# The Civil Rights Act of 1964: An Overview > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR46534 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** September 21, 2020 - **Citation:** R46534 ## Text The Civil Rights Act of 1964: An Overview September 21, 2020 Congressional Research Service https://crsreports.congress.gov 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. Congressional Research Service 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 Congressional Research Service 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”). 3 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”). 7 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”). 13 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.’”). 14 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; Congressional Research Service 1 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.”). 18 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). 19 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 Congressional Research Service 2 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).”). 23 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 Congressional Research Service 3 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). 28 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). 30 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. 34 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”). Congressional Research Service 4 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. 37 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”). 39 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.”). 43 Congressional Research Service 5 The Civil Rights Act of 1964: An Overview 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. 46 48 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”). Congressional Research Service 6 The Civil Rights Act of 1964: An Overview 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). 53 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”). 56 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”). 57 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 Congressional Research Service 7 The Civil Rights Act of 1964: An Overview 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”). 60 61 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). 62 63 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”). 64 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 Congressional Research Service 8 The Civil Rights Act of 1964: An Overview 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. 67 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”). 69 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”). 73 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). 77 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). Congressional Research Service 9 The Civil Rights Act of 1964: An Overview 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)). Congressional Research Service 10 The Civil Rights Act of 1964: An Overview 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). 86 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). 87 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 Congressional Research Service 11 The Civil Rights Act of 1964: An Overview 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.”). 95 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). 97 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). Congressional Research Service 12 The Civil Rights Act of 1964: An Overview 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). Congressional Research Service 13 The Civil Rights Act of 1964: An Overview 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 Congressional Research Service 14 The Civil Rights Act of 1964: An Overview   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). Congressional Research Service 15 The Civil Rights Act of 1964: An Overview 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). Congressional Research Service 16 The Civil Rights Act of 1964: An Overview 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 Congressional Research Service 17 The Civil Rights Act of 1964: An Overview 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 Congressional Research Service 18 The Civil Rights Act of 1964: An Overview 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). Congressional Research Service 19 The Civil Rights Act of 1964: An Overview   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. Congressional Research Service 20 The Civil Rights Act of 1964: An Overview 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 Congressional Research Service 21 The Civil Rights Act of 1964: An Overview 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). Congressional Research Service 22 The Civil Rights Act of 1964: An Overview 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)). Congressional Research Service 23 The Civil Rights Act of 1964: An Overview 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 mo [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR46534. Public record. Not legal advice.