1. Lecture 46 Discrimination X
State Action Requirement

2. This Lecture Pages 706-716 State Action Requirement
Shelley v. Kraemer (1948)
Burton v. Wilmington Parking Authority (1961)
Moose Lodge No. 107 v. Irvis (1972)

3. State Action Who is doing the discriminating?
Civil Rights Cases (1883)
Constitution does not prohibit discrimination purely in the private sector
Therefore, one needs to show some state or federal involvement
But what about restrictive covenants?
This was a way of getting around the state doing the discriminating
These were very effective in keeping neighborhoods white

4. Shelley v. Kraemer (1948) Background
The Shelleys moved from Mississippi to St. Louis after WWII
They moved into a mostly white neighborhood
They were asked by other homeowners shortly after moving there to move based on a 1911 restrictive covenant requiring the property to be occupied only by whites for 50 years
This was binding on all future owners
The white neighbors asked that it be enforced
The Missouri Supreme Court agreed
They appealed, represented by Thurgood Marshall and the NAACP LDF
The Justice Department joined with Marshall

5. Shelley v. Kraemer- II Arguments For Shelleys For the White Neighbors
A contract that denies the right to acquire occupy or use property on the basis of race is unenforceable
State interference in property rights on the basis of race is not a legitimate police power
It becomes a state action when the state is asked to enforce it
For the White Neighbors
This does not violate any state or federal law
This is solely a contract between individuals not subject to the 14th Amendment
Overruling the Missouri Supreme Court would mean that the state could not be asked to enforce contracts, thus denying rights to owners

6. Shelley v. Kraemer- III Vinson, C.J. for a 6-0 Court
Jackson, Rutledge, and Reed, JJ. recused
Standing alone, the contract is not subject
However, it can have a state action attached when the state is asked to help enforce them
They are using the state to enforce, thus the state is helping to deny rights
It is when the persons ask the state to enforce when it becomes an issue
The state is thus trying to deny Equal Protection by asking to enforce
This did not mean all restrictive covenants were going to be void only when they try to have the state help to enforce it

7. Burton v. Wilmington Parking Authority (1961)
Background
Burton parked in a city owned garage and was denied service at a coffee shop located inside due to being black
The coffee shop was privately owned but was leased by the city
State law said they could deny service to anyone that the majority of customers might find offensive or would injure the business
The parking authority said the discrimination was private and they had no involvement
The Delaware Supreme Court ruled in favor of the coffee shop, saying this was a purely private entity

8. Burton v. Wilmington Parking Authority- II
Arguments
For Burton
The city is not exempt by the lease to a private party
This is still racial discrimination with public funds
The shop is not completely private since it is on public space
The state is involved because they authorized the discrimination
For the Wilmington Parking Authority and the Eagle Coffee Shoppe
The actions are of a completely private entity, meaning the 14th Amendment does not apply
The city has not authority over the shop by any means
A private entity does not become part of the state by a mere lease

9. Burton v. Wilmington Parking Authority- III
Clark, J. for a 6-3 Court
He sides with Burton
Notes that the land and space is publicly owned and for public use
Use of essential governmental functions
Profits may be earned by the business by discrimination
The city and business are interdependent because of their arrangement
When ever the state leases property it is subject to the 14th Amendment

10. Moose Lodge No. 107 v. Irvis (1972)
Background
The Moose Lodge is a private club
A member and a guest entered a lodge in Harrisburg
They were refused service because the guest was black
The national rules permitted service only to whites and white guests
Irvis was a Pennsylvania member of the Legislature
He sued based on state action of the state issuing a liquor license
He wins at the district level and the Moose appeals

11. Moose Lodge No. 107 v. Irvis- II
Arguments
For the Moose Lodge
The Moose is a private club and can choose who and who not it lets in
It is not a public accommodation nor does it try to be that way
Granting of a liquor license does not turn it into a state actor
For Irvis
The state approves of the operation by granting a liquor license
It is a state endorsement because there are a limited number of licenses to be granted
The license gives the lodge preferences and that makes the state a party to discrimination

12. Moose Lodge No. 107 v. Irvis- III
Rehnquist, J. for a 6-3 Court
He notes the very private and non-public nature of the Moose Lodge
Does not buy the liquor license argument not subject to 14th Amendment
There is nothing to tie this Moose to anything public
The Liquor Control Board has nothing to do with its membership
This does not encourage racial discrimination
They are not subject then
They also said by getting public services as a way to show state action, it would mean regulation of every private club

13. Moose Lodge No. 107 v. Irvis- IV
Brennan, J. dissenting
He thinks the liquor license scheme does equal state action
It is intertwined with the business model
Granting them the license works to promote discrimination

14. Moose Lodge No. 107 v. Irvis- V
Note- The Moose Lodge has changed its policies
Took away charter from local lodges that tried to deny black membership in 1994
But in a case from Maine, the Court said states can tie a liquor license to non- discriminatory policies

15. Next Lecture
Pages
We move on to Chapter 14 on Voting and Representation
Elections and the Court
Bush v. Gore (2000)