Adickes v. S. H. Kress & Company/Dissent Douglas

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United States Supreme Court

398 U.S. 144

Adickes  v.  S. H. Kress & Company

 Argued: Nov. 12, 1969. --- Decided: June 1, 1970

Mr. Justice DOUGLAS, dissenting in part.

* The statutory words 'under color of any statute, ordinance, regulation, custom, or usage, of any State,' 42 U.S.C. § 1983, are seriously emasculated by today's ruling. Custom, it is said, must have 'the force of law'; and 'law,' as I read the opinion, is used in the Hamiltonian sense. [1]

The Court requires state involvement in the enforcement of a 'custom' before that 'custom' can be actionable under 42 U.S.C. § 1983. That means, according to the Court, that 'custom' for the purposes of § 1983 'must have the force of law by virtue of the persistent practices of state officials.' That construction of § 1983 is, to borrow a phrase from the first Mr. Justice Harlan, 'too narrow and artificial.' In re Civil Rights Cases, 109 U.S. 3, 26, 3 S.Ct. 18, 32, 27 L.Ed. 835 (dissenting opinion).

Section 1983 by its terms protects all 'rights' that are 'secured by the Constitution and laws' of the United States. There is no more basic 'right' than the exemption from discrimination on account of race-an exemption that stems not only from the Equal Protection Clause of the Fourteenth Amendment but also from the Thirteenth Amendment and from a myriad of 'laws' enacted by Congress. And so far as § 1983 is concerned it is sufficient that the deprivation of that right be 'under color' of 'any * * * custom * * * of any State.' The 'custom' to be actionable must obviously reflect more than the prejudices of a few; it must reflect the dominant communal sentiment.

The 'custom * * * of any State' can of course include the predominant attitude backed by some direct or indirect sanctions inscribed in law books. Thus in Garner v. Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207, another restaurant case involving racial discrimination, there was no state law or municipal ordinance that in terms required segregation of the races in restaurants. But segregation was basic to the structure of Louisiana as a community as revealed by a mosaic of laws. Id., at 179-181, 82 S.Ct. at 259-261 (concurring opinion).

The same is true of Mississippi in the present case.

In 1964, at the time of the discrimination perpetrated in this case, there were numerous Mississippi laws that were designed to continue a regime of segregation of the races. The state legislature had passed a resolution condemning this Court's Brown v. Board of Education decisions, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083, as 'unconstitutional' infringements on States' rights. Miss. Laws (1956), c. 466, Senate Concurrent Resolution No. 125. Part of the Mississippi program to perpetuate the segregated way of life was the State Sovereignty Commission, Miss.Code Ann. § 9028-31 et seq. (1956), of which the Governor was chairman and which was charged with the duty 'to do and perform any and all acts and things deemed necessary and proper to protect the sovereignty of the State of Mississippi * * * from encroachment thereon by the Federal Government * * *.' Id., § 9028 35. Miss.Code Ann. § 4065.3 (1956) required 'the entire executive branch of the government of the State of Mississippi * * * to prohibit by any lawful, peaceful, and constitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government. * * *' Every word and deed of a state officer, agent, or employee that was connected with maintaining segregated schools in Mississippi was deemed to be 'the sovereign act * * * of the sovereign State of Mississippi.' Id., § 4065.4 (Supp.1968). It was unlawful for a white student to attend any school of high school or lower level that was also attended by Negro students. Id., § 6220.5. Separate junior college districts were established for blacks and whites. Id., § 6475-14 (1952). The Ellisville State School for the feebleminded was required to provide for separate maintenance of blacks and whites. Id., § 6766. The State Insane Hospital was required to keep the two races separate, id., § 6883, as was the South Mississippi Charity Hospital. Id., § 6927. Separate entrances were required to be maintained at state hospitals for black and white patients. Id., § 6973. It was the responsibility of those in authority to furnish a sufficient number of Negro nurses to attend Negro patients, but the Negro nurses were to be under the supervision of white supervisors. Id., § 6974. It was unlawful for Negro and white convicts to be confined or worked together. Id., § 7913 (1956). County sheriffs were required to maintain segregated rooms in the jails. Id., § 4259. It was unlawful for taxicab drivers to carry black and white passengers together. Id., § 3499. Railroad depots in cities of 3,000 or more inhabitants were required to have separate 'closets' for blacks and whites. Id., § 7848. And it was a crime to overthrow the segregation laws of the State. Id., § 2056(7).

The situation was thus similar to that which existed in Garner. Although there was no law that in terms required segregation of the races in restaurants, it was plain that the discrimination was perpetrated pursuant to a deeply entrenched custom in Louisiana that was 'at least as powerful as any law.' Garner v. Louisiana, supra, 368 U.S. at 181, 82 S.Ct. at 260 (concurring opinion); cf. Robinson v. Florida, 378 U.S. 153, 156, 84 S.Ct. 1693, 1695, 12 L.Ed.2d 771.

The 'custom * * * of any State,' however, can be much more pervasive. It includes the unwritten commitment, stronger than ordinances, statutes, and regulations, by which men live and arrange their lives. Bronislaw Malinowski, the famed anthropologist, in speaking of the 'cake of custom' of a Melanesian community 'safeguarding life, property and personality' said: [2]

'There is no religious sanction to these rules, no fear, superstitious or rational, enforces them, no tribal punishment visits their breach, nor even the stigma of public opinion or moral blame. The forces which make these rules binding we shall lay bare and find them not simple but clearly definable, not to be described by one word or one concept, but very real none the less. The binding forces of Melanesian civil law are to be found in the concatenation of the obligations, in the fact that they are arranged into chains of mutual services, a give and take extending over long periods of time and covering wide aspects of interest and activity. To this there is added the conspicuous and ceremonial manner in which most of the legal obligations have to be discharged. This binds people by an appeal to their vanity and self-regard, to their love of self-enhancement by display. Thus the binding force of these rules is due to the natural mental trend of self-interest, ambition and vanity, set into play by a special social mechanism into which the obligatory actions are framed.'

This concept of 'custom' is, I think, universal and as relevant here as elsewhere. It makes apparent that our problem under 42 U.S.C. § 1983 does not make our sole aim the search for 'state action' in the Hamiltonian sense of 'law.'

That restricted kind of a search certainly is not compelled by grammar. 'Of' is a word of many meanings, one of which indicates 'the thing or person whence anything originates, comes, is acquired or sought.' 7 Oxford English Dictionary (definition III). The words 'under color of any * * * custom * * * of any State' do no more than describe the geographical area or political entity in which the 'custom' originates and where it is found.

The philosophy of the Black Codes reached much further than the sanctions actually prescribed in them. Federal judges, who entered the early school desegregation decrees, often felt the ostracism of the community, though the local 'law' never even purported to place penalties on judges for doing such acts. Forty years ago in Washington, D.C., a black who was found after the sun set in the northwest section of the District on or above Chevy Chase Circle was arrested, though his only 'crime' was waiting for a bus to take him home after caddying at a plush golf course in the environs. There was no 'law' sanctioning such an arrest. It was done 'under color' of a 'custom' of the Nation's Capital.

'Southerners drew a line and prohibited Negroes crossing it. They doomed themselves to a lifetime of guarding that line, fearing it would be breached. Because the white Southerner must forever watch that line, the Negro intrudes upon the white at every level of life.'

Is not the maintenance of that line by habit a 'custom?'

Title 42 U.S.C. § 1983 was derived from § 1 of the 'Ku Klux Klan Act' of 1871, 17 Stat. 13. The 'under-color-of' provisions of § 1 of the 1871 Act, in turn, were derived from § 2 of the Civil Rights Act of 1866, 14 Stat. 27. The meaning of 'under color of * * * custom' in the context of the 1866 Act is therefore relevant to the meaning of that phrase as it is used in § 1983, for, as the Court states, the 'under color of' provisions mean the same thing for § 1983 as they do for 18 U.S.C. § 242, the direct descendant of § 2 of the 1866 Act. [4] Ante, at 152 n. 7.

A 'custom' of the community or State was one of the targets of the Civil Rights Act of 1866. Section 1, which we upheld in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, provided a civil remedy for specified private acts of racial discrimination. Section 2 of that Act provided criminal sanctions for acts done 'under color of any' custom of a State. A Congress that in 1866 was not bent only on 'the nullification of racist laws,' id., at 429, 88 S.Ct. at 2198, was not restricting itself strictly to state action; it was out to ban racial discrimination partly as respects private actions, partly under state law in the Hamiltonian sense, and partly under the color of 'custom.'

Of course, § 2 of the 1866 Act did not cover purely private actions as did § 1 of the Act, and that was the point of our discussion of § 2 in Jones v. Alfred H. Mayer Co. But the Court does not come to grips with the fact that actions taken 'under color of any * * * custom' were covered by § 2 of the 1866 Act quite apart from actions taken under 'color of any statute, ordinance, (or) regulation'-in other words, quite apart from actions taken under 'color of law' in the traditional sense. Instead, the Court seems to divide all actions into two groups-those constituting 'state action' and those constituting purely 'private action'-with coverage of § 2 limited to the former. While § 2 did not reach 'private violations,' it did reach discrimination based on 'color of custom,' which is far beyond the realm of a mere private predilection or prejudice. And, despite the Court's suggestion to the contrary, the use of the term 'under color of law' by the Court in Jones v. Alfred H. Mayer Co. was merely a shorthand reference for all the 'under color of' provisions in § 2 and had no relevance to the specific problem of defining the meaning of 'under color of * * * custom.' [5]

Section 2, like § 1, involved in Jones v. Alfred H. Mayer Co., was bottomed on the Thirteenth Amendment, for it was enacted before the Fourteenth Amendment was adopted. As we stated in Jones v. Alfred H. Mayer Co.:

'Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the authority to translate that determination into effective legislation.' Id., at 440, 88 S.Ct. at 2203.

While the Privileges and Immunities Clause, the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment are each protective of the individual as against 'state' action, the guarantees of the Thirteenth Amendment and various laws of the United States are not so restricted. And § 1983 protects not only Fourteenth Amendment rights, but 'any rights * * * secured by the Constitution and laws.' With regard to § 1983's scope of protection for violations of these rights, Congress in § 1983 aimed partly at 'state' action and it was with that aspect of it that we were concerned in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.

If the wrong done to the individual was under 'color' of 'custom' alone, the ingredients of the cause of action were satisfied. [6] The adoption of the Fourteenth Amendment expanded the substantive rights covered by § 1 of the 1871 Act vis-a -vis those covered by § 2 of the 1866 Act. But that expanded coverage did not make 'state action' a necessary ingredient in all of the remedial provisions of § 1 of the 1871 Act. Neither all of § 1 of the 1871 Act nor all of its successor, § 1983, was intended to be conditioned by the need for 'state' complicity.

Moreover, a majority of the Court held in United States v. Guest, 383 U.S. 745, 761, 774, 782 and n. 6, 86 S.Ct. 1170, 1180, 1186, 1191, 16 L.Ed.2d 239, that § 5 of the Fourteenth Amendment enables Congress to punish interferences with constitutional rights 'whether or not state officers or others acting under the color of state law are implicated.' Id., at 782, 86 S.Ct. at 1191. There the statute involved (18 U.S.C. § 241) proscribed all conspiracies to impair any right 'secured' by the Constitution. A majority agreed that in order for a conspiracy to qualify it need not involve any 'state' action. By the same reasoning the 'custom * * * of any State' as used in § 1983 need not involve official state development, maintenance, or participation. The reach of § 1983 is constitutional rights, including those under the Fourteenth Amendment; and Congress rightfully was concerned with their full protection, whoever might be the instigator or offender.

To repeat, § 1983 was 'one of the means whereby Congress exercised the power vested in it by § 5 of the Fourteenth Amendment to enforce the provisions of that Amendment.' Monroe v. Pape, supra, 365 U.S. at 171, 81 S.Ct. at 475. Yet powers exercised by Congress may stem from more than one constitutional source. McCulloch v. Maryland, 4 Wheat. 316, 421, 4 L.Ed. 579; Veazie Bank v. Fenno, 8 Wall. 533, 548-549, 19 L.Ed. 482; Edye v. Robertson, 112 U.S. 580, 595-596, 5 S.Ct. 247, 252-253, 28 L.Ed. 798; United States v. Gettysburg Electric R. Co., 160 U.S. 668, 683, 16 S.Ct. 427, 430, 40 L.Ed. 576. Moreover, § 1983 protects 'any rights' that are 'secured' by 'the Constitution and laws' of the United States, which makes unmistakably clear that § 1983 does not cover, reach, protect, or secure only Fourteenth Amendment rights. The Thirteenth Amendment and its enabling legislation cover a wide range of 'rights' designed to rid us of all the badges of slavery. And, as I have said, the phrase 'under color of any * * * custom' derives from § 2 of the 1866 Act which rested on the Thirteenth Amendment whose enforcement does not turn on 'state action.' [7] The failure of the Court to come to face with those realities leads to the regressive decision announced today.

It is time we stopped being niggardly in construing civil rights legislation. It is time we kept up with Congress and construed its laws in the full amplitude needed to rid their enforcement of the lingering tolerance for racial discrimination that we sanction today.

Mr. Justice BRENNAN, concurring in part and dissenting in part.

Petitioner contends that in 1964 respondent, while acting 'under color of * * * statute' or 'under color of * * * custom, or usage' of the State of Mississippi, subjected her to the deprivation of her right under the Equal Protection Clause of the Fourteenth Amendment not to be denied service in respondent's restaurant due to racial discrimination in which the State of Mississippi was involved, and that therefore respondent is liable to her in damages under 42 U.S.C. § 1983. To recover under § 1983 petitioner must prove two separate and independent elements: first, that respondent subjected her to the deprivation of a right 'secured by the Constitution and laws'; and, second, that while doing so respondent acted under color of a statute, ordinance, regulation, custom, or usage of the State of Mississippi.

Whether a person suing under § 1983 must show state action in the first element-the deprivation of a right 'secured by the Constitution and laws'-depends on the nature of the particular right asserted. For example, a person may be deprived of a right secured by the Constitution and 42 U.S.C. § 1982 by a private person acting completely independently of state government. See Jones v. Alfred H. Mayer Co., 392 U.S. 409, 88 S.Ct 2186, 20 L.Ed.2d 1189 (1968). On the other hand, the constitutional right to equal protection of the laws, unelaborated by any statute, can be violated only by action involving a State. The discussion in United States v. Reese, 92 U.S. 214, 249-252, 23 L.Ed. 563 (1876) (Hunt, J., dissenting), of various constitutional uses of the word 'State' suggests that as an original matter 'State' in the Equal Protection Clause might have been interpreted in any of several ways. Moreover, some have thought that historical evidence points to an interpretation covering some categories of state inaction in the face of wholly private conduct, see, e.g., Bell v. Maryland, 378 U.S. 226, 286-316, 84 S.Ct. 1814, 1847-1864, 12 L.Ed.2d 822 (1964) (Goldberg, J., concurring); R. Harris, The Quest for Equality 24-56 (1960); J. tenBroek, Equal Under Law 201-239 (1965). However, our cases have held that the Equal Protection Clause applies only to action by state government or officials and those significantly involved with them. Shelley v. Kraemer, 334 U.S. 1, 13, 68 S.Ct. 836, 842, 92 L.Ed. 1161 (1948); Burton v. Wilmington Parking Authority, 365 U.S. 715, 721-722, 81 S.Ct. 856, 859-860, 6 L.Ed.2d 45 (1961). Whether and when a person suing under § 1983 must show state action in the second element-action under color of a statute, ordinance, regulation, custom, or usage of a State-depends on an analysis of the text, legislative history, and policy of § 1983. See Part II, infra. These two inquiries are wholly different, though in particular cases a showing of state action under one element may suffice under the other.

In the present case petitioner alleged as the first element under § 1983 a deprivation of her right to equal protection. Therefore, under our cases, she must show state action. She asserts that there was state action in two different respects. First, she contends that there was a conspiracy between respondent and local police to discriminate against her in restaurant service because she, a white person, sought service while accompanied by Negro friends. The Court treats this aspect of her claim in Part I of its opinion, which I join. [1] Petitioner contends, alternatively, that respondent's discrimination was authorized and encouraged by Mississippi statutes. To that contention I now turn.

* The state-action doctrine reflects the profound judgment that denials of equal treatment, and particularly denials on account of race or color, are singularly grave when government has or shares responsibility for them. Government is the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct. Therefore something is uniquely amiss in a society where the government, the authoritative oracle of community values, involves itself in racial discrimination. Accordingly, in the cases that have come before us this Court has condemned significant state involvement in racial discrimination, however subtle and indirect it may have been and whatever form it may have taken. See, e.g., Burton v. Wilmington Parking Authority, supra; Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966); Hunter v. Erickson, 393 U.S. 385, 89 S.Ct. 557, 21 L.Ed.2d 616 (1969). These decisions represent vigilant fidelity to the constitutional principle that no State shall in any significant way lend its authority to the sordid business of racial discrimination.

Among the state-action cases that most nearly resemble the present one are the sit-in cases decided in 1963 and 1964. In Peterson v. City of Greenville, 373 U.S. 244, 83 S.ct. 1119, 10 L.Ed.2d 323 (1963), the petitioners were convicted of trespass for refusing to leave a lunch counter at a Kress store in South Carolina. A Greenville ordinance at that time imposed on the proprietors of restaurants the duty to segregate the races in their establishments, and there was evidence that the Kress manager was aware of the ordinance. We held that the existence of the ordinance, together with a showing that the Kress manager excluded the petitioners solely because they were Negroes, was sufficient to constitute discriminatory state action in violation of the Fourteenth Amendment:

'When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby 'to a significant extent' has 'become involved' in it, and, in fact, has removed that decision from the sphere of private choice. * * *

'Consequently these convictions cannot stand, even assuming, as respondent contends, that the manager would have acted as he did independently of the existence of the ordinance.' 373 U.S. at 248, 83 S.Ct. at 1121.

Although the case involved trespass convictions, the Court did not rely on the State's enforcement of its neutral trespass laws in analyzing the elements of state action present. Nor did it cite Shelley v. Kraemer, supra, the logical starting point for an analysis in terms of judicial enforcement. The denial of equal protection occurred when the petitioners were denied service in the restaurant. That denial of equal protection tainted the subsequent convictions. And as we noted in Reitman v. Mulkey, 387 U.S. 369, 380, 87 S.Ct. 1627, 1633, 18 L.Ed.2d 830 (1967), no 'proof (was) required that the restaurant owner had actually been influenced by the state statute * * *.' Thus Peterson establishes the proposition that where a State commands a class of persons to discriminate on the basis of race, discrimination by a private person within that class is state action, regardless of whether he was motivated by the command. The Court's intimation in the present case that private discrimination might be state action only where the private person acted under compulsion imposed by the State echoes Mr. Justice Harlan's argument in Peterson that private discrimination is state action only where the State motivates the private person to discriminate. See 373 U.S., at 251 253. That argument was squarely rejected by the Court in Peterson, and I see no reason to resurrect it now.

The rationale of Peterson was extended in Lombard v. Louisiana, 373 U.S. 267, 83 S.Ct. 1122, 10 L.Ed.2d 338 (1963). There the petitioners were convicted of trespass for refusing to leave a restaurant after being denied service. Prior to the arrests the mayor and superintendent of police of New Orleans had publicly stated that sit-in demonstrations were undesirable and that relevant trespass laws would be fully enforced. Although these statements, unlike the ordinance in Peterson, were not discriminatory on their face, the Court interpreted them as evidencing state support for the system of racial segregation prevalent in the private institutions against which the petitioners' sit-in was directed. Moreover, the statements, unlike the ordinance in Peterson, did not command restaurateurs to discriminate. A restaurateur in New Orleans, unlike one in Greenville, could integrate his services without violating any law. Although there was evidence that the restaurateur's actions were influenced by the official statements, the Court did not rely on this factor. The Court held on the basis of the statements alone that the regree of state involvement in the private discriminatory denial of service to the petitioners was sufficient to make that denial state action violative of the Fourteenth Amendment. As in Peterson, the Court's analysis of state action did not turn on the actual enforcement of the State's criminal law. Lombard, therefore, advances at least two propositions. First, an authoritative expression of state policy that is nondiscriminatory on its face may be found to be discriminatory when considered against the factual background of its promulgation. Cf. Guinn v. United States, 238 U.S. 347, 364-365, 35 S.Ct. 926, 931, 59 L.Ed. 1340 (1915); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). Second, where a state policy enforces privately chosen racial discrimination in places of public accommodation, it renders such private discrimination unconstitutional state action, regardless of whether the private discriminator was motivated or influenced by it.

The principles of Peterson and Lombard were extended further in Robinson v. Florida, 378 U.S. 153, 84 S.Ct. 1693, 12 L.Ed.2d 771 (1964). That case also involved trespass convictions arising out of a sit-in at a segregated restaurant. At the time, a Florida regulation required restaurants to maintain separate lavatory and toilet facilities for each race as well each sex. However, the regulation did not require segregation of a restaurant itself; nor did the convictions of the demonstrators result from anything they did with respect to the facilities that were the subject of the regulation. Nevertheless, this Court reversed the convictions on the ground that by virtue of the regulation the State had become sufficiently involved in the privately chosen segregation of the restaurant to make that segregation state action. The Court commented:

'While these Florida regulations do not directly and expressly forbid restaurants to serve both white and colored people together, they certainly embody a state policy putting burdens upon any restaurant which serves both races, burdens bound to discourage the serving of the two races together.' 378 U.S., at 156, 84 S.Ct. at 1695.

Robinson involved neither a state command of restaurant segregation, as in Peterson, nor a state policy of enforcing restaurant segregation, as in Lombard. It involved state imposition of burdens amounting to discouragement of private integration. It is true that the burden in that case happened to take the form of a requirement of segregated lavatory facilities; but any other burden-for example, a tax on integrated restaurants would have sufficed to render the privately chosen restaurant segregation unconstitutional state action. Again, the Court's finding of state action did not depend on the use of the State's trespass law. Robinson thus stands for the proposition that state discouragement of a particular kind of privately chosen integration renders that kind of privately chosen segregation unconstitutional state action.

The step from Peterson, Lombard, and Robinson to the present case is a small one. Indeed, it may be no step at all, since those cases together hold that a state policy of discouraging privately chosen integration or encouraging privately chosen segregation, even though the policy is expressed in a form non-discriminatory on its face, is unconstitutional and taints the privately chosen segregation it seeks to bring about. These precedents suggest that the question of state action in this case is whether, as petitioner contends, Mississippi statutes do in fact manifest a state policy of encouraging and supporting restaurant segregation so that respondent's alleged privately chosen segregation is unconstitutional state action.

To establish the existence in 1964 of a state statutory policy to maintain segregation in restaurant facilities, petitioner relies principally on Miss.Code Ann. § 2046.5 (1956), which, on its face, 'authorizes' and 'empowers' owners of hotels, restaurants, and other places of public accommodation and amusement to refuse to serve whomsoever they choose. [2] The decision whether to serve a particular individual is left to the unfettered discretion of the restaurant management, which may refuse service for any reason or for no reason. Thus, while there is no explicit command in § 2046.5 that segregated eating facilities be maintained, a refusal to serve on the basis of race alone falls clearly within the broad terms of the statute. The restaurateur is informed, in essence, that he may discriminate for racial or any other reasons and that he may call upon the police power of the State to make that private decision effective through the trespass sanctions expressly incorporated in § 2046.5. It is clear that, to the extent that the statute authorizes and empowers restaurateurs to discriminate on the basis of race, it cannot pass muster under the Fourteenth Amendment. Burton v. Wilmington Parking Authority, supra, 365 U.S., at 726-727, 81 S.Ct., at 862-863 (Stewart, J., concurring).

Burton involved a statute that permitted a restaurateur to refuse service to 'persons whose reception or entertainment by him would be offensive to the major part of his customers * * *.' Mr. Justice Stewart took the position that the state courts had 'construed this legislative enactment as authorizing discriminatory classification based exclusively on color.' 365 U.S., at 726-727, 81 S.Ct., at 862. Justices Frankfurter, Harlan, and Whittaker, the only other Justices who dealt at length with the statute, [3] agreed that it would violate the Fourteenth Amendment if so construed. However, they thought the construction adopted by the state courts insufficiently clear to make possible a final determination of the issue.

The language of § 2046.5 is considerably broader than that involved in Burton. Although § 2046.5 apparently has not been authoritatively interpreted by the state courts, its plain language clearly authorizes a restaurateur to refuse service for any reason, which obviously includes a refusal based upon race. Were there any conceivable doubt that § 2046.5 was intended to authorize, inter alia, 'discriminatory classification based exclusively on color,' it is completely dispelled by a consideration of the historical context in which § 2046.5 was enacted.

A legislative or constitutional provision need not be considered in isolation, but may be examined 'in terms of its 'immediate objective,' its 'ultimate effect' and its 'historical context and the conditions existing prior to its enactment." Reitman v. Mulkey, supra, 387 U.S., at 373, 87 S.Ct., at 1630; cf. Lombard v. Louisiana, supra. Through the 1950's and 1960's Mississippi had a 'steel-hard, inflexible, undeviating official policy of segregation.' United States v. City of Jackson, 318 F.2d 1, 5 (C.A. 5th Cir. 1963) (Wisdom, J.). See generally J. Silver, Mississippi: The Closed Society (1964). Section 2046.5 itself was originally enacted in 1956 in the wake of our decisions in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). It was passed contemporaneously with numerous statutes and resolutions condemning Brown, [4] requiring racial segregation in various transportation facilities, [5] and committing the state government to continued adherence to the principles of racial segregation. [6] Together with these other statutes and resolutions, § 2046.5 is indexed in the 1956 Mississippi Session Laws under 'Segregation' and 'Races.' [7] Prior to 1956, the State had declared unlawful any conspiracy '(t)o overthrow or violate the segregation laws of this state * * *.' [8] Subsequent to the passage of § 2046.5, breach of the peace, vagrancy, and trespass statutes similar to § 2046.5 [9] were enacted or employed to give local officials additional weapons to combat attempts to desegregate places of public accommodation. See, .e.g., Dilworth v. Riner, 343 F.2d 226 (C.A.5th Cir. 1965). [10]

Illustrative of the practical effect of these various provisions is the incident that gave rise to this litigation. Petitioner was arrested for vagrancy shortly after she had unsuccessfully sought service at respondent's store. In ordering dismissal of the charges after removal of the prosecutions to the federal courts, the Court of Appeals for the Fifth Circuit noted '(t)he utter baselessness of any conceivable contention that the vagrancy statutes prohibited any conduct in which these persons were engaged' and concluded that the arrests had been made solely because petitioner had attempted to receive service at a city library and at respondent's store in the company of Negro friends. Achtenberg v. Mississippi, 393 F.2d 468, 474-475 (C.A.5th Cir. 1968). [11]

In sum, it may be said of the various statutes and resolutions that constituted Mississippi's response to Brown that 'they are bound together as the parts of a single plan. The plan may make the parts unlawful.' Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518 (1905) (Holmes, J.). Section 2046.5 was an integral part of this scheme to foster and encourage the practice of segregation in places of public accommodation and elsewhere, which it furthered by authorizing discrimination and by affording those who elected to discriminate on the basis of race a remedy under state law. Indeed, it is difficult to conceive of any purpose for the enactment of § 2046.5 other than to make clear the authorization of private discrimination where such express authorization did not exist previously. Cf. Mulkey v. Reitman, 64 Cal. 2d 529, 544, 50 Cal.Rptr. 881, 413 P.2d 825, 835-836 (1966), aff'd, 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967).

Judge Waterman, dissenting in the Court of Appeals, states that under the common law an innkeeper, and by analogy a restaurateur, did not have the right to serve only whomever he wished and to discriminate on the basis of race in selecting his customers. 409 F.2d 121, 131-133. See Bell v. Maryland, 378 U.S., 226, at 296-300, 84 S.Ct. 1814, at 1852-1855, 12 L.2d 822 (1964) (Goldberg, J., concurring). Since the common law is presumed to apply in Mississippi, Western Union Telegraph Co. v. Goodman, 166 Miss. 782, 146 So. 128 (1933), Judge Waterman concludes that the State has 'drastically changed the common law' by enacting § 2046.5. [12] 409 F.2d, at 132. Further support for this view can be found in the preamble to § 2046.5 which states that the provision 'confer(s) upon any person * * * the further right to refuse to sell or render a service to any person * * *.' Miss.Laws 1956, c. 257. (Emphasis added.) This formulation suggests that the legislature intended to alter the existing state law.

It is not completely clear, however, that the common law in regard to innkeepers and restaurateurs, as understood by Judge Waterman, was ever widely enforced in Mississippi in racial matters. In Reconstruction times the State enacted a civil rights law that forbade discrimination in places of public accommodation and amusement. See Miss.Laws 1873, c. LXIII. It was upheld and applied in Donnell v. State, 48 Miss. 661 (1873). That law, however, quickly fell into desuetude. [13] Thus some question exists as to whether Mississippi 'changed' the law as it existed in that State in 1956. At least it can be said, however, that Mississippi, by enacting § 2046.5, clarified the state law, and in doing so elected to place the full authority of the State behind private acts of discrimination. Since § 2046.5 authorizes discrimination on the basis of race, it is invalid as applied to authorize such discrimination in particular cases.

The remaining question concerning this aspect of the present case is what nexus between § 2046.5 and respondent's alleged discrimination petitioner must show to establish that that discrimination is state action violative of the Fourteenth Amendment. Our prior decisions leave no doubt that the mere existence of efforts by the State, through legislation or otherwise, to authorize, encourage, or otherwise support racial discrimination in a particular facet of life constitutes illegal state involvement in those pertinent private acts of discrimination that subsequently occur. See, e.g., Peterson v. City of Greenville, supra; Lombard v. Louisiana, supra; Robinson v. Florida, supra. [14] This is so, as we noted in Reitman v. Mulkey, supra, 387 U.S., at 380, 87 S.Ct., at 1633 whether or not the private discriminator was actually influenced in the commission of his act by the policy of the State. Thus, when private action conforms with state policy, it becomes a manifestation of that policy and is thereby drawn within the ambit of state action. In sum, if an individual discriminates on the basis of race and does so in conformity with the State's policy to authorize or encourage such discrimination, neither the State nor the private party will be heard to say that their mutual involvement is outside the prohibitions of the Fourteenth Amendment. Therefore, in light of the statutory scheme including § 2046.5, which authorized and encouraged restaurant segregation, petitioner will fully satisfy the state-action requirement of the Fourteenth Amendment if she establishes that she was refused service on the basis of race.

I turn now to the other elements of petitioner's case under § 1983.

Title 42 U.S.C. § 1983 derives from § 1 of the Civil Rights Act of 1871, 17 Stat. 13, entitled, 'An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes.' [15] The 1871 Act, popularly known as the 'Ku Klux Klan Act,' was, as its legislative history makes absolutely clear, a response to the outrages committed by the Klan in many parts of the South. The conditions that gave rise to the Act were discussed extensively in Monroe v. Pape, 365 U.S. 167, 172-183, 81 S.Ct. 473, 476-482 (1961). In the context of that case we pointed out that although the 1871 Act was engendered by the activities of the Klan, the language and purposes of § 1983 are not restricted to that evil. See 365 U.S., at 183, 81 S.Ct., at 482. See also United States v. Mosley, 238 U.S. 383, 388, 35 S.Ct. 904, 906, 59 L.Ed. 1355 (1915), where Mr. Justice Holmes, speaking for the Court, commented on § 6 of the Enforcement Act of 1870, 16 Stat. 141, as amended, now 18 U.S.C. § 241, in words applicable to § 1983:

'Just as the Fourteenth Amendment * * * was adopted with a view to the protection of the colored race, but has been found to be equally important in its application to the rights of all, (the statute) had a general scope and used general words that have become the most important now that the Ku Klux have passed away. * * * (W)e cannot allow the past so far to affect the present as to deprive citizens of the United States of the general protection which, on its face (the statute) most reasonably affords.'

Stirred to action by the wholesale breakdown of protection of civil rights in the South, Congress carried to completion the creation of a comprehensive scheme of remedies-civil, criminal, and military [16]-for the protection of constitutional rights from all major interference.

In the 1871 Act, Congress undertook to provide broad federal civil remedies against interference with the exercise and actual enjoyment of constitutional rights, particularly the right to equal protection. Section 1 (now § 1983) provided a civil remedy for deprivation of any constitutional right by a person acting 'under color of any law, statute, ordinance, regulation, custom, or usage of any State * * *.' Section 2 (now surviving in part as § 1985(3)) provided a civil and a criminal remedy against conspiratorial interference with any person's enjoyment of equal protection. Section 6 (now § 1986) cast the net of civil liability even more widely by providing a remedy against any person who, having the ability by reasonable diligence to prevent a violation of § 2, fails to do so. These remedies were bolstered by other criminal provisions of § 2 and by previously enacted criminal laws. Section 2 of the Civil Rights Act of 1866, 14 Stat. 27, re-enacted as § 17 of the Enforcement Act of 1870, 16 Stat. 144, as amended, now 18 U.S.C. § 242, provided a criminal remedy against what amounts to a violation of § 1983. Section 6 of the Enforcement Act of 1870, 16 Stat. 141 as amended, now 18 U.S.C. § 241, provided a criminal remedy against conspiracies to interfere with the exercise or enjoyment of a federal right. [17]

The history of this scheme of remedies for the protection of civil rights was, until very recently, one of virtual nullification by this Court. Key provisions were declared unconstitutional or given an unduly narrow construction wholly out of keeping with their purposes. [18] In United States v. Harris, 106 U.S. 629, 1 S.Ct. 601, 27 L.Ed. 290 (1883), the Court invalidated the criminal provision of § 2 of the Ku Klux Klan Act, the criminal analogue to § 1985(3), on the ground that Congress was not authorized by § 5 of the Fourteenth Amendment to prohibit interference by private persons with the exercise of Fourteenth Amendment rights, except perhaps in extreme and remote circumstances. Essential to the holding was a recognition that the language of § 2 plainly reaches conspiracies not involving state officials. See also Baldwin v. Franks, 120 U.S. 678, 7 S.Ct. 656, 32 L.Ed. 766 (1887). The statute (Rev.Stat. § 5519) was repealed in 1909. 35 Stat. 1154. In Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), the Court, under the influence of Harris, construed § 1985(3). Pointing out that the language of § 1985(3) is exactly the same (except for the remedy provided) as the language of the statute condemned in Harris, the Court thought it necessary to read in a limitation of the section to conspiracies involving state action, in order to sustain its constitutionality. This limiting construction necessarily carried over to § 1986, whose scope is keyed to that of § 1985.

Section 241 of 18 U.S.C. fared little better. That statute, as indicated, deals generally with conspiracies to interfere with the exercise of federal rights. It was established soon after its enactment that § 241 reaches conspiracies among private persons to interfere with 'rights which arise from the relationship of the individual and the Federal Government.' United States v. Williams, 341 U.S. 70, 77, 71 S.Ct. 581, 585, 95 L.Ed. 758 (1951) (opinion of Frankfurter, J.). See e.g., Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 (1884); United States v. Waddell, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673 (1884); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); In re Quarles, 158 U.S. 532, 15 S.Ct. 959, 39 L.Ed. 1080 (1895). However, the concept of 'arising from' was given a very narrow construction in United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1876). Moreover, in United States v. Williams, supra, the Court divided 4 to 4 on the question whether § 241 reaches private conspiracies to interfere with the exercise of Fourteenth Amendment rights, which arise from the relation of an individual and a State. The four members of the Court who thought § 241 does not protect the exercise of Fourteenth Amendment rights placed considerable reliance on the argument that § 241 would be unconstitutional if construed otherwise. See 341 U.S., at 77-78, 71 S.Ct., at 584-585. See also Hodges v. United States, 203 U.S. 1, 27 S.Ct. 6, 51 L.Ed. 65 (1906).

Although the other principal criminal statute protecting civil rights, 18 U.S.C. § 242, the criminal analogue to § 1983, was construed to protect Fourteenth Amendment rights, it was nonetheless held constitutional. However, under this statute a violation can be found only if the defendant acted 'willfully,' that is, with 'a specific intent to deprive a person of a federal right made definite by decision or other rule of law.' See Screws v. United States, 325 U.S. 91, 103, 65 S.Ct. 1031, 1036, 89 L.Ed. 1495 (1945). Moreover, this Court has never had occasion to consider whether § 242 reaches wholly nonofficial conduct.

Thus, until very recently, the construction of the surviving remedial civil rights statutes was narrowed or placed in doubt by a restrictive view of the power of Congress under § 5 of the Fourteenth Amendment. But that view of congressional power has now been completely rejected by this Court.

In United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966), and United States v. Price, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966), the Court expressly held that § 241 does protect Fourteenth Amendment rights, thereby squarely resolving the issue that divided the court in Williams. Because the conspiracy in Guest was alleged to have been carried out by private persons acting in conjunction with state officials, [19] the Court found it unnecessary to consider whether § 241 would be constitutional if construed to reach wholly private conspiracies to interfere with the exercise of Fourteenth Amendment rights. However, to put the point beyond doubt, six members of the Court in Guest expressly stated their view that Congress has power under § 5 of the Fourteenth Amendment to protect Fourteenth Amendment rights against interference by private persons, without regard to state involvement in the private interference. See United States v. Guest, supra, 383 U.S., at 761-762, 86 S.Ct., at 1180-1181 (opinion of Clark, J., joined by Black and Fortas, JJ.), 774-786, 86 S.Ct. 1186-1193 (opinion of Brennan, J., joined by Warren, C.J., and Douglas, J.). This general view of congressional power under § 5 was expressly adopted by the Court in Katzenbach v. Morgan, 384 U.S. 641, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966), where we said:

'By including § 5 the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. I, § 8, cl. 18. * * * Correctly viewed, § 5 is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment.' 384 U.S., at 650 651, 86 S.Ct., at 1723.

See also South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769. (1966). [20]

Thus the holding of Harris and the Civil Rights Cases, 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883), that Congress cannot under § 5 protect the exercise of Fourteenth Amendment rights from private interference has been overruled. See United States v. Guest, supra, 383 U.S., at 782-783, 86 S.Ct., at 1190-1192 (opinion of Brennan, J.). Consequently, the interpretation of the civil rights statutes need no longer be warped by unwarranted concern that Congress lacks power under § 5 to reach conduct by persons other than public officials. There is no doubt that § 1983 protects Fourteenth Amendment rights. See Monroe v. Pape, supra, 365 U.S., at 170-171, 81 S.Ct., at 475-476; id., at 205-206, 81 S.Ct., at 493-494 (opinion of Frankfurter, J.). Accordingly, the only substantial question in this branch of the present case is whether § 1983 was intended by Congress to reach nonofficial conduct of the kind at issue here.

Petitioner contends that respondent's discrimination against her was within the scope of § 1983 on either of two grounds. First, she claims that respondent acted under color of Mississippi statutory law, and in particular Mississippi Code § 2046.5. Second, she claims that respondent acted under color of a custom or usage of Mississippi, which prescribed segregation of the races in dining facilities.

Petitioner's claim that respondent acted under color of Mississippi statutory law is similar to her claim that respondent's action constituted state action. Indeed, the two claims would be proved by the same factual showing if respondent were a state official who acted by virtue of his official capacity or a private party acting in conjunction with such state official, for when a state official acts by virtue of his official capacity it is precisely the use or misuse of state authority that makes the action state action. However, when a private party acts alone, [21] more must be shown, in my view, to establish that he acts 'under color of' a state statute or other authority than is needed to show that his action constitutes state action.

As I pointed out in Part I, supra, under the constitutional principle that no State shall have any significant involvement whatever in racial discrimination, and under our prior cases, the mere existence of a state policy authorizing, encouraging, or otherwise supporting racial discrimination in a particular kind of service is sufficient to render private discrimination in that service state action. However, the statutory term 'under color of any statute' has a narrower meaning than the constitutional concept of 'state action.' The 'under color' language of § 1983 serves generally to limit the kinds of constitutional violation for which the section provides a remedy. To understand how that language applies to private persons, it is helpful to consider its application to state officials. In other legal usage, the word 'color,' as in 'color of authority,' 'color of law,' 'color of office,' 'color of title,' and 'colorable,' suggests a kind of holding out and means 'appearance, semblance, or simulacrum,' but not necessarily the reality. See H. Black, Law Dictionary 331-332 (rev.4th ed. 1968). However, as the word appears in § 1983, it covers both actions actually authorized by a State, see Myers v. Anderson, 238 U.S. 368, 35 S.Ct. 932, 59 L.Ed. 1349 (1915); Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939), and misuse of state authority in ways not intended by the State, see, e.g., Monroe v. Pape, supra; Screws v. United States, supra, 325 U.S. at 111, 65 S.Ct. 1040. In some of these latter situations there is a holding out in that the official uses his actual authority to give the appearance that he has authority to take the particular action he is taking. In other cases the abuse of power is so palpable that the victim or any observer may well be aware that the official is exceeding his authority, so that any holding out of authority would be wholly transparent. In these cases the misuse of authority alone is enough to warrant recovery. See, e.g., Monroe v. Pape, supra; United States v. Classic, 313 U.S. 299, 326, 61 S.Ct. 1031, 1043, 85 L.Ed. 1368 (1941); Catlette v. United States, 132 F.2d 902 (C.A.4th Cir. 1943). Thus, a public official acting by virtue of his official capacity always acts under color of a state statute or other law, whether or not he overtly relies on that authority to support his action, and whether or not that action violates state law. A private person acts 'under color of' a state statute or other law when he, like the official, in some way acts consciously pursuant to some law that gives him aid, comfort, or incentive, cf. Griffin v. Maryland, 378 U.S. 130, 84 S.Ct. 1770, 12 L.Ed.2d 754 (1964); Flemming v. South Carolina Elec. & Gas Co., 224 F.2d 752 (C.A.4th Cir. 1955), appeal dismissed, 351 U.S. 901, 76 S.Ct. 692, 100 L.Ed. 1439 (1956); or when he acts in conjunction with a state official, as in United States v. Price, supra. In the present case Mississippi statutory law did authorize and encourage respondent to discriminate against petitioner on the basic of race. Therefore petitioner can establish that respondent acted 'under color of' Mississippi statutory law by showing that respondent was aware of that body of law as prescribing, encouraging, authorizing, legitimating, effectuating, or otherwise supporting its refusal to serve petitioner. The vice of action under color of statute exists wherever the private discriminator consciously draws from a state statute any kind of support for his discrimination. Therefore, it is irrelevant that petitioner was not arrested under the trespass provision of § 2046.5.

Petitioner's second contention, that respondent discriminated against her 'under color of (a) custom, or usage' of Mississippi, presents more difficulty. I have found few prior cases construing the phrase 'under color of custom, or usage' in the context of § 1983; [22] and it has not been litigated under 18 U.S.C. § 242, though in that context it was briefly discussed in the opinions in Jones v. Alfred H. Mayer Co., supra. It is true that on occasion this Court has summed up the statutory language 'under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory' as meaning 'under color of law,' and as incorporating a requirement of state action akin to that of the Equal Protection Clause. See, e.g., United States v. Price, supra, 383 U.S. at 794, 86 S.Ct., at 1157 n. 7. But the loose and vague phrase 'under color of law' has always been used by the Court in the context of cases in which reliance was put on something other than 'custom or usage.' The Court has never held, or even intimated, that 'custom or usage' means 'law.' Indeed, Mr. Justice Harlan, dissenting in Jones v. Alfred H. Mayer Co., supra, used a different formula in summarizing the 'under color of' language in § 242; he said it referred to 'action taken pursuant to state or community authority.' 392 U.S., at 454, 88 S.Ct., at 2211. Moreover, he referred to 'discriminations which were legitimated by a state or community sanction sufficiently powerful to deserve the name 'custom." Id., at 457, 88 S.Ct., at 2212. (Emphasis added). See also Monroe v. Pape, supra, 365 U.S. at 193, 81 S.Ct., at 487 (Harlan, J., concurring) ('abuses so recurrent as to amount to 'custom, or usage"). Thus, 'under color of law' has not been the only formula used by members of this Court to summarize the parallel language in §§ 242 and 1983. [23] It is also true that the phrase 'under color of law' occurs in the debates on the 1871 Act, see n. 25, infra. But since in the original version of § 1983, as introduced and enacted, the word 'law' was the first word in the enumeration following 'color of,' [24] the use of 'under color of law' as a handy formula in debate is readily explained. More importantly, the phrase has never been taken to be a considered, comprehensive, and authoritative summation of the provisions of § 1983. As this Court said over a century ago and has since repeated, 'In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' United States v. Boisdore § Heirs, 8 How. 113, 122, 12 L.Ed. 1009 (1849) (Taney, C.J.,); Mastro Plastics Corp. v. NLRB, 350 U.S. 270, 285, 76 S.Ct. 349, 359, 100 L.Ed. 309 (1956); Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 592, 7 L.Ed.2d 492 (1962); Dandridge v. Williams, 397 U.S. 471, 517, 90 S.Ct. 1153, 1173, 25 L.Ed.2d 491 (1970) (Marshall, J., dissenting).

The legislative history of § 1983 provides no direct guidance for the interpretation of the phrase 'custom or usage.' Much of the lengthy debate concerned the truth of the allegations of KKK outrages and the constitutionality and wisdom of other sections of the Act. Little attention was given to the precise wording of § 1983, and there was no sustained discussion of the meaning of 'custom or usage.' [25] Consequently, in my view, we are called on to analyze the purposes Congress sought to achieve by enacting § 1983 in the context of the Civil Rights Act of 1871. Only by relating the phrase 'custom or usage' to congressional purposes can we properly interpret and apply the statutory language today.

In seeking to determine the purposes of § 1983, it is important to recall that it originated as part of a statute directed against the depredations of a private army. Cong. Globe, 42d Cong., 1st Sess., 339 (remarks of Rep. Kelley, a supporter of the bill). The Klan was recognized by Congress to be a widespread conspiracy 'operating wholly outside the law,' Jones v. Alfred H. Mayer Co., supra, 392 U.S., at 436, 88 S.Ct., at 2201, and employing a variety of methods to coerce Negroes and others to forgo exercise of civil rights theoretically protected by the Constitution and federal statutes. In some areas of the South the Klan was strong enough to paralyze the operations of state government. As Representative Coburn, a supporter of the bill, noted:

'Such, then, is the character of these outrages-numerous, repeated, continued from month to month and year to year, extending over many States; all similar in their character, aimed at a similar class of citizens; all palliated or excused or justified or absolutely denied by the same class of men. Not like the local outbreaks sometimes appearing in particular districts, where a mob or a band of regulators may for a time commit crimes and defy the law, but having every mark and attribute of a systematic, persistent, well-defined organization, with a fixed purpose, with a regular plan of action.

'The development of this condition of affairs was not the work of a day or even of a year. It could not be, in the nature of things; it must be slow; one fact to be piled on another, week after week, year after year. * * *

'Such occurrences show that there is a pre-concerted and effective plan by which thousands of men are deprived of the equal protection of the laws. The arresting power is fettered, the witnsesses are silenced, the courts are impotent, the laws are annulled, the criminal goes free, the persecuted citizen looks in vain for redress. This condition of affairs extends to counties and States; it is, in many places, the rule, and not the exception.' Cong. Globe, 42nd Cong., 1st Sess., 458-459.

See also id., at App. 172 (remarks of Sen. Pool, a supporter); id., at 653 (remarks of Sen. Osborn, a supporter); id., at 155-160 (remarks of Sen. Sherman, a supporter). Thus the mischief that the legislation of 1871 was intended to remedy derived, not from state action, but from concerted 'private' action that the States were unwilling or unable to cope with.

Senator Schurz, a moderate opponent who on behalf of the President had personally investigated the disorders in the South, summed up the condition to be dealt with:

'The real evil in the southern States you will find in the baffled pro-slavery tendency prevailing there; in a diseased public sentiment which partly vents itself in violent acts, partly winks at them, and partly permits itself to be overawed by them. That public sentiment is not only terrorizing timid people, but it is corrupting the jury-box, it is overawing the witness-stand, and it is thus obstructing the functions of justice.' Id., at 687.

Representative (later President) Garfield, a moderate supporter, focused more specifically on one of the principal evils § 1983 was designed to remedy:

'(T)he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, of a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them.' Id., at App. 153.

Accordingly, in his view, § 1983 was intended to provide a remedy in federal court for, inter alia, certain denials of equal protection that occurred even in States with just and equal laws when some private persons acted against others and the State failed to provide protection. Thus, both the House and the Senate were quite aware that the task before them was to device a scheme of remedies against privately instigated interference with the exercise of constitutional rights, through terror, force of numbers, concerted action, and other means.

The debates in both Houses also make it clear that many of those who gave the most careful attention to the conditions that called for the bill, to the provisions of the bill itself, and to the problems of constitutionality and policy it presented, did not think that in § 1983 the Federal Government undertook to provide a federal remedy for every isolated act by private persons that amounted to interference with the exercise of a constitutional right. See, e.g., id., at 578-579 (remarks of Sen. Trumbull, an opponent); id., at 514 (remarks of Rep. Poland, a supporter and conferee); id., at App. 153 (remarks of Rep. Garfield); id., at App. 79 (remarks of Rep. A. Perry, a supporter). [26] Where, for example, the injury to federal rights was the result of a genuinely individual act of private prejudice, then it could not be said that the state and local authorities were failing to give equal protection by countenancing major interference with the exercise of federal rights. Indeed, in most instances it could rightly be said that the acts of discrimination were isolated precisely because the State was affirmatively fulfilling its obligation to afford equal protection. In such circumstances no useful purpose would be served by providing a federal remedy for the isolated wrong, and the resulting federal intrusion into state affairs would be unjustified.

Near the conclusion of the debate, Rep. Garfield observed:

'I believe, Mr. Speaker, that we have at last secured a bill, trenchant in its provisions, that reaches down into the very heart of the Ku Klux organization, and yet is so guarded as to preserve intact the autonomy of the States, the machinery of the State governments, and the municipal organizations established under State laws.' Id., at 808.

This statute, 'trenchant' but measured, provided a scheme of three civil remedies, currently codified in §§ 1983, 1985, and 1986. In view of the purposes these remedies were designed to achieve, §§ 1983 would be read too narrowly if it were restricted to acts of state officials and those acting in concert with them. Congress did not say, 'Every state official and others acting in concert with him * * *'; Congress said, '(A)ny (now Every) person who, under color * * *' (emphasis added). Similarly, it would be read too broadly if interpreted to reach acts of purely individual discrimination. As I read § 1983 together with the other sections, against the background of the congressional debates, I understand them to protect the exercise of constitutional rights by reaching three kinds of interference that are sufficiently 'major' in their effects to have warranted congressional action.

The first category is that involving action under color of authority derived from state government and this category of invasions is clearly within § 1983. Where state officials of private persons acting consciously with state support participate in the interference with the exercise of federal rights, the interference assumes a far graver cast than it otherwise would have, and the authority of the State is brought into conflict with the authority of the Constitution. See, e.g., Monroe v. Pape, supra, 365 U.S. at 238, 81 S.Ct. at 511 (opinion of Frankfurter, J.).

The second category is that involving conspiracy, which is within the ambit of § 1985. It is well recognized in the criminal law that conspiratorial agreements for concerted action present aggravated dangers to society, see United States v. Rabinowich, 238 U.S. 78, 88, 35 S.Ct. 682, 684, 59 L.Ed. 1211 (1915); Pinkerton v. United States, 328 U.S. 640, 644, 66 S.Ct. 1180, 1182, 90 L.Ed. 1489 (1946); Krulewitch v. United States, 336 U.S. 440, 448-449, 69 S.Ct. 716, 720-721, 93 L.Ed. 790 (1949) (Jackson, J., concurring); Note, Developments in the Law-Criminal Conspiracy, 72 Harv.L.Rev. 920, 923-924 (1959), and for this general reason, as exemplified in the activities of the Ku Klux Klan, Congress provided for a civil remedy against conspiratorial interference with the right to equal protection. [27]

The third category is that where, in the absence of the overt elements of a conspiracy, constitutional rights are violated by widespread habitual practices or conventions regarded as prescribing norms for conduct, and supported by common consent, or official or unofficial community sanctions-in short, customs and usages. Where violation of constitutional rights is customary, the violation is, by definition, widespread and enduring, and therefore worthy of congressional response. As I read § 1983, that response was made in the provision of a remedy against

'(e)very person who, under color of any * * * custom, or usage, of any State * * * 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 * * *.' [28]

The excerpts from the congressional debate that I have quoted make clear that Congress wanted a civil remedy, not only against conspiratorial violence, but also against the perhaps more subtle but potentially more virulent customary infringements of constitutional rights. The Ku Klux Klan was an extreme reflection of broadly held attitudes toward Negroes and longstanding practices of denying them rights that the Constitution secured for all people. The fundamental evil was a 'diseased public sentiment' reflected in multifarious efforts to confine Negroes in their former status of inferiority. Accordingly, a statute designed to reach 'down into the very heart of the Ku Klux organization' had to deal with the widespread manifestations of that diseased public sentiment. Respect for constitutional rights was to be 'embodied not only in the laws, but intrenched in the daily habits of the American people * * *.' Cong. Globe, 42d Cong., 1st Sess., 339 (remarks of Rep. Kelley). Congress could not legislate popular sentiments, but in providing generally in the Ku Klux Klan Act for the protection of constitutional rights against major types of interference it could, and I think it did in § 1983, provide a remedy against violations that in particular States were so common as to be customary.

As this Court recently said in construing another of the early civil rights statutes, 'We think that history leaves no doubt that, if we are to give (the statute) the scope that its origins dictate, we must accord it a sweep as broad as its language.' United States v. Price, supra, 383 U.S. at 801, 86 S.Ct. at 1160. The language of § 1983 imposes no obstacle to an interpretation carrying out the congressional purposes I have identified. I think it clearly possible for a private person or entity like respondent to 'subject' a person or '(cause him) to be subjected * * * to the deprivation' of a constitutional right, as those quoted words are used in § 1983. In Monroe v. Pape, supra, we held that a cause of action was stated under § 1983 by an allegation that police officers invaded petitioners' home in violation of the Fourth and Fourteenth Amendments. Certainly if 'deprivation' in § 1983 means something like 'extinguishment,' then no cause of action could have been stated, for no policeman, nor even any state government as a whole, can extinguish a constitutional right, at least not while this Court sits. Cf. Panhandle Oil Co. v. State of Miss. ex rel. Knox, 277 U.S. 218, 223, 48 S.Ct. 451, 453, 72 L.Ed. 857 (Holmes, J., dissenting). [29] A constitutional right can be extinguished only by amendment of the Constitution itself. If 'deprivation' meant 'extinguishment,' § 1983-and also 18 U.S.C. § 242-would be a nullity. Thus all the cases finding violations of these sections must be taken to have held that 'deprivation' as used in these statutes means, not 'extinguishment,' but rather something like 'violation,' 'denial,' or 'infringement.' Cf. Jones v. Alfred H. Mayer Co., supra, 392 U.S., at 420-421, 88 S.Ct., at 2193-2194; Cong. Globe, 39th Cong., 1st Sess., 605 (remarks of Sen. Trumbull, manager of 1866 Civil Rights bill, on § 242). As the present case illustrates, it is possible for private action in some circumstances to constitute state action violating a constitutional right, and such action amounts to 'deprivation' within the meaning of § 1983.

In discussing petitioner's contention that respondent acted under color of state law I have already indicated my understanding of the words 'under color of.' See supra, at 211-212. I would apply that understanding here as well. I read 'custom, or usage' in § 1983 to mean what it has usually meant at common law-a widespread and longstanding practice, commonly regarded as prescribing norms for conduct, and backed by sanctions. See, e.g., Strother v. Lucas, 12 Pet. 410, 437, 445-446, 9 L.Ed. 1137 (1838); United States v. Arredondo, 6 Pet. 691, 713-714, 8 L.Ed. 547 (1832). The sanctions need not be imposed by the State. A custom can have the effect or force of law even where it is not backed by the force of the State. See, e.g., Adams v. Otterback, 15 How. 539, 545, 14 L.Ed. 805 (1854); Merchants' Bank v. State Bank, 10 Wall. 604, 651, 19 L.Ed. 1008 (1871); cf. Jones v. Alfred H. Mayer Co., supra, 392 U.S. at 423, 88 S.Ct., at 2194. [30] The power of custom to generate and impose rules of conduct, even without the support of the State, has long been recognized. See, e.g., Mercer County v. Hacket, 1 Wall. 83, 95, 17 L.Ed. 548 (1864); 1 W. Blackstone, Commentaries *64; B. Cardozo, The Nature of the Judicial Process 58-64 (1921). [31]

Of course, a custom or usage is within § 1983 only if it is a custom of a 'State or Territory.' It was recognized during the debate on the Ku Klux Klan Act that the word 'State' does not refer only to state government. In Texas v. White, 7 Wall. 700, 720-721, 19 L.Ed. 227 (1869), [32] decided just two years before the debate, this Court said of the word 'State' as used in the Constitution:

'It describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times it represents the combined idea of people, territory, and government.

'It is not difficult to see that in all these senses the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state.

'This is undoubtedly the fundamental idea upon which the republican institutions of our own country are established. * * *

'In the Constitution the term state most frequently expresses the combined idea just noticed, of people, territory, and government. A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed.'

This language was quoted in the debate. See Cong. Globe, 42d Cong., 1st Sess., App. 80 (remarks of Rep. A. Perry). When the word 'State' in § 1983 is so understood, then it is not at all strained or tortured-indeed, it is perfectly natural-to read 'custom' as meaning simply 'custom' in the enumeration 'statute, ordinance, regulation, custom, or usage, of any State.' Moreover, I agree with the Court that just as an ordinance can be state action, so, too, can a custom of a subdivision of a State be a custom 'of (a) State' for purposes of § 1983; and in my view a custom of the people living in a subdivision is a custom of the subdivision. Thus a person acts under color of a custom or usage of a State when there is among the people of a State or subdivision of a State a widespread and longstanding practice regarded as prescribing norms for conduct and supported by community sentiment or sanctions, and a person acts in accordance with this custom either from a belief that the norms it prescribes authorize or require his conduct or from a belief that the community at large regards it as authorizing or requiring his conduct. [33]

The Court eschews any attempt to interpret § 1983 against the background of a rational scheme of congressional purposes. Instead it relies basically on three sets of materials to support its restrictive interpretation of the statute. First are cases; some make casual use of the vague phrase 'under color of law' as a summation of the 'under color' language of § 1983, and the rest interpret the significance of custom either under an erroneous theory of constitutional law or outside the specific context of § 1983 altogether. I have already shown why these cases are hardly relevant, much less controlling, here. See supra, at 213-214 and n. 22. The Court's second set of authorities consists of three quotations from the legislative history purporting to explain the scope of § 1983. I have already shown that such quotations cannot be set up as a reliable guide to interpretation. See n. 25, supra. Given the demonstrable lack of consensus among the debaters on this precise issue, it is highly misleading to select two or three statements arguably favorable to one view and pronounce them authoritative. Moreover, as I have already indicated, see n. 25, supra, the remarks of Representative Shellabarger and Senator Edmunds consist merely of a handy formula for a debate not directed to matters of draftsmanship, and are themselves subject to varying interpretation.

Finally, the Court dwells on the relative lack of controversy over § 1983 in contrast to the heated debate over § 2 of the 1871 Act. However, despite Senator Edmunds' complacement prediction, § 1983 was opposed, and opposed vigorously. Senator Johnston commented, 'The Senator from Vermont (Senator Edmunds) said that there would be no objection to the first section of the bill. That section, in my view, has only the slight objection of being unconstitutional.' Cong. Globe, 42d Cong., 1st Sess., App. 215. Representative McHenry called § 1983 an 'outrage,' a 'flagrant infraction' of the Constitution. Id., at 429. Representative Edward Rice characterized it as bringing 'lambs to the slaughter'; it was, he said, 'a provision for dragging persons from their homes, from their neighbors, and from the vicinage of the witnesses for the redress of private grievances to the Federal courts.' Id., at 395. See also id., at App. 216-217 (remarks of San. Thurman).

Moreover, the Court does not adequately characterize the controversy over § 2 of the Act. As originally proposed, § 2 would have made a federal crime of any conspiracy in a State to commit an act that if committed on a federal enclave would constitute 'murder, manslaughter, mayhem, robbery, assault and battery, perjury, subornation of perjury, criminal obstruction of legal process or resistance of officers in discharge of official duty, arson, or larceny.' See id., at App. 68-69 (remarks of Rep. Shellabarger). Extreme opponents of the bill attacked this section, as they attacked other sections. Moderate opponents objected not because the section reached private conduct but because it ousted the States from a broad range of their criminal jurisdiction even where they were successfully meeting their constitutional obligation to provide equal protection. See, e.g., id., at 366 (remarks of Rep. Arthur, an opponent). Representative Garfield, for example, criticized the original § 2, see id., at App. 153, but praised and voted for the final bill, including § 2, which he understood to reach private conduct, see id., at 807, 808.

On its intrinsic merits, the Court's conclusion that custom 'for purposes of § 1983 must have the force of law' would be wholly acceptable if the phrase 'force of law' meant, as at common law, merely that custom must have the effect of law-that it be generally regarded as having normative force, whether or not enforced or otherwise supported by government. It is clear, however, that this is not the Court's meaning. The Court takes the position that custom can acquire the force of law only 'by virtue of the persistent practices of state officials.' Little in the debate supports this narrow reading of the statute. The statement by Representative Garfield on which the Court relies, ante, at 167, refers not merely to 'permanent and well-settled' official practices, but more broadly to 'systematic maladministration of (the laws), or a neglect or refusal to enforce' them. In short, under Representative Garfield's theory of the Equal Protection Clause, private customary violations of constitutional rights on the basis of race were denials of equal protection because of the failure of the State to prevent or remedy them. Mere state inaction converted customary private discrimination into a denial of equal protection, which Congress under §§ 1 and 5 had power to remedy. See also Cong. Globe, 42d Cong., 1st Sess., 333-334 (remarks of Rep. Hoar, a moderate supporter); id., at 375 (remarks of Rep. Lowe, a supporter). Our cases have never explicitly held that state inaction alone in the face of purely private discrimination constitutes a denial of equal protection. But cf. Burton v. Wilmington Parking Authority, supra, 365 U.S., at 725, 81 S.Ct., at 861; Catlette v. United States, 132 F.2d 902, 907 (C.A.4th Cir. 1943); Lynch v. United States, 189 F.2d 476 (C.A.5th Cir. 1951); Henkin, Shelley v. Kraemer: Notes for a Revised Opinion, 110 U.Pa.L.Rev. 473 (1962); see also supra, at 189. Nevertheless, the constitutional theory of the men who enacted § 1983 remains relevant for our interpretation of its meaning. Representative Garfield's theory of § 1 of the Fourteenth Amendment and of congressional power under §§ 1 and 5 had strong support in the debate. See Harris, supra, n. 26. Recognition of that theory-and a fortiori of the other principal theory among the bill's supporters, the radical view that the Fourteenth Amendment empowers Congress to assert plenary jurisdiction over state affairs, see ibid.-only provides further confirmation for the conclusion that 'custom' in § 1983 means custom of the people of a State, not custom of state officials.

Since this case is being remanded, I think it proper to express my views on the kinds of relief to which petitioner may be entitled if she should prevail on the merits.

Section 1983 in effect authorizes the federal courts to protect rights 'secured by the Constitution and laws' by invoking any of the remedies known to the arsenal of the law. Standards governing the granting of relief under § 1983 are to be developed by the federal courts in accordance with the purposes of the statute and as a matter of federal common law. See Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951); Monroe v. Pape, supra; Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967); Basista v. Weir, 340 F.2d 74, 85-87 (C.A.3d Cir. 1965); cf. Sullivan v. Little Hunting Park, 396 U.S. 229, 238-240, 90 S.Ct. 400, 405-406, 24 L.Ed.2d 386 (1969); J. I. Case Co. v. Borak, 377 U.S. 426, 433-434, 84 S.Ct. 1555, 1560 1561, 12 L.Ed.2d 423 (1964). Of course, where justice requires it, federal district courts are duty-bound to enrich the jurisprudence of § 1983 by looking to the remedies provided by the States wherein they sit. 42 U.S.C. § 1988. But resort to state law as such should be had only in cases where for some reason federal remedial law is not and cannot be made adequate to carry out the purposes of the statute.

Section 1983 does not in general impose strict liability on all who come within its prohibitions; certain broad immunities are recognized. See Tenney v. Brandhove, supra; Monroe v. Pape, supra, 365 U.S. at 187-192, 81 S.Ct., at 484-487; Pierson v. Ray, supra, 386 U.S. at 553-555, 87 S.Ct., at 1217-1218. In some types of cases where the wrong under § 1983 is closely analogous to a wrong recognized in the law of torts, it is appropriate for the federal court to apply the relevant tort doctrines as to the bearing of particular mental elements on the existence and amount of liability. See, e.g., Pierson v. Ray, supra; Whirl v. Kern, 407 F.2d 781 (C.A.5th Cir. 1969). In other types of cases, however, the common law of torts may be divided on important questions of defenses and relief, or it may be inadequate to carry out the purposes of the statute. Thus the common law is not an infallible guide for the development of § 1983. In particular, denial of equal protection on the basis of race was the central evil that § 1983 was designed to stamp out. Where that is the basis for recovery, relief should not depend on the vagaries of the general common law but should be governed by uniform and effective federal standards.

The appropriateness of any particular remedy in a given case depends on the circumstances of that case, and especially on the degree of culpability of the defendant. In my view, where a plaintiff shows a voluntary denial of equal protection on the ground of race amounting to a violation of § 1983 he is entitled to recover compensation for actual damages, if any, simply on the basis of the proved violation. The question of compensatory damages is one of allocation of actual loss, and, as between the innocent plaintiff and the defendant who deliberately discriminates on the basis of race, I think it just and faithful to the statutory purposes to impose the loss on the discriminator, even if he was unaware that his discrimination constituted state action denying equal protection. Proof of an evil motive or of a specific intent to deprive a person of a constitutional right is generally not required under § 1983. Monroe v. Pape, supra, 365 U.S. at 183-187, 81 S.Ct., at 481-484; Whirl v. Kern, supra. And, indeed, in Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759 (1927), and Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939), this Court upheld complaints seeking $5,000 recoveries from state election officials who merely carried out their official duty to prevent the plaintiffs from voting under discriminatory state statutes which made them ineligible to vote. Of course, there may be cases where it would be proper to give declaratory or injunctive relief without damages. See Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 370, 293 F.2d 835, 847 (1961) (Bazelon, J., dissenting).

To recover punitive damages, I believe a plaintiff must show more than a bare violation of § 1983. On the other hand, he need not show that the defendant specifically intended to deprive him of a recognized federal right, as is required by the word 'willfully' in 18 U.S.C. § 242, see Screws v. United States, supra. Nor need he show actual damages. Basista v. Weir, supra, 340 F.2d at 87-88; Tracy v. Robbins, 40 F.R.D. 108, 113 (D.C.S.C.1966). It is sufficient for the plaintiff to show either that the defendant acted 'under color of (a) statute, ordinance, regulation, custom, or usage of any State or Territory,' with actual knowledge that he was violating a right 'secured by the Constitution and laws,' or that the defendant acted with reckless disregard of whether he was thus violating such a right. Cf. C. McCormick, Handbook on the Law of Damages § 79 (1935). However, in my view, a proprietor of a place of public accommodation who discriminates on the basis of race after our decision in Peterson v. City of Greenville, supra, and the enactment of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a to 2000h-6, does so with reckless disregard as a matter of law, and therefore may be found liable for punitive damages. [34] Of course, it is proper for the factfinder to consider the degree of recklessness or actual knowledge and other circumstances in assessing the amount of punitive damages to award in a particular case.

It may be argued that it is inequitable to impose punitive damages on a defendant, a restaurateur for example, who knowingly or recklessly violates a constitutional right and § 1983 out of fear that he will lose some of his customers if he does not. That argument is plainly unacceptable. The protection of constitutional rights may not be watered down because some members of the public actively oppose the exercise of constitutional rights by others. Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). To give any weight at all to that argument would be to encourage popular opposition to compliance with the Constitution. Moreover, the argument is particularly devoid of merit in the context of § 1983, which was enacted by a Congress determined to stamp out widespread violations of constitutional rights at virtually any cost, and which imposed liability even on persons who simply failed to prevent certain violations. See Cong. Globe, 41st Cong., 1st Sess., 804 (remarks of Rep. Poland). If § 1983 is given an interpretation befitting its purposes, the threat of withdrawal of patronage will be largely empty since no other place of public accommodation in the community will be in a better position to discriminate. The prospect of substantial punitive damages may be the most effective means to persuade all proprietors of places of public accommodation to respect constitutional rights.


^1  The Federalist, No. 15:

'It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. If there be no penalty annexed to disobedience, the resolutions or commands which pretend to be laws will, in fact, amount to nothing more than advice or recommendation. This penalty, whatever it may be, can only be inflicted in two ways: by the agency of the courts and ministers of justice, or by military force; by the COERCION of the magistracy, or by the COERCION of arms.'

^2  B. Malinowski, Crime and Custom in Savage Society 66-67 (1962).

^4  Section 2 of the 1866 Act, which we discussed in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 424-426, 88 S.Ct. 2186, 20 L.Ed.2d 1189, made it a criminal offense for any person 'under color of any law, statute, ordinance, regulation, or custom' to subject any inhabitant of 'any State or Territory to the deprivation of any right secured or protected by this act.' The direct descendant of § 2 is 18 U.S.C. § 242, which, in an earlier form, was before the Court in United States v. Classic, 313 U.S. 299, 61 S.Ct. 1031, 85 L.Ed. 1368, and Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495, Section 242 provides:

'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, or to different punishments, pains, or penalties, on account of such inhabitant being an alien, or by reason of his color, or race, than are prescribed for the punishment of citizens, shall be fined not more than $1,000 or imprisoned not more than one year, or both.' (Emphasis added.)

Section 1983 of 42 U.S.C. provides a civil remedy. It reads:

'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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.' (Emphasis added.)

^5  The meaning of 'under color of * * * custom' was not before the Court in Jones v. Alfred H. Mayer Co., and language from the Court's opinion in that case, taken out of context, can be highly misleading. For example, the language quoted in n. 26 of the Court's opinion in this case distinguished 'private violations' covered by § 1 of the 1866 Act from 'deprivations perpetrated 'under color of law" covered by § 2 of the Act. The Court here interprets that use of the phrase 'under color of law' to exclude actions taken 'under color of * * * custom' sans state action. A more realistic interpretation of the quoted language, however, is that 'under color of law' was merely being used by the Court as a shorthand phrase for 'under color of any statute, ordinance, regulation, custom, or usage, of any State,' and that the Court, without in any way addressing the question of the meaning of 'custom,' was merely using the phrase to distinguish purely private violations.

^6  The trial court restricted the evidence on custom to that which related to the specific practice of not serving white persons who were in the company of black persons in public restaurants. Such evidence was necessarily limited, as the Court points out, by the fact that it was only after the Civil Rights Act of 1964 went into effect that blacks could be served in "white' restaurants' in Mississippi at all. Although I agree with my Brother BLACK that the evidence introduced under this narrow definition of custom, as outlined in his opinion, was sufficient to require a jury trial on that question, I also agree with the Court's conclusion that the definition employed by the trial court was far too restrictive. Petitioner argued that the relevant custom was the custom against integration of the races, and that the refusal to serve a white person in the company of blacks was merely a specific manifestation of that custom. I think that petitioner's definition of custom is the correct one. There is abundant evidence in the record of a custom of racial segregation in Mississippi, and in Hattiesburg in particular. In fact the trial judge conceded, 'I certainly don't dispute that it could be shown that there was a custom and usage of discrimination in the past. * * * It is certainly a way of life so far as the people in Mississippi were concerned.'

^7  This case concerns only the meaning of 'custom * * * of any State' as those words are used in § 1983. It does not involve the question whether under certain circumstances 'custom' can constitute state action for purposes of the Fourteenth Amendment. See Garner v. Louisiana, supra, 368 U.S. at 178-179, 82 S.Ct. at 259-260 (concurring opinion).

^1  I do not agree with the statement on page 150 of the Court's opinion that the 'second element (of § 1983) requires that the plaintiff show that the defendant acted 'under color of law." See Part II, infra.

^2  Section 2046.5 reads as follows:

'1. Every person, firm or corporation engaged in any public business, trade or profession of any kind whatsoever in the State of Mississippi, including, but not restricted to, hotels, motels, tourist courts, lodging houses, restaurants, dining room or lunch counters, barber shops, beauty parlors, theatres, moving picture shows, or other places of entertainment and amusement, including public parks and swimming pools, stores of any kind wherein merchandise is offered for sale, is hereby authorized and empowered to choose or select the person or persons he or it desires to do business with, and is further authorized and empowered to refuse to sell to, wait upon or serve any person that the owner, manager or employee of such public place of business does not desire to sell to, wait upon or serve. * * *

'2. Any public place of business may, if it so desires, display a sign posted in said place of business serving notice upon the general public that 'the management reserves the right to refuse to sell to, wait upon or serve any person,' however, the display of such a sign shall not be a prerequisite to exercising the authority conferred by this act.

'3. Any person who enters a public place of business in this state, or upon the premises thereof, and is requested or ordered to leave therefrom by the owner, manager or any employee thereof, and after having been so requested or ordered to leave, refuses so to do, shall be guilty of a trespass and upon conviction therefor shall be fined not more than five hundred dollars ($500.00) or imprisoned in jail not more than six (6) months, or both such fine and imprisonment. * * *

^3  The Court found state action on a different ground.

^4  Miss.Laws 1956, c. 466, Senate Concurrent Resolution No. 125.

^5  E.g., Miss.Laws 1956, cc. 258-260 (now Miss.Code. Ann. §§ 7787.5, 2351.5, 2351-7).

^6  E.g., Miss.Laws 1956, c. 254 (now Miss.Code Ann. § 4065.3). See Inaugural Address of former Governor James P. Coleman, Miss. House Journal 59, 65-68 (1956). See also Miss.Code Ann. § 4065.4 (enacted 1962).

^7  The 1956 session of the Mississippi Legislature produced many statutes and resolutions, including § 2046.5, dealing with the separation of the races. Under the heading 'Segregation' in the index to the General Laws volume for that session there is a cross-reference to 'Races.' In addition to § 2046.5, Miss.Laws 1956, c. 257, the following chapters of the General Laws of Mississippi, all enacted during February, March, and April, 1956, are cited under that heading:

(1) Chapter 241 (maximum ten-year penalty for incestuous or interracial marriage);

(2) Chapter 253 (now Miss.Code Ann. §§ 2049-01 to 2049-08) (act 'to prohibit the fomenting and agitation or litigation');

(3) Chapter 254 (now Miss.Code Ann. § 4065.3) ('entire executive branch' of state government 'to prohibit by any lawful * * * means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly');

(4) Chapter 255 (now Miss.Code. Ann. § 8666) (standards for admitting foreign lawyers to practice of Mississippi);

(5) Chapter 256 (now Miss.Code Ann. § 2090.5) (act 'to prohibit any person from creating a disturbance or breach of the peace in any public place of business');

(6) Chapter 258 (now Miss.Code Ann. § 7787.5) (act 'to require railroad companies, bus companies and other common carriers, of passengers owning, operating or leasing depots, bus stations or terminals to provide separate accommodations (sic) for the races traveling in intrastate travel');

(7) Chapter 259 (now Miss.Code Ann. § 2351.5) (act 'to require railroad companies, but companies or other common carriers for hire maintaining and operating waiting rooms for passengers to provide separate toilet facilities for the races traveling in intrastate travel');

(8) Chapter 260 (now Miss.Code Ann. § 2351.7) (act 'to require all persons traveling in intrastate travel to use and occupy the waiting rooms marked and provided for such persons; to prohibit persons traveling in intrastate travel from entering and using the waiting rooms not marked and provided for such persons');

(9) Chapter 261 (act 'to prohibit the use of profane, vulgar, indecent, offensive, slanderous language over a telephone');

(10) Chapter 273 (separate schools to be maintained for white and black children) (see Miss.Code Ann. § 6220.5 (unlawful for whites to attend integrated schools));

(11) Chapter 288 (repeal of compulsory education laws);

(12) Chapter 365 (now Miss.Code Ann. §§ 9028-31 to 9028-48) (creation of state sovereignty commission);

(13) Chapter 466 (Senate Concurrent Resolution No. 125 'condemning and protesting' Brown v. Board of Education).

In addition to the foregoing enactments of 1956, numerous other statutes, in force in 1956 and not thereafter repealed, manifest Mississippi's segregation policies. See, e.g., Miss.Code Ann. § 2339 (punishment for those guilty of 'printing, publishing or circulating * * * matter urging or presenting for public acceptance or general information, arguments or suggestions in favor of social equality or of intermarriage between whites and negroes'). Other provisions purport to require segregation in taxicabs (except for servants) (Miss.Code Ann. § 3499); in the State Insane Hospital (Miss.Code Ann. §§ 6882, 6883); and in schools (Miss.Const., Art. 8, § 207).

^8  Miss.Laws 1954, c. 20, Miss.Code Ann. § 2056. The explicit reference to segregation was omitted from the 1968 reenactment of the conspiracy statute. Miss.Code Ann. § 2056 (Supp.1968).

^9  E.g., Miss.Code Ann. §§ 2087.5, 2087.7, 2089.5 (enacted 1960); § 2087.9 (enacted 1964).

^10  See generally Bailey v Patterson, 323 F.2d 201 (C.A.5th Cir.1963).

^11  Cf. United States v. City of Jackson, 318 F.2d 1, 6-7 (C.A.5th Cir.1963), involving segregation in railroad and bus terminals, where the Court of Appeals noted that 'one of the sophisticated methods for circumventing the law is for local police to eschew 'segregation' laws, using in their place conventional breach of peace or trespass laws as instruments for enforcing segregation, euphemistically termed 'separation." See also Lewis v. Greyhound Corp., 199 F.Supp. 210 (D.C.M.D.Ala.1961); Bailey v. Patterson, 199 F.Supp. 595, 609-622 (D.C.S.D.Miss.1961) (Rives, J., dissenting), vacated and remanded 369 U.S. 31, 82 S.Ct. 549, 7 L.Ed.2d 512 (1962).

^12  See Donnell v. State, 48 Miss. 661, 680-681 (1873):

'Among those customs which we call the common law, that have come down to us from the remote past, are rules which have a special application to those who sustain a quasi public relation to the community. The wayfarer and the traveler had a right to demand food and lodging from the inn-keeper; the common carrier was found to accept all passengers and goods offered for transportation, according to his means. Soo, (sic) too, all who applied for admission to the public shows and amusements, were entitled to admission, and in each instance, for a refusal, an action on the case lay, unless sufficient reason were shown. The (state civil rights) statute deals with subjects which have always been under legal control.'

^13  The state civil rights law of 1873 took the form of an amendment to Miss.Rev. Code §§ 2731, 2732 (1871), which forbade, inter alia, segregation of the races on railroads, stage coaches, and steamboats. None of the provisions of the amended statutes, though apparently never explicitly repealed, appear in the 1880 Mississippi Code or in subsequent codifications of state law. In 1888 the Mississippi Legislature enacted a criminal statute that provided that 'all railroads * * * shall provide equal but separate accommodations for the white and colored races' and that all prior statutes in conflict therewith were repealed pro tanto. Miss.Laws 1888, c. 27.

^14  Also see McCabe v. Atchison, Topeka & Santa Fe R. Co., 235 U.S. 151, 35 S.Ct. 69, 59 L.Ed. 169 (1914); Evans v. Abney, 396 U.S. 435, 457-458, 90 S.Ct. 628, 639-640, 24 L.Ed.2d 634 (1970) (Brennan, J., dissenting); Evans v. Newton, 382 U.S. 296, at 302-312, 86 S.Ct. 486, at 495, 15 L.Ed.2d 373 (opinion of White, J.); Burton v. Wilmington Parking Authority, supra, 365 U.S., at 726-727, 81 S.Ct., at 862-863 (Stewart, J., concurring). See also Mulkey v. Reitman, supra.

^15  As originally enacted, § 1 of the 1871 Act provided:

'That any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States to the deprivation of any rights, privileges, or immunities

secured by the Constitution of the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proper proceeding for redress; such proceeding to be prosecuted in the several district or circuit courts of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts, under the provisions of the act of the ninth of April, eighteen hundred and sixty-six, entitled 'An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication'; and the other remedial laws of the United States which are in their nature applicable in such cases.'

Section 1983 presently provides:

'Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, 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.'

The language was changed without comment into its present form when § 1 was codified in 1874 as Revised Statutes § 1979. See id.; 1 Revision of U.S. Statutes, Draft 947 (1872). The jurisdictional provisions of the 1871 Act now appear in 28 U.S.C. § 1343. For purposes of this opinion I assume that the linguistic differences between the original § 1 and present § 1983 are immaterial. See Monroe v. Pape, 365 U.S. 167, 212-213, 81 S.Ct. 473, 497-498, 5 L.Ed.2d 492, n. 18 (1961) (opinion of Frankfurter, J.); cf. Jones v. Alfred H. Mayer Co., 392 U.S. 409, at 422-423, 88 S.Ct. 2186, at 2194-2195, 20 L.Ed.2d 1189, n. 29 (1968).

^16  The military remedy, designed to become available when the other remedies were inadequate, was created by § 3 of the 1871 Act, now 10 U.S.C. § 333. See generally Comment, Federal Intervention in the States for the Suppression of Domestic Violence: Constitutionality, Statutory Power, and Policy, 1966 Duke L.J. 415.

^17  Numerous other criminal and civil remedies had been created by prior civil rights acts, principally to protect voting rights. See § 6 of the 1866 Act, 14 Stat. 28; §§ 2, 3, 4, 5, 7, 11, 15, 19, 20, and 22 of the 1870 Act, 16 Stat. 140 et seq.; §§ 1, 10, and 11 of the Act of Feb. 28, 1871, 16 Stat. 433, 436, 437. All of these statutes have been repealed, see 28 Stat. 36 (1894); 35 Stat. 1088, 1153 (1909), some after having been declared unconstitutional. See, e.g., United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 (1876) (ss 3, 4 of 1870 Act held unconstitutional); James v. Bowman, 190 U.S. 127, 23 S.Ct. 678, 47 L.Ed. 979 (1903) (§ 5 of 1870 Act held unconstitutional).

^18  See generally Gressman, The Unhappy History of Civil Rights Legislation, 50 Mich.L.Rev. 1323 (1952).

^19  Guest was an appeal from the dismissal of an indictment for failure to state an offense under the laws of the United States.

^20  See generally Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv.L.Rev. 91 (1966).

^21  For purposes of this part of the opinion I put aside petitioner's allegation of a conspiracy.

^22  Mr. Justice Frankfurter made a passing reference to 'custom' in his separate opinion in Monroe v. Pape, supra, 365 U.S. at 246, S.Ct., at 515-516; see infra, at 216, n. 25. In the lower courts the phrase 'custom or usage' has not received thorough consideration and has been given different inter-

pretations. Compare Williams v. Hot Shoppes, Inc., 110 U.S.App.D.C. 358, 363-364, 293 F.2d 835, 840-841 (1961) with Gannon v. Action, 303 F.Supp. 1240 (D.C.E.D.Mo.1969). In the Hot Shoppes case, the court construed 'custom or usage' to include a state-action requirement; but it did so solely on the basis of doubts about congressional power to reach private interference with Fourteenth Amendment rights. Those doubts have now been completely removed by decisions of this Court. See Supra, at 208 210. In two other cases, Williams v. Howard Johnson's, Restaurant, 260 F.2d 845 (C.A.4th Cir. 1959), and Williams v. Howard Johnson's, Inc., 323 F.2d 102 (C.A.4th Cir. 1963), on subsequent appeal sub nom. Williams v. Lewis, 342 F.2d 727 (C.A.4th Cir. 1965) (en banc), the Court of Appeals for the Fourth Circuit held that private custom and usage did not amount to state action. In each case the court dealt with custom and usage under the first element of § 1983-deprivation of a constitutional right-and not under the second element-action under color of statute, ordinance, regulation, custom, or usage. Those two decisions were constructions of the Equal Protection Clause, not of § 1983. The same is true of Slack v. Atlantic White Tower System, 181 F.Supp. 124 (D.C.Md.), aff'd, 284 F.2d 746 (C.A.4th Cir. 1960), cited by the Court. Moreover, in that case the court had no occasion to consider the elements of a § 1983 custom, because it took judicial notice of reports showing that in the defendant's area there was in fact no custom of restaurant segregation in any sense. See 181 F.Supp., at 126.

^23  As presently codified, § 242 begins:

'Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State, Territory, or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States * * *.'

This language differs from the comparable language of § 1983; n. 15, supra, in several respects. For example: 'law' precedes 'statute' in § 242, but not in § 1983; 'or usage' follows 'custom' in § 1983, but not in § 242; the entire enumeration 'statute * * * usage' is qualified by 'of any State or Territory' in § 1983, but not in § 242; § 1983 refers to rights that are 'secured,' whereas § 242 refers to rights 'secured or protected'; § 1983 covers rights secured 'by the Constitution and laws' (emphasis added), whereas § 242 covers rights secured or protected 'by the Constitution or laws of the United States' (emphasis added); § 242 reaches only acts done 'willfully,' but § 1983 is not so limited. As originally enacted, § 1983 was modeled on the precursor of § 242, with differences of coverage not material here. See Cong.Globe, 42d Cong., 1st Sess., App. 68 (remarks of Rep. Shellabarger). Apart from the inclusion of the word 'willfully' in § 242, see Monroe v. Pape, supra, at 187, 81 S.Ct., at 484, the linguistic differences memtioned here have not been thought to be substantive. See, e.g., id., at 185, 81 S.Ct., at 483; id., at 212 213, 81 S.Ct. at 497-498, n. 18 (opinion of Frankfurter, J.); United States v. Price, supra, 383 U.S., at 794, 86 S.Ct., at 1157 n. 7.

^24  See n. 15, supra.

^25  The legislative history concerning the precise congressional understanding of 'custom or usage' is inconclusive. At least four possible interpretations were suggested. Representative Blair, an opponent of the bill, argued that § 1983 operated only against state legislation and as such would be a nullity. See Cong. Globe, 42d Cong., 1st Sess., App. 209; see also id., at App. 268 (remarks of Rep. Sloss, an opponent). Our cases squarely reject any such limited construction of § 1983. See, e.g., Monroe v. Pape, supra. A second view was that § 1983 reached deprivations of constitutional rights under 'color of law.' See, e.g., id., at App. 68 (remarks of Rep. Shellabarger); id., at 568 (remarks of Sen. Edmunds); but see id., at 697-698 (remarks of Sen. Edmunds). Since Representa-

tive Shellabarger and Senator Edmunds were the managers of the bill, their commentary would ordinarily be entitled to great weight; but at no point did either explain what he meant by 'color of law.' Representative Kerr, an opponent, employed the formula 'color of state laws,' but predicted that § 1983 would give rise to a flood of litigation involving all types of injury to person or property. See id., at App. 50. A third view was reflected in the comment of Senator Thurman, an opponent, who said in passing that § 1983 'refers to a deprivation under color of law, either statute law or 'custom or useage' which has become common law.' Id., at App. 217. There is little or no further support in the debate for this reading of the statute, thought it apparently was adopted without discussion by Mr. Justice Frankfurter, see Monroe v. Pape, supra, 365 U.S., at 246, 81 S.Ct., at 515-516 (opinion of Frankfurter, J.). The precise meaning of Senator Thurman's formula is unclear. He may have been referring to customs that had been expressly recognized and approved by state courts, or he may have had in mind the ancient principle that a general custom as such 'is really a part of the common law itself.' Louisville & Nashville R. Co. v. Reverman, 243 Ky. 702, 707, 49 S.W.2d 558, 560 (1932). See 1 W. Blackstone, Commentaries **68-74. Moreover, Senator Thurman joined several others in taking a fourth position: that § 1983 reaches private persons. See id., at App. 216-217 (remarks of Sen. Thurman); id., at App. 215 (remarks of Sen. Johnston, an opponent); id., at 429 (remarks of Rep. McHenry, an opponent); id., at 395 (remarks of Rep. Rice, an opponent); cf. id., at 804 (remarks of Rep. Poland, a supporter and conferee). Other speeches during the debate and consideration of the purposes of the statute make it clear that Congress did not intend to reach every private interference with a constitutional right. See infra, at 219-220. Finally, two members of the House expressed a view compatible with any of the preceding positions: they thought the principal effect of § 1983 was to remove the possible defense that the defendant acted under state authority. See id., at 416 (remarks of Rep. Biggs, an opponent); id., at App. 310 (remarks of Rep. Maynard, a supporter).

Section 1983 was patterned after § 2 of the Civil Rights Act of 1866, 14 Stat. 27. See Cong.Globe, 42d Cong., 1st Sess., App. 68 (remarks of Rep. Shellabarger). The legislative history of the latter

section is no more enlightening on the precise meaning of 'under color of any law, statute, ordinance, regulation, or custom' than are the comments on the similar language in § 1983. See Cong.Globe, 39th Cong., 1st Sess., 1680 (veto message of President Johnson); Id., at 1120 (remarks of Rep. Loan, a supporter, and Rep. J. Wilson, a manager); id., at 1778 (remarks of Sen. Johnson, an opponent); id., at 1785 (remarks of Sen. Stewart, a supporter); id., at 475, 500, 1758 (remarks of Sen. Trumbull, a manager).

Similar language appeared in § 8 of the Freedmen's Bureau bill, which was also debated at the first session of the 39th Congress. In addition, the word 'custom' appeared in § 7 of the bill. See id., at 209. However, the precise language of both sections received virtually no attention during debate. There was, though, some indication that custom was recognized as different from law. See id., at 318 (remarks of Sen. Hendricks, an opponent). See also n. 29, infra.

^26  See generally R. Harris, The Quest for Equality 44-50 (1960).

^27  I consider the narrow construction given to § 1985 in Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253 (1951), as no longer binding. See supra, at 206-210.

^28  Section 1986 fits into this legislative scheme by providing a remedy against individuals who share responsibility for conspiratorial wrongs under § 1985 by failing to make reasonable use of their power to prevent the perpetration of such wrongs.

^29  I think this is also an adequate answer to the argument made in the Civil Rights Cases, supra, 109 U.S., at 17, 3 S.Ct., at 25, that a private party differs from a State in that the former cannot, whereas the latter can, deprive a person of a constitutional right in the sense of extinguishing that right. Neither a private person nor a State can extinguish or impair a constitutional right, although a State can certainly violate, infringe, or fail to protect a constitutional right. A private person can violate or infringe a constitutional right when, due to some factual circumstances, his action constitutes state action, or when his wholly private conduct violates some constitutional prohibition of such conduct, e.g., § 1 of the Thirteenth Amendment. Cf. Civil Rights Cases, supra, at 20, 3 S.Ct., at 27; Clyatt v. United States, 197 U.S. 207, 216, 25 S.Ct. 429, 430, 49 L.Ed. 726 (1905); Bailey v. Alabama, 219 U.S. 219, 241, 31 S.Ct. 145, 151, 55 L.Ed. 191 (1911). A private person can also, of course, by wholly private conduct interfere with the exercise or enjoyment of constitutional rights that run only against the States. United States v. Guest, supra, 383 U.S., at 774-784, 86 S.Ct., at 1186-1192 (opinion of Brennan, J.). Thus interference can occur even where there has been no violation of the constitutional right by a party having a duty correlative to it.

^30  In Jones v. Alfred H. Mayer Co., supra, 392 U.S. at 423, 88 S.Ct., at 2194 n. 30, the Court noted that the same session of Congress that passed the Civil Rights Act of 1866 also passed a Freedmen's Bureau bill, § 7 of which extended military jurisdiction over parts of the South where 'in consequence of any State or local law, ordinance, police, or other regulation, custom, or prejudice, any of the civil rights * * * belonging to white persons * * * are refused or denied to (N)egroes * * * on account of race, color, or any previous condition of slavery or involuntary servitude * * *.' See Cong.Globe, 39th Cong., 1st Sess., 209, 318. The Court pointed out that although the bill was vetoed by President Johnson, it 'was nonetheless significant for its recognition that the 'right to purchase (property)' was a right that could be 'refused or denied' by 'custom or prejudice' as well as by 'State or local law." The Court also observed: 'Of course an 'abrogation of civil rights made 'in consequence of * * * custom, or prejudice' might as easily be perpetrated by private individuals or by unofficial community activity as by state officers armed with statute or ordinance."

^31  I agree with the Court, for the reasons stated in its opinion, that the relevant custom in this case would be one of segregating the races in dining facilities, rather than one of refusing to serve white persons in the company of Negroes. Of course, I do not agree that the custom must be shown to have been 'state enforced.'

^32  Texas v. White was overruled on an unrelated issue in Morgan v. United States, 113 U.S. 476, 496, 5 S.Ct. 588, 595, 28 L.Ed. 1044 (1885). Thereafter, it was quoted approvingly on the meaning of 'State' in McPherson v. Blacker, 146 U.S. 1, 25, 13 S.Ct. 3, 6, 36 L.Ed. 869 (1892).

^33  It is only superficially odd that a violation of a constitutional right may be actionable under § 1983 if the violation occurs in one State where there is a custom, but not in another State where there is not. In both cases it would be just to impose liability on the violator. However, Congress was interested in providing a remedy only against what I have called 'major' violations, and it is for that reason that liability may vary from one State to another. Similarly, privately chosen discrimination will constitute state action in some States, but not in others, depending on the public policies of the different States. That result, too, is dictated by sound considerations of principle and policy, though reflected in the Constitution rather than in a statute.

^34  Moreover, there was evidence below that respondent's attention was expressly called to the Civil Rights Act.

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).