Congress took steps to guarantee to all citizens the right to

vote without discrimination as to race or color.”). See also id., Part 2, at 3 (describing the “primary thrust of the 1957

and 1960 Civil Rights Acts” being “to guarantee and enforce voting rights”; stating that the “principal feature of the

1957 [A]ct” was to authorize the Attorney General to bring enforcement litigation “to end discrimination in voting

practices” while the 1960 Act “permitted the appointing of Federal referees to speed up registration after a pattern or

practice of discrimination had been found by a court”).

22 See Civil Rights Act of 1960, Pub. L. No. 86-449, 74 Stat. 86. T he 1960 Act, among other things, amended the 1957

Civil Rights Act to permit States to be joined as defendants in voting rights litigation, to give “the Attorney General

access to local voting records,” and to “authorize[] courts to register voters in areas of systematic discrimination.” See

South Carolina, 383 U.S. at 313. See generally Statutes Enforced by the Voting Section, Civil Rights Div., U.S. Dep’t

of Justice, https://www.justice.gov/crt/statutes-enforced-voting-section, (last visited Sept. 1, 2020) (“ The Civil Rights

Acts provide some of the early federal statutory protections against discrimination in voting. Certain of these

protections originated in the Civil Rights Act of 1870, and were later amended by the Civil Rights Acts of 1957, 1960,

and 1964. T he voting provisions of the Civil Rights Acts are codified at 52 U.S.C. 10101 & 52 U.S.C. 20701-20706

(formerly 42 U.S.C. 1971 & 1974).”).

See Florida State Conf. of NAACP v. Browning, 522 F.3d 1153, 1173 (11th Cir. 2008) (also stating that T itle I “was

at the time the latest entry in a spurt of federal enforcement of voting rights after a long slumber following syncopated

efforts during Reconstruction”).

24 See South Carolina, 383 U.S. at 313 (stating that, among other features, T itle I of the 1964 Act “outlawed some of

the tactics used to disqualify Negroes from voting in federal elections”). Such tactics included, for example, denying

voter registration to black voting applicants based on not listing “‘the exact number of months and days in his age’” or

requiring other such “trivial information” for the purpose of “inducing voter -generated errors that could be used to

justify rejecting applicants.” See Florida State Conf. of NAACP, 522 F.3d at 1173 (internal citation omitted). See also

H. REP . NO . 914, pt. 2, at 5 (stating that voting “registrars [would] overlook minor misspelling errors or mistakes in age

or length of residence of white applicants, while rejecting” an application from a black applicant “for the same or more

trivial reasons.”).

25 Cf. 52 U.S.C. § 10101 (the voting provisions of the 1957 Civil Rights Act); 52 U.S.C. § 10301 et seq. (the statutory

provisions that comprise the Voting Rights Act of 1965).

26 See generally, Daniel P. T okaji, Public Rights and Private Rights of Action: The Enforcement of Federal Election

Laws, 44 I ND . L. REV. 113, 138-40 (2010) (suggesting that the “obscurity” of T itle I and other voting provisions of the

1957 Civil Rights Act is “partly attributable to the courts’ general refusal to imply a private right of action” to enforce

those provisions; also observing that the 1964 amendments enacted through T itle I “might well have assumed greater

importance [] had Congress not enacted the V[oting] R[ights] A[ct of 1965] the next year,” which had “effectively

overwhelmed the system of disenfranchisement that had kept Southern blacks from voting since the end of

Reconstruction”). Brian K. Landsberg, Sumter County, Alabama and the Origins of the Voting Rights Act, 54 ALA . L.

REV. 877, 881-82 (2003) (discussing the voting provisions of the 1964 Act and stating that “the combination of the

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The Civil Rights Act of 1964: An Overview

of Title I, however, continue to be litigated, including in recent years to challenge state voter

registration practices. 27

As discussed below, Title I added provisions 28 prohibiting (1) the use of different standards for

qualifying voters;29 (2) certain uses of literacy or “interpretation” tests;30 and (3) the denial of the

right to vote based on immaterial errors in a registration or other voting document. 31 In addition,

to “help meet the problem of lengthy and often unwarranted delays,”32 Title I of the 1964 Act

further amended the 1957 Civil Rights Act to expedite judicial review of voting cases. 33

Legislative history reflects two constitutional bases for enacting Title I: Congress ’s power to

enforce the Equal Protection Clause of the Fourteenth Amendment and to enforce the Fifteenth

Amendment of the Constitution. 34 Relatedly, the Supreme Court has construed the voting

provisions of the 1957 Civil Rights Act as an exercise of Congress’s authority under the Fifteenth

Amendment. 35

Mississippi summer of 1964 and the attack at the bridge in Selma” led to the Voting Rights Act of 1965 “before the

effectiveness of the 1964 Act could be tested” with respect to its voting provisions). Given these rationales for the

relative obscurity of T itle I, and changes to the VRA’s operation and enforcement resulting from the Supreme Court’s

2013 decision Shelby County v. Holder, 570 U.S. 529 (2013), which invalidated the VRA’s coverage formula, it may

be that T itle I’s provisions may see increased enforcement activity for challenging discrimination in the voting context.

For more information on the VRA, including its operation and enforcement following Shelby County, see CRS

T estimony T E10033, History and Enforcement of the Voting Rights Act of 1965 , by L. Paige Whitaker (Mar. 12, 2019).

27 See, e.g., Florida State Conf. of NAACP, 522 F.3d at 1158 (reflecting that plaintiffs alleged that a state statute

requiring “ a new verification process as a precondition of voter registration ,” which involved a matching procedure that

was resulting in errors regarding individuals’ voting eligibility, “conflict[ed] with” T itle I of the 1964 Act, among other

statutory and constitutional claims). See also id. at 1172-75 (analyzing T itle I challenge). See also, e.g., Washington

Ass’n of Churches v. Reed, 492 F.Supp.2d 1264, 1266, 1270 (W.D. Wa. 2006) (reflecting that plaintiffs challenged a

state statute requiring a “ match [of] a potential voter’s name to either the Social Security Administration (“SSA”)

database or to the Department of Licensing (“ DOL”) database before allowing that person t o register to vote,” as a

violation of T itle I; concluding that the plaintiffs had “demonstrated a likelihood of success on the merits” of their

claim that the state statute violated the “materiality” provision, “42 U.S.C. § 1971(a)(2)(B)”). As noted earlier, 42

U.S.C. § 1971(a)(2)(B) is now codified at 52 U.S.C. § 10101(a)(2)(B).

T his overview of T itle I of the 1964 Act only discusses the statutory provisions that were amended by T itle I, and

does not address any other pre-existing provisions of the 1957 or 1960 Acts. T hose provisions included, for example, a

declaration that all U.S. citizens who are otherwise qualified by law to vote “shall be entitled and allowed to vote,”

“without distinction of race, color, or previous condition of servitude” ( see 52 U.S.C. § 10101(a)(1)); a prohibition

against intimidation, threats, or coercion for the purpose of interfering with an individual’s right to vote ( see id. §

10101(b)); the grant of jurisdiction to federal district courts over civil actions brought under the voting section (see id. §

10101(d)); actions that a federal court must take upon finding a “pattern or practice” of discrimination ( see id. §

10101(e)); and the appointment of voting referees (see id.), among other topics.

29 See id. § 10101 (a)(2)(A).

See id. § 10101(a)(2)(C).

31 See id. § 10101(a)(2)(B).

32 See H. REP . NO . 914, pt. 1, at 19.

33 South Carolina, 383 U.S. at 313.

See H. REP . NO . 914, pt. 2, at 6 (citing the Equal Protection Clause of the 14th Amendment, Section 2 of the 15th

Amendment, and Article I of Section 8 of the Constitution as bases for enacting T itle I of the Civil Rights Act of 1964;

stating that “ through the use of the 15th amendment, Congress is vested with the authority in Section 2 to enact

appropriate legislation to enforce the provisions of the amendment,” and that “[u]nder the ‘equal protection’ clause of

the 14th amendment, Congress also has the authority to enact the voting provision of title I”).

35 See United States v. Mississippi, 380 U.S. 128, 138-40 (1965) (addressing the voting provisions of the 1957 Civil

Rights Act, and stating that they were “ passed by Congress under the authority of the Fifteenth Amendment to enforce

that Amendment’s guarantee, which protects against any discrimination by a State, its laws, its customs, or its officials

in any way”).

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The Civil Rights Act of 1964: An Overview

General Background: Different Standards for Qualifying Black

Voters

The main objective of Title I, as reflected in House Report No. 914, was to address the

“[d]iscriminatory use of literacy tests and other devices by registration officials,” and prohibit

“disqualifying an applicant for immaterial errors or omissions in papers requisite to voting.”36

Describing such discriminatory practices, the Supreme Court observed that numerous states had

enacted literacy tests or other registration requirements “specifically designed to prevent Negroes

from voting.”37 If white illiterate voters would be disqualified from voting based on such tests,

states had developed “alternate tests” in the form of “grandfather clauses, property

qualifications,” or “‘good character’ tests” to “assure” that illiterate white voters would still be

able to vote. 38 Later, as literacy rates increased among black citizens of voting age, the Court

observed that states began administering “interpretation” or “understanding” tests, 39 which

required that applicants give, for example, “‘a reasonable interpretation’ of any section of the

State or Federal Constitution, ‘when read to him by the registrar.’”40 Besides being “given easy

versions” of both literacy and interpretation tests, white applicants for registration were

commonly “excused altogether” from taking or satisfying those tests, or “received extensive help

from voting officials.”41 Black applicants were typically “required to pass difficult versions of all

the tests, without any outside assistance and without the slightest error.”42

Congress heard testimony regarding the unequal application of these tests 43 and sought through

Title I to target methods “employed by some State or county voting officials to defeat Negro

36 See H. REP . NO . 914, p. 1, at 19.

South Carolina v. Katzenbach, 383 U.S. 301, 310 (1966) (identifying “ Alabama, Georgia, Louisiana, Mississippi,

North Carolina, South Carolina, and Virginia” as states that had “enacted tests still in use which were specifically

designed to prevent Negroes from voting”).

38 Id. at 310-13.

See United States v. Mississippi, 380 U.S. 128, 132-33 (1965) (stating that “[b]y the 1950’s a much higher proportion

of Negroes of voting age in Mississippi was literate”; also reflecting that by 1954, the state required that “an applicant

for registration had to be able to read and copy in writing any section of the Mississippi Constitution, and give a

reasonable interpretation of that section to the county registrar, and, in addition, demonstrate to the registrar ‘a

reasonable understanding of the duties and obligations of citizenship under a constitutional form of government’”). See

also, e.g., Louisiana v. United States, 380 U.S. 145, 149 (1965) (stating that “[b]eginning in the middle 1950’s

registrars of at least 21 parishes began to apply the interpretation test. In 1960 the State Constitution was amended to

require every applicant thereafter to ‘be able to understand’ as well as ‘give a reasonable interpretation’ of any section

of the State or Federal Constitution ‘when read to him by the registrar’”).

40 See Louisiana, 380 U.S. at 149-50 (stating that “ the registrars, without any objective standard to guide them,

determine the manner in which the interpretation test is to be given, whether it is to be oral or written, the length and

complexity of the sections of the State or Federal Constitution to be understood and interpreted, and what interpretation

is to be considered correct”).

41 South Carolina, 383 U.S. at 312. As an illustration of how such tests were administered to disqualify black but not

white applicants, the Court noted that a white applicant had satisfied the requirement of being able “to interpret the

state constitution by writing, ‘FRDUM FOOF SPET GH.’” See id., n. 12. (citing United States v. Louisiana, 225 F.

Supp. 353, 384 (E.D. La 1963), aff’d, 380 U.S. 145 (1965)).

42 South Carolina, 383 U.S. at 312.

See H. REP . NO . 914, pt. 2, at 5 (“ Testimony shows that Negroes will be given long and difficult parts of the

Constitution to read, transcribe, and analyze, while whites will be assigned easy sections. Registrars have been known

to aid white registrants but ignore the Negro applicant. Similarly , registrars will overlook minor misspelling errors or

mistakes in age or length of residence of white applicants, while rejecting a Negro application for the same or more

trivial reasons.”).

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registration.”44 The legislative history of Title I also reflects concern that federal courts delayed

the adjudication of cases brought under the 1957 and 1960 Civil Rights Acts’ voting provisions to

curb these practices. 45 Though the 1957 Civil Rights Act authorized the Attorney General to file

civil actions to enforce the statute’s voting rights provisions, 46 House Report No. 914 reflects that

Congress was concerned that “certain district court judges ha[d] been less than enthusiastic in

their enforcement” of these earlier provisions, taking two or more years to issue decisions, and in

some cases, “refus[ing] to act in the face of convincing evidence.”47 The vehicles chosen for

addressing these practices through Title I are detailed below.

Title I Substantive Provisions

Mandating Uniform Standards for Qualifying Individuals to Vote

In the context of disparately applied voting registration practices, Title I amended the 1957 Civil

Rights Act to make it unlawful for any person acting under the color of law to “apply any

standard, practice, or procedure different from the standards, practices, or procedures applied

under such law or laws to other individuals within the same county, parish, or similar political

subdivision” to determine “whether any individual is qualified” to vote. 48 Put another way, this

provision requires states and localities to use the same standards, practices, or procedures for all

individuals to determine their voting eligibility. 49

Prohibition of Literacy or Interpretation Tests, w ith Exceptions

Title I also amended the 1957 Civil Rights Act to add a general prohibition against the use of

“any literacy test as a qualification for voting in any election.”50 A literacy test, as defined by Title

I, includes “any test of the ability to read, write, understand, or interpret any matter.”51 The

statutory provision, however, allows the use of a literacy test if (1) it is administered to all

individuals, (2) “is conducted wholly in writing,” and (3) “a certified copy of the test and of the

44 See id., pt. 2, at 5.

45 See id., pt. 2, at 4-5.

See 52 U.S.C. § 10101(c) (providing that “the Attorney General may institute for the United States, or in the name of

the United States, a civil action or other proper proceeding for preventive relief, including an application for a

permanent or temporary injunction, restraining order, or other order”). See also supra notes 20-21.

47 See H. REP . NO . 914. pt. 2, at 4.

52 U.S.C. § 10101(a)(2)(A).

49 See id. § 10101(a)(2)(A).

50 See id. § 10101(a)(2)(C) (“No person acting under color of law shall…employ any literacy test as a qualification for

voting in any election unless (i) such test is administered to each individual and is conducted wholly in writing, and (ii)

a certified copy of the test and of the answers given by the individual is furnished to him within twenty -five days of the

submission of his request made within the period of time during which records and papers are required to be retained

and preserved pursuant to title III of the Civil Rights Act of 1960 [52 U.S.C. § 20701 et seq.]: Provided, however, T hat

the Attorney General may enter into agreements with appropriate State or local authorities that preparation, conduct,

and maintenance of such tests in accordance with the provisions of applicable State or local law, including such special

provisions as are necessary in the preparation, conduct, and maintenance of such tests for persons who are blind or

otherwise physically handicapped, meet the purposes of this subparagraph and constitute compliance therewith.”).

51 Id § 10101(a)(3)(B) (“the phrase ‘literacy test’ includes any test of the ability to read, write, understand, or interpret

any matter”).

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answers given by the individual is furnished to him within twenty-five days of the submission of

his request.”52

In addition, Title I created a “rebuttable presumption” to apply in a legal proceeding brought by

the Attorney General to challenge a discriminatory voting practice, where “literacy is a relevant

fact.”53 In such cases, a person is presumed to “possess sufficient literacy, comprehension, and

intelligence to vote in any election,” if such individual “has not been adjudged an incompetent”

and has completed the sixth grade in a public school or an accredited private school “where

instruction is carried on predominantly in the English language.”54

Immaterial Errors or Omissions on Voting Applications, Registrations, or

Records

Title I also added a prohibition against denying a person’s right to vote based on errors or

omissions on “any record or paper relating to any application, registration, or other act requisite

to voting,” that “is not material” to determining whether the individual is qualified to vote. 55 The

intent of this provision—sometimes referred to as the “materiality” provision56 —was to prohibit

the use of “unnecessary information for voter registration” as “an excuse” for disqualifying

potential voters. 57 This “materiality” provision continues to be litigated, including in recent

years 58 (though federal courts disagree about the availability of a private right of action under

Title I, as discussed below).

52 See id. § 10101(a)(2)(C).

See id. § 10101(c) (providing that the Attorney General may institute a civil action or other proceeding for preventive

relief “[w]henever any person has engaged or . . . is about to engage in any act or practice which would deprive any

other person of any right or privilege secured by subsection (a) or (b),” and establishing a rebuttal presumption “in any

such proceeding literacy is a relevant fact”).

54 See id.

55 52 U.S.C. § 10101(a)(2)(B) (“No person acting under color of law shall…deny the right of any individual to vote in

any election because of an error or omission on any record or paper relating to any application, registration, or other act

requisite to vot ing, if such error or omission is not material in determining whether such individual is qualified under

State law to vote in such election”). See also, e.g., Florida State Conf. of NAACP v. Browning, 522 F.3d 1153, 1173

(11th Cir. 2008) (describing this provision as prohibiting the denial of a person’s “ right to vote based on errors or

omissions that are not material in determining voter eligibility”).

See, e.g., Schwier v. Cox, 340 F.3d 1284, 1297 (11th Cir. 2003) (referring to 42 U.S.C. § 1971(a)(2)(B) , now

codified at 52 U.S.C. § 10101(a)(2)(B), as “the materiality provision”).

Id. at 1294. See also id. (citing, as an example, the disqualification of an applicant based on the failure to list the

exact number of months and days in his age on an application). See generally, Florida State Conf. of NAACP, 522 F.3d

at 1173 (“ Such trivial information served no purpose other than as a means of inducing voter -generated errors that

could be used to justify rejecting applicants.”); H. REP . NO . 914, pt. 2, at 5 (stating that voting “registrars [would]

overlook minor misspelling errors or mistakes in age or length of residence of white applicants, while rejecting” an

application from a black applicant “for the same or more trivial reasons.”). While th e provision was intended to address

registration practices that had been used to disenfranchise black voters, it does not expressly refer to race. See 52

U.S.C. § 10101(a)(2)(B).

58 See, e.g., Florida State Conf. of NAACP, 522 F.3d at 1158 (reflecting that plaintiffs alleged that a state statute

requiring “ a new verification process as a precondition of voter registration ,” which involved a matching procedure that

was resulting in errors regarding individuals’ voting eligibility, “conflict[ed] with” T itle I of the 1964 Act, among other

statutory and constitutional claims). See also id. at 1172-75 (analyzing T itle I challenge). See also, e.g., Washington

Ass’n of Churches v. Reed, 492 F.Supp.2d 1264, 1266, 1270 (W.D. Wa. 2006) (reflecting that plaintiffs challenged a

state statute requiring a “ match [of] a potential voter’s name to either the Social Security Administration (“SSA”)

database or to the Department of Licensing (“ DOL”) database before allowing that person to register to vote,” as a

violation of T itle I; concluding that the plaintiffs had “demonstrated a likelihood of success on the merits” of their

claim that the state statute violated the “materiality” provision, “42 U.S.C. § 1971(a)(2)(B)”). As noted earlier, 42

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The materiality provision does not define when an error is or is not “material” for determining

voter qualifications. 59 Recent litigation under this provision has pressed federal courts to address,

for example, whether an applicant’s social security number is “material” or “not material,” for

registering to vote;60 or whether an individual’s unintentional failure to mark a check box on a

registration form is “material” such that a state or locality may deny voter registration on that

basis. 61 With no clear statutory definition, and given that the term “material” is subject to various

meanings, 62 federal courts have interpreted this Title I provision in different—and sometimes

conflicting—ways. 63

Title I Enforcement

Expedited Judicial Review of Cases Brought by the Attorney General

As noted above, although the 1957 Civil Rights Act had expressly authorized the Attorney

General to file enforcement actions in federal court, 64 there were reports of delays by federal

courts in adjudicating these claims. 65 To expedite such adjudications, Congress amended the 1957

Civil Rights Act through Title I in two related respects.66

U.S.C. § 1971(a)(2)(B) is now codified at 52 U.S.C. § 10101(a)(2)(B).

59 See 52 U.S.C. § 10101(a)(2)(B).

See, e.g., Schwier v. Cox, 439 F.3d 1285, 1286 (11th Cir. 2006) (affirming district court’s conclusion that the state of

Georgia could not mandate disclosure of social security numbers “because such information is not ‘material’ to a voter

registration system” under T itle I); Diaz v. Cobb, 435 F.Supp.2d 1206, 1213 (S.D. Fla. 2006) (stating, without citation,

that a failure to provide a social security number is one type of error that is not material for T itle I purposes). Cf.

Florida State Conference of NAACP, 522 F.3d at 1155-57, 1174-75 (where Florida law required the inclusion of a

drivers’ license number or the last four digits of a social security number as “a precondition of registering to vote,”

holding that errors in transposing those numbers on a registration form were “material” under T itle I; interpreting the

Help America Vote Act of 2002 as indicating that “Congress deemed” identification numbers “material” for the

purpose of T itle I and adding that T itle I does not expressly require “a least -restrictive-alternative test for voter

registration applications”).

See, e.g., Diaz, 435 F.Supp.2d at 1208, 1211-14 (where plaintiffs alleged that several voter applications had been

improperly rejected for the inadvertent failure to check a box relating to mental incapacitation or a felony conviction,

concluding that “the questions posed by the check boxes” were material “ as a matter of law” for the purposes of T itle I,

and interpreting a provision in the Help America Vote Act of 2002 as “ constitut[ing] a specific Congressional direction

to reject an application as incomplete for failure to check one of the boxes”). But see Washington Ass’n of Churches,

492 F.Supp.2d at 1268-71 (W.D. Wa. 2006) (interpreting the Help America Vote Act of 2002 to require verification of

a voter’s identit y before casting or counting that person’s vote, “but not as a prerequisite to registering to vote,” and

concluding that the plaintiffs had demonstrated a likelihood of success on the merits of their claim that errors in

information that prevented Washingt on state from matching an applicant to another government database were not

material in determining whether that person was qualified to vote under Washington law.).

See, e.g., Florida State Conference of NAACP, 522 F.3d at 1173-74 (stating that the term “ not surprisingly signifies

different degrees of importance in different legal contexts” and discussing two possible ways of construing

“materiality” in the context of T itle I’s provision and the substantially different legal outcomes, depending on wh ich

meaning of “materiality” is used).

See, e.g., supra notes 60 and 61.

See 52 U.S.C. § 10101(c) (“Whenever any person has engaged or there are reasonable grounds to believe that any

person is about to engage in any act or practice which would depriv e any other person of any right or privilege secured

by subsection (a) or (b), the Attorney General may institute for the United States, or in the name of the United States, a

civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary

injunction, restraining order, or other order.”); id. § 10101(d) (providing that “district courts of the United States shall

have jurisdiction of proceedings instituted pursuant to this section”).

65 See supra “ General Background: Different Standards for Qualifying Black Voters,” p. 6.

66 See Pub. L. No. 88-352, 78 Stat. 242 (adding subsection (h) addressing expedited judicial review). T his subsection

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First, in a case alleging “a pattern or practice of discrimination,”67 Title I permits the Attorney

General or a defendant to request that a three-judge panel “hear and determine the entire case.”68

At least one panelist must be an appellate court judge and at least one must be a district court

judge. 69 The designated judges must assign the case for hearing “at the earliest practicable date,”

“participate in the hearing and determination” of the case, and “cause the case to be in every way

expedited.”70 The final judgment of the panel is directly appealable to the Supreme Court. 71

Second, in certain other cases,72 Title I requires that the chief judge of the district where the case

is pending “immediately” designate a judge to the case. 73 If no judge in the district is available,

the case must be designated to appellate court judge of the circuit instead. 74 Title I makes it “the

duty” of the designated federal judge to “assign the case for hearing at the earliest practicable date

and to cause the case to be in every way expedited.”75

Injunctive Relief

When the Attorney General files a civil action under Title I or other voting provisions of the 1957

and 1960 Civil Rights Acts, the action is “for preventive relief, including an application for a

permanent or temporary injunction, restraining order, or other order.”76 Thus, courts granting

relief for violations of these voting provisions, for example, have issued orders enjoining the

discriminatory practice at issue. 77

was later re-designated through the VRA. See Pub. L. No. 89-110, § 15, 79 Stat. 445.

See 52 U.S.C. § 10101(g) (providing for the availability of a “three-judge court” in “any proceeding instituted by the

United States” in which “the Attorney General requests a finding of a pattern or practice of discrimination pursuant to

subsection (e) of this section”).

68 Id. (requiring that the request for the three-judge court “be immediately furnished” to the chief judge of the circuit, or

the presiding circuit judge of the circuit, in which the case is pending).

Id. See also H. REP . NO . 914, pt. 2, at 4-5 (expressing the view that a three-judge court would bring a “balanced and

broad range of views” to “ bear upon a voting case,” which “should assure fewer instances of delay and a greater

willingness to safeguard the individual’s right to vote”).

70 52 U.S.C. § 10101(g).

71 Id. See also H. REP . NO .914, pt. 2, at 5 (conveying the view that “[b]y cutting down a layer of appeal, it is our hope

that the time will not be long distant when the issue of voter discrimination is behind us.”).

72 See 52 U.S.C. § 10101(g) (referring to “any proceeding brought under subsection (c) of this section to enforce

subsection (b) of this section, or in the event neither the Attorney General nor any defendant files a request for a three judge court in any proceeding authorized by this subsection”).

Id. (in the absence of the chief judge, making it the duty of the acting chief judge).

74 Id. (“In the event that no judge in the district is available to hear and determine the case, the chief judge of the

district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit . . . who shall

then designate a district or circuit judge of the circuit to hear and determine the case”).

75 Id.

76 See id. § 10101(c).

See, e.g., United States v. Atkins, 323 F.2d 733, 734-35, 745 (5th Cir. 1963) (in case alleging that racially

discriminatory voter registration practices violated the 1957 Civil Rights Act, directing the district court to enter an

order “enjoining the members of the Board of Registrars of Dallas County, and their successors in office, from

engaging in any act or practice intended to result or the probable effect of which would be to result in racial

discrimination in the registration for voting in Dallas County,” amon g other injunctive relief).

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Whether Individuals May Bring a Private Action to Challenge Discriminatory

Voting Practices

Though the 1957 Civil Rights Act, as amended, expressly authorizes the Attorney General to

bring litigation to enforce its voting rights provisions, the statute is silent on whether an

individual may bring a private right of action. 78 Thus, federal appellate courts have disagreed on

whether an individual may bring a private right of action alleging a violation of Title I or other

voting provision of the 1957 Civil Rights Act, 79 including through 42 U.S.C. § 1983, which

permits individuals to bring a private action against persons acting under the color of state law for

constitutional or statutory violations. 80 The U.S. Court of Appeals for the Eleventh Circuit, for

example, has held that a claim alleging a violation of Title I’s “materiality” provision may be

enforced through a private action brought under 42 U.S.C. § 1983. 81 The U.S. Court of Appeals

for the Sixth Circuit, however, has adopted the opposite view, dismissing Title I claims brought

by private plaintiffs on the basis that the statute “is enforceable by the Attorney General, not by

private citizens.”82

As reflected above, Title I of the 1964 Act was motivated by concerns over voter registration

practices intentionally designed to disqualify black applicants, and the pace with which federal

courts were adjudicating voting cases. Though two other titles in the 1964 Act relate in some

manner to voting (Title V with respect to the U.S. Commission on Civil Rights’ investigations of

equal protection violations in the voting context, for example, and Title VIII relating to voting

statistics), Title I is the only title in the Act containing substantive requirements directed at

discrimination in the voting context.

78 See 52 U.S.C. § 10101.

79 See generally, e.g., Daniel P. T okaji, Public Rights and Private Rights of Action: The Enforcement of Federal

Election Laws, 44 I ND . L. REV. 113, 140-41 (2010) (discussing federal case law on the question of the private

enforceability of the voting provisions of the 1957 Civil Rights Act and stating that “[t]here is a split of authority in the

lower courts”) (footnotes omitted).

80 42 U.S.C. § 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State or T erritory or the District of Columbia, subjects, or causes to be subjected, any citizen of the

United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities

secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other

proper proceeding for redress”).

81 Schwier v. Cox, 340 F.3d 1284, 1296-97 (11th Cir. 2003) (addressing 42 U.S.C. § 1971(c), now codified at 52

U.S.C. § 10101(c), and concluding that the statute’s voting rights provisions “may be enforced by a private right of

action under § 1983”).

82 McKay v. T hompson, 226 F.3d 752, 756 (6th Cir. 2000) (dismissing claim alleging violation of the “materiality”

provision of T itle I of the 1964 Act, brought by a private plaintiff, on the basis that the provision “is enforceable by the

Attorney General, not by private citizens”). See also Northeast Ohio Coal. for the Homeless v. Husted, 837 F.3d 612,

630 (6th Cir. 2016) (holding that plaintiff could not bring a private right of action alleging a violation of T itle I’s

materiality provision, as “ [w]e have held that the negative implication of Congress’s provision for enforcement by the

Attorney General is that the statute does not permit private rights of action” and that “McKay v. Thompson therefore

binds this panel”; also observing that “[a]nother circuit later reached the opposite conclusion” (citing Schwier v. Cox,

340 F.3d 1284, 1294–96 (11th Cir. 2003)).

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Title II: Addressing discrimination and segregation

in business establishments

Title II of the 1964 Act, divided into seven sections, 83 addresses segregation and discrimination84

against individuals based on race, color, religion, or national origin, in the context of access and

service at various business establishments. Title II, as reflected in legislative history 85 and

interpreted by the Supreme Court, 86 was enacted based on Congress’s power to regulate interstate

commerce. 87

As discussed below, Title II’s substantive protections are contained in its first three sections. 88

The first section generally provides that all persons “shall be entitled to the full and equal

enjoyment” of goods and services of certain establishments that constitute places of “public

accommodation,” “without discrimination or segregation on the ground of race, color, religion, or

national origin.”89 Title II also prohibits discrimination or segregation where mandated by state or

local laws or rules, regardless of whether the establishment at issue constitutes a place of “public

accommodation” under the first section. 90 A third section prohibits interference with those federal

statutory rights. 91

General Background: Racial Segregation in Business and Travel

Racial segregation in the commercial context, often mandated by local law, 92 commonly took

form in the wholesale exclusion of black citizens from business establishments designated as

“white only.”93 If black citizens sought service at these establishments or businesses, they were

83 See 42 U.S.C. §§ 2000a - 2000a-6.

84 See, e.g., id. § 2000a(a); id. § 2000a(b); id. § 2000a(d); id. § 2000a-1.

85 See S. REP . NO . 88-872, at 12-14 (discussing the Commerce Clause basis for the public accommodations provisions);

H. REP . NO . 914, pt. 2, at 8, 13 (discussing the constitutional bases for enacting T itle II as both the Equal Protection

Clause of the Fourt eenth Amendment and the Commerce Clause).

Heart of Atlanta Motel, 379 U.S. at 261-62 (upholding T itle II against a constitutional challenge asserting that

Congress exceeded its authority under the Commerce Clause to enact it with respect to hotels and m otels).

See U.S. CONST. art. I, § 8, cl. 3.

88 See 42 U.S.C. §§ 2000a(a), 2000a-1, 2000a-2.

89 Id. § 2000a(a).

90 Id. § 2000a-1.

91 Id. § 2000a-2.

92 See, e.g., Peterson v. City of Greenville, S.C., 373 U.S. 244, 246-47 (1963) (discussing a local South Carolina

ordinance that mandated racially segregated eating areas in “ any hotel, restaurant, cafe, eating house, boarding-house or

similar establishment”; reflecting that under the ordinance, meals ordered by black persons and white persons could be

served in the same room only where white and black persons were seated at a “distance of at least thirty -five feet,” with

“separate eating utensils and separate dishes” used for white and black persons, which were required to be “distinctly

marked” as such, and where a separate facility was used to clean dishes and utensils used by white persons and black

persons). See also generally Regents of Univ. of California v. Bakke, 438 U.S. 265, 393 -94 (1978) (Marshall, J.,

concurring in part and dissenting in part) (stating that following the Supreme Court’s 1896 decision in Plessy v.

Ferguson, state and local laws permitting or mandating racial segregation “expanded” to “ residential areas, parks,

hospitals, theaters, waiting rooms, and bathrooms,” including laws that “ authorized separate phone booths for Negroes

and whites, which required that textbooks used by children of one race be kept separate from those used by the other,

and which required that Negro and white prostitutes be kept in separate districts . . .Nor were the laws restricting the

rights of Negroes limited solely to the Southern States. In many of the Northern States, the Negro was. . .excluded from

theaters, restaurants, hotels, and inns.”).

93 See generally, e.g., Blow v. North Carolina, 379 U.S. 684, 684 –85 (1965) (describing a roadside restaurant that

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often subject to arrest and criminal prosecution, and convicted and sentenced to fines or

imprisonment under state or local trespassing laws. 94 Against this backdrop and leading up to the

1964 Act, 95 Congress heard testimony regarding the daily forms of discrimination against black

citizens in public transportation, eating establishments, hotels, retail stores, markets, and other

places that catered to the general public but offered black individuals “either differentiated service

or none at all.”96

In addition, “voluminous testimony” before Congress provided “overwhelming evidence” of

discrimination against black travelers, including the routine denial of food and lodging services. 97

In its 1964 decision Heart of Atlanta Motel v. United States,98 the Supreme Court observed that

this “uncertainty” of when and where one might find accommodations not only resulted in

economic harm—by impeding and discouraging interstate travel for “a substantial portion” of the

“served whites only and carried a sign to that effect on its front door”); Katzenbach, 379 U.S. at 297 (stating that the

defendant restaurant “has refused to serve Negroes in its dining accommodations since its original opening in 1927”);

Bouie v. City of Columbia, 378 U.S. 347, 348-49 (1964) (describing drug store with several departments, including a

“restaurant department, which was reserved for whites”).

94 See, e.g., Bell v. State of Md., 378 U.S. 226, 228-29 (1964) (reflecting that petitioners, black students, went to a

Baltimore restaurant and were told they would not be served because of their race; that the restaurant owner went to the

police station to get warrants for their arrest; and that the students were arrested and subsequently convicted under a

state criminal trespass law); Bouie, 328 U.S. at 348-49 (reflecting that petitioners, black college students, were

convicted for criminal trespass under South Carolina law, after taking seats at a restaurant booth where they “continued

to sit quietly” waiting to be served, were refused service, and were then arrested after the owner ca lled the police to

remove them); Lombard v. State of La., 373 U.S. 267, 268 -69 (1963) (reflecting that petitioners, three black college

students and one white college student, were arrested and convicted under a state trespass law; stating that the

petitioners had gone to a “refreshment counter” where they “sat quietly” to await service but were refused and told to

leave, and that the petitioners were then arrested after the manager closed the counter believing t he situation to

constitute an emergency; also reflecting that the petitioners were sentenced to prison time and fines); Peterson, 373

U.S. at 245-46 (reflecting that black petitioners were arrested and convicted for violating a state trespass statute for

sitting at a lunch counter reserved for white persons).

See United States v. Baird, 85 F.3d 450, 454-55 (9th Cir. 1996) (explaining that prior to Title II, “many

establishments generally open to the public” excluded groups based on race, color, religion, and national origin, and

thereby “established public badges of inferiority for the excluded groups, marking them as of lower social status”;

stating that “[i]n response to almost a decade of massive demonstrations, freedom rides, and sit -ins, which swayed

public opinion throughout the nation, Congress used its power under the Commerce Clause to eliminate segregation of

public accommodations.”).

96 See, e.g., S. REP . NO . 88-872, at 15. See also Katzenbach v. McClung, 379 U.S. 294, 301 (stating that, in its 1964

companion decision Heart of Atlanta Motel v. United States, the Court had noted “that a number of witnesses attested

to the fact that racial discrimination was not merely a state or regional problem but was one of nationwide scope”). See

also, e.g., id. at 299-300 (pointing to testimony by t he Under Secretary of Commerce, before the Senate Committee on

Commerce, attributing the “condition” of race-based discrimination in various establishments, which caused lower per

capita spending in those establishments by black patrons, to racial segregat ion).

Heart of Atlanta Motel, 379 U.S. at 253 (stating that conditions for black travelers were “so acute” that they

necessitated a “special guidebook” identifying the accommodations that would serve black travelers in different parts

of the country). See also S. REP . NO . 872, at 15-16 (quoting witness testimony describing the uncertainties during

travel; “ I invite the members of this committee to imagine themselves darker in color and to plan an auto trip from

Norfolk, Va., to the gulf coast of Mississippi, say, to Biloxi . . . How far do you drive each day? Where and under what

conditions can you and your family eat? Where can they use a rest room? Can you stop driving after a reasonable day

behind the wheel or must you drive, until you reach a city where relatives or friends will accommodate you and yours

for the night? Will your children be denied a soft drink or ice cream cone because they are not white?”).

98 379 U.S. 241 (1964).

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black community99 —but also “qualitative” harm. 100 Black travelers were “subjected to or fear

discrimination in railroad, bus, and airlines terminals—thereby reducing interstate travel.”101

Relatedly, Congress received testimony that black commercial truck drivers were “not sent on

overnight trips in certain areas of the country because of a lack of rest accommodations.”102

The “primary purpose” of Title II’s public accommodations provisions was “to solve this

problem, the deprivation of personal dignity that surely accompanies denials of equal access to

public establishments.”103

Title II Provisions: “Full and Equal Enjoyment”

In a “Place of Public Accommodation”

Section 201 of Title II provides that “[a]ll persons shall be entitled to the full and equal enjoyment

of the goods, services, facilities, privileges, advantages, and accommodations of any place of

public accommodation, as defined in this section, without discrimination or segregation on the

ground of race, color, religion, or national origin.”104 As discussed below, the statute expressly

identifies four types of establishments subject to this “public accommodations” provision.

99 Id. at 253. See also id. at 257 (stating that the fact that Congress addressed what it considered a “moral problem”

through T itle II “does not detract from the overwhelming evidence of the disruptive effect that racial discrimination has

had on commercial intercourse”); Katzenbach, 379 U.S. at 299-300 (stating that “[t]he record is replete with testimony

of the burdens placed on interstate commerce by racial discrimination in restaurants” and discussing examples of such

effects; also stating that “there was an impressive array of testimony that discrimination in restaurants had a direct and

highly restrictive effect upon interstate travel by Negroes,” including that “ discriminatory practices prevent[ed]

Negroes from buying prepared food served on the premises while on a trip, except in isolated and unkempt restaurants

and under most unsatisfactory and often unpleasant conditions. T his obviously discourages travel and obstructs

interstate commerce for one can hardly travel without eating.”).

100 See Heart of Atlanta Motel, 379 U.S. at 253 (in addition to the economic effects of racial discrimination on interstate

travel, pointing to the “obvious impairment of the Negro traveler’s pleasure and convenience”). See generally, e.g., S.

REP . NO . 88-872, at 15 (1964) (Comm. Rep.) (quoting witness testimony) (“The truth is that the affronts and denials

that this section, if enacted, would correct are intensely human and personal. Very often they harm the physical body,

but always they strike at the root of the human spirit, at the very core of human dignity”).

101 H. REP . NO . 914, pt. 2 at p. 10.

102 Id.

103 See S. REP . NO . 88-872, at 16. See also, Heart of Atlanta Motel, 379 U.S. at 250 (“T he Senate Commerce

Committee made it quite clear that the fundamental object of T itle II was to vindicate ‘the deprivation of personal

dignity that surely accompanies denials of equal access to public establishments.’”). See also H. REP . NO . 914, pt. 1, p.

18 (generally discussing the proposed Act and stating that it “ would make it possible to remove the daily affront and

humiliation involved in discriminatory denials of access to facilities ostensibly open to the general public.”).

104 42 U.S.C. § 2000a(a).

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Covered Establishments That “Affect Commerce”

Section 201(a) 105 identifies “four classes of business establishments”106 subject to Title II’s public

accommodations provision, if their “operations affect commerce, or if discrimination or

segregation by [them] is supported by State action.”107 Thus, an establishment must constitute a

covered business and affect commerce,108 to be subject to this provision’s requirements. 109

Relatedly, Section 201(c) establishes the legal standard “for determining whether the operations”

of an establishment affects commerce under Title II. 110 Section 201 also provides that an

enumerated establishment will constitute a place of public accommodation under Title II if the

“discrimination or segregation by it is supported by State action.”111

The four categories of covered establishments under Section 201 are:

 Lodging for transient guests: “any inn, hotel, motel, or other establishment

which provides lodging to transient guests.”112 Establishments in this category

per se “affect commerce” under the statute, and do not require a separate showing

to that end. 113

 Eating establishments: “any restaurant, cafeteria, lunchroom, lunch counter,

soda fountain, or other facility principally engaged in selling food for

consumption on the premises, including, but not limited to, any such facility

located on the premises of any retail establishment; or any gasoline station.”114

An establishment in this category “affect[s] commerce” if it “serves or offers to

serve interstate travelers of a substantial portion of the food which it serves, or

gasoline or other products which it sells, has moved in commerce.”115

105 Section 201 is codified at 42 U.S.C. § 2000a(a).

106 Heart of Atlanta Motel, 379 U.S. at 247 (describing T itle II’s list of “four classes of business establishments”).

107 42 U.S.C. § 2000a(b).

See, e.g., United States v. Lansdowne Swim Club, 894 F.2d 83, 86 (3d Cir. 1990) (“ Under the statute, a place of

public accommodation has two elements: first, it must be one of the statutorily enumerated categories of establishments

that serve the public, 42 U.S.C. § 2000a(b); second, its operations must affect commerce.”).

108

109 See also 42 U.S.C. § 2000a(c) (generally defining “commerce” as “travel, trade, traffic, commerce, transportation,

or communication” among states, between the District of Columbia and any State, between any foreign country,

territory, or possession and any State or the District of Columbia; or between points in the same State but through any

other State or the District of Columbia or a foreign country).

110 See 42 U.S.C. § 2000a(c) (for each category of covered establishments, identifying conduct that affects commerce).

See also Daniel v. Paul, 395 U.S. 298, 303 (1969) (“Section 201(c) sets forth the standards for determining whether the

operations of an establishment in any of these categories affect commerce within the meaning of T itle II”).

111 See 42 U.S.C. § 2000a(b) (stating that the listed establishments constitute a place of public accommodation “if its

operations affect commerce, or if discrimination or segregation by it is supported by State action”). See also id. §

2000a(d) (“Discrimination or segregation by an establishment is supported by State action within the meaning of this

subchapter if such discrimination or segregation (1) is carried on under color of any law, statute, ordinance, or

regulation; or (2) is carried on under color of any custom or usage required or enforced by officials of the State or

political subdivision thereof; or (3) is required by action of the State or political subdivision thereof.”).

Id. § 2000a(b)(1). T he statute does not apply, however, to “an establishment located within a building which

contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such

establishment as his residence.” See id.

112

113 See id. § 2000a(c) (stating that the “operations of an establishment affect commerce within the meaning of this

subchapter” if it is one of the establishments described in paragraph (1) of subsection (b)). Cf. id. §2000a(b)(1).

114 Id. § 2000a(b)(2).

115 See id. §2000a(c). See, e.g., Daniel, 395 U.S. at 304-05 (concluding that a snack bar moved in interstate commerce,

as “three of the four food items sold at the snack bar contain[ed] ingredients originating outside of the State,” and that it

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Entertainment establishments: “any motion picture house, theater, concert hall,

sports arena, stadium or other place of exhibition or entertainment.”116 Such an

establishment “affect[s] commerce” if “it customarily presents films,

performances, athletic teams, exhibitions, or other sources of entertainment

which move in commerce.”117

Entities physically located within and serving patrons of another covered

establishment: Distinct from the other three categories, this part of the statute

addresses entities that are either:

 located within another covered establishment under Title II (e.g., a

barbershop operating within a hotel118 ); or

 have, on its premises, a covered establishment “physically located

within” it. 119

Under either circumstance, if that entity “holds itself out as serving

patrons” of the otherwise covered establishment, it too is a covered

establishment. 120 Relatedly, an establishment in this category

“affect[s] commerce” if “it is physically located within the premises

of, or there is physically located within its premises, an

establishment the operations of which affect commerce within the

meaning of this subsection.”121

offered to serve and served out-of-state persons); Blow v. North Carolina, 379 U.S. 684, 685 -86 (1965) (holding that

facts concerning defendant restaurant –that it was located on an interstate highway next to a motel owned by the same

person, that its menu and other advertising was posted in those motel rooms, and that it advertised on billboards along

the interstate highway, radio and newspapers–“made it clear ‘that the restaurant ‘serves or offers to serve interstate

travelers’” and thus constituted a place of public accommodation within the meaning of T itle II). See generally, e.g.,

Katzenbach, 379 U.S. at 304 (stating that by prohibiting discrimination “only in those establishments having a close tie

to interstate commerce, i.e., those, like the [defendant restaurant], serving food that has come from out of the State,”

“ Congress acted well within its power to protect and foster commerce in extending the coverage of T itle II only to

those restaurants offering to serve interstate travelers or serving food, a substantial port ion of which has moved in

interstate commerce.”).

116

Id. § 2000a(b)(3).

117 See id. § 2000a(c).

118 See Nesmith v. Young Men’s Christian Ass’n of Raleigh, N.C., 397 F.2d 96, 100 ( 4th Cir. 1968) (“ A typical

example of the situation at which this section is aimed is a barbershop operated within a hotel but under separate

management from the lodging establishment. In such a case, if the barbershop represented that it would service guests

of the hotel, the barbershop would become a ‘covered establishment.’”).

119 42 U.S.C. § 2000a(b)(4). See, e.g., Daniel, 395 U.S. at 305 (holding that a snack bar’s status as a covered

establishment affecting commerce rendered the 232-acre recreational area in which the snack bar was located a covered

establishment under 42 U.S.C. §2000a(b)(4)).

120 See 42 U.S.C. § 2000a(b)(4).

121 Id. § 2000a(c).

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Retail and Other Establishments or Services

As noted above, in setting forth the categories of establishments covered by Title II, Section 201

provides illustrative examples of the types of entities that fall under those categories. These

examples, however, are not exhaustive. For establishments not expressly listed in the statute,

courts engage in “a fact-intensive inquiry”122 that looks at whether the particular establishment in

question is similar enough in operation or nature to those expressly listed in the statute to fall

within one of the four categories, 123 to constitute a business subject to Section 201. When

analyzing such questions, federal courts have more readily concluded that places offering

recreational activities (e.g., swimming, scuba diving, basketball, ice skating, bowling, amusement

parks) may be covered under the statute as a “place of exhibition or entertainment.”124 The

absence of express identification in the statute, however, has led some courts to conclude that

certain establishments are generally not subject to Title II’s public accommodation provision, 125

such as retail stores 126 (ranging from sporting goods stores 127 to car dealerships 128 ), transportation

services (e.g., commercial airlines), 129 banks, 130 and salons, 131 among others. 132

122 See Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 431 (4th Cir. 2006).

123 See, e.g., Daniel, 395 U.S. at 301, 305-06 (holding that a 232-acre recreational lake facility that had amenities such

as “swimming, boating, sun bathing, picnicking, miniature golf, dancing facilities, and a snack bar,” constituted a place

of entertainment under T itle II; rejecting the defendant’s argument that T itle II’s entertainment provision concerned

only places “where patrons are entertained as spectators or listeners” rather than places in which patrons directly

participated in a sport or activity). Cf. Denny, 456 F.3d at 432 (distinguishing a hair salon, which in the court’s view

“primarily offer[ed] body maintenance services with tangential entertainment value,” from the recreational facility that

the Supreme Court held constituted a place of entertainment in Daniel v. Paul, where the “raison d’etre [of that facility]

was to sell entertainment to its customers”) (citing Daniel, 395 U.S. at 301)).

124 See generally, e.g., Denny, 456 F.3d at 432-33 (citing and discussing other federal appellate decisions analyzing

whether certain types of businesses constituted a place of entertainment under T itle II). See also, e.g., United States v.

Allen, 341 F.3d 870, 877-88 (9th Cir. 2003) (holding that local park was a place of entertainment within the meaning of

T itle II, citing evidence including that the park was a place where local and national fundraising events were held,

where the symphony orchestra would perform, and pointing to the presence of playground equipment, picnic tables,

and barbeque grills on park grounds as other sources of entertainment); Smith v. Young Men’s Christian Ass’n of

Montgomery, Inc., 462 F.2d 634, 648 (5th Cir. 1972) (concluding that the “recreational activities presented by the

Montgomery YMCA” rendered it a “place of entertainment” under T itle II’s public accommodation provision).

125

As noted earlier, even if a particular establishment does not fall within one of the first three categories of lodging,

eating, or entertainment, it may still be subject to T itle II under the fourth category if it has, located on its premises, a

covered establishment, and the entity “holds itself out as serv ing patrons of such covered establishment.” See 42 U.S.C.

§ 2000a(b)(4). See, e.g., Dombrowski v. Dowling, 459 F.2d 190, 197-98 (7th Cir. 1972) (where plaintiff brought T itle

II claim against a commercial office building for refusing to rent to him based o n the race of his clientele, holding that

the district court erred in granting summary to the defendant, as the presence of a restaurant in the office building could

render the building a covered establishment under 42 U.S.C. § 2000a(b)(4), if the building held itself out as serving the

restaurant’s patrons).

126 See, e.g., Priddy v. Shopko Corp., 918 F.Supp. 358, 359 (D. Utah 1995) (concluding that Congress did not intend for

retail stores to be covered; pointing to statutory language in 42 U.S.C. § 2000a(b)(2) indicating that restaurants,

including those located within a retail store, constitute covered establishments and reasoning that if “ retail

establishments were also intended to be covered, there would be no need” for that additional statutory language

concerning restaurants within retail stores). Cf. Armstrong v. T arget Corporation, No. 10-1340, 2010 WL 4721062, at

*3-4 (D. Minn. Nov. 15, 2010) (concluding that, though retail stores are not generally subject to T itle II’s public

accommodations provision, “the fact that T arget has a restaurant on its premises brings it within § 2000a(b)(4) and

makes it a covered establishment”). See generally Anne-Marie G. Harris, A Survey of Federal and State Public

Accommodations Statutes: Evaluating Their Effectiveness in Cases of Retail Discrimination , 13 VA . J. SOC. P OL ’ Y & L.

331, 338, 341 (2006) (discussing T itle II and its absence of coverage for racial discrimination at retail stores).

127 See, e.g., Bishop v. Henry Modell & Co., 2009 WL 3762119, at *13 (S.D.N.Y. Nov. 10, 2009) (“The text of § 2000a

does not explicitly include retail establishments, see 42 U.S.C. § 2000a(b), and case law confirms that retail stores are

not places of public accommodation within the meaning of the prov ision.”) (collecting district court cases).

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Membership Organizations Closely Affiliated with a Physical Location

Apart from the question of whether Title II covers a particular type of business establishment, at

least two federal appellate courts have addressed whether a membership organization may

constitute a “place of public accommodation” under the statute, regardless of whether it operates

a physical location open to the general public. 133 Emphasizing the plain language of the statute

enumerating physical places, both the U.S. Court of Appeals for the Seventh and Ninth Circuits

have held that—absent a close affiliation or connection to a physical place open to the public 134 —

membership organizations standing alone do not constitute a “place” within the meaning of Title

II’s public accommodations provision. 135 Based on the same rationale, the few federal courts to

See, e.g., Lewis v. Northland Chrysler Dodge Ram Jeep, 2014 WL 3054563, at *3 (E.D.Mich. July 7, 2014), aff’d

(Aug. 7, 2015) (dismissing plaintiff’s T itle II claim and concluding that “[p]lainly, car dealerships, like retail stores and

beauty salons, do not fall within” one of the four types of covered establishments “that count as places of public

accommodation”).

129 See, e.g., James v. Am. Airlines, Inc., 247 F.Supp.3d 297, 305-06 (E.D.N.Y. Mar. 31, 2017) (where plaintiff brought

a T itle II claim alleging racially discriminatory treatment on an American Airlines flight, dismissing her claim on the

basis that “an aircraft is not a ‘place of public accommodation’”) (citing federal district court decisions addressing

whether a commercial airline is an establishment covered by T itle II); Kalantar v. Lufthansa German Airlines, 402

F.Supp.2d 130, 139 (D.D.C. 2005) (“ Among the four categories of places of public accommodation provided by T itle

II—places of lodging, places of eating, places of entertainment, and establishments located within or surrounding these

other three types of premises—none even remotely resembles an airline, or indeed any other vehicle or mode of

transportation.”).

128

130 See, e.g., Lowe v. ViewPoint Bank, 972 F.Supp.2d 947, 959 (N.D.T ex. 2013) (granting summary judgment on

plaintiff’s T itle II claim against defendant bank on the basis that “a bank is not a place of public accommodation” under

42 U.S.C. § 2000a(b)).

131 See, e.g., Denny, 456 F.3d at 433-34 (concluding that a salon was not a “place of entertainment” within the meaning

of T itle II and observing that “[b]arber shops and beauty salons are sufficiently common and pervasive that we cannot

casually attribute their omission [in the statute] to mere oversight”; by way of comparison, pointing to Congress’s

specific inclusion of beauty shops as a public accommodation covered by the Americans with Disabilities Act). T hough

beyond the scope of this report, even when relief is precluded under T itle II’s public accommodation provisions,

plaintiffs can assert a claim under 42 U.S.C. § 1981, which generally prohibits race-based discrimination in private

contracts. See, e.g., Denny, 456 F.3d at 434-47 (analyzing § 1981 claim and concluding that plaintiffs’ evidence created

a triable issue that the salon had refused to perform on a contract because of race).

132

See, e.g., Cuevas v. Sdrales, 344 F.2d 1019, 1021, 1023 (10th Cir. 1965) (stating that “ if the legislation were

intended to cover such places as bars and taverns, where the sale of drinks is the principal business, Congress would

have specifically included them”; also stating that “generally, beer is considered a drink, and although it may be served

in eating places, a place serving only beer is not considered a restaurant, cafeteria, lunch room, lunch counter or soda

fountain”). Cf. United States v. DeRosier, 473 F.2d 749, 751-52 (5th Cir. 1973) (concluding that a neighborhood bar

was a place of entertainment subject to T itle II’s public accommodations section, based on the presence in the bar of a

juke box, shuffle board, and pool table “for the use and enjoyment of the bar’s patrons”).

133

See Clegg v. Cult Awareness Network, 18 F.3d 752, 755-56 (9th Cir. 1994); Welsh v. Boy Scouts of America, 993

F.2d 1267, 1269-75 (7th Cir. 1993).

134

See Welsh, 993 F.2d at 1272 (distinguishing between T itle II’s applicability to membership organizations “that are

closely connected to a facility or structure” such as the YMCA, and membership organizations “whose purpose is not

closely connected to a particular facility”).

135 See Clegg, 18 F.3d at 756 (“[W]e hold that T itle II covers only places, lodgings, facilities and establishments open

to the public, and applies to organizations only when they are affiliated with a place open to the public and membership

in the organization is a necessary predicate to use of the facility. When the organization is unconnected to entry into a

public place or facility, the plain language of T itle II makes the statute inapplicable.”); Welsh, 993 F.2d at 1269

(pointing to statutory language identifying “fifteen specific examples of regulated facilities” and concluding that the list

“reveals Congress’ intent to regulate facilities as opposed to gatherings of people”). See generally Ford v. ScheringPlough Corp., 145 F.3d 601, 613 (3d. Cir. 1998) (stating that Title II’s prohibition against discrimination in places of

public accommodation “ has been limited to places rather than including membership in an organization” or an

“organization’s operations unconnected to any physical facility”) (citing Clegg, 18 F.3d at 755–56 and Welsh, 993 F.2d

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have addressed whether a web-based service could constitute a “place” covered by Title II have

held that they are not. 136 Thus, for a membership organization to constitute a place of public

accommodation under Title II, several federal courts have required a showing that the

organization is closely affiliated with a physical location open to the public. 137

Private Club Exemption

Title II’s public accommodation section specifically identifies one category of place not subject to

Section 201’s requirements—“private club[s]” or “other establishment[s] not in fact open to the

public.”138 The intent of this exception, as described by the U.S. Court of Appeals for the Seventh

Circuit, “is to preserve the right of truly private organizations to maintain their unique

existence.”139 An establishment seeking shelter under the exception has the burden of proving that

it is not “open to the public.”140

Title II does not otherwise address or define what constitutes a private club or other establishment

“not in fact open to the public” that qualifies for this exemption. 141 Case law, however, reflects

that federal courts have interpreted this exemption to require more than the mere assertion that an

establishment is a private club142 or evidence that certain membership criteria exist. 143 As the

at 1269–75).

136 See Noah v. AOL T ime Warner, Inc., 261 F.Supp.2d 532, 541 -45 (E.D. Va. 2003), aff’d, No. 03-1770, 2004 WL

602711 (4th Cir. Mar. 24, 2004) (where plaintiff argued that AOL’s chat rooms were places of entertainment within the

meaning of T itle II, concluding that “an examination the statute’s exhaustive definition make clear, ‘places of public

accommodation’ are limited to actual, physical places and structures, and thus cannot include chat rooms, which are not

actual physical facilities”); Ebeid v. Facebook, Inc., No. 18-07030, 2019 WL 2059662, at *6 (N.D.Ca. May 9, 2019)

(holding that Facebook is not a place of public accommodation within the meaning of T itle II on the basis that the

statute only covers physical establishments).

137

See supra notes 135-36.

See 42 U.S.C. § 2000a(e) (“The provisions of this subchapter shall not apply to a private club or other establishment

not in fact open to the public, except to the extent that the facilities of such establishment are made available to the

customers or patrons of an establishment within the scope of subsection (b).”).

138

139 See Welsh, 993 F.2d at 1277. See also, generally, Watson v. Fraternal Order of Eagles, 915 F.2d 235, 240 (6th Cir.

1990) (stating that “[t]he reason for this particular exclusion is that private clubs often resemble places of public

accommodation by serving food and drink and providing entertainment for their guests”; adding that the exception does

not “give the clubs carte blanche to violate all other antidiscrimination laws” but “only exempts them from the

particular provisions of T itle II” and observing that suits can proceed against such establishments under other statutes

such as 42 U.S.C. § 1981 or state law).

140 See, e.g., Lansdowne Swim Club, 894 F.2d at 85 (stating that the establishment “has the burden of proving it is a

private club”); United States v. Richberg, 398 F.2d 523, 529 (5th Cir. 1968) (same).

141 See id. See also, e.g., United States v. Lansdowne Swim Club, 894 F.2d 83, 85 (3d Cir. 1990) (observing that “[a]

lthough the statute does not define ‘private club,’ cases construing the provision do offer some guidance”).

142 See, e.g., Richberg, 398 F.2d at 527-29 (discussing record evidence relating to the defendant’s contention that it was

a private club, and concluding that the diner “ was a club in name only, and a facade to permit [it] to continue in its

racially discriminatory ways of yesterday. A club must have substance”). See also id. at 528 (describing as instructive a

district court’s discussion of T itle II’s legislative history and quoting its conclusion that “it is clear that the only clubs

which meet the ‘factual’ test of the statute are those whose ‘membership is genuinely selective on some reasonable

basis.’ Specifically precluded from this exemption are ‘sham establishments’ which ‘are in fact open to the white public

and not to Negroes’”) (quoting United States v. Clarksdale, King & Anderson Co., 288 F.Supp. 792, 795 (N.D.

Miss.1965). See also, e.g., People of State of N.Y. by Abrams v. Ocean Club, Inc., 602 F.Supp. 489 , 490-91, 496

(E.D.N.Y. 1984) (in T itle II case alleging that an establishment discriminated against Jewish guests and Jewish

applicants for membership, rejecting the establishment’s contention that it was a private club).

143

See, e.g., T illman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S. 431, 433, 438-440 (1973) (where membership

was defined by geographic area, limited in maximum number, and required formal board or majority members’

approval, holding that not -for-profit association which operated neighborhood pool facilities did not constitute a private

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Supreme Court observed in Daniel v. Paul, an establishment might refer to itself as a private club,

charge a nominal membership fee, and then routinely and openly grant membership cards to

white patrons but not black patrons, all as a “subterfuge designed to avoid coverage of the 1964

Act.”144

To determine, then, whether an establishment constitutes a bona fide “private club” under Title II,

federal courts have engaged in fact-specific analyses that consider various aspects of a given

establishment, 145 including but not limited to:



the establishment’s selectivity, 146 such as evidence of its standards for

admission, 147 the process required for membership, 148 or whether the

establishment’s ultimate approval of a membership application reflects genuine

selectivity or is little more than a procedural formality; 149

whether the entity is publicly or privately financed, or is nonprofit or for profit;150

club within the meaning of T itle II; ordering the lower court, on remand, to evaluate the plaintiffs’ T itle II claim “free

from the misconception that Wheaton-Haven is exempt”).

144 Daniel, 395 U.S. at 301-02.

145 See generally Nesmith v. Young Men’s Christian Ass’n of Raleigh, N.C., 397 F.2d 96, 101-02 (4th Cir. 1968) (“ In

determining whether an establishment is in fact a private club, there is no single test. A number of variables must be

examined in the light of the Act’s clear purpose of protecting only ‘the genuine privacy of private clubs . . . whose

membership is genuinely selective. . .’”) (quoting 110 Cong. Rec. 13697 (1964) (remarks of Senator Humphrey)).

146 See Welsh, 993 F.2d at 1276-77 (stating that “ [i]n construing the private club exception of T itle II, courts have

properly placed great weight on the first factor, that of selectivity” and that a “pertinent factor regarding selectivity is

the nexus between the organization’s purpose and its membership requirements”).

147 See Nesmith, 397 F.2d at 102 (observing that private clubs typically have clearly articulated admission standards,

and contrasting that with the defendant YMCA, which had “no standards for admissibility” and as such, was “simply

too obviously unselective in its membership policies to be adjudicated a private club”). See also, e.g., Olzman v. Lake

Hills Swim Club, Inc., 495 F.2d 1333, 1336 (2d Cir. 1974) (rejecting club’s argument that it was not open to the

general public because it was only open to 110 residents out of 2,300 homeowners in the community; stating that “ if

limitation on the number of users were the [dispositive] test, every restaurant or night club limited by law or fire

regulations to a given number of occupants at a given time would be magically transformed into a ‘private club.’

Accordingly, we have no difficulty in . . . finding that the Lake Hills Swim Club, Inc., is not a ‘private club’ within the

meaning of § 2000a(e)”).

148 See, e.g., Lansdowne Swim Club, 894 F.2d at 85-86 (concluding that the criteria for admission were “not genuinely

selective,” where membership process for pool club required completing an application, submitting two letters of

recommendation, and paying fees). Cf. Welsh, 993 F.2d at 1276-77 (in the context of addressing T itle II claim alleging

exclusion based on religion—that is, the plaintiff’s lack of a belief in a supreme being—analyzing whether the Boy

Scouts was a private club exempt from T itle II and concluding that the membership commitment required by its

Constitution and Oath to “nurture belief in God, respect for one’s country and his fellow man, and being of good moral

character” sufficiently demonstrated the Boy Scouts’ selectivity).

149 See, e.g., Lansdowne Swim Club, 894 F.2d at 86 (addressing the defendant’s argument that membership approval

was a fifth factor to consider, and concluding that, even if treated as a fifth factor, the evidence of the organization’s

formal procedure of voting in new members failed to show genuine selectivity; pointing to evidence that the only

information given to members before voting on new member admission were applicants’ names, addresses, their

children’s names and ages, and the identities of the recommenders); Nesmith, 397 F.2d at 101 (discussing evidence that

though the YMCA has a membership committee, “ there are no prescribed or regularly used qualifications for

membership and no particular rules or regulations governing the committee’s activities” and noting that the

membership application “asks only for the name, address and church affiliation of the prospective member” with no

interview apparently held or required).

150 See Welsh, 993 F.2d at 1277 (stating that the fact that the entity was a nonprofit organization “favor[ed] the private

club status” of the Boy Scouts); Smith, 462 F.2d at 648 (citing fact that the defendant receives “a substantial amount of

revenue from the general public” and “operates as a quasi-public agency” as supporting the conclusion that it was not a

private club within the meaning of T itle II).

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the history or origin of the entity; 151 and

members’ activities, 152 and whether or how it is controlled by members, 153 among

other factors. 154

Depending on these factors, if a court determines that an entity qualifies as a “private club”

within the meaning of Title II, the entity is not subject to the requirements of its public

accommodation provision. 155

Barring State or Local Segregation Mandates

As discussed above, the applicability of Section 201 of Title II turns significantly on an

establishment’s characteristics to determine whether it constitutes a place of public

accommodation. By contrast, Section 202, 156 which prohibits state-sponsored segregation, does

not turn on the category of establishment, but instead whether “discrimination or segregation is or

purports to be required by any law, statute, ordinance, regulation, rule, or order of a State… or

political subdivision thereof.”157 In other words, if a state or local law or rule can be said to

require “discrimination or segregation” based on race, color, religion, or national origin, Section

202 provides that “all persons shall be entitled to be free, at any establishment or place, from

discrimination or segregation of any kind” based on those protected traits. 158

Among the few federal appellate decisions interpreting and applying Section 202 is a 1967

decision from the U.S. Court of Appeals for the Fifth Circuit, Robertson v. Johnston. 159 In

Robertson, a white female plaintiff alleged that the New Orleans police arrested her at a local bar

“to enforce a custom or usage of the City of New Orleans which forbids or discourages white

women from frequenting places that are predominantly Negro.”160 Though no city ordinance or

regulation was at issue, the court of appeals held that the text of Section 202 was “sufficiently

151

See, e.g., Lansdowne Swim Club, 894 F.2d at 86 (examining evidence relating to the origin of the pool club and

concluding that there was “ample evidence” to support the district court’s finding that it was n ot intended to be a

private club; citing facts including testimony that it was created to be a community pool, that organizers had solicited

area residents to join and had conducted public recruitment meetings, and that the club had accepted every family t hat

applied before its opening). See generally Welsh, 993 F.2d at 1277 (stating that another factor in the private club

analysis “considers the history” of the club.).

152 See, e.g., Richberg, 398 F.2d at 527 (given club’s asserted purposes, examining whether members’ activities

reflected any pursuit of those purposes and citing the absence of any meetings, committees, or planned member

“enterprises,” among other facts, as indicative that the club was not “private” within the meaning of T itle II; adding

“[a] cafe cannot, by drafting itself a set of by-laws, become an exempt club”).

153

See Welsh, 993 F.2d at 1276 (listing “the membership’s control over the operations of the establishment” as one of

seven factors it would consider to determine whether an entity is a private club under T itle II)

154 See id. (also listing factors such as “the use of facilities by nonmembers,” “the club’s purpose,” and “whether the

club advertises for members”).

155

See 42 U.S.C. § 2000a(e) (“The provisions of this subchapter shall not apply to a private club or other establishment

not in fact open to the public”).

156 42 U.S.C. § 2000a-1.

157

Id. § 2000a-1. See, e.g, T yson v. Cazes, 363 F.2d 742, 742, 744 (1966) (where public bar and lounge refused to

serve black patron and asked him to leave because of his race, and local ordinance had been in effect requiring separate

services for black and white patrons at public bars, stating that “these two factors—the prohibitory ordinance and the

refusal to serve appellant on account of his race—[had] made the defendants’ conduct illegal under Section 203 of the

Civil Rights Act of 1964”).

158 42 U.S.C. § 2000a-1 (emphasis added).

159 Robertson v. Johnston, 376 F.2d 43 (5th Cir. 1967).

160 Id. at 44.

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broad to cover” a local custom of segregation or discrimination having the “force of a law,

ordinance, regulation, rule or order.”161 It was “readily apparent,” in the court’s view, that if the

plaintiff could show a local custom of “discrimination or segregation” that was required (or

purported to be required) by New Orleans officials, and that her arrest was to enforce that custom,

“she may well be entitled to injunctive relief under” Section 202. 162

A Prohibition Against Deprivation, Intimidation, or Punishment

Section 203 of Title II 163 prohibits any person from depriving, or attempting to deprive an

individual of the rights secured by Sections 201 and 202, including through intimidation or

punishment. 164 More specifically, Section 203 makes it unlawful for any person to:



“withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive

any person” of a right or privilege secured by Sections 201 and 202;

“intimidate, threaten, or coerce, or attempt to intimidate, threaten, or coerce any

person with the purpose of interfering with any right or privilege secured by”

Sections 201 or 202; or

“punish or attempt to punish any person for exercising or attempting to exercise

any right or privilege secured by” those sections. 165

In general, Section 203 has served as the basis for court orders enjoining individuals from a range

of violent acts against black citizens for seeking service at covered establishments.166 In addition,

the Supreme Court has held that Section 203 forbids state or loc al prosecutions against

individuals for exercising their rights under Title II (e.g., seeking service at a segregated

establishment), based on trespassing or other local laws. 167 When interference with an

Id. at 45, n. 5 (noting a definition of custom as a “practice of the people, which, by common adoption and

acquiescence, and by a long and unvarying habit, has become compulsory, and has acquired the force of law”) (citing

BLACK ’ S LAW DICTIONARY, 4th Ed. 1951, at 460 and 10 W ORDS AND PHRASES 732 (Perm. Ed.); Cf. Adickes v. S.H.

Kress & Co., 398 U.S. 144, 167-68 (1970) (discussing the statutory term “custom” in 42 U.S.C. §1983 and interpreting

it to refer to practices of state officials, that either “by imposing sanctions or withholding benefits, transform private

predilections into compulsory rules of behavior” that have the force of law; stating that “Congress included customs

and usages within its definition of law in § 1983 because of the persistent and widespread discriminatory practices of

state officials in some areas of the post -bellum South”).

161

162 Robertson, 376 F.2d at 45. As the lower court had not analyzed the plaintiff’s claim under Section 2000a-1, the

court of appeals remanded the case to the district court for fact finding and analysis of a claim under that section. See

id. at 44-45.

163

42 U.S.C. § 2000a-2.

164 See id. (“ No person shall (a) withhold, deny, or attempt to withhold or deny, or deprive or attempt to deprive any

person of any right or privilege secured by section 2000a or 2000a–1 of this title, or (b) intimidate, threaten, or coerce,

or attempt to intimidate, t hreaten, or coerce any person with the purpose of interfering with any right or privilege

secured by section 2000a or 2000a–1 of this title, or (c) punish or attempt to punish any person for exercising or

attempting to exercise any right or privilege secured by section 2000a or 2000a–1 of this title.”).

165 See id.

166 See, e.g., U.S. by Katzenbach v. Original Knights of Ku Klux Klan, 250 F.Supp. 330, 340-42 (1965) (addressing

T itle II claim seeking an injunction against members of the Ku Klux Klan for interfering with the exercise of others’

rights under T itle II; reflecting that the interference included: making it a regular practice to go to “ places where they

anticipated that Negroes would attempt to exercise civil rights, in order to harass, threaten, and intimidate,” gathering a

group of about 30 white persons to attack black citizens and damage the car in which they were driving because they

sought service at a local gas station, “ brandishing clubs” while ordering black patrons to leave a local restaurant, and

attacking black citizens “with clubs, belts, and other weapons” to interfere with their enjoyment of a local park, among

other acts).

167 See Hamm v. City of Rock Hill, 379 U.S. 306, 311-12, 317 (1964) (concluding that Section 2000a-2 “prohibits

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individual’s Title II rights takes the form of a conspiracy by two or more persons to commit a

physical assault or attack, the perpetrators may face prosecution under 18 U.S.C. § 241, a federal

civil rights conspiracy statute. 168

Title II Enforcement

Litigation by Private Individuals for Injunctive Relief & Attorney’s Fees Only

Section 204169 of Title II expressly provides that an aggrieved person may file a private right of

action to secure temporary or permanent injunctive relief halting the unlawful conduct. 170 A

plaintiff who prevails on a Title II claim “cannot recover damages,”171 but a court “may allow”

reasonable attorney’s fees for the prevailing party. 172 The Supreme Court has interpreted Title II’s

fee provision to mean that a prevailing plaintiff “should ordinarily recover an attorney’s fees,”

with the exception being where “special circumstances would render such an award [to the

plaintiff] unjust.”173

Notably, Section 204 also provides that a federal court may appoint an attorney for the

complainant “[u]pon application by the complainant and in such circumstances as the court may

prosecution of any person for seeking service in a covered establishment, because of his race or color,” thereby

“immuniz[ing]” from prosecution “non-forcible attempts to gain admittance to or remain in establishments covered by

the Act”; vacating state court judgments and dismissing charges against black patrons who had been prosecuted under

South Carolina and Arkansas state trespassing statutes); Frinks v. North Carolina, 468 F.2d 639, 642 (4th Cir. 1972)

(“ As Hamm made clear, the Civil Rights Act of 1964 protects persons who refuse to obey an order to leave public

accommodations, not only from conviction in state courts, but from prosecution in those courts.”) (emphasis in

original).

168

See, e.g., United States v. Allen, 341 F.3d 870, 873 (9th Cir. 2003) (reflecting facts of federal prosecution and

indictment of nine white defendants for interfering with the federally protected rights of Hispanic and black patrons

under T itle II, where the assailants “surrounded them wielding weapons, berated them with racial epithets, and forced

them out of the park for no reason other than their race”). 18 U.S.C. § 241 generally prohibits two or more individuals

from conspiring to “ injure, oppress, threaten, or intimidate any person . . . in the free exercise or enjoyment of any right

or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the

same,” and is punishable by fine or imprisonment.

169 42 U.S.C. § 2000a-3.

170 See id. § 2000a-3(a) (“Whenever any person has engaged or there are reasonable grounds to believe that any person

is about to engage in any act or practice prohibited by section 2000a–2 of this title, a civil action for preventive relief,

including an application for a permanent or temporary injunction, restraining order, or other order, may be instituted by

the person aggrieved”).

171 Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968).

42 U.S.C. § 2000a-3(b) (“In any action commenced pursuant to this subchapter, the court, in its discretion, may

allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, and the United

States shall be liable for costs the same as a private person.”).

172

173 Newman, 390 U.S. at 402. In so holding, the Supreme Court observed that because the relief available under T itle II

is injunctive, and not monetary, “[i]f successful plaintiffs were routinely forced to bear their own attorneys’ fees, few

aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal

courts.” Id. “Congress therefore enacted the provision for counsel fees,” the Court explained, “to encourage individuals

injured by racial discrimination to seek judicial relief under T itle II.” Id. In reaching this conclusion, the Court also

expressly rejected a lower court’s interpretation that would have required additional evidence of bad faith on the part of

the defendant for a plaintiff to recover a reasonable attorney’s fee. Id. at 401 (where the court of appeals would have

granted fees “only to the extent that the respondents’ defenses had been advanced ‘for purposes of delay and no t in

good faith,’” holding that this standard did not “properly effectuate[] the purposes” of T itle II’s fee provision).

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deem just” and authorize the Title II action to proceed without the payment of fees, costs, or

security. 174

Procedural Prerequisites for Filing Suit

Before filing a civil action under Title II, a plaintiff must satisfy certain procedural prerequisites if

the locality or state in which the conduct occurred also has public accommodation

antidiscrimination laws. 175 Specifically, Section 204 provides that if the alleged unlawful conduct

occurred in a state or locality that has such a law, and a state or local agency can grant or seek

relief or file criminal proceedings based on that conduct, a person must first provide “written

notice” of the alleged misconduct “in-person” or “by registered mail” to the state or local

agency. 176 A person must then wait at least thirty days before filing a Title II lawsuit. 177

Section 207178 further provides that federal district courts “shall have jurisdiction” over Title II

proceedings, and “shall exercise the same without regard to whether the aggrieved party shall

have exhausted any administrative or other remedies that may be provided by law.” Several

federal appellate courts, however, have concluded that the procedural requirements of Section

204 (including written notification to a local agency) are jurisdictional in nature, meaning that a

person’s failure to adhere to those requirements renders the court without jurisdiction to hear the

matter. 179

Referral to the Community Relations Service

Upon the filing of a Title II action in federal court, the statute gives a court discretion to “refer the

matter to the Community Relations Service” if the court “believes there is a reasonable possibility

174 42 U.S.C. § 2000a-3(a) (“Upon application by the complainant and in such circumstances as the court may deem

just, the court may appoint an attorney for such complainant and may authorize the commencement of the civil action

without the payment of fees, costs, or security.”).

See 42 U.S.C. § 2000a-3(c). See also Bilello v. Kum & Go, LLC., 374 F.3d 656, 658 (2004) (“ By its plain language,

42 U.S.C. § 2000a–3(c) requires notice to the state or local authority as a prerequisite to filing a civil action when a

state or local law prohibits discrimination in public accommodations and provides a remedy for such practice”).

175

176 42 U.S.C. § 2000a-3(c) (“In the case of an alleged act or practice prohibited by this subchapter which occurs in a

State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishin g

or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings

with respect thereto upon receiving notice thereof, no civil action may be brought under subsection (a) before the

expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or

local authority by registered mail or in person, provided that the court may stay proceedings in such civil action

pending the termination of State or local enforcement proceedings.”).

177 Id. Cf. id. § 2000a-3(d) (“In the case of an alleged act or practice prohibited by this subchapter which occurs in a

State, or political subdivision of a State, which has no State or local law prohibiting such act or practice, a civil action

may be brought under subsection (a)”).

178 Id. § 2000a-6.

179 See, e.g., Bilello, 374 F.3d at 659 (holding that it “lack[ed] jurisdiction to review the district court’s dismissal” of the

plaintiff’s T itle II claim, because the plaintiff “ failed to notify the [Nebraska Equal Opportunity] Commission of the

alleged discriminatory public accommodation practice and policy”; further stating that “we join the Seventh and T enth

Circuits in holding these procedural prerequisites must be satisfied before we have jurisdiction over a section 200 0a

claim”); Stearnes v. Baur’s Opera House, Inc., 3 F.3d 1142, 1145 (7th Cir. 1993) (holding that the procedural

requirements of §2000a-3 are jurisdictional, and differentiating between § 2000a-3 and § 2000a-6 on the basis that the

latter is meant to indicate that a person who has already given notice to a state agency need not thereafter exhaust the

state-level remedy before a district court acquires jurisdiction over that person’s T itle II claim) (citing Harris v.

Ericson, 457 F.2d 765, 767 (10th Cir.1972)).

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of obtaining voluntary compliance.”180 The period for obtaining voluntary compliance cannot

exceed a total of 120 days. 181 The Community Relations Service, a federal entity established by

Title X of the 1964 Act, is discussed in further detail later in this report. 182

Exclusivity of remedies and litigation under other civil rights statutes

Section 207(b) states that “[t]he remedies provided in this subchapter shall be the exclusive

means of enforcing the rights based on this subchapter.”183 But immediately following that text,

the provision states that “nothing in this subchapter shall preclude any individual… from

asserting any right based on any other Federal or State law not inconsistent with this

subchapter…or from pursuing any remedy, civil or criminal, which may be available for the

vindication or enforcement of such right.”184 Over the years, there have been questions about the

import of Section 207’s reference to the exclusivity of Title II remedies.

In its 1968 decision United States v. Johnson, 185 for example, the Supreme Court addressed

whether conspirators who had attacked black patrons at a restaurant for exercising their rights

under Title II could be criminally prosecuted under 18 U.S.C. § 241, or could only be sued under

Title II for injunctive relief. 186 The Court rejected the argument that, given the “exclusive-remedy

provision” of Title II, the assailants could only be subject to a civil suit for an injunction. 187

Rather, the Court concluded that the provision was only intended to limit to injunction the penalty

against proprietors or owners for refusing to serve black patrons, and thus foreclosed criminal

prosecution of them on the basis of such refusals alone. 188 The Court further reasoned that the

provision thus permitted the criminal prosecution of other individuals. 189 As the assailants in

Johnson were not associated or connected to the proprietor or owner of the establishment, 190 the

Court held that they could be criminally prosecuted for their acts under 18 U.S.C. § 241. 191 The

180 42 U.S.C. § 2000a-3(d) (providing that “ the court may refer the matter to the Community Relations Service . . . for

as long as the court believes there is a reasonable possibility of obtaining voluntary compliance”).

181

Id. (providing that the period for obtaining voluntary compliance facilitated by the Community Relations Service

shall not be “for not more than sixty days,” and further providing that “upon expiration of such sixty -day period, the

court may extend such period for an additional perio d, not to exceed a cumulative total of one hundred and twenty

days, if it believes there then exists a reasonable possibility of securing voluntary compliance”).

182 See infra “ T itle X: T he Community Relations Service.”

183 42 U.S.C. § 2000a-6(b).

184

Id.

185 390 U.S. 563 (1968).

186

See id. at 563-64.

187 Id. at 566-67.

188 Id. at 567 (stating that “the exclusive-remedy provision of s 207(b) was inserted only to make clear that the

substantive rights to public accommodation defined in s 201 and s 202 are to be enforced exclusively by injunction.

Proprietors and owners are not to be prosecuted criminally for mere refusal to serve Negroes.”).

Id. (stating that “the Act does not purport to deal with outsiders”).

See id. at 565 (stating t hat “no proprietor or owner is here involved. Outside hoodlums are charged with the

conspiracy.”).

189

190

See id. at 566-67 (stating that “[w]e refuse to believe that hoodlums operating in the fashion of the Ku Klux Klan,

were given protection by the 1964 Act for violating those ‘rights’ of the citizen that § 241 was designed to protect” and

that it could not “imagine that Congress desired to give them a brand new immunity from prosecution under 18 U.S.C.

s 241—a statute that encompasses ‘all of the rights and privileges secured to citizens by all of the Constitution and all

of the laws of the United States’”) (internal quotation omitted).

191

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remaining text of Section 207, in the Court’s view, was also “evidence that it was not designed”

to preempt “every other mode of protecting a federal ‘right.’”192

Intervention or “Pattern or Practice” Enforcement Actions by the Attorney

General

Apart from a private right of action, Title II also authorizes the Attorney General to enforce Title

II in two ways: (1) intervening in a civil action filed by a private person alleging a violation of

Title II under Section 204;193 or (2) bringing a “pattern or practice” enforcement action under

Section 206 when “the Attorney General has reasonable cause to believe that any person or group

of persons is engaged in a pattern or practice of resistance to the full enjoyment of any of the

rights” under Title II, and “the pattern or practice is of such a nature and is intended to deny the

full exercise of the rights.”194 The statute does not define what constitutes a “pattern or practice”

for the purposes of a Title II action. 195

As with civil actions brought by private individuals under Title II, enforcement actions brought

by the Attorney General are limited to seeking injunctive relief. 196

Expedited Judicial Review of “Pattern or Practice” Claims

If the Attorney General has filed a “pattern or practice” complaint, the Attorney General may

request that a three-judge district court panel be convened to hear the case. 197 Much like the

procedures in Title I for the review of a voting rights claim, Section 206(b) of Title II provides

that upon request by the Attorney General, a panel of three judges (at least one circuit judge and

one district court judge) must be convened “at the earliest practicable date” to make a

determination on the claim and “to cause the case to be in every way expedited.”198 An appeal

from the final judgment of that three-judge panel goes directly to the Supreme Court. 199

If the Attorney General has not requested a three-judge panel, a district court judge must

“immediately” be designated to hear the case, 200 and if no district court judge is available, the

Id. at 566 (pointing to the remaining statutory text in Section] 207(b) providing that “ nothing in this title shall

preclude any individual or any State or local agency from asserting any right based on any other Federal or State law

not inconsistent with this title . . . or from pursuing any remedy, civil or criminal, which may be available for the

vindication or enforcement of such right ” as “ evidence that it was not designed as preempting every other mode of

protecting a federal ‘right’ or as granting immunity to those who had long been subject to the regime of [Section]

241.”).

192

193 42 U.S.C. § 2000a-3(a) (providing that “upon timely application, the court may, in its discretion, permit the

Attorney General to intervene in such civil action if he certifies that the case is of general public importance”).

194

Id. § 2000a-5(a).

195 See id. See generally, e.g., United States v. Jarrah, No. 16-02906, 2017 WL 1048123, at *2 (S.D. T ex. Mar. 20,

2017) (addressing T itle II pattern or practice action brought by the Department of Justice, and discussing and citing

cases reflecting that courts have “reached different conclusions” regarding the evidence required in a “pattern or

practice” claim, including “ the relevance of frequency, numerosity or recency of discriminatory conduct”).

196 See 42 U.S.C. § 2000a-5(a) (providing that the Attorney General may request “preventive relief, including an

application for a permanent or temporary injunction, restraining order or other order against the person or persons

responsible for such pattern or practice”).

197 Id. § 2000a-5(b).

198

Id.

199 Id.

200 Id. (providing that “[i]n the event the Attorney General fails to file such a request in any such proceeding, it shall be

the duty of the chief judge of the district (or in his absence, the acting chief judge) in which the case is pending

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chief judge of the circuit “shall then designate a district or circuit judge of the circuit to hear and

determine the case.”201 Whether a district or appellate court judge, Title I makes it “the duty” of

the designated federal judge to “assign the case for hearing at the earliest practicable date and to

cause the case to be in every way expedited.”202

Title III: The Equal Protection Clause and De Jure

Segregated Public Facilities

Similar to Title II, Title III also concerns discrimination and segregation based on race, color,

religion, and national origin, but in “public facilities” rather than business establishments. 203

Public facilities under Title III not only include facilities “owned” by a state or local subdivision,

but also those “operated” or “managed by or on behalf of” a state or local subdivision. 204

Examples of public facilities include “parks, libraries, auditoriums, and prisons.”205

Despite their shared thematic focus on discrimination and segregation in certain public places,

Title III differs substantially from Title II in its operation and enforcement. Unlike Title II, which

created interrelated statutory protections in the context of commercial businesses, the principal

thrust of Title III is the enforcement of constitutional protections against state actors. 206 Rather

than create a new or complementary statutory right, all three sections of Title III 207 relate to the

Attorney General’s enforcement of the Equal Protection Clause in the context of desegregating

public facilities. 208 In addition, whereas Title II’s provisions addressing discrimination and

immediately to designate a judge in such district to hear and determine the case”).

201 Id. (providing that “[i]n the event that no judge in the district is available to hear and determine the case, the chief

judge of the district, or the acting chief judge, as the case may be, shall certify this fact to the chief judge of the circuit

(or in his absence, the acting chief judge) who shall then designate a district or circuit judge of the circuit to hear and

determine the case”). See also id. (stating that “[i] t shall be the duty of the judge designated pursuant to this section to

assign the case for hearing at the earliest practicable date and to cause the case to be in every way expedited”).

202 Id.

203 See id. § 2000b(a).

Id. § 2000b(a) (addressing the deprivation or threat of “the loss of [a person’s] right to the equal protection of the

laws, on account of his race, color, religion, or national origin, by being denied equal utilization of any public facility

which is owned, operated, or managed by or on behalf of any State or subdivision thereof, other than a public school or

public college as defined in section 2000c of this title”).

204

205 See Justice Manual (T itle 8-2.234), U.S. Dep’t of Justice, https://www.justice.gov/jm/jm-8-2000-enforcement-civil-

rights-civil-statutes#8-2.234, (describing the agency’s enforcement of T itle III of the 1964 Act and stating that the T itle

“ prohibits discrimination on the basis of race, color, religion, or national origin in public facilities, such as parks,

libraries, auditoriums, and prisons”). At present, the Housing and Civil Enforcement Section within the Civil Rights

Division of the Department of Justice, enforces T itle III. See id.

206

See United States v. Guest, 383 U.S. 745, 781 (1966) (Brennan, J., concurring in part and dissenting in part)

(contrasting T itles III and IV of the 1964 Act, with T itle II, on the basis that T itles III and IV “ reflect the view that the

Fourteenth Amendment creates the right to equal utilization of state facilities. Congress did not preface those titles with

a provision comparable to that in T itle II explicitly creating the right to equal utilization of cert ain privately owned

facilities. Congress rightly assumed that a specific legislative declaration of the right was unnecessary, that the right

arose from the Fourteenth Amendment itself.”). See also, e.g., H. REP . NO. 914, pt. 1, at 18 (generally stating that

various parts of the bill that would become the 1964 Act “ would open additional avenues to deal with redress of denials

of equal protection of the laws on account of race, color, religion, or national origin by State or local authorities”).

207 See 42 U.S.C. §§ 2000b, 2000b-1, 2000b-2.

See H. REP . NO . 914, pt. 1, at 22 (generally describing T itle III in the following terms: “T his title would authorize

the Attorney General under certain circumstances to bring suit to desegregate public facilities (other t han schools)

which are owned or operated by State or local governmental units” and “ would also authorize the Attorney General to

208

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segregation in business establishments are rooted in Congress’s power to regulate interstate

commerce, 209 legislative history reflects an understanding that Congress enacted Title III pursuant

to Section 5 of the Fourteenth Amendment, 210 which grants Congress the “power to enforce, by

appropriate legislation,” the protections and guarantees of the Fourteenth Amendment. 211

General Background: Racial Segregation in Public Park Systems,

Libraries, and Other Public Facilities

The enforced exclusion of black citizens from public facilities such as libraries, parks, and

museums was another common condition of racial segregation in the United States. 212 As with

commercial establishments, when black citizens sought access or service at such public facilities,

they were sometimes subject to arrest, conviction, and criminal penalties. 213

By the time the 1964 Act was enacted, the Supreme Court and lower courts had already held that

racial segregation in a state or local government-owned or operated facility—whether that be a

segregated court room, public library, or public park—violated the Equal Protection Clause of the

intervene in pending actions in the Federal courts seeking relief from discriminatory practices by State and local

governmental units or officers.”). T he Equal Protection Clause of the Fourteenth Amendment provides that: “No

state… shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST. amend. XIV, § 1.

209 See supra notes 85-86.

210 See H. REP . NO . 914, pt. 2, at 15 (stating that Title III is “ a valid and necessary implementation of the 14th

amendment”).

211 U.S. CONST. amend. XIV, § 5.

212 See, e.g., Anderson v. City of Albany, 321 F.2d 649, 650, 653 -54 (5th Cir. 1963) (concluding that the evidence was

“clear” that the facilities owned and operated by the city, including the city’s library, auditorium, public parks, and

recreational facilities were segregated by race such that certain facilities excluded black patrons altogether or required

that patrons be seated or served based on their race); Cobb v. Montgomery Library Bd., 207 F.Supp. 880, 884 (M.D.

Ala. 1962) (concluding that the city defendants “ have in the past and are at the present time pursuing a policy, custom

or usage which provides for t he enforced exclusion of members of the Negro race in the use of the public library

system and in the public museum”); Shuttlesworth v. Gaylord, 202 F. Supp. 59, 61, 64 (N.D. Ala. 1961), aff’d sub nom.

Hanes v. Shuttlesworth, 310 F.2d 303 (5th Cir. 1962) (permanently enjoining city defendants from continuing its racebased exclusion of and discrimination against black citizens in the city’s public park system, th e Birmingham Museum

of Art, the Municipal Auditorium of the City of Birmingham, city ball parks and golf courses, zoo grounds, tennis

courts, swimming pools, and playgrounds; observing that the “separation of races in the use of parks, swimming pools,

tennis courts, golf courses and all the attending facilities located on these parks and playgrounds was so apparent that

each of the supervisors of the Park and Recreation Board could identify each park on the basis of race”). See also

Regents of Univ. of California v. Bakke, 438 U.S. 265, 394 (1978) (Marshall, J., concurring in part in the judgment)

(describing conditions of racial segregation in federal government buildings and stating that “ even the galleries of the

Congress were segregated.”).

213 See, e.g., Brown v. Louisiana, 383 U.S. 131, 135-39, 143 (1966) (where regional public library system did not allow

black patrons to use branch locations, but instead issued “Negro” library cards to be used exclusively at a

“bookmobile” designated for black patrons, reversing the convictions of black petitioners who went to a library branch

location, “ sat and stood in the room, quietly,” and were subsequently arrested by the local sheriff for refusing to leave;

noting “that petitioners’ presence in the library was unquestionably lawful. It was a public facility, open to the

public.”); Shuttlesworth, 202 F. Supp. at 61 (discussing evidence of “city ordinances requiring the separation of races in

play as well as in the use of public recreational facilities,” and which “ impose[d] criminal penalties upon both the

participants and the owner or supervisor of the facilities involved”).

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Fourteenth Amendment. 214 In its 1963 decision Watson v. City of Memphis, 215 for example, the

Supreme Court addressed the “unmistakable and pervasive” racial segregation of the city of

Memphis’ municipal public park and recreation system. 216 That such racial segregation was

unconstitutional, the Court stated, was clear, pointing to its 1955 decision Dawson v. Mayor and

City Council of Baltimore in which “the constitutional proscription of state enforced racial

segregation was found to apply to public recreational facilities.”217

Though individuals may sue for constitutional violations, as was the case in Watson, 218 legislative

history relating to Title III reflects a concern that such recourse was “only available to private

persons who are able through their own resources to obtain justice.” 219 Under this view,

“implementing legislation” such as Title III, which authorized the Attorney General to file such

suits, was “required if the Federal Government is to have the power to protect their rights,”220

particularly where an individual would be unable, or constrained, to bring litigation on his or her

own. 221

214

See, e.g., Johnson v. Virginia, 373 U.S. 61, 62 (1963) (addressing an Equal Protection Clause challenge by a black

petitioner to his arrest and conviction for contempt, which was based solely on h is refusal to sit in the section of a

segregated traffic court room which had been designated for blacks; concluding that “[s]uch a conviction cannot stand,

for it is no longer open to question that a State may not constitutionally require segregation of public facilities”); New

Orleans City Park Imp. Ass’n v. Detiege, 252 F.2d 122, 123 (5th Cir.), aff'd sub nom . New Orleans City Park

Improvement Ass’n v. Detiege, 358 U.S. 54 (1958) (holding that the race-based exclusion of black citizens from a

public park violated the Equal Protect ion Clause and stating that “ Courts have decided that the refusal of city and state

officials to make publicly supported facilities available on a non -segregated basis to Negro citizens deprives them of

equal protection under the laws in too many cases for us to take seriously a contention that such decisions are erroneous

and should be reversed”); Anderson, 321 F.2d at 653-54 (where district court dismissed claims of black petitioners

which challenged various forms of racial segregation in the city’s public facilities, including the public library and

auditorium, concluding that the record evidence “ so clearly convinces us that, upon application of the proper legal

principles,” the trial court had no discretion to deny the injunction sought by the petitioners”; stating that “it has been

‘obvious that racial segregation in recreational activities can no longer be sustained as a proper exercise of the police

power of the State’”) (quoting Dawson v. Mayor & City Council of Baltimore City, 220 F.2d 386, 387 (4th Cir.), aff’d,

350 U.S. 877 (1955)).

215 373 U.S. 526 (1963).

Id. at 534-35 (reflecting that the city’s racially segregated park and recreation system consisted of approximately

131 parks, 61 playgrounds, 12 municipal communit y centers, and other facilities including a museum, seven city golf

courses, boating areas, and a zoo).

217 Id. at 529 (citing Dawson v. Mayor and City Council of Baltimore, 220 F.2d 386 (4th Cir.), aff’ d, 350 U.S. 877

(1955), and Muir v. Louisville Park T heatrical Ass’n, 347 U.S. 971 (1954)).

216

See, e.g., id. at 528 (reflecting that the civil action was filed by black residents of Memphis for “ declaratory and

injunctive relief directing immediate desegregation of municipal parks and other city owned or operated recreational

facilities from which Negroes were then still excluded”).

218

219 H. REP . NO . 914, pt. 2, at 15-16.

See id. at 17 (adding that “No man should be forced to bear unwarranted discrimin ation and thus be denied the equal

protection of the law because he cannot fully invoke in a court of law the constitutional protections that are his by

right.”).

220

221 See id. at 15-16 (“[W]e have sought in T itle III to authorize the Attorney General to upho ld the rights of the

individual where he is unable to protect himself”). Accordingly, and as discussed in further detail in this report, the

Attorney General must certify, before filing a T itle III action, that the individual(s) for which relief is being sought are

either “ unable . . . to bear the expense of the litigation or to obtain effective legal representation” or that “the institution

of such litigation [by such individuals] would jeopardize the personal safety, employment, or economic standing of

such person or persons, their families, or their property.” See 42 U.S.C. § 2000b(b).

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Title III: Provisions

Enforcement Actions by the Attorney General

Section 301222 of Title III authorizes the Attorney General to file a civil action “for or in the name

of the United States” upon receiving a written and signed complaint alleging that an individual is

“being denied equal utilization of any public facility which is owned, operated, or managed by or

on behalf of any State” or local subdivision based on race, color, religion, or national origin and is

thereby “being deprived of or threatened with the loss of his right to the equal protection of the

laws.”223 Title III concerns the threat of loss or denial of the “right to the equal protection of the

laws”224 and thus enforces the Equal Protection Clause. 225

Prerequisites to Suit

Section 301 also identifies certain conditions that must be met before the Attorney General may

bring a Title III enforcement action. When these conditions are met, the Attorney General may

file suit directly “in any appropriate district court of the United States.”226

The first condition is the receipt of a written and signed complaint that alleges the denial of equal

use of or access to a public facility based on race, color, religion, or national origin. 227 To file suit

pursuant to the complaint, the Attorney General must:



“believe[] the complaint is meritorious”; and

certify:

 “that the signer or signers of such complaint are unable, in his

judgment, to initiate and maintain appropriate legal proceedings for

relief”;228 and



that filing a civil action “will materially further the orderly progress

of desegregation in public facilities.”229

222 42 U.S.C. § 2000b(a).

223

See id.

224 See id. (excepting “a public school or public college as defined in section 2000c of this title” from the definition of

public facilities under T itle III).

225 See generally, e.g., H. REP . NO . 914, pt. 1, at 22 (describing the Attorney General’s ability to file suit upon receiving

a “signed complaint regarding a denial of equal protection of the laws”); United States v. Wyandotte County, Kan., 480

F.2d 969, 970 (10th Cir. 1973) (reflecting that the Attorney General challenged the race -based segregation of inmates

in a county jail as violations of both T itle III of the 1964 Act and the Equal Protection Clause of the Fourteenth

Amendment).

226 42 U.S.C. § 2000b(a) (additionally stating that federal district courts “shall have and shall exercise jurisdiction of

proceedings instituted pursuant to this section”).

227 Id. See also id. § 2000b-3 (defining “complaint” as “ a writing or document within the meaning of section 1001, title

18”).

228 See id. § 2000b(a). See also id. § 2000b(b) (“T he Attorney General may deem a person or persons unable to initiate

and maintain appropriate legal proceedings within the meaning of subsection (a) of this section when such person or

persons are unable, either directly or through other interested persons or organizations, to bear the expense of the

litigation or to obtain effective legal representation; or whenever he is satisfied that the institution of such litigation

would jeopardize the personal safety, employment, or economic standing of such person or persons, their families, or

their property.”).

229 See id. § 2000b(a). See also, e.g., H. REP . NO . 914, pt. 1, at 22 (describing this prong as certification by the Attorney

General “ that the initiation of a suit by the United States will further the national public policy favoring progress in

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The Civil Rights Act of 1964: An Overview

Though there appears to be little case law addressing these conditions to file suit under Title III,

House Report No. 914 reflects the view that the determinations made by the Attorney General in

deciding to go forward with a suit were not intended to be reviewable. 230

Remedies, Costs, and Private Litigation

Section 301(a) generally provides that the Attorney General may seek “suc h relief as may be

appropriate.”231 Because Title III concerns the Attorney General’s enforcement of the Equal

Protection Clause, it would appear that the remedies and relief for a Title III violation are the

same as those that a federal court may order for an Equal Protection Clause violation. 232 That

relief might include, for example, an injunction ordering the halt of unconstitutional conduct or

mandating that specific actions be taken to effectuate or implement redress for the individuals

harmed by the unconstitutional conduct, among other relief that a federal court generally has

broad discretion to order. 233

Should a defendant prevail in a Title III action, Section 302 provides that “[i]n any action or

proceeding under this subchapter the United States shall be liable for costs, including a

reasonable attorney’s fee, the same as a private person.”234

More generally, while Title III is enforced by the Attorney General, this federal enforcement does

not preclude or impede individuals from seeking relief for discrimination or segregation based on

race, color, religion, or national origin in public facilities. Section 303 provides that nothing in the

desegregation of public facilities”).

230

See H. REP . NO . 914, pt. 1, at 22. See also, e.g., id. at pt. 2, at 22. T he report also expressed the view of several

Members that these criteria were intended to “circumscribe” the litigation of the Attorney General to avoid federal

enforcement in every case alleging an Equal Protection violation in the public facilities context. See id., pt. 2, at 16

(stating that “ in order to avoid the Attorney General from becoming a gratuitous public counsel for all who claim a

denial of equal protection of the laws, this provision is worded to circumscribe the Attorney General’s activities to only

these most necessitous of circumstances. Not only must the complainant be unable to initiate and maintain legal

proceedings for defined reasons, but the Attorney General must find that the institution of an action will materially

further the public policy of the United States.”).

231

42 U.S.C. § 2000b(a). Cf. id. § 2000a-3 (injunctive relief only) and § 2000a-6.

232 See, e.g., Wyandotte Cnty., 480 F.2d at 970-72 (in a case brought by the Attorney General alleging that a county

jail’s race-based assignment of inmates violated T itle III and Equal Protection Clause and seeking injunctive relief,

analyzing the claims without differentiating between the two).

233

See, e.g., Gates v. Collier, 501 F.2d 1291, 1295-96 (5th Cir. 1974) (where racially discriminatory and segregated

prison conditions, among other conditions, violated various constitutional rights including under the Eighth and

Fourteenth Amendments, upholding the district court’s order of injunctive relief, which included an order that the

defendants “ submit ‘a comprehensive plan for the elimination of all unconstitutional conditions in inmate housing,

inadequate inmate housing, inadequate water, sewer and utilities, inadequate firefighting equipment, inadequate

hospital and other structures condemned by this court ,’” among other ordered relief). See generally, Smith v. Young

Men’s Christian Ass’n of Montgomery, Inc., 462 F.2d 634 , 636, 643 (5th Cir. 1972) (where plaintiffs brought an Equal

Protection Clause challenge to various practices of race-based segregation and exclusion in branches of the YMCA,

affirming most aspects of district court’s order, including a prohibition of the construct ion of any new branches on a

site that “may tend to perpetuate the past policies and practices of racial segregation,” the requirement that the YMCA

notify by letter “‘each and every member’” that each YMCA branch, program, and activity “‘is open to member s of all

races’”; the requirement that the YMCA include in “‘every advertisement, and in every brochure, pamphlet or poster,

publicizing the Montgomery YMCA or any of its activities a statement that such programs and activities are open to

members of all races,’” and the requirement that the YMCA submit a detailed plan on how it would eliminate its

segregated memberships and activities, including addressing representation of black citizens on YMCA’s city-wide

Board of Directors and other governing bodies).

234 42 U.S.C. § 2000b-1.

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title “shall affect adversely the right of any person to sue for or obtain relief in any court against

discrimination in any facility covered by this subchapter.”235

Title IV: The Equal Protection Clause and De Jure

Segregated Public Schools and Colleges

Title IV of the 1964 Act, like Title III, addresses federal enforcement of the Equal Protection

Clause. While Title III focuses on the desegregation of public facilities, Title IV addresses

desegregation in the context of public education. The Supreme Court has read the “language and

the history of Title IV” to show that Congress enacted it to define the federal government’s role in

implementing the mandate of the 1954 Brown v. Board of Education decision holding that racially

segregated public schools violate the Equal Protection Clause. 236 Thus, Title IV concerns

desegregation that dismantles state-imposed, or de jure, segregation, not “racial imbalance”

disconnected from “discriminatory action of state authorities.”237

More specifically, Title IV authorizes litigation by the Attorney General to address the deprivation

of equal protection of the laws in public schools and colleges 238 so as to further

“desegregation.”239 Title IV also provides for federal funding and technical assistance to facilitate

such school desegregation. 240 “Desegregation,” for Title IV purposes, refers to “the assignment of

students to public schools and within such schools without regard to their race, color, religion, sex

or national origin.”241 As originally enacted, Title IV defined desegregation based on “race, color,

religion, or national origin,” and was amended in 1972 to add “sex” to the definition of

235

Id. § 2000b-2.

236 Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 16 (1971) (stating that T itle IV was enacted “to define

the role of the Federal Government in the implementation of the Brown I decision”). See also Brown v. Bd. of Educ.,

347 U.S. 483, 486-88, (1954) (addressing consolidated cases challenging the denial of “admission to schools attended

by white children under laws requiring or permitting segregation according to race,” and holding that race-based

segregation in public education violates the Fourteenth Amendment’s Equal Protection Clause). See also H. REP . NO .

914, pt. 2, at 17 (discussing T itle VI as implementing the Supreme Court’s 1954 Brown v. Board of Education

decision).

237 See Swann, 402 U.S. at 17-18 (citing T itle IV provisions referring to racial balancing, and concluding that these

references were included to foreclose a reading of T itle IV “ as creating a right of action under the Fourteenth

Amendment in the situation of so-called ‘de facto segregation,’ where racial imbalance exists in the schools but with no

showing that this was brought about by discriminatory action of state authorities.”). See also 42 U.S.C. § 2000c(b) (for

T itle IV purposes, defining “desegregation” to not mean “the assignment of students to public schools in order to

overcome racial imbalance”).

238 See id. § 2000c-6.

239 See id. § 2000c-6(a) (including as a condition for filing suit that “the Attorney General believes . . . that the

institution of an action will materially further the orderly achievement of desegregation in public education”).

240 See e.g., id. § 2000c-2 (addressing technical assistance for desegregating schools); id. § 2000c-3 (providing for

training relating to desegregation); id. § 2000c-4 (authorizing grants for training relating to “problems incident to

desegregation”).

241 See id. § 2000c(b). See also id. §2000c–9 (providing that “[n]othing in this subchapter shall prohibit classification

and assignment for reasons other than race, color, religion, sex or national origin”).

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desegregation. 242 Federal courts have construed Title IV as an exercise of Congress’s authority

under Section 5 of the Fourteenth Amendment. 243

General Background: “Dual” Systems of Public Education Based

on Race

As with other conditions of racial segregation, state or local laws often required or expressly

permitted the race-based exclusion of black students from white-only public education

institutions. 244 State-imposed segregation commonly took the form of fully bifurcated, or

“dual,”245 public school systems—that is, one set of K-12 schools, colleges, and universities

242 Pub. L. No. 92-318, 86 Stat. 375, § 906(a) (“ Sections 401(b), 407(a) (2), 410, and 902 of the Civil Rights Act of

1964 (42 U.S.C. §§ 2000c(b), 2000c-6(a) (2), 2000c-9, and 2000h-2) are each amended by inserting the word ‘sex’

after the word ‘religion.’”). After the 1972 amendment adding “sex,” it appears that the few cases that have reached

federal courts alleging a T itle IV violation on that basis have challenged admissions policies in the higher education

context. See United States v. Virginia, 518 U.S. 515, 519-520 (1996) (in equal protection challenge to male-only

admissions policy at Virginia Military Institute (VMI), holding that VMI’s admission “reserved exclusively to men”

violated “the Constitution’s equal prot ection guarantee”). See also id. at 523 (noting that the VMI lawsuit was

“ prompted by a complaint filed with the Attorney General by a female high -school student seeking admission to

VMI”). See also United States v. Mass. Maritime Academy, 762 F.2d 142, 145, 147, 157-58 (1st Cir. 1985) (reflecting

that the Attorney General filed the T itle IV suit challenging the male-only admissions of the Massachusetts Maritime

Academy, which was followed by a bench trial resulting in a finding of intentional discriminatio n; and affirming the

district court order permanently enjoining defendants from sex discrimination in admissions and recruiting).

See, e.g., Hayes v. United States, 464 F.2d 1252, 1261 (5th Cir. 1972) (“ Enactment of T itle IV was a legitimate

exercise of Section 5 of the Fourteenth Amendment to the Constitution’s grant of Congressional power.”). See also,

e.g., United States v. Fruit, 507 F.2d 194, 195 (6th Cir. 1974) (referring to T itle IV as a “ statute Congress had the

authority to enact under Section 5 of the Fourteenth Amendment”).

244

See, e.g., Brown v. Board of Educ. of T opeka, Shawnee Cnty., Kan., 347 U.S. 483, 486 n.1 (1954) (reflecting that

the States of South Carolina, Delaware, and Virginia had st ate statutes or constitutional provisions that required the

segregation of white and black children in public schools, and that the State of Kansas had a statute expressly

permitting racially segregated public schools); Guey Heung Lee v. Johnson, 404 U.S. 1215 n.* (1971) (Douglas,

Circuit Justice) (observing that until 1947, the State of California permitted separate schools “for children of Chinese,

Japanese, or Mongolian parentage” and Native Americans; also reflecting that where public school districts chose to

establish such racially segregated schools, state law prohibited the admission of Native American children and

“children of Chinese, Japanese, or Mongolian parentage” into “any other school”); Little Rock Sch . Dist. v. Pulaski

County Special Sch. Dist. No. 1, 778 F.2d 404, 412 (8th Cir. 1985) (describing the “ state’s role in the segregation of the

public schools of Arkansas,” beginning with the passage of a state law in 1867 requiring separate schools for black

children); United States v. DeSoto Parish Sch. Bd., 574 F.2d 804 (5th Cir. 1978) (reflecting that Louisiana state law

“ required that the Louisiana public schools be operated on a segregated basis” through 1957, at which time those

provisions were repeated). In addition, the Supreme Court and federal courts of appeals have addressed state actions

that deliberately created or operated segregated public school systems by race, based on evidence other than a state law

or ordinance requiring or permitting racially segregated schools. See, e.g., Keyes v. Sch. Dist. No. 1, Denver, Colo.,

413 U.S. 189, 198-201 (1973) (holding that state-imposed segregation may be established apart from legislative

evidence of a statute or ordinance addressing racially segregated schools; stating that petitioners had proved that “for

almost a decade after 1960 respondent School Board had engaged in an unconstitutional policy of deliberate racial

segregation in the Park Hill schools”); Morgan v. Kerrigan, 509 F.2d 580, 585, 588 -98 (1st Cir. 1974), cert denied, 421

U.S. 963 (1975) (where school board argued that the existing segregation in Boston public schools was not intentional

or state-imposed, discussing evidence of the district court’s findings regarding the intent to segregate black students

from white students in various ways; concluding that the “ actions of the Boston authorities are not distinguishable from

what the Supreme Court has termed the ‘classic pattern of building schools specifically intended for Negro or white

students’”).

243

245 Swann, 402 U.S. at 5-6 (describing the practice of “maintaining two sets of schools in a single school system

deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race,” and

the constitutional mandate to “eliminate [such] dual systems and establish unitary systems at once”). See also id. at 22

(“T he constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in

public schools is discrimination that violates the Equal Protection Clause. T he remedy commanded was to dismantle

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created exclusively for white students, and another set of schools for black students, created to

preserve the white-only admissions at those institutions. 246 Private schools that provided

instruction to black and white students together were at times prosecuted and subjected to stateimposed penalties for doing so. 247

Though the Supreme Court unanimously held, in 1954, that racially segregated public schools

were unconstitutional, 248 states and local school districts continued to operate intentionally

racially segregated public school and university systems well after that date. 249 According to

dual school systems.”).

See, e.g., United States v. Fordice, 505 U.S. 717, 721-22 (1992) (describing the creation of Mississippi’s public

university system in 1848 with the establishment of “the University of Mississippi, an institution dedicated to the

higher education exclusively of white persons” and the expansion of that system in subsequent decades during which

the state continued to establish public colleges for attendance by white students and other public colleges for attendance

by black students); United States v. Montgomery Cnty. Bd. of Educ., 395 U.S. 225, 227 (1969) (stating that “many”

states other than those at issue in the Court’s 1954 decision Brown v. Board of Education had “ for many years

maintained a completely separate system of schools for whites and nonwhites, and the laws of these States, both civil

and criminal, had been written to keep this segregated system of schools inviolate. T he practices, habits, and customs

had for generations made this segregated school system a fixed part of the daily life and expectations of the people.”);

Brown I, 347 U.S. at 486-88 (stating that black petitioners in the consolidated case, from school districts in South

Carolina, Delaware, Virginia, and Kansas “ ha[d] been denied admission to schools attended by white children under

laws requiring or permitting segregation according to race”). See also, generally, Regents of Univ. of California v.

Bakke, 438 U.S. 265, 394 (1978) (Marshall, J., concurring in part and dissenting in part) (stating that “ the history of the

exclusion of Negro children from white public schools is too well known and recent to require repeating here. T hat

Negroes were deliberately excluded from public graduate and professional schools—and thereby denied the

opportunity to become doctors, lawyers, engineers, and

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